International precedent. Judgments and judicial precedent as sources of international law. Using judicial precedent as a source in continental European countries
In England, decisions by the House of Lords are binding on itself and on all other courts; decisions made by the Court of Appeal are binding on all courts except the House of Lords; decisions made by the High Court of Justice are binding on lower courts. The judicial precedent contains a special element - the ratio decidendi (the essence of the decision), which is further used by the courts when deciding cases of a similar nature. Ratio decidendi is defined by the English authors as "a legal regulation applicable to legal questions arising in connection with the facts established by the court on which the decision is based."
Judicial precedent under Anglo-American law can be rejected either by law or by a higher court. The power of a precedent does not disappear over time, unless it is wrong or contradicts reality.
Known modern decisions of the courts, adopted on the basis of the precedents of the period of feudalism. At the same time, it is not at all necessary to follow the volume of the rule of conduct created by the precedent, which is the basis of the first court decision.
For example, if it comes on the civil liability of the manufacturer of the goods for harm caused to the consumer in the current conditions (product liability), the decision in the Donogue case will most likely be applied, the essence of which was that the improper quality of the drink produced by the manufacturer led to the buyer's illness. In this case, the actual events and circumstances that were the basis of the decision that form a precedent will be ignored, and it is the formulation of the provision that “the manufacturer of the ginger drink is responsible to the Scotsman who bought the drink in a bottle of dark glass in such and such a place. etc. ”, which was discussed initially. Ratio decidendi and therefore precedent will be that “the manufacturer of products sent to a retail purchaser in the packaging in which they are produced and which excludes the possibility of interim inspection if he knows that, in the absence of due care in the manufacture and dispatch of goods, health the buyer may be harmed, must exercise reasonable care of the buyer. "
In light of this, the above precedent will also be applied in cases where subjects belonging to different states are involved, if this case is considered by an English court or if it is necessary to apply to the resolution of the dispute. substantive law England.
In the states of continental Europe - France, Belgium, Germany (countries of "civil law") - the precedent is important for solving issues of law enforcement order, supplementing positive law by filling gaps in the law, recognizing custom, interpreting the law, etc.
As noted earlier, in training courses among the sources of international private law of a domestic nature, in addition to the law, is also called arbitrage practice... V this case it is advisable to emphasize that not only for countries that are characterized by appropriate legal traditions and culture, i.e. have among the sources of national law such a form as judicial precedent, but also for other states that use the named variety of sources of law as a subsidiary means of legal regulation, an adequate form of expression legal norms, i.e. source of law in formal sense, it is not judicial practice that acts, but a judicial precedent.
The quality of judicial practice is to be a source of law in an objective manner, i.e. material, sense, is by no means denied, since it is in the process of the courts in the course of the proceedings of civil cases that the rules of law are clarified and sometimes created again (subject to the appropriate conditions). It is judicial practice itself that is a part of the existing state-legal system and legal order of a particular country and, therefore, should be attributed to the sources of law in the material sense, as well as the general objective conditions of life of a given society. The source of the law in formal legally it is necessary to consider judicial precedent - a specific form of expression of the rule of law, which receives due approval from the state and is provided with guarantees of compliance.
Judicial practice in the above sense should not be underestimated as a result of generalization of individual court decisions in order to identify general patterns of operation of a particular rule of law or provision of a contract, as well as to take into account individual factors opposing the proper regulatory impact on an object, to determine with its help the desired development of a particular rule or set of rules - legal institutions... But at the same time, it is indisputable that the combination of signs of sources of law - the three previously formulated elements - are found not in judicial practice, but in a specific, individualized precedent. The established expression "judicial practice is a source of law", if it can be accepted, then as a conditional formula for combining two legal concepts: a source of law in an objective sense and a source of law in a formal sense.
The entry of this expression into legal use should, I think, be associated first of all
with continental doctrine. No wonder the concept of separation of sources of international
private law on species represented, for example, by the oldest French researchers,
characterized by such a wide variety, which is largely achieved by
due to mixing and non-differentiation of sources of law in formal and objective 112
For the Anglo-Saxon legal system, the statement “judicial practice is a source of law” by its very nature seems unnatural. In this case, the very basis of the precedent in the "common law" - the doctrine of "stare decisis", loses its meaning. In addition, if we accept as true the position that the source of law is judicial practice, then in relation to Anglo-Saxon case law, the difference existing here between judicial decisions that have a “persuading” or “binding” effect, between precedents in the proper sense and just by court decisions. Finally, the theory of “single jurisdiction” in the United States would also be groundless, since all jurisprudence would have to constitute a source of law.
Domestic authorities in the field of the theory of law, who were engaged in the study of this problem, unequivocally define judicial practice as a result judicial activity, “The results of the interpretation of the norms of law in the process of their application by the court in resolving specific cases” 114. Despite the fact that this statement was made on the basis of an analysis of Soviet judicial practice - the USSR and the union republics, it correctly reflects the essence of judicial practice in general. Let us emphasize: it is judicial practice, not judicial precedent. Due to this, it is natural that a phenomenon understood in this way cannot be qualified by a source of law, since judicial practice is law enforcement, the result (or a set of results) of the interpretation of norms, while the source of law is the result of lawmaking. This, therefore, can only be a judicial decision - a precedent in the presence of certain signs and circumstances of a constitutive order.
An important question in this regard is the following: is there a place in the composition of Russian private international law (and in general private law of Russia) for a court decision as a source of law? From a superficial point of view, a negative answer suggests itself. At the same time, a retrospective look at the stages legal development Russia, analysis of the qualitative parameters currently available in the arsenal legal means sources of law, finally, an assessment through the prism of this present and predictable legal reality Of the Russian state allow you to critically reflect on the current state of funds legal impact on the relationship in question and come to slightly different judgments. In this regard, the core problem is the adequacy of the existing sources of law to the results and goals of regulation.
The main argument of the opponents of the recognition of the court decision, in particular the decisions of the plenums The Supreme Court and the Supreme Arbitration Court, both earlier, in the conditions of the Soviet Union, and now - Russian Federation, as a source of law is reduced to the fact that the court does not create law, but only follows it, i.e. applies the law. 115 At the same time, it should be noted that a similar position characterizes the situation in the Anglo-Saxon countries - "classical" in terms of case law. It also argues that the judge, when formulating a precedent, does not create new norms, but only "extracts" them from the depths of natural law. Consequently, in this case, when creating a court decision (precedent), there is no indicated contradiction, since ab initio is not talking about lawmaking in the proper sense.
