Шмелев А.Н. 11_Summary of Ph.D_15.07.2018 (1139322), страница 4
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In order to resolve the problem situation that arose after the ConstitutionalCourt of the Russian Federation has actually recognized the presumption of thelegality of acts containing explanations of legislation and having quasi-regulatoryfeatures, it is proposed to provide a simplified instrument for verification of theinterpretative act for its compliance with regulatory legal acts of a higher level.18. In order to improve the instruments of judicial nullification, the followingmeasures are proposed:- supplement the list of administrative cases assigned to the jurisdiction of theSupreme Court of the Russian Federation, cases of challenging regulatory legal actsof authorities and organizations that are imposed by the federal law to execute publicfunctions; the list of administrative cases assigned to the jurisdiction of court of thelevel of the territorial subject of the Russian Federation; challenges on disputing thestatutes of municipalities and regulatory legal acts adopted by the population directly(on a local referendum (meeting of the citizens));13- unify the provisions of the AJC of the Russian Federation and the APC of theRussian Federation in determining the procedure for overcoming the legal irregularityin legal relations that may arise in connection with the court's recognition of aregulatory legal act that is ineffective fully or in part, while adopting the modelcontained in the APC of the Russian Federation;- in order to improve the judicial control over the legal content of actscontaining explanations of legislation and having regulatory features, a model isproposed where the court, at the stage of initiation of proceedings for challenging actcontaining explanations of legislation and having regulatory features, shouldindependently consider the issue of compliance of disputable act with the criteria thatallow recognize it as such act, this determines further way of claim: proceedings orrefusal to initiate trial, if the act has an advisory nature5;- supplement the grounds for reviewing court decisions on new and newlydiscovered circumstances in civil (arbitration) and administrative proceedings,including in their list "recognition of the law applied in an individual case by aconstitutional (statutory) court of a territorial subject of the Russian Federation asinconsistent with the constitution (statute) of a territorial subject of the RussianFederation in connection with the adoption of a decision by which the applicant hasapplied to a constitutional (statutory) court of a territorial subject of the RussianFederation".19.
In order to legitimize the nullification of the law in the jury trial, additionsare proposed to the Criminal Procedure Code of the Russian Federation on theclarification in the parting word of the presiding judge on the binding verdict of thejury for the presiding judge and the types of decisions that judge must make on thebasis of the verdict returned by the jury (including the obligation to render anacquittal in the case when the jury return a negative answer to at least one of the threemain questions that taken up to them in a mandatory manner).20.
In order to ensure the normative unity of explanations in judicial practicewith the letter and spirit of the law, and the correspondence of such explanations tothe Constitution of Russia, it is proposed to include decisions of the Plenum of theSupreme Court of the Russian Federation in the list of objects of constitutionalcontrol exercised by the Constitutional Court of the Russian Federation. 5At the same time, actions of public authorities and local self-government authorities, as well as theirofficials, based on legal positions set forth in acts of advisory nature, may be challenged in the mannerprovided for challenging decisions, actions (inaction) of public authorities and officials (Section 22 of theAJC of the Russian Federation and Section 24 of the APC of the Russian Federation).
A draft of thecorresponding amendments is proposed.14Summary of the study by chapters.The first chapter “Normative legal act as an object of contestation in thenullification procedures” contains, as its basic premise, evaluation of the doctrinalpositions of the legal theory concerning distinctions between the concepts of “formof law” and “source of law” – within the paradigm of theoretical and practicalaspects of contestability of normative legal act, inter alia, we demonstrate practicalsignificance of the aforementioned concepts for our study.Meanwhile, the author postulates, that normative legal act is one of the formsof consolidation (objectification) of legal norms, i.e. is a form of law, which, in itsturn, has different lawmaking factors as its sources.
Development of the doctrinalviewpoints on distinctions between the concepts of “form of law” and “source oflaw” is practically relevant for the improvement of means of control over legalprovisions and their limits.On the basis of the aforesaid, we show, that identification of properties of thenormative legal act together with sources of law (lawmaking factors), taken as basisfor adoption of the acts, has a deep significance for adoption of judicial and nonjudicial nullification procedures and their legislative improvement.Next, we analyze modern trends of the development of legislative system inthe Russian Federation and their impact on making normative control effective;we single out normative legal acts, procedures for contestation of which isprovided by the acting procedural legislation, together with normative legal andquasinormative acts, contestation of which either has features that lack legalregulation or is not formally provisioned by the law.The study acknowledges that legislative system in the Russian Federation isoff-balance due to the: (1) existence of a vast scope of forms of law (official andunofficial), through which state and municipal authorities or other bodies, on whichthe law confers performance of the public functions, exercise normative orquasinormative regulation; (2) policies of the state agencies, who unilaterally definetheir powers to issue such acts that affect rights, liberties and duties of the citizens;(3) acknowledgement by the Constitutional Court of the Russian Federation of theadmissibility of contestation of the acts, containing interpretation of laws andpossessing normative qualities (resolution No 6-P dated March, 2015) whileresolution on this case does not instruct the federal legislator to adopt criteria forpermissibility of such norm-making.The author considers, that under the aforementioned conditions, the system ofcontrol over norm-making activities of the executive branch, having its framework inthe acts of the President of the Russian Federation, Government and Ministry ofJustice on enactment and registration of the sublegal acts, has proven to be unable toprevent public authorities from unduly loose interpretation of laws and attempts to15correct them, circumventing ordinary parliamentary and administrative procedures.This allows us to conclude, that it is necessary to develop mechanisms of judicialnullification of normative legal acts and, respectively, supports relevance of thestudy’s topic in order to implement principles of the rule of law in Russia.The second chapter “Nullification of normative legal act as an inter-branchlegal institute” deals with the essence and origins of the inter-branch institute ofnullification together with the sub-institutes of parliamentary, administrative andjudicial nullification distinguished inside this institute.Justifying the use of the Latin term “nullification6” in the professionalvocabulary of the modern Russian language to denote actions aimed at removingsome element from the system in the natural, technical and humanity sciences, theauthors also shows interdisciplinary (universal) nature of nullification.We show that, in the absence of comprehensive studies on the legal institute ofnullification in the Russian legal science, its certain aspects have been examined inthe legal doctrine of international public law, constitutional law, procedural law7,which also proves inter-branch legal nature of the nullification of normative legalacts.Furthermore, legal phenomenon of the nullification of normative legal actmanifests itself in the legal system as result of different nullification mechanisms, andthe powers to perform nullification, relevant subjects, procedures and consequencesof nullification differ according to a variety of factors.
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