Шмелев А.Н. 11_Summary of Ph.D_15.07.2018 (1139322), страница 6
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As a prototype of law anduniversally accepted measure of justice, they act as a set of tools to monitor derivative legal norms,regulating social relations.19constitutional justice, distinguishing this mechanism from other types of judicialnullification; (3) that removal of laws from the legal system on the grounds of theirunconstitutionality is not permissible under procedures of regular courts and courts ofarbitration.The author emphasizes specific feature of the application of tools to monitornorm in the constitutional proceedings: previously reached legal positions of theConstitutional Court of the Russian Federation and positions of ECHR oninterpretation of conventional acts are applied in their dynamics.We identify a tendency in development of nullification in constitutionalproceedings for the Constitutional Court to proclaim norms themselvesunconstitutional less frequently, and to more often disqualify unconstitutionalunderstanding of the matter of norms, either existing in the law-enforcementpractices, or potentially possible in the future.Analysis of the legal framework for the activities of constitutional (statutory)courts in subjects of the Federation confirms lack of alignment between nullificationmechanisms applied by them, e.g., concerning legal consequences of nullification forthe disqualified norm (whether it is excluded from or remains in the legislativesystem).Concerning procedures of regional constitutional (statutory) courts, issues ofprejudice of their decisions also lack regulation: grounds for the retrial due to the newfacts, according to the effective procedural legislation, do not include legal act,applied in the particular case, being proclaimed to contravene constitution (statute) ofa subject of the Federation by the decision sought after by the applicant from theconstitutional (statutory) court.Issues of jurisdiction of the disputes on conformity of normative legal acts of asubject of the Federation with constitution (statute) of a subject of the Federation incase if a region does not have a constitutional (statutory) court also lack solution, asalso does a connected issue of the consequences of nullification with regard to theprocedure of removal of the deformed act or their certain provisions from thelegislative system (“de jure et de facto” or “non de jure sed de facto derogare”).To overcome these gaps we propose drafts to amend effective federalnormative legal acts.To analyze essence (composition) of the judicial nullification of normativelegal act on the branches of administrative and civil (arbitral) procedure, aimed atprotection of both private and public interests, we examined in detail nullificationmechanisms, performed in the procedures of normative control, as stipulated by theCodes of Administrative Court Procedure and Arbitration Procedure.Concerning such consequences of act nullification as retaining it in thelegislative system while proclaiming it inoperative, the study shows, that normative20legal act after being proclaimed inoperative, until it is repealed, is a “deposed” act,i.e.
an act (legal provision) with the deformed, as author considers, legal nature,which is supported by the legal position of the Constitutional Court of the RussianFederation. While definition of the concept of “inoperative normative legal act” isabsent from the legislation of the Russian Federation, which attests to a certain gap intheory and lawmaking, it does not create grounds to dispute author’s conclusion, thatnon-exclusion of the nullified normative legal acts from the legislative system maylead to contradictory law enforcement practices.Meanwhile, Code of Administrative Court Procedure and Code of ArbitrationProcedure differ in defining procedures to overcome lack of legal regulation of thelegal relations, which may arise due to the court proclaiming a normative legal actinoperative. The study proposes to align provisions of Code of Administrative CourtProcedure and Code of Arbitration Procedure based on the model, stipulated by theCode of Arbitration Procedure.Further, the author reveals issues of contestation in judicial proceedings of anormative legal act that by the time of application to the court has becomeinoperative upon decision of a norm-making authority.
Federal legislator and Plenumof the Supreme Court of the Russian Federation hold a position, according to whichsuch legal acts may be a subject to the judicial contestation, that, at the time of theircontestation in judicial procedure or consideration on the merits of the claims, areeffective and cause violation of civil rights and liberties, which, consequently,requires judicial suppression. However, such position contravenes the position of theConstitutional Court of the Russian Federation, according to which cessation of theproceedings on the case on the grounds that a contested normative legal act hasbecome inoperative is only possible if it doesn’t have right-violating consequencesfor the claimant, which, in the opinion of the author, suggests necessity for theadministrative claimant to agree to the cessation on these grounds and, respectively,calls for amendments to the Code of Administrative Court Procedure.