A fundamental consideration in the formulation of this problem is that today, with an avalanche-like increase in the volume of lawmaking, i.e. the adoption of acts in the rank of law, the true guidelines for the regulation of public relations with the help of law remain unattained. At the same time, a whole layer operating with elements that scientists refer to “as historically accumulated values of social and legal culture»116, remains outside the legal framework of the Russian Federation. In construction new system private law, namely about this approach, I think, it is necessary in the current circumstances to talk about the so-called non-traditional sources of law in the legal order of the Russian Federation, which is
114 See: Judicial practice in the Soviet legal system / Otv. ed. S.N. Bratus M., 1975.
115 The statements of R. David are characteristic in this sense, which create a contradictory picture in assessing the position of the latter in relation to a court decision as a source of legal norms: “the norm created by the legislator is nothing more than a core around which secondary legal norms revolve ... when the actual situation seems to be quite typical, often repetitive, then, using one or another technical method, they try to cover it with an appropriate legal norm so that the interested parties know how they should behave. So, French Court of Cassation not only controls the way the judges are applied legal norm, but also gives its own interpretation of this norm. Citing further the judgment of J. Marty, R. David, in principle, convinces of the opposite: “The Court of Cassation must take a definite position whenever, due to the nature of the contested decision, its decision may have general significance and serve as a guide in resolving such disputes in the future” (David R. . Basic legal systems of our time. S. 101-102, 134).
116 See: N.N. Razumovich Sources and form of law // Soviet state and law. 1988. No. 3.P. 20.
judicial precedent, it is necessary to find the right place in the same way as it happened with the custom (in the terminology of the Civil Code of the Russian Federation - "business customs"), enshrined in the Civil Code.
The basis for this conclusion is that if in the internal economic life a certain gap in legal regulation manifests itself not so noticeably, then the intensification of foreign economic exchanges between Russian and foreign individuals and legal entities, the increasing involvement of Russia in the world economy objectively exacerbate of this kind Problems. As a result, the economic needs of international economic turnover affect much more tangibly and therefore more strongly push towards the formation of legal stability. As the practice of international economic interaction expands, the related sphere of consideration of disputes arising from relations falling under the action of the MPP, provides, as it seems, an increasing amount of material for the crystallization and strengthening of such a form of domestic law as judicial precedent. There are objective prerequisites for this. Firstly, in the so-called written law, it is impossible to foresee all life situations in all their diversity, which, nevertheless, must be provided with proper legal decisions reflected in the rule of law. Secondly, the legal superstructure, as a rule, is more inertial and conservative than the processes taking place in regulated economic relations... There is always a certain gap between the first and the second. However, it should not exceed the permissible limit, so as not to turn the law into a brake on the development of the economy. The judicial precedent seems to be an adequate means that could contribute to the creation and maintenance of the necessary balance in the system of legal regulation of basic relations.
Some optimism in this regard, i.e. progress towards the development and rooting of this type of source of law in our country, inspires the activities of the Constitutional Court of the Russian Federation. The decisions passed by the Constitutional Court in the process of interpretation of the rights have normative character... He considered a number of cases concerning relations that go beyond the legal order of the Russian Federation, such as, for example, on the verification of the constitutionality of the provisions of Part 2 of Art. 31 of the USSR Law of June 24, 1981 "On legal status foreign citizens in the USSR ", parts 1 and 3 of Art. eight Federal law of August 15, 1996 "On the procedure for leaving the Russian Federation and entering the Russian Federation", Articles 2, 5 and 6 of the Law of the Russian Federation of July 2, 1993 "On the payment of pensions to citizens leaving for permanent place residence outside the Russian Federation ", in the case of" border fee "and others testifies to the positive results of the creation of legal norms, including in the field of private international law, in a similar way.
The question posed by the author of this textbook about the need to take a fresh look at the possibilities of this form of law seems to be beginning to bear fruit. In any case, this kind of view is no longer an isolated one. Based on the fact that Art. 126, 127 of the Constitution of the Russian Federation gives the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation the right to provide clarifications on issues of judicial practice, an opinion is expressed that “decisions of courts and arbitration tribunals formulated in general form in their decisions higher bodies to clarify the norms of legislation, represent a source of civil law ”.
Control questions:
1. What are the types and what is the originality of the sources of MPP?
2. What is the problem of "duality" of sources of MPP? What are the existing Russian science MPP doctrinal judgments about the "duality" of sources?
3. The main examples of the codification of MPP.
4. The place of the international treaty in the system of sources of MPP.
5. Trade and business customs in private international law.
6. The place of the court decision (precedent) in the aggregate of sources of international private law.
7. What is the doctrine and practice of the Russian Federation in relation to a court decision in the field of MPP?
More on topic 4. Judicial precedent - a source of private international law:
- 12. JUDICIAL PRACTICES AND JUDICIAL PRACTICE, CUSTOM, ROLE OF THE DOCTRINE OF PRIVATE INTERNATIONAL LAW
- Codes of the Russian Federation - Legal encyclopedias - Copyright - Agrarian law - Advocacy - Administrative law - Administrative law (abstracts) -
In many states, judicial and arbitration practice as source of MPP plays more important role than national and international law. Under judicial and arbitration practice, serving as a source of law, understand the decisions of the courts that have a law-making character, i.e. formulating new norms of law. The lawmaking role of the courts is not to create new norms - the law enforcement officer does not have legislative powers and cannot "create" law. Courts identify valid (positive) law and formulate it as a system of legally binding prescriptions.
The law-making activity of courts depends on judicial discretion, which is of decisive importance in identifying the established rules of conduct, recognized by the public consciousness as mandatory. Judicial discretion plays a decisive role not only in the identification of law, but also in its interpretation, definition and application. The principle of freedom of judicial discretion is one of the basic principles of legal proceedings. In MPP, this principle has special meaning: filling the gaps in legal regulation, qualifying the law, establishing the "implied" will of the parties, determining the law of the "essence of the relationship", establishing the criteria for the closest connection is the direct responsibility of the courts.
Judicial precedent is a decision of a higher court that is decisive for lower courts when they consider similar cases in the future. A court decision does not automatically become a precedent; it must receive this status in the manner prescribed by law. Features of the judicial precedent as a source of law:
- - before the court initially stands only legal problem- to resolve the "dispute about the right";
- - any court case presupposes several solutions. There are disagreements on all legal issues between lawyers; the same case can be resolved in different ways, depending on which court will consider it;
- - a precedent is formulated as a single incident, not a general rule. If a judgment does not serve as a model for similar cases, it cannot be considered a precedent;
- - a precedent is not a rule of law stricto sensu, since its application depends on the discretion of the subject of application.
English jurisprudence initially developed on the principle of "cases based on similar facts should be resolved in a similar way." English judges used the criteria developed by Roman law - " reasonable person"," kind, caring owner "," just father of the family "," consequences that could be foreseen on reasonable grounds. "Since 1282, collections of court decisions have been published annually in England, and precedents have been systematized. Modern system publication of precedents has been in effect since 1865. Precedents have varying effect depending on the level of the court. Only decisions emanating from "high" courts - the Supreme Court and the House of Lords - create binding precedents. The decisions of other courts do not create a binding precedent.
