Шмелев А.Н. 11_Summary of Ph.D_15.07.2018 (1139322), страница 5
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Such factors may include formof law, containing a norm undergoing nullification; branch of legal regulation andsignificance of specific relevant procedures of nullification, conditioned by it.Objects of nullification are forms of law legally acknowledged in the RussianFederation – normative legal acts (certain provisions of the normative legal acts) andother acts applied in practice, including acts, containing interpretation of laws andpossessing normative properties.We demonstrate complex structure of the nullification of normative legal act,emerging as a result of the combination of a number of juridical facts: juridical fact ofan empowered subject exercising activity to implement nullification procedure andjuridical fact of reaching a decision to declare a legal norm invalid (decision on itsnullity or on prohibition of its application, i.e.
on declaring it inoperative). We alsoshow, that consequences of nullification may consist of changes in the lawenforcement practice or possible application of the law-making authority itself for thecorrections of legal regulations of social relations in view of the legal positions(opinions), which emerged during the nullification procedure implementation. 6Nullification from lat.
“nullus” – “none” and “facere” – “to make”.7I.e., civil procedural law, including its arbitration form, administrative procedural law, criminal lawand procedure. 16We also propose an author’s classification of the legal institute of thenormative legal act nullification. In particular, inside parliamentary, administrativeand judicial nullification we distinguish nullification mechanisms of ordinary andextraordinary types, being separate sub-institutes of nullification.Analysis of the ordinary parliamentary nullification mechanismsdemonstrates existence of the specific features of their legal nature, which has to betaken into account to ensure their improvement. Namely, nullification within theframework of legislative (lawmaking) process, besides such inherent for allnullification procedures basis as lawmaking factors, also takes into account politicalfactor; and in the nullification procedures, as set in previously effective treatiesbetween the federal center and subjects of the Federation on the demarcation ofcompetences and powers, issue of the relevant subjects to initiate nullificationmechanism has not been addressed.Having said that, based on the essence of extraordinary parliamentarynullification it is difficult not to conclude on its intrinsic legal nature, based on theparliamentary control function and fundamental principles of the supremacy of lawand popular sovereignty.Meanwhile, resulting from the adoption by the subject of Federation of an acton nullification of the norms of federal legislation, procedure of extraordinaryparliamentary nullification demonstrates stable interrelation between parliamentaryand judicial sub-institutes of nullification – as having essential significance, as havebeen shown on the example of nullification, performed in 1995 by the State Duma ofStavropol Krai and its subsequent override by the Stavropol legislators through theappeal to the Constitutional Court of the Russian Federation.
Due to the currentabsence of an appropriate legal mechanism to overcome political and legal crisisemerging from such nullification, the author proposes his own model of legalframework for such mechanism of nullification.Discussion of the sub-institute of administrative nullification is preceded inthe study by analysis of the founding act of RSFSR and USSR, affirming traditionalfor Russia, since the establishment of the republican form of government, investmentof the executive branch with the powers to annul normative legal acts. Modernlegislative system of the Russian Federation, containing a vast institute ofadministrative nullification, follows tradition that emerged in the Soviet period,which is corroborated by the analyzed ordinary and extraordinary mechanisms ofadministrative nullification.Based on the nature of certain powers of the President of the RussianFederation on performing administrative nullification of legal acts of the Governmentof Russia, we argue necessity to reform procedures of exercising such powers inorder to delineate them and to ensure mutual control between the branches of power.17The most important tendency of the development of nullification institute isdefined by the acknowledgement in the aforementioned resolution of theConstitutional Court of the Russian Federation No 6-P dated March 31, 2015 of theacts, containing interpretation of laws and possessing normative qualities, as anobject of nullification, and subsequent reforms of the procedural legislation in thisrespect.
The author points out that a legal position, chosen by the ConstitutionalCourt of the Russian Federation, has led to the final acknowledgement of the “agencylegislation” in the Russian Federation, in spite of the often contradicting and (or)illegal positions on the effective legislation contained in them. Practically, resolutionhas introduced presumption of legality of such acts and, corresponding, bindingnature of their implementation by the subjects of legal relations unless such acts arecontested under the established procedure.Examination of the sub-institute of judicial nullification is preceded by theexamination of periodization of the normative control development using thehistoriographical approach, based, among other things, on the cardinal changes ofpolitical and legal regimes in Russia.Mechanisms of judicial nullifications are graded according to the branches oflaw.
