Unity and independence of the judicial system of the Russian Federation. Organization of the judiciary Unity and independence of the judicial system of the Russian Federation

<1>The article was prepared within the framework of the RFBR grant N 10-06-00595.

Dudko I.A., Candidate of Legal Sciences, Associate Professor of the Department constitutional law Russian Academy of Justice.

Kryazhkova O.N., Candidate of Legal Sciences, Associate Professor of the Department of Constitutional Law of the Russian Academy of Justice.

The article analyzes approaches to identifying the content of the principle of unity judicial system Russian Federation tion developed in the legal literature and practice of the Constitutional Court of the Russian Federation. It is concluded that the development of scientific thought and the existing structure of the system of judicial authorities affect the understanding of the studied principle, expanding its content. The means of ensuring the unity of the judicial system of the Russian Federation actually include unity judicial practice... On the scale of the entire system of courts, this unity is achieved with the help of the legal positions of the Constitutional Court of the Russian Federation on the identification of the constitutional and legal meaning of the rule of law.

Key words: the unity of the judicial system of the Russian Federation, the system of judicial bodies of the Russian Federation, the unity of judicial practice, legal positions of the Constitutional Court of the Russian Federation.

The article presents the approaches to identifying the content of the principle of unity of the judicial system of the Russian Federation, based on legal literature and practice of the Constitutional Court of the Russian Federation. The authors conclude that the legal theory and prevailing system of judiciary affect the understanding of the principle of unity of the judicial system, expanding its content. Among the means to ensure the unity of the judicial system of the Russian Federation is actually included the unity of jurisprudence. The unity of the judicial system is achieved through the legal positions of the Constitutional Court of the Russian Federation about the identification of the constitutional sense of the rule of law.

One of the key tasks of the ongoing in the Russian Federation judicial reform is to improve the quality of constitutional, civil, administrative and criminal proceedings so that courts and judges achieve in their activities a socially useful result in line with constitutional values, including from the position of the general legal principle of humanism<2>.

<2>For a discussion of these problems at the highest state level, see: V. Kuzmin, Honest Court // Rossiyskaya Gazeta. 2010.20 July. See also: Vitruk N.V. Constitutional and legal worldview and legal education // Actual problems of teaching constitutional and municipal law: Materials of the All-Russian scientific and practical seminar / Otv. ed. N.V. Vitruk. M., 2008.S. 9.

In the legal literature, the difficulties accompanying the activities of the judiciary are rightly linked to the peculiarities of the operation and implementation of the normatively established principle of the unity of the judicial system of the Russian Federation (Article 3 of the Federal Constitutional Law of December 31, 1996 N 1-FKZ (as amended on December 27, 2009) "On the judicial system of the Russian Federation"<3>(hereinafter referred to as the Law on the Judicial System)). The content of the named principle remained without legislative definition. The Law on the Judicial System only establishes the means of ensuring it, including:

<3>Collection of legislation of the Russian Federation. 1997. N 1. Art. 1; 2009. N 52 (part I). Art. 6402.

the establishment of the judicial system of the Russian Federation by the Constitution of the Russian Federation and the Law on the judicial system;
compliance by all federal courts and by justices of the peace the rules of legal procedure established by federal laws;
application by all courts of the Constitution of the Russian Federation, federal constitutional laws, federal laws, generally recognized principles and norms international law and international treaties Of the Russian Federation, as well as constitutions (statutes) and other laws of the constituent entities of the Russian Federation;
recognition of the obligation to fulfill throughout the territory of the Russian Federation court orders entered into legal force;
legislative consolidation of the unity of the status of judges;
funding federal courts and justices of the peace from federal budget.

This work is aimed at identifying the content of the principle under consideration and the means of ensuring it, which have actually taken shape in legal practice.

An analysis of scientific sources shows that in publications devoted to the unity of the judicial system of the Russian Federation, there are two main approaches to its understanding, which can be conditionally called narrow and broad. Proponents of a narrow approach (N.A. Kolokolov, V.M. Lebedev, S.G. Pavlikov and others) consider the unity of the judicial system through the prism of its institutional (formal) embodiment, identifying it with the unity of the judicial system. Adherents of a broad approach (V.I. Anishina, V.P. Kashepov, A.V. Nikitina and others) include both formal and substantive components in the analyzed principle, implying the latter as the judicial power exercised by the judicial authorities, the principles of the organization of the judicial system , governing bodies of the judicial system, bodies of the judicial community, the judiciary in the broadest sense (consisting of judges as carriers of the judiciary, retired judges, jurors and assessors), as well as various connections and relationships between these elements<4>.

<4>See: A.V. Nikitina Unity of the judicial system of the Russian Federation: constitutional and legal research: Author's abstract. dis. ... Cand. jurid. sciences. Omsk, 2006.S. 9 - 10.

The narrow approach, in turn, is presented in two directions. The first seeks to link the unity of the judicial system of the Russian Federation with such a proper organization, in which there would be no subsystems of courts that are independent in their specialization. S.V. Borodin and V.N. Kudryavtsev, for example, assess the rate of Art. 3 of the Law on the Judicial System as declarative and see in this law an internal contradiction, because along with the proclamation of the unity of the judicial system, it establishes three independent, unrelated judicial systems (bodies of specialized judicial constitutional control, courts of general jurisdiction and commercial courts). Nevertheless, the named lawyers consider the thesis about the unity of the judicial system deserving of early implementation due to the fact that there are "difficulties in the functioning of all three judicial organizations, on the one hand, disunited, and on the other - competing with each other "<5>... V.M. Lebedev believes that "the separation of the judiciary between the three systems of courts entails serious problems for the unified legal space of the Russian Federation as a whole."<6>... R.S. Aleksandrova also writes that "the absence of a common organizing center for the judiciary makes it loose and fragmented."<7>... It should be noted that from time to time there are proposals in the press to make the judicial system of the Russian Federation vertically-oriented by the method of its organization, creating a body uniting the chairmen of the three highest courts of Russia, which would be engaged in the development of a unified judicial policy, would exercise the right of legislative initiative, would ensure unity of jurisprudence<8>, or by liquidating the arbitration<9>, or by creating some kind of add-on over higher courts Russia, including over the Constitutional Court of the Russian Federation, conditionally called the Single Court, whose competence would include both the consideration of specific cases and constitutional control<10>.

<5>Borodin S.V., Kudryavtsev V.N. On the judiciary in Russia // State and Law. 2001. N 10.S. 22.
<6>Lebedev V.M. From the Concept of Judicial Reform to New Ideas for the Development of the Judicial System // Russian Justice. 2000. N 3.S. 2.
<7>Alexandrova R. Unity of the judicial system - essential principle judicial system in the Russian Federation // Arbitration and civil procedure. 2006. N 11.P. 13.
<8>See: Ibid. S. 13 - 14.
<9>See: It is necessary to create a unified judicial system (interview with A. Bolshova) // Judge. 2009. N 11 (quoted from the text posted in the ATP "Garant").
<10>See: L. Bezrukova. What should we call us now? // Russian newspaper. 2010.19 April.

