Шмелев А.Н. 11_Summary of Ph.D_15.07.2018 (1139322), страница 3
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Classification of the legal institute of nullification of a regulatory legal act isoffered according to the following criteria:1) sub-institutions of parliamentary, administrative and judicial nullificationare distinguished for subjects authorized to take a decision on nullification.In turn, judicial nullification is delineated by sector profile: it is exercised inconstitutional law; civil procedural and arbitration procedural law; administrativeprocedural law; criminal and criminal procedural law;2) by nature of the instruments of regulatory control in the current legislation,as well as the effect on stability of the legal system, such types as ordinary andextraordinary nullification are delineated;3) depending on the legal possibilities of the subsequent multiplication of thedecision on nullification with respect to similar legal relationships, separation of thenullification into two forms (abstract, casual) is substantiated;4) by nature and extent of the consequences of the implementation of thenullification act (exclusion/preservation of the act (norm) in the legislation system),the following nullification is delineated:a) De jure et de facto1 is "classical nullification" (loss of legal force by legalnorm);b) Non de jure sed de facto derogat2 is "shortened (deferred) nullification":recognition of the legal norm (regulatory legal act) as invalid;c) Non de jure sed de facto derogat in causa3 - "individual" or "beacon"nullification is a nullification meaning de facto refusal to apply the legal norm(regulatory legal act) in an individual case (ad hoc), without losing legal force by thenorm or recognition of the norm as invalid.5.
Nullification is one of the elements of power limiting and self-limiting, andtherefore represents a political and legal phenomenon. This legal institution acts as aneffective instrument to ensure counteraction to the natural (constitutive) aspiration ofany authority to extend power. Nature of the nullification of regulatory legal acts inRussia derives from the functions of controlling over the legal content of legislation,implemented in the system of separation of powers.6.
Nullification procedures and, accordingly, nullification of the regulatorylegal act serve for the following:a) ensuring the legal content of the statutory regulation; 1De jure et de facto (Latin) is de jure and de facto (legally and actually).2Non de jure sed de facto derogat (Latin) is not a legal cancellation, but actual cancellation.3Non de jure sed de facto derogat in causa (Latin) is not a legal cancellation, but actual cancellationin the case (trial).10b) overcoming the conflicts that exist between public authorities that providestatutory regulation, and preventing occurrence of such conflicts;c) exclusion of conflicting (collision) legal regulation in the legislation system;d) reduction (in the future) the field of disputes over the content of legal norms.7. Nullification of regulatory legal acts is carried out by means of a number ofnullification procedures (nullification processes) provided for by law or not forbiddenby law.8.
The basis of judicial nullification arises from the provision of Article 120 ofthe Constitution of Russia and consists in the duty of the court to verify the applicableright to its compliance with general legal principles, which follows from the idea ofthe rule of law.9. The fundamental role of judicial nullification in the intersectoral institute ofthe nullification of regulatory legal acts is determined by the universality of thejudicial nullification processes that result from the control functions of the judicialauthorities and their exclusive powers in the final resolution of legal disputes.10. For the purposes of the conducted research, and in view of the absence ofthe generally accepted distinction between the concepts of "source of law" and "formof law" in the Russian legal science, the author of the thesis proposed to recognize asthe sources of law the lawmaking factors, which include: (1) legal traditions of thesociety; (2) universally recognized human values (the universality of which does notdepend on national or ethnic customs and traditions); (3) views on the role of aperson within the framework of state and public order; (4) emerging (actual) socialrelations; (5) representations on social justice and the common good; (6) prevailingprofessional and everyday sense of justice in society; (7) dominant systems ofreligious views (or secular views), etc.
Accordingly, the concept of "form of law" isdefined as a source of determination (objectification) of legal norms.Thus, the nullification object is the legal norms, determined in regulatory legalacts that are recognized in Russia as official forms of law, as well as in actuallyapplied acts of a quasi-regulatory nature. At the same time, sources of law(lawmaking factors) are the criteria for verification of regulatory legal acts in thenullification instruments4.11. Current regulatory regulation, adopted by the Government of the RussianFederation and the Ministry of Justice of Russia in the late 90s of XX century,contained a sufficient set of measures (necessary instruments) to prevent the issuebye-laws with a deformed legal nature (including violation of the procedure foradoption or in forms not provided for by legislation) by federal public authorities.Mentioned regulation and court practice formed before the adoption of the decisionNo.