The precedent principle operates vertically. The decisions of the higher courts are binding on the lower ones, but do not bind the higher ones. The doctrine of precedent is based on the "principle of the principle" of law (declarative theory of law) - judges do not create law, but only interpret and "discover" it, i.e. the judgment fixes the right. Judicial precedent rules:
- 1) decisions rendered by the House of Lords constitute binding precedents for all courts;
- 2) decisions made by the Court of Appeal are binding for all lower courts and (except for criminal law) for this court itself;
- 3) decisions made by the High Court are binding on the lower courts and, without being strictly binding, have meaning and are used as the direction of the divisions High court and the Court of the Crown.
A precedent differs from a court decision in that it has the property of a sample when resolving later cases. This property of a precedent in English legal theory is denoted by the concept stare decisis (The "default" use case should be followed if there are no arguments against).
Any use case contains ratio decidendi and obiter dictum. Ratio decidendi is the rationale, admitted by the court considering a new case using a precedent; special element (essence of the solution). The Obiter dictum also forms part of the court's decision (comments of the court on issues that are not directly included in the subject of the court decision). This part of the solution has an additional, arguing, optional character.
American law (both federal and state) is more codified than English. For example, in the field of non-contractual obligations, the Second Code of Tort Law (1932) and the Uniform Law on Mutual Guilt (1977) are in force. But even in the presence of legislative regulation, changes in the judicial practice on tort are introduced through precedents: the institution of counter-guilt in the state of Illinois was introduced by decisions in the cases of Kravens v. Algonquin Township, 1973 and Alvis v. Ribar, 1981. In US conflict of laws law, precedent plays a decisive role.
The volume of judicial precedents in English law is so great that it complicates and slows down the judicial procedure. In modern judicial practice in Great Britain, the legalized tendency of limiting the number of precedents prevails. Courts seek to make decisions based on the presumption of "finding a law inherent in this agreement", that is, strictly on data, specific factual circumstances that cannot be applied in solving similar cases in the future. In all common law states, the role of" written "law is increasing, an intensive process of codification of legislation is underway.
Mirror processes take place in the countries of the Romano-Germanic legal system. According to the prevailing theory, only legislation is considered the legal source of PPM in most European countries. In practice, the most important court decisions play a decisive role in this branch of law: in Art. 1 of the Civil Code of Switzerland states: "In the absence of law and custom, the judge must decide on the basis of such a rule that he established if he were a legislator." A very important source of China's MPL is the Civil Law Guidelines of the Supreme People's Court of the People's Republic of China.
In states of "civil law" the precedent is of particular importance for law enforcement, filling gaps, and interpreting the law. The most striking example is the development of French conflicts of law. The 1804 Napoleon Code originally contained only unilateral conflict of laws rules that set the limits of French law. Modern French law has a ramified system of bilateral conflict of laws links, developed by the judicial authorities through the interpretation of the rules of the FGK. Many French scholars, analyzing judicial practice in the system of sources of law, emphasize that French civil law almost imperceptibly ceases to be written law, transforming into general law.
A regional system of case law is currently in force - European case law established within the framework of the European Union and developed by the EU Court of Justice. All decisions of this Court are binding on the Member States of the EU, their national courts and administrative bodies, individuals and legal entities and have the character of a precedent. The judicial authorities of the EU member states are not empowered to take decisions contrary to the decisions of the Court, which are of decisive importance and should be applied by analogy. It should be noted, however, that the law-making functions of the EU Court expressis verbis (lat. - in a directly expressed way) in regulatory documents The EU is not consolidated, but in practice the Court is not only a law enforcement, but also a lawmaking body.
The EU Court consistently implements its own decisions, refers to its previous judgments to develop new legal positions, formulates new principles of "Community law". Decisions of the Court are judgments on matters of law. The European doctrine is dominated by the concept that the case law created by the Court is an independent component of EU law, on which decisions of the national judicial authorities are based. The EU Court of Justice plays a decisive role in the development of regional private international law in the EU countries.
One of the reasons for replacing the EU Rome Convention with the Rome I Regulation was the need to create a uniform jurisprudence (case law) based on the decisions of the EU Court of Justice. The EU Court of Justice provides a normative interpretation of EU regulations, including on claims by the European Commission against Member States that violate the rules of the regulations, and at the request of national courts. In the case of the Rome Convention, the creation of such a case law was not possible because the EU Court of Justice did not receive the power to interpret it (the relevant protocols to the Convention were not promptly ratified by all member states).
In 2002, the Supreme Arbitration Court of the Russian Federation discussed the problem of precedent as a source of Russian civil law. VF Yakovlev (at that time - the Chairman of the Supreme Arbitration Court of the Russian Federation) stated that the precedent as "a stable legal position created by the courts" is a source of law in Russia and "is actually elevated to the rank of law." As an example of the existence of a precedent in Russia, two types of judicial acts are cited: decisions of the Constitutional Court of the Russian Federation and resolutions of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation.
The resolutions of the Constitutional Court of the Russian Federation oblige all law enforcement officers to act in accordance with legal positions. They underlie the conclusions of the Court on the compliance of certain legal norms with the Constitution of the Russian Federation. The source of such positions is the decisions of the Court; obligatory legal positions may be contained in any regulations and definitions. The acts of the Constitutional Court of the Russian Federation in terms of legal force are higher than the acts of the parliament and the president; his legal positions acquire the character of constitutional and legal norms; decisions of the Constitutional Court of the Russian Federation on the interpretation constitutional norms become part of the Constitution of the Russian Federation3.
Officially in modern Russia judicial precedent is not recognized as a source of law, although in fact the system of judicial precedent has long been established. When making decisions, judges try to adhere to the recommendations of the highest judiciary, take into account the reasons for the cancellation of earlier decisions. Russian system precedent based on administrative subordination, "respect for the highest courts." In the domestic doctrine, the opinion is expressed that for a judicial precedent "it is necessary to find a proper place" in the system of sources of Russian law, similar to how it happened with trade customs, the use of which is sanctioned in the Civil Code of the Russian Federation and the RF CMM4.
Arbitrage practice - institute civil law which does not coincide with the case law of the Anglo-Saxon system. In case law, every judgment has potential enforcement significance. Judicial practice reflects objective trends in the implementation of law and is part of the national legal order. This is a generalization of judicial activity, the result of the interpretation and application of legislation, independent form the existence of legal norms. Judicial practice is a set of court decisions that express the legal opinions of judges on specific issues. In the course of the courts' activity, the old norms of law are specified and new ones are fixed. "The creation of generally binding rules of conduct is a genetically inherent property of the judiciary."