The second direction focuses on the existence of the judicial system in a federal form territorial structure The Russian state putting at the forefront the question: do the constituent entities of the Russian Federation have the right to their own judicial systems? It should be noted that a negative answer was officially given to it, expressed in the legal positions of the Constitutional Court of the Russian Federation. Exploring the position of Part 1 of Art. 74 of the Charter - the Basic Law of the Chita Region that the judicial system of the region is included in the judicial system of the Russian Federation, the Court formulated a legal position according to which “the current judicial system is a unified judicial system, since In this regard, the expression "regional judicial system" does not mean the creation of any special regional judicial system along with the unified judicial system of the Russian Federation, which is established and operates on the basis of the relevant provisions of the Constitution and legislation of the Russian Federation "(Resolution of February 1, 1996 . N 3-P<11>). Further Constitutional Court The Russian Federation confirmed this position and followed the path of making it laconic ("The Constitution of the Russian Federation establishes a unified judicial system and ... it does not envisage it as independent judicial systems of the constituent entities of the Russian Federation") (Definition of March 12, 1998 N 32-О<12>), categorical ("the judicial system of the Russian Federation does not imply as independent judicial systems of the constituent entities of the Russian Federation" (Resolution of June 7, 2000 N 10-P)<13>and specificity (constitutional (statutory) courts of the constituent entities of the Russian Federation and justices of the peace "together with federal courts are included in the judicial system of the Russian Federation. Consequently, constitutional (statutory) courts and justices of the peace operate on the basis of the Constitution of the Russian Federation and federal laws and cannot be considered in as an independent system of judicial power of a constituent entity of the Russian Federation, not included in the judicial system of the Russian Federation ") (Definition of March 6, 2003 N 103-О<14>). In addition, the Constitutional Court of Russia determined that the Constitution of the Russian Federation does not imply the delegation of powers in the field of establishing the judicial system to the constituent entities of Russia, and the obligation to independently determine the list of operating courts, the system of procedural instances and their competence lies with the federal legislator (Definitions of June 8, 2000 No. N 91-O<15>, dated March 6, 2003 N 103-O).

<11>Resolution "In the case of checking the constitutionality of a number of provisions of the Charter - the Basic Law of the Chita Region" // Collected Legislation of the Russian Federation. 1996. N 7. Art. 700.
<12>Definition "On the refusal to accept for consideration the request of the highest officials of a number of constituent entities of the Russian Federation to verify the constitutionality of certain provisions of the Federal Constitutional Law" On the Judicial System of the Russian Federation "// Collected Legislation of the Russian Federation. 1998. N 18. Art. 2062.
<13>Resolution "In the case of the review of the constitutionality individual provisions Of the Constitution of the Altai Republic and the Federal Law "On General Principles of Organization of Legislative (Representative) and executive bodies state power of the constituent entities of the Russian Federation "// Collected Legislation of the Russian Federation. 2000. N 25. Art. 2728.
<14>Definition "At the request of the State Assembly of the Republic of Bashkortostan and the State Council of the Republic of Tatarstan on checking the constitutionality of part 1 of article 27 of the Federal Constitutional Law" On the Judicial System of the Russian Federation "// Collected Legislation of the Russian Federation. 2003. N 17. Art. 1658.
<15>Definition "At the request of the Government of the Republic of Ingushetia on the verification of the constitutionality of part one of Article 2, Articles 5, 6, 7, 8, paragraph 2 of Article 9, Article 21 and paragraph 4 of Article 23 of the Federal Law" On the General Principles of Organization of Legislative (Representative) and Executive Bodies state power of the constituent entities of the Russian Federation "// Collected Legislation of the Russian Federation. 2000. N 28. Art. 3000.
<16>Topornin B.N. Development of the judiciary in Russia: general approaches // Judicial reform: problems and prospects / Otv. ed. B.N. Topornin, I.L. Petrukhin. M., 2001.S. 55.

Many representatives of legal science are in solidarity with the indicated positions. So, B.N. Topornin reacted positively to the fact that the judicial reform did not take the path of fragmentation of the federal justice: “today, with the indentation of time, one cannot but admit that Russia has made the right choice. component parts federal state could have the most serious Negative consequences" <16>... M.F. In this regard, Kosolapov notes that it is legitimate to speak not about the judicial system of the constituent entities of the Russian Federation, but about the judicial power in the constituent entities of the Russian Federation.<17>... S.G. Pavlikov believes that the current position of the courts of the constituent entities of the Russian Federation in the judicial system of the country makes it possible to ensure its unity in rather difficult modern conditions, when fully civilized federal relations have not developed. The inclusion of the courts of the constituent entities of the Russian Federation in the unified judicial system of Russia has strengthened the foundations of the Russian state and federalism at this historical stage.<18>... Indirectly, the fairness of the absence of independent judicial systems in the constituent entities of the Russian Federation is confirmed by the fact that among constitutionalists the idea of adopting a federal normative legal act on constitutional (charter) courts of constituent entities of the Russian Federation, which, according to the Law on the Judicial System, are courts of constituent entities of the Federation, is maturing<19>.

<17>See: M.F. Kosolapov. The judiciary in constitutional order Russia. Saratov, 2005.S. 145.
<18>See: S.G. Pavlikov. Constitutional regulation of the organization of the judiciary: a gap in law or an optimal model // Constitutional and municipal law. 2008. N 4.S. 23.
<19>See, for example: Kryazhkov V. Regional constitutional justice in the Russian Federation: state and development paths // Comparative constitutional review. 2007. N 3.P. 159-161; Pavlikov S.G. On some constitutional and legal aspects of the study of the categories of "judicial power" and "judicial system" of the constituent entities of the Russian Federation // Russian justice. 2007. N 6. P. 56 - 63. Criticism of this position is contained, in particular, in the article: Gusev A.V. On the issue of the entry of the constitutional (charter) courts of the constituent entities of the Russian Federation into the unified judicial system of the Russian Federation // Journal of constitutional justice. 2009. N 1.P. 35 - 38.

In contrast to the narrow approach to defining the content of the principle of the unity of the judicial system of the Russian Federation, the broad one is focused more on the background of such an establishment in the Law on the Judicial System, rather than on its formal side, and its followers also approve of the existing specialization of the judiciary.<20>, and the independence of the courts of the constituent entities of the Russian Federation only in terms of their constitutional (charter) courts<21>.

<20>Moreover, within its framework, a stake is placed on the further consolidation and development of the specialization of courts. In practical terms, the Supreme Arbitration Court of the Russian Federation is showing activity in this direction, preparing the legal basis for the creation, in particular, of a special patent court (see, for example: I. Drobysheva, The Patent Court will be created in Russia // Rossiyskaya Gazeta. 2009. October 2 ).
<21>See: V.I. Anishina Constitutional principles of the judiciary of the Russian Federation: formation, content and development prospects. M., 2006. P. 132 - 135. In this regard, it is not superfluous to say that the Constitutional Court of the Russian Federation, without dividing the judicial system into federal and subjects of the Federation, expresses a fairly liberal approach to defining the powers of the subjects of the Russian Federation in the sphere of (charter) courts. So, the jurisdiction of the subjects of the Russian Federation was attributed to them the right to vest the constitutional (charter) courts with powers in addition to those specified in Art. 27 of the Law on the Judicial System, if these powers correspond to the legal nature and purpose of these courts as judicial bodies of constitutional (statutory) control and relate to issues related to the jurisdiction of the constituent entities of the Russian Federation by virtue of Art. 73 of the Constitution of the Russian Federation (Definition of March 6, 2003 N 103-О).

