Шмелев А.Н. 11_Summary of Ph.D_15.07.2018 (1139322), страница 2
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Proceeding from the task of analyzing the entire interdisciplinaryinstitute of nullification, whole object of the research is the entire set of nullificationinstruments that are accepted by the legislator and law enforcement practice, and takeplace in the Russian legal system.The purpose and objectives of dissertation research.The purpose of the dissertation research is the theoretical substantiation of thefundamental significance of the sub-institute and the mechanisms of judicialnullification represented in all types of legal proceedings, in the structure of theintersectoral legal institute of the nullification of the normative legal act, its deepcorrespondence to the principles of the rule of law and the fundamental foundationsof democracy; development of applied proposals for improving the mechanisms ofjudicial, parliamentary and administrative nullification in the modern legal system ofthe Russian Federation.Objectives of the research:1) Study of the distinction between the concepts of "source of law" and "formof law" in order to determine the object of nullification and the reasons (grounds) forits implementation;2) Identification of the properties of the regulatory legal act recognized as suchin the legal doctrine, in federal and regional legislation, in the jurisprudence ofsuperior courts, in the legislation of the countries of the near abroad having similarlegal traditions with Russia, and on the basis of their system analysis to delineate theregulatory legal act (nullification object) from other acts having regulatory properties;3) Analysis of the legislation system of the Russian Federation for itscompliance with the principle of legal certainty, as well as the activities of subjects oflawmaking from the point of view of their powers to issue regulatory legal actsaffecting the human and civil rights, freedoms and duties;4) Identification of the grounds (criteria) for verifying acts duringimplementation of nullification through its various instruments;5) Delineation of the instruments of judicial regulatory control applied inrelation to the forms of law (regulatory legal acts) and other forms of law other than6regulatory legal acts, established by legislation but affecting the definition of rights,rights, freedoms and duties of subjects of legal relations ("interpretative acts");6) Analysis of the interconnection of sub-institutions of the intersectoralinstitute of nullification;7) Supplementation of the conceptual apparatus in the considered field of legalknowledge with a system of definitions with refined content;8) Development of proposals on improving the nullification instruments, aswell as on the necessary filling of the gaps in the current legislation in the field underconsideration.Scientific novelty of thesis research.This is the first time when an attempt was made to substantiate theindependence of an integrated intersectional legal institution, which includesinterconnected instruments (sub-institutions) of parliamentary, administrative andjudicial nullification (judicial nullification has a central role in this institution), on thebasis of interdisciplinary approach (approach applied not only in the field of law) andintersectoral legal approach.Through system analysis, the thesis demonstrates deformation of the system ofnational legislation, which is expressed in an independent definition or expansion bysome public authorities, as well as authorities and organizations imposed by law toexercise public functions, of their own powers in the field of quasi-regulatorydetermination of the limits of human and civil rights, freedoms and duties.
Inaddition, attention is drawn to the fact that deformation is an obvious consequence ofthe strengthening in the practice of issuing by public authorities the "interpretativeacts" containing explanations of legislation and often deprecating the objectives oflegal regulation that the legislator relied upon when it was adopted.Necessity for the development of an intersectoral legal institute of nullification,which ensures reorganization of the legal system from regulatory legal acts withdeformed legal nature and is one of the key elements of the system of checks andbalances in the rule of law state, is substantiated.With a view of developing instruments of judicial regulatory control andstrengthening their interrelation with other instruments of nullification, ensuring thestability of constitutional elements of "checks and balances" in the system of statepower, strengthening federal relations, creating a consistent system of statutoryregulation and preventing public authorities and other lawmaking subjects fromcreating arbitrary determination of their terms of reference for quasi-regulatoryregulation affecting rights, freedoms and duties of humans and and their associations,the author suggests adopting federal regulatory legal acts at the law level: on thegeneral principles of the organization of the legislation system of the Russian7Federation and the legislation system of the territorial subjects of the Federation.