V Russian legislation judicial and arbitration practice formally and legally is not considered a source of law. The domestic legislator regards the practice of law enforcement agencies as the main means for the interpretation, definition and application of legal norms. This approach is contrary to established practice. Examples of judicial acts containing regulatory prescriptions:
- - decisions of the Constitutional Court of the Russian Federation. The decisions of the Constitutional Court of the Russian Federation are precedents of constitutional justice2. Federal Constitutional Law of July 21, 1994 No. 1-FKZ "On The Constitutional Court Of the Russian Federation "establishes that the decision of this Court definitively, non-appealable, enters into force immediately, acts directly, does not require confirmation by other authorities, and officials... The law directly authorizes that decisions of the RF Constitutional Court have the character of precedents;
- - normative interpretation of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court;
- - court decisions general jurisdiction abolishing normative acts of the constituent entities of the Russian Federation in the event of their contradiction with federal legislation;
- - court decisions by the analogy of law and law, as well as on the basis of legal norms containing evaluative concepts;
- - solutions The European Court of Justice on human rights.
The Constitution of the Russian Federation (Articles 126, 127) gives the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation the right to provide clarifications on issues of judicial practice. The decisions of courts and arbitration tribunals, formulated in a general form in the decisions of their supreme bodies, constitute a source of law. The resolutions of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court are endowed with binding force. Generalizations of judicial practice, formulated in the decisions of the highest judicial bodies of the Russian Federation, are mandatory for use in lower courts. A decision that ignores the rule set by the Plenary may be overturned by a higher court.
The decisions of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court on judicial practice cannot be considered precedents. These acts are not judicial decisions, cannot be appealed against in judicial procedure, their mandatory nature is expressly provided for by law. A precedent, by definition, cannot be an institution enshrined in law.
In reality, Russian courts and arbitration tribunals play exactly the same role in identifying and formulating applicable law, as the courts of those states in which judicial practice is officially recognized as a source of law. The role of the judiciary and arbitration practice how independent source MPI is noted in the works of modern Russian scientists.
International legal custom as a source of private international law
International legal custom is a rule of conduct that is repeated for a long time in similar conditions, which is tacitly observed and recognized by subjects of private international law.
In accordance with article 38 of the statute international court UN custom is evidence of a general practice accepted as law
Clause 1 of Article 5 of the Civil Code of the Russian Federation gives us a definition of the customs of business turnover - this is the established and widely used rules of conduct in any area of entrepreneurial activity that are not provided for by law, regardless of whether they are recorded in any document.
Clause 3 of Article 28 of the Law on International Commercial Arbitration says that the arbitral tribunal in all cases makes decisions in accordance with the terms of the contract and taking into account the trade customs applicable to this transaction of business customs and customs international trade(international legal usages).
Unlike international legal custom, international legal custom is not a source of law and is applied only on the condition that these customs are known to the parties and are reflected in the agreement in the form of direct or implicit reference. In practice, usages are used in the following cases:
1. When it follows from the contract concluded by the parties
2. When the norm of the national legislation of a particular state refers to it
3. When its application is based on the provisions of an international treaty governing the relationship of the parties.
Judicial precedent is a decision made by a court on a specific case, justification which becomes a rule binding on all courts of the same or lower instance when adjudicating similar cases.
As a precedent, only the reasoning part of the court's decision is used, that is, the justification why the court came to any conclusions.
It is known that judicial precedent is the basis legal systems in the so-called common law states (Anglo-Saxon countries - Great Britain, a number of US states, South Africa, Australia, a number of Canadian provinces and others). However, this form of law is very common in a number of states with a continental legal system. For example, article 1 of the Swiss Civil Code states that in the absence of law and custom, the judge must decide on the basis of the rule that he would establish if he were a legislator, while following tradition and jurisprudence. Under Anglo-American law, a judicial precedent can be rejected either by law or by a higher court. The strength of a precedent does not fade over time, unless it is wrong or contradicts current reality.
The existence of a judicial precedent in the Russian Federation is controversial. On the one hand, the higher courts are empowered to give guidance to the lower courts on how to resolve certain cases. On the other hand, these clarifications are not binding on any authorities except for the lower courts.
Introduction
Chapter 1. The theoretical aspect of judicial precedent as a source of law
1.1. General issues judicial precedent (historical and legal aspect)
1.2. Concept, structure and types of judicial precedent
Chapter 2. Judicial precedent in the countries of the Romano-Germanic legal family
2.1. Using judicial precedent as a source in continental European countries
2.2. Judicial precedent in the Russian legal system
2.3. Judicial acts the highest judicial bodies of the Russian Federation and the European Court of Human Rights as a source of law
Conclusion
List of used regulatory legal acts and literature
Introduction to work
Relevance of the research topic. The radical changes that have taken place in our state in the last decade have brought society to a new stage in its development. In the last years of the existence of the USSR, and then in Russia, there have been significant changes in the legal regulation of social relations. The result of the reforms carried out in our state has become the provision of broader opportunities for investment and commercial activities to both foreign and domestic individuals and legal entities abroad and in Russia.
Along with the development of foreign economic activity with the participation of enterprises, the number of cultural, scientific and technical ties, as well as family, labor and other relations with the participation of foreign citizens has increased in modern Russia.
All these circumstances have had and continue to have great importance for the development of modern private international law in our country.
All changes in society, first of all, affect law as the main regulator of social relations. With the emergence of new relations, it is necessary to establish new legal institutions, which are partly borrowed from foreign law.
Using new institutions for the present stage development of Russian society is impossible without the use of international experience. The use of new institutions of international private law in Russia should take into account the peculiarities of the nature of the legal system of our state. Simple copying of foreign institutions (even the most perfect and advanced ones) may not only not have a positive effect on the development of our legal system, but also have Negative influence at her. In this regard, it is necessary, when borrowing such institutions, a comprehensive, complete study of their formation, development and action in a variety of legal systems.
One of the priority directions of any legal state is the formation of independent bodies of legislative, executive and judicial power.
Legislative acts have been and continue to be the main source of law in Russia, despite the fact that laws are not always able to quickly resolve the constantly evolving public relations... The judiciary in a state governed by the rule of law is called upon to protect the rights and interests of both individuals and legal entities. At the same time, denial of justice under the pretext of ambiguity or inadequacy of the law is not allowed, and it is in such cases that the judicial authorities carry out judicial lawmaking.
V recent times the question of extending the scope of the judicial precedent as a source of private international law and the possibility of its application (transformation) to the Russian legal basis became relevant, since in the conditions of expanding international economic and trade relations, the development of market relations, civil turnover physical and legal entities... At the same time, the role of judicial practice and judicial precedent is growing.
The emergence and further development the judicial precedent evolved in different ways, depending on the legal system in which it operated.
The homeland of the judicial precedent is the "common law" legal family, namely England. In England, case law arose and subsequently influenced the development of law in all countries under British influence. In addition, judicial precedent is one of the main sources of law in the United States.
In the countries of continental Europe, the acts of the highest judicial bodies did not receive such recognition as in the countries of the Anglo-Saxon legal family, but they began to be actively used as an auxiliary (additional) source of law.
Domestic legal science is still, as in the Soviet period, divided into two camps, one of which completely denies the possibility of the existence of a precedent on the territory of Russia, and the other recognizes the validity of the source of law in the decisions of the higher courts.
According to the candidate for a degree, in modern conditions it is relevant to recognize the functions of the highest judicial bodies of Russia to develop judicial precedents.