The unity of the judicial system from this point of view has multiple expressions. So, V.P. Kashepov connects it with the existence of the courts, which are not the same in terms of competence, uniform law enforcement tasks and the presence of common principles of their organization and activities.<22>... A.V. Nikitina concludes that the principle that generates unified systemic interconnections in the judicial system of the Russian Federation is such constitutional principles of its organization and functioning as federalism, unity and integrity of the judicial system, combined with a polysystemic nature, its stability and stability, independence and independence of the judiciary, as well as the delineation of jurisdiction and authority between the Russian Federation and the constituent entities of the Russian Federation in the sphere of exercising judicial power<23>... As T.G. Morshchakova, "the unity of the judicial system should not be ensured by the concentration of its leadership in a certain a single center, but on the basis of a clear delineation of competence, in which there are no gaps that leave a person defenseless against illegal acts and actions of the state "<24>... As if bringing to the same denominator various manifestations of the unity of the judicial system, V.I. Anishina writes that it means the organization and activity of the judiciary, which makes it possible to speak of the presence in the state of such an integral single mechanism that performs the socialized function of justice, judicial control and establishes an integral legal influence for the whole range of social relations regulated by law, covers by its action the entire legal space of Russia, ensures the unity of the legal space and the implementation of the ideas of stability and certainty of law as a social regulator in society<25>.

<22>See: Commentary on the Federal Constitutional Law "On the Judicial System of the Russian Federation" / Otv. ed. IN AND. Radchenko. M., 2000.S. 15.
<23>See: A.V. Nikitina Decree. op. P. 17.
<24>Scientific-practical conference "Judicial constitutional review in Russia: lessons, problems and prospects (review)" // State and Law. 1997. N 5.S. 7.
<25>See: V.I. Anishina Decree. op. P. 141.

It seems that at the current stage, based on the logic of the development of scientific thought and legal practice, the emphasis will inevitably shift from understanding the unity of the judicial system as an exclusively judicial principle (narrow approach) to its essential expression (broad approach). The specialization of the judiciary is well established and proven to be effective. A radical restructuring of this system in the direction of its unification would mean a short-sighted and unfair rejection of the positive experience of its functioning, a turn away from the democratic gains of the judicial reform, a breakdown of sound instruments for protecting the rights and freedoms of man and citizen, the constitutional system of Russia, not to mention the extremely high cost such events. It is hardly possible to find legal prerequisites for the implementation of such an understanding of the principle of the unity of the judiciary. The relevant proposals seem to be motivated by other, extra-legal circumstances. As for the federal aspect of the unity of the judicial system in Russia, then, apparently, it developed on the basis of historical tradition, as well as on the basis of the actual experience of the existence of the federation in post-Soviet Russia. We must agree with N.A. Kolokolov that the presence of constitutional (charter) courts in the country in some individual constituent entities of the Federation, as well as the establishment of a corps of justices of the peace, which are, in fact, an appendage of the federal judicial system, does not solve the problem of creating judicial systems of the constituent entities of the Federation<26>... Considering that today the general vector of development of the state structure is directed more towards unitarization than federalization, it can be predicted that any proposals for the decentralization of the judicial system will turn out to be unproductive.

<26>See: N.A. Kolokolov Judicial power as a general legal phenomenon: Author's abstract. dis. ... doct. jurid. sciences. N. Novgorod, 2006.S. 38.

In our opinion, the merit of a broad approach to defining the content of the principle of unity of the judicial system of the Russian Federation lies in the desire to see its value not as a self-sufficient phenomenon, but in inextricable connection with the goals to achieve which its regulation is aimed at in the Law on the Judicial System. It is obvious that the creation and existence of a system of judicial authorities as a legal institution is determined by the purpose and content of law as such. Ultimately, all the main functions of the court (justice, judicial control and judicial review) mediate the goal of achieving the rule of law in specific social relations. It, in turn, is dictated by the principle of the rule of law enshrined in the Constitution of the Russian Federation (part 1 of article 1).

It seems that improving the quality of the judiciary in the Russian Federation in the context of the operation and implementation of the principle of the unity of the judicial system should be guided by the search for means and techniques that allow existing courts more subtle bonds, thereby increasing the effectiveness of their activities in accordance with the achieved level of constitutional development. We agree with V.I. Anishina, that the unity of the judicial system should be expressed in the content and results of its work, i.e. in uniformity of judicial interpretation, understanding and application legal principles, norms and provisions of the Constitution and laws, the unity of judicial practice on specific categories cases of all courts of the Russian Federation<27>.

<27>See: V.I. Anishina Fundamentals of Judicial Power and Justice in the Russian Federation. M., 2008.S. 168.

The Constitutional Court of the Russian Federation, having implemented the casual interpretation of Art. Art. 4, 15 and 76 of the Constitution of the Russian Federation, formulated a legal position, which is the starting point for the formation of a unified judicial practice: the laws operate uniformly throughout the territory of the Russian Federation (Resolution of June 16, 1998 N 19-P<28>). To this should be added the position of the constitutional judge (now retired) B.S. Ebzeev, set out by him in the Dissenting Opinion in the case of the interpretation of Part 3 of Art. 103, h. 2 and 5 of Art. 105, part 3 of Art. 107, part 2 of Art. 108, part 3 of Art. 117 and part 2 of Art. 135 of the Constitution of the Russian Federation<29>: the unity of the state predetermines the unity of its legal, including constitutional, space. When interpreting the federal Constitution, it is necessary to take into account the unity of the constitutional system of the Russian Federation and not to allow different understandings of provisions, concepts or terms that are common for the constitutional system.

<28>Resolution "On the case of the interpretation of certain provisions of Articles 125, 126 and 127 of the Constitution of the Russian Federation" // Collected Legislation of the Russian Federation. 1998. N 25. Art. 3004.
<29>Collection of legislation of the Russian Federation. 1995. N 16. Art. 1451.

Such a property of judicial practice as its unity is not self-worth. It focuses on the elimination of miscarriages of justice and arbitrariness on the part of the court, including the issuance of decisions by the court based on unlawful law or in conditions of unfair procedures.<30>... At the same time, the scientific legal literature specifically stipulates that in the interests of society, the unity of judicial practice is in demand only as a means of ensuring the rule of law, and in a different sense it would have a negative effect, since it would lead to the cloning of the offending practice<31>.

<30>See: The Rule of Law and Problems of Its Provision in Law Enforcement Practice: International Collective Monograph. M., 2009.S. 296, 297 (chapter author - T.G. Morshchakova).
<31>See: Ibid. P. 300.

V.M. Zhuikov identifies two aspects of ensuring the unity of judicial practice, based on the structure of the system of courts of the Russian Federation:

ensuring the unity of judicial practice in each of the systems of courts (general jurisdiction and arbitration);
ensuring the uniformity of the application of legislation as a whole in the judicial system of the Russian Federation, i.e. both by courts of general jurisdiction and by arbitration courts when they apply the same rules of law<32>.

<32>See: Rule of Law and Problems of Its Provision in Law Enforcement Practice. P. 357 (the author of the chapter is V.M. Zhuikov).