We underscore their ordinary nature in all types of judicial proceedings,excluding one extraordinary procedure in the criminal proceeding – nullification oflaw in the jury trial.Procedures of judicial nullification are distinguished according to theconsequences of their performance (declaration) for the annulled norm itself.The author concludes that judicial nullification of the normative legal act is acrucial sub-institute of nullification from the point of view of implementation of therule-of-law principles, including effective protection and restoration of rights,liberties and legal interests of the subjects of legal relations. At the same time,judicial procedure of nullification by bearing witness, on the one hand, to the lawmaking process resulting in promulgation of defective norms, leading to theinfringement upon the given rights, attests, on the other hand, to the efficiency of thelegal system’s means to rectify itself.We postulate, that nature of the nullification of normative legal acts isconditioned upon the functions of control over the contents of legislation, its legalmatter, its translation (development) of the provisions of the Constitution of theRussian Federation as a social contract and international conventional acts on thehuman rights and liberties protection, ratified by Russia.The author points out that examination of parliamentary, administrative andjudicial normative control as an inter-branch legal institute stems from the unity oflaw enforcement goals of nullification, stability of constitutional regime, legal andpolitical stability, which are supported exactly by monitoring of the norms of18effective legislation on accordance with the universally accepted by the democraticsociety legal principles and goals of legal development.Meanwhile, the author emphasizes that legal principles and goals of legaldevelopment in the democratic society do not represent exhaustive set of tools, usedby the subject of nullification procedure to monitor the norms.
Full set of toolsconsists of all sources of law (law-making factors8) in the national legal system,generating objectification of law in the forms of normative legal acts.Correspondingly, nullification of normative legal act is based on suprapositive legal,moral, ethical and political foundations. Distortion of the form of law and emergenceof the deformed forms of law (normative legal act) in the legislative system, in theirturn, may serve as an impulse for nullification.The third chapter of the thesis – “Judiciary nullification of normative legalact” deals with the analysis of its general and particular features in differenttypes of judicial proceedings.Jurisdictional activities of the Constitutional Court of the Russian Federationand constitutional (statutory) courts of subjects of the Russian Federation as amechanism of the nullification of normative legal acts of the higher level, areexamined as having crucial significance in relation to the parliamentary andadministrative nullification, procedures and legal consequences of which can bereviewed under general judicial procedures.As law enforcement activities of the whole judicial system fall into the purviewof the constitutional justice, decisions of the federal and regional constitutional(statutory) courts in the procedure of normative control should, by definition,establish law-enforcement practices and corrections to the legislative policies.The study systematizes a number of crucial legal positions of the ConstitutionalCourt of the Russian Federation, defining features of the sub-institute of judicialnullification, including the following (1) that contestation of normative legal acts isincluded within the normative matter of the constitutional right to judicial protection;(2) that “classical” nullification (“de jure et de facto”) is performed in the 8On the debating point of the theory of law on distinguishing between the concepts of “source” and“form” of law, the author has chosen an approach, according to which lawmaking factors (sources of law)include: (1) legal traditions of the society; (2) universally accepted human values (universality of which doesnot depend on national or ethnic customs and traditions); (3) views on the place of a person in the frameworkof state and public institutions; (4) emerging (factual) social relations; (5) ideas of social justice and commongood; (6) professional and common legal consciousness, dominating in the society; (7) dominating systemsof religious or secular views etc.
See proposition No 10, submitted for the defense.We presume that mentioned in the non-exhaustive list above lawmaking factors, objectified from thevast sphere of natural, humanity and social ontological bases of the existence of human and society, formfundamental natural principles of law, i.e. its sources. Consequently, such sources acquire universallyaccepted nature and find their expression in the international conventional and national constitutional acts oracquire acceptance even without being reduced to the written legal acts.
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