We alsopropose to exclude from the Code of Administrative Court Procedure a provision,according to which it is possible to refuse to receive complaint on the grounds, that itcannot be inferred from it that the contested act violates or otherwise affects rights,liberties and legal interests of the claimant, which contravenes the position of theConstitutional Court of the Russian Federation.The study examines, as a particular aspect of normative control, issues of thecontestation of acts, containing interpretation of laws and possessing normativequalities.
We also analyze prejudicial significance of resolutions of the Plenums ofthe Supreme Court of the Russian Federation and of the Supreme Court of Arbitrationof the Russian Federation as a moving force for the nullification processes of the “lexsuperior derogat inferiori” type.21The study also deals with specifics of nullification of law in the criminalproceedings with the jury trial, which represents the only extraordinary procedureof the sub-institute of judicial nullification. We distinguish certain aspects of the legalnature of this type of judicial nullification; examine its particular features, lying in therefusal by the jury to find a defendant guilty and, therefore their willingness not toallow applying to him/her norms of criminal law, based on suprapositive legal, moral,ethical and (or) political motives. We establish that nullification in the trial by jurydoes not contravene legal order, existing in Russia, which is supported by theSupreme Court of the Russian Federation.Sociological study, conducted by the author, consisting of the interviewing ofpotential jurors and judges of the federal general courts, allows us to conclude, that inadministering justice in the trial by jury constituting reasons of nullification of lawsare lawmaking factors (sources of law)9.
Based on the obtained results, we proposeamendment to the Code of Criminal Procedure on explaining the jurors obligatorynature of their verdict for the presiding judge and possible types of decisions, takenby the presiding judge based on their verdict (without directly pointing to thepossibility of nullification of law to prevent possible abuse of a right in this case).In the conclusion we establish brief theoretical and practical inferences andproposals for the improvement of legislation.The annexes contain tables, explaining mechanisms of nullification,composing sub-institutes of the inter-branch institute of nullification of the normativelegal act; essence (composition) of the mechanisms of nullification of the normativelegal act; drafts of amendments to a number of federal normative legal acts(according to the proposals set out in the thesis); data of the sociological study(questionnaires, diagrams with the results of an interview and tables, containingresponses to the open questions).List of publications of the author of the thesis, reflecting the mainscientific results of the thesis: 9Resulting from the analysis of the data obtained in the sociological study, we confirmed a numberof hypotheses, namely (1) the level of citizens’ confidence in the Russian judicial system tends to lower; (2)majority of the citizens has a positive attitude towards the restoration of trial by jury in 1993, while majorityof the judges has a negative one; (3) jurors look to the opinion of the professional judge (try to understand it),while deciding on the guilt of the defendant; the jurors believe the professional judge; 4) the Russian publicjustice is accusation-oriented; 5) federal judges are not eager to admit the existence of destructive processesin the Russian judicial system; 6) nullification in trial by jury processes actually takes place within in theRussian public justice.The following hypotheses were not confirmed: 1) federal judges treat jurors as allies andsubordinates, with general negative stance towards juror’ institute; 2) jurors treat the defendants with moreclemency, than federal judges.22Articles published in the leading magazines and literature under review, shownin the list of the Higher Attestation Commission under the Ministry of Education andScience of the Russian Federation:1.
Shmelyov, A.N., Osporimost' pravovogo akta kak faktor formirovaniyaneprotivorechivoy sistemy zakonodatel'stva v Rossiyskoy Federatsii [Voidability of alegal act as a factor in the formation of a consistent system of legislation in theRussian Federation] // Rossiyskiy sud'ya [The Russian Judge]. 2015. No. 10. Pp. 1014. - 0.62 p.s.2. Shmelyov, A.N., Nullifikatsiya normativnogo pravovogo akta kakmezhotraslevoy pravovoy institut, obespechivayushchiy povysheniye standartapravovoy zashchity [Nullification of a regulatory legal act as an intersectoral legalinstitute providing an increase in the standard of legal protection] // Yuridicheskiymir [Juridical world].
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