The bodies entrusted with ensuring the unity of judicial practice within each of the court systems are the Supreme Court of the Russian Federation (for courts of general jurisdiction) and the Supreme Arbitration Court of the Russian Federation (for commercial courts). The Constitutional Court of Russia noted that they are considered as judicial bodies, higher in relation to other judicial instances, carrying out proceedings, respectively, in civil, criminal, administrative and other cases, as well as in resolving economic disputes, and these bodies, higher in the hierarchy of federal courts, are entrusted powers to exercise - in the procedural forms provided for by federal law - judicial supervision over the activities of all courts of general and arbitration jurisdiction without any exceptions (Resolution of June 7, 2000 N 10-P).

In addition, the Constitutional Court of Russia expressed a legal position, according to which the authority of the Supreme Arbitration Court of the Russian Federation to provide clarifications on issues of judicial practice arising from Art. 127 of the Constitution of the Russian Federation, is aimed at maintaining uniformity in the interpretation and application of legal norms by arbitration courts and is one of the elements of the constitutional mechanism for protecting the unity and consistency of the Russian legal system (Resolution of January 21, 2010 N 1-P<33>). And the Supreme Court of the Russian Federation clarified what should be understood by the unity of judicial practice in courts of general jurisdiction: this is the correct and uniform application of federal legislation by courts throughout the territory of the Russian Federation when considering and resolving civil cases. For the Judicial Panel on civil affairs Of the Supreme Court of the Russian Federation, a violation of the unity of judicial practice may be considered the issuance of rulings that contradict the decisions of the Plenum of the Supreme Court, containing clarifications on issues of judicial practice; decisions of the Presidium of the Supreme Court, decisions of the Judicial Collegium for Civil Cases and the Cassation Collegium of the Supreme Court on specific cases, containing the interpretation of the norms of substantive and procedural law; the materials of the reviews of judicial practice officially published by the Supreme Court and answers to questions raised by the courts in the application of legislation (Resolution of the Presidium of March 23, 2005 N 25PV04<34>). Proceeding from this, the means of ensuring the unity of judicial practice within the systems of courts of general jurisdiction and arbitration courts are:

<33>Resolution "In the case of checking the constitutionality of the provisions of part 4 of Article 170, paragraph 1 of Article 311 and part 1 of Article 312 of the Arbitration Procedure Code of the Russian Federation in connection with the complaints of the closed joint-stock company" Production Association "Bereg", open joint-stock companies "Karbolit", "Plant "Microwire" and "Research and Production Enterprise" Respirator "// Collected Legislation of the Russian Federation. 2010. N 6. Art. 699.
<34>Bulletin of the Supreme Court of the Russian Federation. 2005. N 9.

decisions of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, adopted on the basis of Art. Art. 126 and 127 of the Constitution of the Russian Federation, containing explanations addressed to courts of general jurisdiction and arbitration courts on issues of judicial practice;
reviews of judicial practice or answers to questions raised by courts of general jurisdiction and arbitration courts, prepared and published by the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation;
judicial decisions on specific cases considered by the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation at first instance and in the order of supervision, and by the Supreme Court - also in cassation<35>.

<35>See: Rule of Law and Problems of Its Provision in Law Enforcement Practice. P. 388.

In turn, ensuring the uniformity of the application of legislation as a whole in the judicial system of the Russian Federation is carried out by a judicial authority that is not subordinate to other courts - the Constitutional Court of the Russian Federation. The foundations of the relationship between this body of constitutional control and other courts included in the judicial system of the Russian Federation are laid down in the provisions of the Constitution of the Russian Federation, dedicated to the Constitutional Court of Russia, and in the Federal Constitutional Law of July 21, 1994 N 1-FKZ (as amended from 2 June 2009) "On the Constitutional Court of the Russian Federation"<36>(hereinafter - the Law on the Constitutional Court). It:

<36>Collection of legislation of the Russian Federation. 1994. N 13. Art. 1447; 2009. N 23. Art. 2754.

the power of the Constitutional Court to check the constitutionality of laws at the request of the courts (part 4 of article 125 of the Constitution of the Russian Federation, paragraph 3 of part 1 of article 3 of the Law on the Constitutional Court);
the duty of the Constitutional Court, when deciding on a case, to assess both the literal meaning of the act in question and the meaning given to it by official and other interpretation or the prevailing one law enforcement practice(part 2 of article 74 of the Law on the Constitutional Court);
binding, including for all judicial bodies throughout the territory of the Russian Federation, decisions of the Constitutional Court (Article 6 of the Law on the Constitutional Court)<37>.

<37>For more details see: O. N. Kryazhkova. Legal positions of the Constitutional Court of Russia. Theoretical basis and the practice of application by the courts of Russia. M., 2006.S. 102 - 145.

The Constitutional Court itself through casual interpretation of Part 2 of Art. 120 of the Constitution of the Russian Federation in conjunction with other constitutional provisions (parts 3, 5 and 6 of Art. 76, Art. Art. 118, 125, 126 and Art. 127) brought out the legal position, according to which "courts of general jurisdiction and the courts independently decide which rules are to be applied in a particular case. legal regulations leads to a collision of constitutional rights implemented on their basis, the issue of eliminating such a contradiction acquires a constitutional aspect and, therefore, falls within the competence of the Constitutional Court of the Russian Federation, which ... provides in these cases the identification of the constitutional meaning current law"(Resolution of April 21, 2003 N 6-P<38>). The practice of the Constitutional Court has followed the path of active use of this new tool, expressed in the recognition of the rule of law being examined for constitutionality as "not contradicting the Constitution of the Russian Federation" with the simultaneous clarification of its constitutional and legal meaning. At the same time, the courts were dubious about this novel.<39>, which led to the need for the Constitutional Court to clarify its essence. In accordance with his legal position, "if the Constitutional Court of the Russian Federation establishes that an unconstitutional meaning is attached to a norm as a result of an inadequate interpretation of the Constitution of the Russian Federation by a law enforcement agent, he has the right, without removing the norm itself from the legal system, to restore its constitutional and legal interpretation, recognizing not contradicting the Constitution of the Russian Federation in the constitutional and legal sense revealed as a result of constitutional proceedings. application in an unconstitutional interpretation has in this part the same consequences as the recognition of a norm that does not correspond to the Constitution of the Russian Federation ... Accordingly, from part two of Article 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation th Federation "it follows that the subsequent revision, based on the results of constitutional proceedings, of decisions of courts of general jurisdiction and arbitration courts in the applicants' cases, based on the application of the norm in its unconstitutional interpretation, entailing a violation of constitutional rights and freedoms of citizens, as well as public interests" (Decision of November 11, 2008 Mr. N 556-O-R<40>).

<38>Resolution "In the case of checking the constitutionality of the provisions of paragraphs 1 and 2 of Article 167 Civil Code Of the Russian Federation in connection with the complaints of citizens O.M. Marinicheva, A.V. Nemirovskaya, Z.A. Sklyanova, R.M. Sklyanova and V.M. Shiryaeva "// Collected Legislation of the Russian Federation. 2003. N 17. Art. 1657.
<39>For more details see: Dudko I.A. Once again to the issue of the legal force of decisions of the Constitutional Court of the Russian Federation // Journal of constitutional justice. 2008. N 6.P. 14 - 19.
<40>Determination "On clarification of the Resolution of the Constitutional Court of the Russian Federation of February 5, 2007 N 2-P on the case of checking the constitutionality of the provisions of Articles 16, 20, 112, 336, 376, 377, 380, 381, 382, 383, 387, 388 and 389 Of the Civil Procedure Code of the Russian Federation "// Collected Legislation of the Russian Federation. 2008. N 48. Art. 5722.