6-P dated March 31, 2015 by the Constitutional Court of the Russian Federation 4Except for the extraordinary instruments of administrative nullification.11met the tasks of improving the instruments ensuring the counteraction to arbitrarylawmaking of public authorities and overcoming the unsystematic and contradictorynature of the current legislation.However, in general, the goal to overcome the destructive processes in thisfield, which consist in spreading the practice of adopting acts with violation ofprocedure, issuing acts of recommendatory nature without indicating theirrecommendatory nature, and in the independent determination by a number ofauthorities of regulatory power affecting the rights, freedoms and duties of citizens,has not been achieved.
Legislative policy and lawmaking practices developed overthe past two decades, as well as the decision of the Constitutional Court of theRussian Federation No. 6-P dated March 31, 2015 on recognition as nullificationobjects of acts containing explanations of legislation and having regulatory features,and subsequent reform of the procedural legislation in that terms led to the actualreorganization of the system of the country's legislation and a reduction in thesignificance of the law adopted in the detailed parliamentary procedure.12.
In the absence of a single regulatory act on the legislation system and thedisunity of the norms on procedure for the adoption, registration and publication ofregulatory legal acts, there is an independent expansion by some public authorities oftheir own competence for statutory regulation. Such state of affairs was ascertainedin the AJC of the Russian Federation: regulatory legal acts of the GeneralProsecutor's Office of the Russian Federation, the Judicial Department at theSupreme Court of the Russian Federation, the Investigative Committee of the RussianFederation, the Bank of Russia, etc., were referred to the objects of judicial controland nullification.
However, in some cases, special laws on these public authorities donot contain corespondent norms authorizing them to exercise regulatory poweraffecting the rights, freedoms and duties of citizens.This may result in further aspiration of the federal public authorities toindependently expand their competence in the field of lawmaking activities, which inturn will lead to an increase in cases of violation of the rights and legitimate interestsof citizens and their associations. Accordingly, this expands the objective necessity toimprove the nullification procedures.13.
Proceeding from the goal of restricting the lawmaking that is not permittedby the legislator, in the work it is proposed to adopt federal regulatory legal acts atthe level of the law on general principles of organization of the legislation systems ofthe Russian Federation, legislation of the territorial subject of the Russian Federationand regulatory acts of local self-government authorities.14. In order to strengthen federative relations and create conditions for theprogressive development of legal and political systems, it is proposed to foresee theinterconnection of procedures of the sub-institution of parliamentary nullification at12the level of the territorial subject of the Russian Federation and judicial nullificationwith regard to the federal regulatory legal act nullified at the regional level: to amendthe legislation in terms of establishing the order of suspension in cases provided bylaw, of validity in the territory of a territorial subject of the Russian Federation of theprovisions of the federal regulatory legal act and the introduction of the correlatingpublic authorities of the territorial subject of the Russian Federation to send to thecompetent court a request for compliance of the federal law, by-law regulatory legalact or their separate provisions under dispute, with the Constitution of the RussianFederation, federal law, treaty on the delimitation of jurisdiction and powers.15.
In order to ensure the stability of the constitutional legal regime,clarification is suggested for the procedure for the implementation by the President ofthe Russian Federation of the instrument for the nullification of acts of theGovernment of Russia stipulated by the federal constitution and the introduction ofadditional instruments for judicial and parliamentary control over such a decision inthe form of correlative procedures for parliamentary and judicial nullification. Draftsof corresponding amendments to the Constitution of the Russian Federation havebeen developed.16. Proceeding from the necessity to provide adequate guarantees for thedelimitation of power between the Federation and the territorial subjects of theFederation, a regulation is proposed in the legislation of the nullification procedurefor suspending the act of the highest official of the territorial subject of the Federationby the President of Russia, including his obligation to appeal to the competent courtfor the purposes of judicial regulatory control over the act suspended by him in theadministrative order.17.
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