The relevance of the dissertation research is also due to the direct participation of Russian individuals and legal entities in international trade and civil circulation, which requires certain knowledge and experience in the most effective use of such a source of private international law as a judicial precedent in matters of protecting their rights and legitimate interests when resolving emerging conflict situations and civil cases by foreign courts.
The above circumstances determined the relevance of this dissertation research.
The degree of elaboration of the topic in the legal literature. In the considered volume and aspect of the research of the judicial precedent in private international law has not been carried out.
The available works dealt with the study of precedent problems either within separate legal systems, or individual states and individual issues of precedent.
Such works include dissertation research by T.V. Aparova1, O.A. Zhidkova2, M.A. Nikiforova3 and I.Yu. Bogdanovskaya4, but all of them were carried out in different socio-economic conditions of Russia, when there were no market relations, Russian individuals and legal entities were not participants in the international civil turnover. Therefore, these works do not affect the essence of the dissertation research and do not shake its main provisions.
The object of the research is social relations associated with the emergence, development and application of judicial precedent in various legal systems of our time.
The subject of research is theoretical and practical issues creation and application of judicial precedent as a source of private international law in the Anglo-Saxon, Romano-Germanic legal family as well as the scientific justification for the existence of judicial precedent in countries other than the common law family.
The purpose and objectives of the study. The purpose of this work is a comprehensive analysis of the emergence, development and operation of a judicial precedent as a source of private international law in various legal families of our time.
This goal predetermined the following tasks of the dissertation research:
Analysis of the processes of the emergence, development and operation of the judicial precedent in the Anglo-Saxon legal family;
Revealing the specifics of the application of the judicial precedent in England and the USA;
Formation of the definition of the concept of judicial precedent as a source of law;
Disclosure of the main types, structure of the judicial precedent;
Analysis of the relationship between judicial precedent and law in common law countries;
Study of the place of judicial precedent in the countries of the Romano-Germanic legal family;
Consideration of the process of creation and operation of judicial precedent in countries
continental Europe;
Analysis of the problem of the formation and development of a judicial precedent in the Russian legal system;
Research and substantiation of the prerequisites for the recognition of rule-making functions by the higher courts of the Russian Federation;
Analysis of the decisions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, which have a precedent nature and justification of their application as a source of law in Russia;
Development of proposals for securing at the legislative level the force of the source of law for acts of the highest judicial bodies;
Study of the place of judicial precedents of the European Court of Human Rights in the domestic legal system.
The methodological basis of this study was modern methods knowledge and obtaining a scientific result. In the process of research, general scientific, private and special methods cognition: historical, comparative legal and systemic. Within the framework of this research, the author also used dialectical and logical techniques (analysis, synthesis and generalization).
The theoretical basis of the dissertation is the work of domestic and foreign authors.
From domestic authors theoretical basis studies were the works of such authors as: S.S. Alekseeva, L.P. Anufrieva, N.A. Barinova, M.M. Boguslavsky, G.K. Dmitrieva, V.P. Zvekova, L.A. Lunts, I.S. Pereterskiy, A.A. Rubanova, M.G. Rosenberg, O. N. Sadikova, T.N.Safronova, A.Y. Sergeeva, A.S. Skaridova, E.A. Sukhanova, Yu.K. Tolstoy, N.V. Trigubovich, V.F. Yakovleva and others.
general characteristics judicial system and judicial precedent, comparing it with other sources of law, as well as issues of its application both in the countries of the Anglo-Saxon and Romano-Germanic legal families
considered in the works of foreign authors E. Lnners, L. Barak, P. Bromhead, E. Jenks, R. Cross, P. Port, R. Walker, J. Chetir, as well as in the works of domestic legal scholars such as T.V. Aparova, PI.EO. Bogdanovskaya, V.V. Boitsova, JT.B. Boytsova, G.V. Demchenko, O.A. Zhidkova, S.K. Zagainova, S.L. Zivs, P. Lublinsky, A.A. Maksimova, N.A. Podolskaya, A.K. Romanov and others.
The works of R. David, K. Joffe-Spinozi, M.N. Marchenko, A.Kh. Saidov and others.
In our state of the pre-revolutionary period, the works of E.S. Vaskovsky, G.P. Verbolovsky, D.D. Grimm, A.M. Gulyaeva, G.V. Demchenko, Ya.G. Esipovncha, N.M. Korkunova, S.A. Muromtseva, E.N. Trubetskoy and other scientists.
Questions about the role and place of judicial practice in socialist law were devoted to many works of SI. Vilnyansky, A.A. Piontkovsky, I. Tishkevich, V.A. Tumanova, M.S. Khodunov, P. Orlovsky and other authors.
In the last decade, the question of the creation of a rule of law by the courts has become one of the most urgent and it is this problem that is currently receiving increased attention, which is reflected in the works of T.V. Aparova, M.V. Baglaya, A. Belova, G.A. Hajiyeva, P.A. Hooke, T.N. Gurova, V. Zhuikova, V.D. Zorkina, M.V. Kuchina, L.V. Lazarev, V.M. Lebedeva, R.Z. Livshits, E. Martynchik, A.N. Medushevsky, T.G. Morschakova, B.C. Nersesyants, S. Okunevich, N.A. Podolskaya, A.Kh. Saidova, V.N. Sinyukova, L.V. Smirnova, E.I. Spektor, Yu.A. Tikhomirova, B.S. Ebzeeva, Yu.Kh. Yakhin and others.
The normative basis for this study is: the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, the Constitution of the Russian Federation of December 12, 1993, federal constitutional laws of the Russian Federation,
federal laws of the Russian Federation, court decisions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation.
The scientific novelty of the dissertation is characterized by a comprehensive analysis of the emergence, development and operation of a judicial precedent in various legal families of our time, carried out for the first time in the science of private international law. The author defines the concept of judicial precedent, as well as its relationship with the legislative act. In his research, the author analyzes the prospects for the possible formation and development of a judicial precedent in the Russian legal system, identifies the prerequisites for the recognition of rule-making functions for the highest courts of the Russian Federation and formulates proposals for securing the power of the source of law for them.
The main provisions of the dissertation submitted for defense. Based on the results of the study, the author submits the following results for defense:
1. Considered theoretical aspect judicial precedent in the family of common law and the features of the application of this source of law in England and the United States are noted.
2. The author's definition of the concept of judicial precedent is formulated as a decision of the highest judicial authorities in a specific case, the result of which is the creation or interpretation of an existing rule of law, which is binding on themselves and all lower courts, and subject to official publication which makes it publicly known.
3. Studied the current position of judicial precedent in the system of other sources of common law in a comparative sense and concluded that in recent decades, legislative acts have played a significant role along with precedents.
6. The article substantiates the position that in modern Russia there are no reasons preventing the assignment of rule-making functions to the higher judicial bodies of the Russian Federation.