Such activity of the Constitutional Court of the Russian Federation is very productive, since it allows both to eliminate the violation of the Constitution of the Russian Federation, expressed in the misunderstanding of the meaning of the norm by law enforcement officers, and to prevent a gap in legal regulation, which would have been caused by the loss of legal force of a norm recognized as not complying with the Constitution of the Russian Federation, which would inevitably entail difficulties in law enforcement practice. The decisions of the Constitutional Court of the Russian Federation on the identification of the constitutional and legal meaning of the rule of law are the key link that holds the judicial system of Russia together and ensures the consistency and predictability of court decisions. Obviously, it is required to legalize the existing practice of the application by the judicial authorities of the legal positions of the Constitutional Court of the Russian Federation, in which the constitutional and legal meaning of the norms of law is revealed, and to put it on a solid basis, adding a corresponding paragraph to the list of means of ensuring the unity of the judicial system of the Russian Federation contained in Art. 3 of the Law on the Judicial System.

Unity of the judiciary

The presence of different groups of courts in their competence, complex organizational and procedural relationships between them do not exclude joint activities to perform common law enforcement tasks based on the unity of the judicial system.

The unity of the judicial system is ensured by:

· The establishment of the judicial system of the Russian Federation by the Constitution of the Russian Federation and the federal constitutional law common to all courts;

· Observance by all federal courts and justices of the peace of the rules of legal procedure established by federal laws;

· The application by all courts of the Constitution of the Russian Federation, federal constitutional laws, federal laws, generally recognized principles and norms of international law and international treaties of the Russian Federation, as well as constitutions (statutes) and other laws of the constituent entities of the Russian Federation;

· Recognition of the obligation to comply with judicial decisions that have entered into legal force throughout the territory of the Russian Federation;

· Legislative consolidation of the unity of the status of judges;

· Financing of all federal courts and justices of the peace from the federal budget.

The unity of the judicial system predetermines the diversity of internal relations, which are determined by organizational and functional ties. Organizational ties are governed by the legislation on the judicial system, functional - by the legislation on judicial proceedings, i.e. criminal, civil, arbitration, administrative procedural law.

From the point of view of organizational ties, the system of courts is usually divided into links. The link of the judicial system is understood as the courts endowed with the same competence, including all the variety of functions of the judiciary. From this point of view, the entire system of courts can be divided into three links: basic, secondary and higher.

With regard to territorial (conditional name) courts of general jurisdiction, the division will be as follows:

1) the main link is the district courts;

2) the middle link - the supreme courts of the republics, regional and regional courts, courts of cities of federal significance, courts of an autonomous region and autonomous regions;

3) the highest level - the Supreme Court of the Russian Federation

Military courts include the following links:

1) the main link is the garrison military courts;

2) the middle link - the district (naval) military courts;

3) the highest level - the Supreme Court of the Russian Federation (Military Collegium of the Supreme Court of the Russian Federation).

Links of arbitration courts:

1) the main link is the arbitration courts of the constituent entities of the Russian Federation;

2) middle link - arbitration courts of appeal and district arbitration courts;

3) the highest level - the Supreme Arbitration Court of the Russian Federation.

If the link shows the place of the court to the judicial system in connection with its activities in a certain territory, then the functional links are determined by the concept of instance.

The concept of the court

The judicial instance - it is considered a court or its structural unit performing one or another function of justice based on the purposes of the proceedings (making a decision on the merits, checking the legality of previously made decisions). Distinguish between consideration of cases at first instance, cassation or appeal proceedings and review of cases by way of supervision.

The court of first instance is a court empowered to direct (essentially) investigation and establishment in court session circumstances of the case and the issuance of an appropriate court decision on it. Almost all courts within the powers granted to them by law can act as a court of first instance. The majority of criminal and civil cases are considered at first instance by district courts, and arbitration cases - by arbitration courts of the constituent entities of the Russian Federation. Arbitration courts of appeal, federal arbitration courts of districts are not courts of first instance. Justice at first instance is the consideration of a case on the merits with the aim of condemning or acquittal of the defendant - in a criminal case or satisfaction, refusal of a claim - in a civil and arbitration case. The most complex cases are considered in the first instance and the second-tier courts, and very few cases go to the first instance in the higher echelons of the judiciary.

Cassation proceedings are carried out, as a rule, in the courts of the second level. The court of the second (cassation) instance is the court that considers the case on the basis of a cassation appeal or cassation presentation against decisions of the court of first instance. He checks the legality and validity of the decision of the first instance court that has not entered into legal force on the basis of the materials available in the case and additionally provided. In Russia by general rule the cassation instance is the higher court in relation to the court, the judicial act of which is being appealed. Verification of sentences and decisions of the court of first instance is carried out on the basis of a cassation appeal or a cassation presentation of the prosecutor. Based on the results of the examination of the case in cassation instance the court issues a ruling that assesses the legality and validity of the verdict or decision of the first instance court and makes one of two decisions: to leave the verdict (decision) in force or cancel it and send the case for a new trial to the same or another court corresponding to it.

The second instance may be the appellate instance (in the district court for cases considered by justices of the peace, as well as in the system of arbitration courts). The court of appeal is a court that considers, at the request of the authorized, the decision of the court of first instance that has not entered into legal force. In the appellate instance, according to the available and additionally presented evidence, the case is considered again and in in full... This is the main difference between the appeal and the cassation instance. The courts of appeal are the district (city) court in relation to justices of the peace, arbitration Court of Appeal in relation to the arbitration court of a constituent entity of the Russian Federation. The peculiarity of the appellate instance is that, having canceled the decisions of the court of first instance, the same court at the same time the case can be considered anew with a new decision or sentence.

The subject of the proceedings in the court of appeal is the correctness of the establishment of the factual circumstances of the case, as well as the application of material and procedural rules rights. When considering a case on appeal, the proceedings are conducted according to the rules of proceedings in the court of first instance. An appellate judge has the right to establish new facts and examine new evidence in the case.

Consideration of cases by way of supervision can take place after a previously passed sentence or decision has entered into legal force and has not been refuted in the usual (cassation) procedure. The exclusive (supervisory) procedure is intended to eliminate previously committed violations or in connection with the emergence of newly discovered circumstances previously unknown to the court. Reconsideration of cases by way of supervision is carried out only on the initiative of a limited circle of persons directly listed in the law; in the structural divisions of the courts of the middle court or in the courts of higher rank. In the system of courts of general jurisdiction, the supervisory authority may be the presidiums of mid-level courts, as well as judicial collegiums and the Presidium of the Supreme Court of the Russian Federation, in the system of military courts - the presidium of the district (naval) military court and the Military Collegium of the Supreme Court of the Russian Federation; for arbitration courts - the Presidium of the Supreme Arbitration Court of the Russian Federation.