Alsodraft amendments to the Constitution of the Russian Federation, a set of federalconstitutional laws and federal laws aimed at the practical implementation oftheoretical proposals presented in the research on improving judicial regulatorycontrol instruments have been prepared.Theoretical significance of the research is determined by the fact that theauthor developed the theoretical concept of the institute of nullification of theregulatory legal act, substantiated its intersectoral nature, developed proposals for thedevelopment of the conceptual apparatus and gave the author's classification of thecomponents of the legal institute of nullification, which is performed for the first timein the domestic legal science.Breadth of the scope of the thesis research, where nature of the regulatory legalact is considered, along with the problematics of regulatory control, development ofthe legislation system in the Russian Federation and other features of the legal systemobjectively determining the development of the nullification institute, based on thetheory and history of the state and law of Russia and foreign countries, administrativeand constitutional law, has provided the possibility of substantiating a set oftheoretical proposals, specifying and complementing scientific ideas in the fieldunder consideration.Comparison of the doctrinal positions of legal experts on the subject ofresearch with legislative and law enforcement practice made it possible to identify aset of problems that are problematic for the legal system and revealed in connectionwith the consequences of the nullification of a regulatory legal act in various types oflegal proceedings, which has not been previously considered in works dedicated tojudicial regulatory control.Practical significance of the research.
Conclusions, suggestions andrecommendations prepared during the research can be applied in the lawmaking andlaw enforcement practice of the Russian Federation, including not only judicial, butalso law enforcement activities on implementation of the supervisory functions of thepublic prosecutor's office and departmental control by the Ministry of Justice.At the same time, results of the thesis research can be applied in highereducation programs, in professional development programs; for the preparation ofcurricula on the theory of state and law, domestic and foreign constitutional law, civiland arbitration procedural law, administrative procedural law, and criminalprocedural law; when developing specialized courses and study guide on the topic; inresearch activities during further development of the institute of the nullification of aregulatory legal act, and in related fields of jurisprudence.8The main issues to be considered during thesis defense.1.
Nullification is an interdisciplinary scientific concept. At the same time, inthe field of law, essence of the phenomenon of nullification consists in thetermination of the legal norm (cancellation of the norm or refusal to apply it) or theaggregation of legal norms objectified and fixed in various forms of law: in aregulatory legal act (the level of law and by-law) in the law enforcement (individual)act.2.
Phenomenon of the nullification of a regulatory legal act is revealed in thelegal system as a result of various instruments. At the same time, the powers toimplement the nullification, its proper subjects, procedures (instruments), and theconsequences of nullification differ depending on a number of factors, including: theform of law where the nullified norm is fixed; the sector profile of legal regulation;the presence or absence of substantive and (or) procedural law indicating the properprocedure for the implementation of nullification in these norms.3. The following additions to the system of concepts of legal science onproblems of nullification of a regulatory legal act are proposed:Nullification of a regulatory legal act is the fact of the termination of thevalidity of a regulatory legal act (or its separate provisions) by a competent authoritythrough cancellation, recognition as invalid or suspension (abstract nullification), orcarried out by refusing to apply it to legal relations associated with the subject of itsregulation (casual nullification).Legal institute of the nullification of a regulatory legal act is aninterdisciplinary legal institution that includes a complex of parliamentary,administrative and judicial legal instruments (procedures) provided for by law or notforbidden by law, ensuring the termination of a regulatory legal act (or its separateprovisions).Judicial nullification of a regulatory legal act is a sub-institution of theinterdisciplinary institute for the nullification of a regulatory legal act, which includesa set of procedures for judicial control over the legal content of a regulatory legal act,and is fundamental in relation to other sub-institutions of nullification (parliamentaryand administrative).Nullification effect in the judicial system (in justice) is judicial nullification of aregulatory legal act (or its separate provisions), repeated throughout the country, or inits part within the framework of an individual regulatory control, and fixing theshortcomings of legal regulation.Nullification of the law in a court of jury is an act of refusal by the jury toconvict the defendant of an offence, in proper procedural order, despite the fact thatthe criminal act was actually committed by the defendant; this refusal is based onsuppositional legal and moral impulses.9Nullification effect in jury trial is the nullification of the law taking intoaccount the crimes with similar nature, repeated throughout the country, or in its part,in the courts where jury is involved.4.
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