7. It is concluded that, along with other sources of law, a number of acts of the Constitutional Court of the Russian Federation can be considered a regulator of public relations.
8. It is proved that the Resolutions of the Plenums of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation to clarify the correct understanding and application in practice of laws, as well as decisions on specific cases on invalidating normative acts that do not comply with current legislation are the sources of modern Russian private law.
9. A proposal is being made to amend the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" and the Federal Constitutional Law? Arbitration courts in the Russian Federation "by provisions securing for certain acts of the highest judicial bodies the force of judicial precedent as a source of private international law.
10. It is concluded that at present the judicial precedents of the European Court of Human Rights are a source of domestic private international law, since they are subject to mandatory execution by the member states of the Council of Europe.
The theoretical and practical significance of the dissertation work. The theoretical significance of the dissertation lies in the fact that the provisions and conclusions formulated in it can be used in further research work, as well as for the deepest understanding of the two main legal families of our time and, in particular, the judicial precedent as a source of private international law, as well as the impact of the findings and provisions on the Russian legal system. Formulated in the work, proposals for the legalization of a judicial precedent as a source of private international law in our state can be used to improve existing regulations.
The practical conclusions contained in the dissertation can be used in the development of educational material and lectures to university students on the course "Private International Law", and can also form the basis of a new course "Case law of the Russian Federation", the need for which is increasing every year.
Approbation of research results.
The thesis was prepared at the Department of Private International Law of the State Educational Institution of Higher Professional Education "Saratov State Academy of Law", where it was reviewed and discussed.
The provisions of the dissertation research were reflected in a speech at an international conference:
1. International V scientific-practical conference of young scientists " Actual problems private law regulation ". Samara, 2005. April 22-23.
2. All-Russian conference "Actual problems of property rights". Saratov, 2003 September 24-25.
The structure of the thesis.
The work consists of an introduction, two chapters, which together combine five paragraphs, a conclusion and a list of used normative acts and literary sources.
General issues of judicial precedent (historical and legal aspect)
Intensive development in recent years of civil, labor and family relations with the participation of a foreign element in our state, has led to an increase in interest in international private law, both on the part of legal scholars and practitioners. In modern conditions, "to participate in foreign economic relations, to conclude foreign economic transactions, it is necessary," writes N. A. Barinov, "to know not only Russian law, but also the norms of private international law, which adequately reflect the relations prevailing in society."
The term "private international law" was first proposed by the judge of the US Supreme Court, Professor Joseph Sgory at the end of 1834 and was used along with the term that already existed at that time " conflict of laws". The relationship between the two terms was expressed by many scholars, among whom should be noted M. Harrison, R. Davis, who believed that the terms" conflict law "and" private international law "are used interchangeably and mean the domestic system of legal norms for resolving the following conflicts: 1) the courts of which state should consider the dispute and 2) the law of which state should be applied. "
The term "international private law" characterizes this branch of law as private. Studying the problem of the relationship between public and private law, T.N. Safronova noted that public law is essentially derived from private law.
The problem of interaction between private and public law considered also V.F. Yakovlev. So, in particular, he writes: "Now it has become clear that the main components of the system of law, its main subdivisions are private law and public law. If there is no developed private law, one cannot count on the effective development of society. If there is no development of public law, private law cannot be effective. "
In modern conditions, private law is the basis market economy and, accordingly, entrepreneurial activity. This is rightly pointed out by E.A. Sukhanov, who notes: "One of the main features of the new legal order, which has emerged as a result of the socio-economic transformations of the last decade, is the revival and legislative consolidation private law "1.
At the present stage of development of private international law, there is a fairly large range of sources regulating relations in this area. These are referred to as internal sources of a separate state, which are the result of activities government agencies and external sources, representing the agreed will of various states.
However, despite the division of sources into internal and external, "the subject of regulation in both cases is the same relationship, namely civil relations international character "1.
Thus, now private international law has ceased to be exclusively conflict of laws and contains a large array of norms that are of a unified nature.
As already noted, in recent years, private international law has attracted the attention of many legal scholars who express their opinion on the subject, method and other aspects of this industry.
In his article "On the Nature of Private International Law" S.N. Lebedev examines the nature of this branch of law and concludes that private international law should be considered as a special branch of civil law in its content2.
As for the subject of private international law, most authors are inclined to believe that the subject is relations of an international nature, moreover, of an international private nature due to the presence of a "foreign element".
Currently, private international law is understood as a set of rules governing civil, family and labor Relations involving a foreign element.
This branch of law is characterized by the presence of two methods of regulating these relations: conflict of laws and substantive.
As G.K. Dmitriev, "Both of them are aimed at overcoming the conflict of law and this is especially evident in the category of autonomy of will, ultimately aimed at overcoming the conflict of law" 4.
The material-legal method is the most perfect, due to the fact that when using it, the material norm is directly applied. In turn, the collisional method regulates social relations indirectly through the choice of law to be applied in a particular case. It should be noted that these methods are directly related to each other. The use of conflict of laws rules is impossible without the use of material rules. So, the judge, when resolving the case, applies the conflict of laws rule of domestic law, and then the substantive law to which it refers.
Despite the large number of conventions containing material norms, the unification of national law does not affect all areas of public relations, but the content and application international treaties are more difficult to apply than domestic legislation. Therefore, the conflict method comes to the fore in the regulation of private-law relations with the participation of a foreign element.
Concept, structure and types of judicial precedent
Determination of judicial precedent. The development of social relations has constantly accompanied humanity at all stages of its existence. These relations were regulated by law or custom, which could not cover the diversity of developing life.
The process of creating a law is long enough, which, as a rule, lags behind life and does not have time to satisfy its constantly growing needs. In the case of prompt regulation by the legislator of public relations, Negative consequences such activities, consisting in inaccurate, vague wording legislative norm caused by the lack of sufficient knowledge about the phenomenon that has arisen.
In addition, the existence of a law in a linguistic form always carries the potential of a precedent, because not one linguistic component is capable of ideally combining reality - social relations - and law. The discrepancy, understatement and inconsistency of the law and reality will surely become the lot of the judges' thoughts1.
Public relations never stop in their development, while pauses and interruptions are inevitable in the activities of the legislator. In addition, legislation cannot foresee everything and contains inevitable gaps. So, the arising questions of law, which cannot wait for their decision by the legislator, in individual cases are resolved by practice. The decision taken in one controversial case becomes a precedent for subsequent homogeneous cases. Thus, legal norms are created through precedents. "
In many states, there is a rule according to which the court does not have the right to refuse to consider a case under the pretext of ambiguity, incompleteness and contradiction of laws. In such cases, the court, faced with new life relationships not regulated by law, resolves the conflicts that have arisen on the basis of these relationships. Having decided the case once, the court already considers itself bound by its decision. In other similar cases, the court will be guided by it. As a result, the court creates the right of judicial precedent in addition to the existing norms of the law.