In the system of courts of general jurisdiction and military courts, all courts act in this capacity, except for the courts of the main level. Thus, the regional court is a court of second instance in relation to the district court, the district (naval) military court - in relation to the garrison military court. Thus, one and the same court, as a rule, is simultaneously a first instance for one and a second instance for another category of cases.

In the system of arbitration courts, the functions of the cassation instance are performed by the arbitration courts of the districts, specially created to check the legality of judicial acts adopted by the arbitration courts of the first and appeal instances.

Under the concept of "higher court", "higher instance" it is customary to understand the courts or their structural units, occupying a higher level in the hierarchy of courts and belonging to the judicial level of a higher level. Thus, the regional court is the immediately higher instance in relation to the district (city) court.

The term "higher court" is usually understood as the courts referred to by the Constitution of the Russian Federation as higher bodies the judicial system of the Russian Federation, namely: the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation.

The unity of the judicial system of the Russian Federation is ensured by:

establishing the judicial system of the Russian Federation by the Constitution of the Russian Federation and this Federal Const. by law;

application by all courts of the Constitution of the Russian Federation, federal constitutional laws, federal laws, generally recognized principles and norms of international law and international treaties of the Russian Federation, as well as constitutions (statutes) and other laws of the constituent entities of the Russian Federation;

recognition of the obligation to comply with judicial decisions that have entered into legal force throughout the territory of the Russian Federation;

financing federal courts and justices of the peace from the federal budget.

(Art. 3, Federal Constitutional Law of December 31, 1996 N 1-FKZ (as amended on December 27, 2009) "On the judicial system of the Russian Federation" (approved by the Federation Council of the Federal Assembly of the Russian Federation on December 26, 1996))

The entire judicial system of the Russian Federation is a single whole. In this regard, in Art. 3 of the Law on the Judicial System states the following:

"The unity of the judicial system of the Russian Federation is ensured by:

establishing the judicial system of the Russian Federation by the Constitution of the Russian Federation and this Federal Const. by law;

compliance by all federal courts and justices of the peace with the rules of legal proceedings established by federal laws;

recognition of the obligation to comply with judicial decisions that have entered into legal force throughout the territory of the Russian Federation;

legislative consolidation of the unity of the status of judges;

financing federal courts and justices of the peace from the federal budget. "

To ensure the unity of the judicial system, the procedure for the creation and abolition of specific courts does not matter in principle. In accordance with Art. 17 of the Law on the Judicial System, this procedure implies that the creation and abolition of courts should not occur arbitrarily, at the discretion of local or some other state. bodies or officials, and through the adoption of federal laws or laws of the subjects of the federation. Briefly, the procedure for the creation and abolition of courts included in the judicial system could be summarized as follows:

§ the highest judicial bodies (Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation), created on the basis of the requirements of the Constitution of the Russian Federation, can be abolished only by amending it;

§ all other federal courts are created and abolished only by federal laws;

§ courts of the subjects of the federation, (constitutional (statutory) courts of the subjects of the federation and the offices of justices of the peace) are created and abolished in compliance with the requirements of federal laws and laws of the respective subjects of the federation.

1.1 Unity and independence of the judicial system of the Russian Federation

Judicial power in the Russian Federation belongs only to the judicial authorities and is exercised only by courts represented by judges and jurors involved in the administration of justice in the manner prescribed by law. No other bodies and persons have the right to take upon themselves the administration of justice. The creation of extraordinary courts and courts not provided for by the Constitution of the Russian Federation and the law is not allowed.

The judiciary is independent and acts independently of the legislative and executive branches, exercised through constitutional, civil, administrative and criminal proceedings.

Thus, the judiciary can be defined as the ability and ability of a body (court) occupying a special position in the state apparatus to influence the behavior of people and social processes. Organization of the activities of courts. A course of lectures for universities / Otv. ed. ON. Petukhov. - M., 2005, p. 15. .

Each court exercises the power given to it within the limits of the competence with which it is endowed, and together the courts form a single judicial system of Russia.

The judicial system of the Russian Federation is a set of courts enshrined in the Constitution of Russia in 1993, built taking into account the federal and administrative-territorial structure of our country, having common tasks, interconnected by relations for the administration of justice Vorontsov S.A. Law enforcement agencies and special services of the Russian Federation, Moscow, 1999, p. 63.. Each of the links of the judicial system is a set of courts of the same competence.

At present, the judicial system is established in accordance with the Federal Constitutional Law No. 1-FKZ "On the Judicial System of the Russian Federation" dated December 31, 1996. Rossiyskaya Gazeta. No. 3. 06.01.1997. On the basis of clause "o" of Article 71 of the Constitution of the Russian Federation, the establishment of the foundations for building a judicial system belongs exclusively to the jurisdiction of the Russian Federation, and not of its subjects. The unity of the judiciary is essential, which takes on a special role in a federal state.

In our country, the unity of the judicial system is ensured by:

1) the establishment of the judicial system by the Constitution of the Russian Federation and federal constitutional law;

2) compliance by all federal courts and justices of the peace with the rules of legal proceedings established by federal laws;

3) the application by all courts of the Constitution of the Russian Federation, federal constitutional laws, federal laws, generally recognized norms and principles of international law and international treaties of the Russian Federation, as well as constitutions (statutes) and other laws of constituent entities of Russia;

4) recognition of the obligation to comply with judicial acts that have entered into legal force throughout the Russian territory;

5) legislative consolidation of the uniform status of judges;

6) financing of federal courts and justices of the peace from the federal budget Article 3 of the Federal Law on Law "On the judicial system of the Russian Federation". ...

Analysis of the legal status of judges in Russia

One of the branches of government is the judiciary. The subject exercising this power can only be a court, which possesses inherent only capabilities and abilities to influence the behavior of people and processes ...

State bodies and officials carrying out criminal proceedings as participants in criminal proceedings

Fundamental to the legal status of the court is the provision on its independence and independence. The courts are independent and exercise their power independently of anyone else's will ...

The Constitution of the Russian Federation enshrines the principles that determine the organization and existence of certain areas of society. These principles represent a set of functions, actions, powers government agencies...

Unity of the Russian State: Problems of Constitutional Theory and Practice

The constitutional and legal mechanism for ensuring the unity of the legal space of the Russian Federation is based on constitutional principles system of authorities, as well as state, organizational, legal ...

Constitutional foundations judiciary

The unity of the judicial system of the Russian Federation is expressed in the fact that: 1.) it is established only by federal constitutional laws; 2.) there is a uniform status of judges throughout the territory of the Russian Federation; 3.) All courts apply federal law ...

Features of the federal structure of Russia

Legal status of executive authorities

One of the principles of the modern organization and activity of executive authorities is that ...

The Russian Federation is a federal state

While consolidating the principle of separation of state power into legislative, executive and judicial, the Constitution of the Russian Federation at the same time emphasizes ...

Judicial power in the activities of the state in the twenties of the twentieth century in Russia

Russian justice did not emerge from scratch. A long formation has been going on since ancient times. Legal customs took the form of legal documents ...

Judicial system

The presence of different groups of courts in their competence, complex organizational and procedural relationships between them do not exclude joint activities in the implementation of common law enforcement tasks ...

The Russian judicial system includes the following types judicial authorities: b federal courts; ь constitutional (statutory) courts of the constituent entities of the Russian Federation; ь justices of the peace of the constituent entities of the Russian Federation Constitutional law of Russia. Ed. D. y. D., prof. G.N. Komkova. Moscow. YURIST ...

Judicial system of the Russian Federation

The court takes an exceptionally special place among other organs of state power. Only this body by its decision may put an end to the dispute between the plaintiff and the defendant ...

Judicial system of the Russian Federation

Depending on the type of courts in question, the courts that make up the judicial system of the Russian Federation are divided into certain groups - links. Federal courts of general jurisdiction have three links, four links with arbitration courts ...

The judicial system of the Russian Federation

The judicial system is the totality of the judicial bodies, intended for the exercise of judicial power. In this regard, it is necessary to determine what the judiciary is. According to O.A. Galustyan ...

Financial activities states

The unity of financial policy is a necessary condition, guaranteed by the Constitution of the Russian Federation, the unity of the economic space in the Russian Federation, free movement of funds (Article 75) ...

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Nikitina Anna Vasilievna. Unity of the judicial system of the Russian Federation: 12.00.02 Nikitina, Anna Vasilievna Unity of the judicial system of the Russian Federation (Constitutional and legal research): Dis. ... Cand. jurid. Sciences: 12.00.02 Khabarovsk, 2006 202 p. RSL OD, 61: 06-12 / 1163

Introduction

Chapter 1. Systemic unity of the judiciary in the Russian Federation 17

1. The constitutional foundations of the systemic structure of the judiciary in the Russian Federation 17

2. Unity as a principle of the exercise of the judiciary and the organization of the judiciary 40

3. Unity of constitutional courts in the Russian Federation and problems of ensuring their independence 68

Chapter 2. Judicial federalism as a form of organizing a unified judiciary in the Russian Federation 99

1. Russian judicial federalism: concept, content, principles 99

2. Combination of the principles of centralization and decentralization of power in the judicial system of the Russian Federation 114

3. Problems of delimitation of powers between the Russian Federation and its constituent entities in the field of legal regulation of the organization and exercise of judicial power of constituent entities of the Russian Federation 134

Conclusion 164

Bibliography 170

Introduction to work

Relevance of the research topic. The consolidation by the Constitution of the Russian Federation as one of the principles of the Russian federal structure of the principle of the unity of the system of state power presupposes its consistent implementation in the organization of each of its three branches.

Ensuring the unity of the judicial system and the judiciary in the Russian Federation is not an easy process, the difficulties of which are caused by a number of factors of an objective and subjective nature. The exercise of judicial power is entrusted to the entire totality of judicial bodies, from the lowest to the highest, each of which, regardless of its place in the judicial system, is absolutely independent in resolving cases. At the same time, each judge is the bearer of judicial power and is able to influence the formation of judicial practice, which, in the context of Russian legal reality, the contradictory nature of legislation and the presence of legal gaps, is not coordinated and often does not comply with the Constitution of the Russian Federation. Insufficient regulation of the mechanisms of interaction between the subsystems that make up the judicial system, the lack of a clear delineation of jurisdiction between them give rise to the destruction of a single judicial system and negatively affect the unity and integrity of state power as a whole.

These problems are associated, among other things, with the underestimation of the systemic nature of the judiciary, the importance of system-forming ties in the judicial system, which communicate to the latter the quality of unity, which guarantees not only the unity of the judiciary, but also the unity of state power in general and the constitutional and legal space on a federal scale. This circumstance led the author to turn to a systematic method for studying the judiciary in the Russian Federation, which focuses not so much on the analysis of its constituent parts, but on the search for means of ensuring its integrity and unity.

The principle of federalism, proclaimed in the Constitution of the Russian Federation as the foundations of the constitutional order, presupposes consolidation in the current legislation.

the organization of state power both at the federal level and at the level of the constituent entities of the federation, ensuring the unity of state power, the distribution of jurisdictions and powers between the Russian Federation and the constituent entities of the Russian Federation. All this fully applies to the judiciary and the judiciary, ensuring the unity of which has essential features in a federal state.

Consideration of the judicial system of the Russian Federation from the standpoint of unity in the federal aspect is due to the problem of finding the optimal forms of correlation between the unity and division of the judicial power in Russia. The exaggeration of the role of the division of judicial power between the federation and its constituent parts makes the independence of the constituent entities of the Russian Federation in the exercise of judicial power absolute, determines their desire to 1 complete independence in this aspect from the Russian Federation and to create their own judicial systems while ignoring objective factors that set a certain framework for the judicial model. federalism in a particular state. On the contrary, understating or ignoring the need to delimit the judiciary determines the opposite tendencies: unjustified and unlimited limitation of the independence of the subjects of the Russian Federation, the loss of federal principles in the judicial system of Russia, its transformation into a centralized hierarchical system.

Since both of these trends are currently being manifested in Russia, in constitutional practice a real contradiction arose and continues to develop between the Russian Federation and its subjects over the division and interaction of the judiciary, the delimitation of legislative powers in the field of regulation of the judicial system. This contradiction is a serious state problem that affects a wide range of public relations. First of all, this concerns the delineation of competence and powers between the state authorities of the Russian Federation and the state authorities of the constituent entities of the Russian Federation in the field of establishing the judicial system, forming the judiciary, the procedure for establishing courts, empowering judges, and delineating competence between federal courts and courts of the constituent entities of the Federation.

It is no secret that the constituent entities of the Russian Federation often interpret broadly the powers granted to them in the field of regulating the status, organization and operation of constitutional (charter) courts of constituent entities of the Russian Federation and justices of the peace, thereby going beyond the framework of legal regulation established for them by the federal legislator. In this regard, the intervention of regional legislation in the sphere of exclusive federal competence... On the other hand, ignoring the constitutional concept of delimiting the subjects of jurisdiction and powers between the Russian Federation and the constituent entities of the Russian Federation, the federal legislator often significantly limits the regional legislator in the possibility of legal regulation individual elements the judicial system, which, based on the status of the courts of the constituent entities of the Russian Federation, could well be the subject of legal regulation at the regional level. To a large extent, this situation is due to the "silence" of the Constitution of the Russian Federation regarding the existence of judicial bodies of the constituent entities of the Russian Federation, the presence of contradictions between federal legislation and the Constitution of the Russian Federation in the field of regulation of judicial power, gaps in federal legislation on the issue of delimiting the subjects of jurisdiction and powers between the bodies of state power of the Russian Federation and state bodies. the authorities of the constituent entities of the Russian Federation regarding the status of judges, the order of organization and activity, resource provision of courts of the constituent entities of the Russian Federation, the existence of the practice of advanced legal regulation by the constituent entities of the Russian Federation of certain issues of regional constitutional justice in the absence of clear federal guidelines.

A full-fledged legal regulation, taking into account the interests of both the Russian Federation and the constituent entities of the Russian Federation, is impossible without a theoretical understanding of the model of a rational and balanced distribution of judicial powers between the indicated levels of public authority, based on an effective combination of the principles of centralization and decentralization. The existing model of vertical delimitation of the judiciary and related processes are reflected in the construction of modern Russian federalism, which, unfortunately, is not perfect. Therefore, the search for the optimal

model in the context of regional diversity and pronounced disintegration processes gains special meaning for the Russian Federation.