As a result, the emergence of a judicial precedent was dictated by overcoming the gaps in legislation, when it is necessary to resolve a disputable issue, respecting and protecting the interests of the parties who applied to it, as well as the settlement of public relations in cases of inaccuracy, incompleteness of the legislative base.
V legal science the word "source" has several meanings: literary, formal, historical and legal. As a rule, the source of the law is considered in legal meaning, which is understood as "specific procedures, forms and processes by which the law acquires its reality." These sources of English law include custom, law and precedent, of which precedent is the main one.
The concept of precedent is contained in many works of both foreign and Russian jurists.
Thus, the legal precedent is characterized as "judicial or administrative decision on a specific legal case, which is given the force of the rule of law, and which are guided in resolving similar cases "".
More detailed definitions of judicial precedent are given in the works on comparative jurisprudence.
According to McCormick and Summers: "Precedents are earlier decisions that courts follow when making subsequent decisions."
In the encyclopedic reference "Legal systems of the countries of the world" under the judicial precedent is understood "the decision of the higher courts, which is binding on themselves and the lower courts."
In his book "Basic legal systems of our time" R. David gives the following definition of judicial precedent: binding3 ".
B.C. Nersesyants believes that "a judicial precedent is a court decision in a specific case, which has the value of a generally binding rule for such a decision in all similar cases. Only the highest courts have the right to apply decisions that are significant."
SA Ivanov understands by judicial precedent "a once formulated court decision, which is used as a mandatory model for the solution of all subsequent similar cases2".
A similar point of view is shared by E.E. Pontovich. In particular, he writes: "A judicial precedent is such a form of formation of law, which associates the recognition of the property and meaning of a legal norm for a rule of behavior with the fact that this or another court was already guided by this rule when deciding the case6".
An analysis of the above definitions shows that some authors focused their attention on the mandatory implementation of such decisions, others on courts, whose decisions can be considered a judicial precedent. However, a complete definition reflecting the actual position of this source of law was not given in any of the works.
Practically none of the jurists in determining the judicial precedent, except for A.Ya. Sukharev, did not point out the fact that it is the result of the activities of only the highest judicial authorities to consider a specific case. The birthplace of classical case law is England, where the decisions of only two higher courts - the House of Lords and the Court of Appeal - are recognized as sources of law - judicial precedents. Studying English law, M.N. Marchenko notes: "Speaking of the precedent as a source of law and as a result of the law-making activity of courts, it should be especially noted that we are talking about the activities of not all courts, but only the highest courts."
The judicial precedent is subject to mandatory application in the future both by the court that created it and by all lower judicial bodies. It is difficult to agree with R. David, who argues that “a court decision on the interpretation of the law is not binding.” In this case, we are talking about one of the types of judicial precedent, the purpose of which is solely the interpretation of the existing rule of law, and not the creation of a new one. A striking example confirming the above is the work of the US Supreme Court on the interpretation of the Constitution.
Using judicial precedent as a source in continental European countries
General characteristics of the judicial precedent in the countries of continental Europe. The Romano-Germanic legal family is rooted in Roman law (1st century BC - 6th century AD), which spread far beyond the borders of the Roman Empire due to its active foreign policy and the commercial activities of its citizens. Roman law lost its universal character after the fall of the Roman Empire. Thus, the once unified Roman law is gradually beginning to acquire distinctive features depending on the territory of its operation. The result of this process was the transformation of Roman law into national law, which is different in content within continental Europe.
The Romano-Germanic legal family is often called the civil law family, since it covers the entire European continent with the exception of Ireland and England.
This legal family operates in countries such as Austria, Germany, Belgium, Holland, Denmark, Spain, Iceland, Italy, Luxembourg, Monaco, Norway, Switzerland, Portugal, Sweden, Finland. The countries of Eastern Europe (formerly socialist) are also returning to this family, among which, of course, it is necessary to single out Russia.
The Romano-Germanic legal family also embraced its influence in the non-Spanish-speaking states of Latin America. One of the states of the United States, namely Louisiana and the Canadian province of Quebec, also have this legal family at the heart of their rights. This is due to the fact that Louisiana in the past was a French colony, and Quebec was mainly inhabited by immigrants from France.
The influence of the Romano-Germanic legal family can also be said in relation to a number of Asian countries (for example, Turkey) and most African countries, which were previously colonies of Spain, France, Portugal, Germany, Italy, Belgium.
The main source in the countries of the Romano-Germanic legal family is the law. Legislative acts are developed and adopted by the highest representative body the state. According to N.I. Matuzova: "The legislator (public authority) ... must comprehend public relations, generalize social practice, type recurring situations and formulate general models of rights and obligations for citizens and organizations in normative acts1".
Among the laws, the first place is occupied by the Constitution, which defines the foundations of the social and state system, the structure and competence of state bodies.
Further in the hierarchy of legislative acts are codes that regulate entire branches of law. For example, Civil Code is the foundation of all civil law... It should be noted that the basic principles of the legal industry are enshrined precisely in the Code.
Since the beginning of the 20th century, delegated legislation has become widespread in most countries of the continental system of law. The government has received the right to issue regulations (for example, the decree of laws in France) that cover legal regulation issues that traditionally fall within the scope legislative bodies... The latter at their meetings approve a large number of laws that have been developed and adopted by the government1.
Before talking about the position of this source in the Romano-Germanic system of law, in my opinion, it is necessary to dwell on the relationship between such concepts as "judicial practice" and "judicial precedent".
As noted above, a judicial precedent is a decision of the highest judicial bodies in a specific case, the result of which is the creation or interpretation of an existing rule of law, which is binding on themselves and all lower courts, and subject to official publication, which makes it generally known.
Judicial practice as a source of law has two semantic meanings: broad and narrow.
In the first case, more broadly, judicial practice is the activity of all courts included in the judicial system, which is associated with the application of the rules of law and the development of generally binding rules of conduct in the process of considering specific cases or generalizations of a certain category of cases.
Judicial precedent as a source of law has come a long way of its formation. Its formation and development took place in England, when there were no laws or any other generally binding rules. In the United States, the precedent clashed with existing laws. However, despite this, the precedent took a leading place among other sources of common law. Currently, precedent plays a huge role in both the English and American legal systems.
The process of creating a law is long enough, which, as a rule, lags behind life and does not have time to satisfy its constantly growing needs. In many states, there is a rule according to which the court does not have the right to refuse to consider a case under the pretext of ambiguity, incompleteness and contradiction of laws. In such cases, the court independently resolves conflicts arising on the basis of these relations. Having decided the case once, the court already considers itself bound by its decision. As a result, the court creates the right of judicial precedent in addition to the existing norms of the law.
Having considered most of the definitions of judicial precedent, we can single out a number of features that are characteristic of it as a source of law. Judicial precedent: will be created only by the judicial authorities; is the result of the activities of the highest judicial bodies on the consideration of a specific case; is subject to mandatory application; subject to official publication.
Combining all the characteristic features of a judicial precedent, we can formulate its following definition: a judicial precedent is a decision of the highest judicial authorities in a specific case, the result of which is the creation or interpretation of an existing rule of law, which is binding on themselves and all lower courts, and subject to official publication, which makes its well known.
The advantages of judicial precedent include flexibility, precision, certainty and the ability to develop. The disadvantages may include the danger of inconsistency in the actions of judges, as well as suppression of the independent creativity of the judge.
The specificity of English law is the presence of the doctrine of precedent (stare decisis), the essence of which is the obligation of the courts to follow the decisions of the courts more high level... The degree to which precedents are binding depends on the place in the judicial hierarchy of the ruling court and the court whose ruling is considered a precedent.
The basis for the final establishment of this doctrine is the creation in the 19th century of a clear judicial system, as well as the beginning of the publication of more complete, high-quality collections of judicial precedents. English doctrine has developed three basic rules:
- 1. Decisions rendered by the House of Lords constitute binding precedents for all courts;
- 2. Decisions made by the Court of Appeal are binding on all lower courts and for that court itself;
- 3. The decisions of the High Court are binding on the lower courts.
Thus, the House of Lords is the highest appellate instance and its decisions are binding on all other courts. Until the middle of the 20th century, the rule for applying a precedent was built as a rigid rule, i.e. no court could disregard the decision of a higher court and could not deviate from its own decision. However, in the middle of the 20th century this rule has undergone a change. Since 1966 the House of Lords, and since 1944 Court of Appeal has the right to deviate from its previous decisions. Despite all these exceptions to the rule of applying the precedent, the work emphasizes that the rule itself continues to operate successfully, thereby emphasizing the important role that the judicial precedent plays as a source of law.
The basis of any judicial precedent is a judicial decision, but not all and not every one. According to most English jurists, the decision consists of two structural parts: the ratio decidcndi is the essence of the legal decision and the obiter dictum - the arguments that justify the need for a decision.
From the point of view of the doctrine of precedent, an obligatory part of any judicial decision is only its "core" - the ratio decidendi, which is the general principle of law on the basis of which the case was decided. This part of the judgment establishes the principle of law, on the basis of which the case will be decided.
Determining the ratio decidendi is an important stage in the formulation of a case law. Currently, two methods for determining ratio decidendi can be distinguished, the authors of which are Wembo (late 19th century) and Goodhard (early 20th century). According to the leftist method, the ratio decidendi is general rule, the absence of which leads to the resolution of any case in a different way. According to the second method, which enjoys greater authority among common law lawyers, the ratio decidendi is inferred from the judgment, which is based on the material facts of the case. The method of solving the case, and not the arguments of the judges, should be the main subject of research, for Goodhard is based on decisions, since arguments may be wrong, and decisions will be precedents.
Along with ratio decidendi part of a judgment is an obiter dictuin, by which it is customary to understand that part of a judgment that is not directly related to the reasoning by which the court came to a decision or comments in the course of the case. Analysis of the legal literature shows that the obiter dictum is of three types.
The first type includes those legal provisions that are based on facts or circumstances not established in the course of judicial trial or established but not significant. The second type of obiter dictum includes those decisions of the court, which, although based on the facts established in the case, were not used by him in substantiating the decision. The third type of obiter dictum includes legal provisions adopted by a minority of judges in any case. Despite the fact that this decision is based on reliable facts and, in fact, is a ratio decidendi, it is not taken into account and is not binding when similar cases are considered in the future by other courts.
New trends and attitudes towards specific issues are often found in the obiter dictum. In other words, what was once defined as an obiter dictum may later become a ratio decidendi if the court decides otherwise.
All precedents, depending on their imperative nature, can be divided into mandatory and optional.
A mandatory precedent is a precedent that courts must follow in all cases, regardless of the judge's personal attitude to it. Judges are not obliged to follow the optional precedent, but it is taken into account.
Mandatory precedents have different meanings, both in the degree of legal force belonging to them and in the content of the rules they establish.
They are divided into unconditionally obligatory and conditionally obligatory, depending on the degree of their influence on the subsequent activities of the courts. Of course, a decision is binding, which the courts must follow in any case. A decision is recognized as conditionally binding, from which the courts in a number of cases may deviate and not take it into account, but this requires the presence of the following grounds:
First, if the judgment contradicts applicable law or be unreasonable.
Secondly, there are objective grounds that prove the unsuitability of the court decision.
Due to the fact that in most cases the English courts created new rules of law by their decisions, at the end of the 19th century they were classified according to the principle of dividing into rule-making (creative) and declarative precedents.
A declarative precedent is recognized that confirms the existence of a rule of law or repeats the provisions of previous decisions. A precedent that establishes a new rule of law and applies it is recognized as creative.
Declarative use cases are subdivided into confirmatory and interpretive use cases. A judicial precedent is recognized as confirmatory, which confirms the existence of a rule of law. The precedent, which explains the meaning of the existing rule of law, is interpretive.
A characteristic feature of the common law family is the dominant influence of judicial precedents in the formation of law for a long time. And it is precisely this circumstance that determines the specific position of the statute in this system of law. However, starting from the second half of the nineteenth century, case law is gradually losing its dominant position. After the end of the Second World War, a new stage of confrontation between statute and precedent begins. It was at this time that legislation began to develop intensively.
The study of the evolution of case law shows that every year the range of social relations that are regulated legislative acts... Today the law in England plays no less role than judicial practice. The dynamically developing processes of globalization of recent decades in all spheres of society have led to a sufficient convergence of the legal systems of states belonging to the Romano-Germanic legal family and the English legal system.
The relationship between statute and judicial precedent is currently built on a complex basis. New law can override the provisions of both the old law and the precedent. A precedent, in turn, can also repeal a law, but not directly, but in the process of its application (by interpreting the law).
Each positive norm, regardless of the form of its expression, exists in time. If the law does not raise questions about its action in time, then about the judicial precedent of such
you can't say. It is impossible to establish the validity period of such an unwritten rule with the help of specific dates of its adoption or cancellation. This is due to the fact that the judicial precedent is being formed for an indefinite period of time.
If a statute regulates relations that arose during the period of its validity, then the court, when considering cases, deals with legal facts, which have already taken place and therefore, filling the gap in the law, can give the created rule retroactive. The new case-law applies to facts that existed before its creation, unless a final judgment has been made on those facts.
Termination of a judicial precedent in time as its entry into force is a rather difficult problem. A judicial precedent can be reversed by law indirectly when public relations that previously fell under the precedent law are subject to regulation by the adopted law. The difficulty lies in the fact that the law does not specify the precedents that it overrides. A precedent can be canceled by a higher court, and in addition, a precedent can be terminated as a result of a decision of the court itself, when the court refuses to follow its previous decisions.
Regarding the action of the judicial precedent in space, it can be noted that, as a general rule, judges, when resolving cases, follow the decisions of higher courts within the same judicial system. Judges are not obliged to follow the decisions of the judicial authorities of other states, but they have the right to use judicial practice another state.