The state of scientific elaboration of the topic. The philosophical and methodological basis of the study was the work of N.T. Abramova, A.N. Averyanova, P.V. Alekseeva, I. V. Blauberg, V.I. Vasilyeva, V.A. Lektorsky, E.S. Markaryan, A.V. Panina, L.G. Romanova, M.N. Rutkevich, V.N. Sadovsky, A.I. Uemova, A.A. Chervony, E.G. Yudin, who examined the foundations of the application of the systemic method of scientific knowledge, as well as the research of S.S. Alekseeva, N.A. Bogdanova, A.B. Vengerova, D.A. Kerimova, D.A. Kovacheva, R.Z. Livshitsa, SV. Polenina, L.B. Tiunova, Yu.A. Tikhomirov and other scientists, who substantiated the need to use a systematic approach for the study and knowledge of state and legal phenomena.

In domestic legal literature modern period various aspects of the judiciary and the judicial system were examined by Ye.B. Abrosimova, P.P. Bammatov, V.P. Bozhiev, A.D. Boykov, L.A. Voskobitova, K.F. Gutsenko, Yu.A. Dmitriev, B.D. Zavidov, V.P. Kashepov, E.V. Kladiy, M.I. Kleandrov, V.N. Kudryavtsev, V.A. Lazareva, V.M. Lebedev, I.S. Maslikov, I.L. Petrukhin, V.A. Rzhevsky, V.M. Savitsky, Yu.I. Stetsovsky, M.V. Charyev, N.M. Chepurnova, G.G. Cheremnykh and other scientists.

The work of E.B. Abrosimova, D.N. Bakhrakha, A.B. Zelentsova, S.D. Knyazeva, M. Ya. Maslennikova, I.V. Panova, Yu.A. Popova, V.I. Radchenko, N.G. Salischevoy, Yu.N. Starilova, I. D. Fialkovskaya, S.D. Khazanova, N.Yu. Hamaneva and other researchers.

The theoretical basis for understanding the issues of federalism and the unity of state power, most often in relation to the principle of its division "horizontally" and "vertically", were the works of well-known Russian state scholars: A.P. Alekhina, M.V. Baglaya, L.F. Boltenkova, I.I. Bushueva, B.P. Eliseeva, L.M. Karapetyan, Yu.M. Kozlova, V.A. Kocheva, O.E. Kutafina,

I.V. Levakina, M.N. Marchenko, N.A. Mikhaleva, SV. Naruto, I.A. Polyansky, M.S. Salikova, B.A. Strashun, E.V. Tadevosyan, Yu.A. Tikhomirova, I.A. Umnova, V.A. Chetvernin, V.E. Chirkin, B.S. Ebzeev and other authors.

Investigating the problems of organizing and exercising judicial power in the constituent entities of the Russian Federation, the author turned to research on regional constitutional and world justice presented by V.K. Bobrova, N.V. Vitruk, G.A. Gadzhieva, N.A. Zhilina, A.F. Izvarina, V.A. Kryazhkova, L.V. Lazarev, SV. Donskoy, O.B. Mironovsky, M.A. Mityu-kova, SE. Nesmeyanova and others.

A few studies on the issues of judicial federalism are presented by the works of O.P. Vedernikova, I.A. Umnova, A.V. Churbakova, M. S. Salikova. Certain problems of delimiting judicial powers along the vertical, as well as the problems of delimiting powers between the bodies of state power of the Russian Federation and the constituent entities of the Russian Federation in the field of legal regulation in the field of organization and activities of courts of the constituent entities of the Russian Federation are touched upon in the studies of Ye. Abrosimova, M.K. Azhakhova, E.B. Danilevskaya, V.A. Kryazhkova, M.A. Mityukova, SV. Naruto, J.I. Hov-sepyan, M.L. Sleptsova, Yu.L. Shulzhenko, Yu.A. Yudin and other scientists.

The object of dissertation research there are relations in the spheres of constitutional and legal support for the unity of the judicial system of the Russian Federation in the federal aspect, as well as the delineation of judicial power and legislative powers between the Russian Federation and the constituent entities of the Russian Federation on the organization and implementation of judicial power in Russia.

The subject of research is a set of normative legal acts of the current federal and regional legislation governing the mechanism for ensuring the unity of the judicial system of the Russian Federation and delimiting a single judicial power vertically; the established state-legal practice of ensuring the unity of the judiciary in federal conditions; scientific publications and court decisions on the issues under study.

Goals and objectives of the study. The objectives of this dissertation research are to ensure that through an integrated systematic sub-

progress to analyze the judicial system of the Russian Federation in a federal "cut"; to identify and analyze the theoretical and practical problems of ensuring the unity of the judicial system and the judiciary in the conditions of the Russian federal state; to develop measures to ensure the unity of the judicial system from the standpoint of federalism; develop recommendations for improving federal and regional legislation governing certain issues of the exercise of judicial power in the constituent entities of the Russian Federation, as well as formulate proposals of a practical nature aimed at improving the model of delimiting judicial powers between the Russian Federation and the constituent entities of the Russian Federation.

To achieve these goals, the following were identified tasks:

to conduct a study of the judiciary and the judicial system of the Russian Federation in the constitutional and legal context from the standpoint of the systemic method as one of the fundamental approaches of scientific knowledge; to determine the relationship between the concepts of "judicial system", "system of judicial authorities" and "judicial power" from the point of view of the relationship between the system-wide categories "form" and "content";

to consider the elements of the judicial system of the Russian Federation in a federal "cut", choosing as the basis for identifying such elements the delimitation of the judiciary vertically between the Russian Federation and its subjects; analyze the terms "judicial system of a constituent entity of the Russian Federation" and "system of judicial power in a constituent entity of the Russian Federation";

to investigate in the social, functional, organizational and legal aspects the content of the category "unity of the judiciary" as a connecting link of all elements of the unified judicial system of the Russian Federation; formulate proposals to ensure the unity of the judicial system of the Russian Federation in a polysystemic environment;

substantiate the existence of systemic relationships between the Constitutional Court of the Russian Federation and the constitutional (statutory) courts of the constituent entities of the Russian Federation; to propose measures to improve the legal regulation of the relationship between them;

offer effective ways legislative solution to the problem of ensuring the independence of constitutional courts, taking into account their importance in the judicial system of the Russian Federation and their role in the federal and regional mechanisms for the separation of powers;

conduct a study of the Russian judicial system in the context of federalism; analyze existing approaches to defining the category of "judicial federalism"; on the basis of the analysis of the federal terminology and semantics of the federal state, propose their own understanding of the essence and content of Russian judicial federalism, identify its features and characterize the principles;

analyze the degree of centralization and decentralization in the system of courts of general jurisdiction and constitutional courts; to propose legislative measures to optimize the relationship between federal government bodies and government bodies of the constituent entities of the Russian Federation regarding the exercise of judicial power in the Russian Federation and the delineation of judicial powers between federal courts and courts of the constituent entities of the Russian Federation;

study the normative legal acts of the constituent entities of the Russian Federation governing the organization and exercise of judicial power in the constituent entities of the Russian Federation, the competence of regional courts, issues of their financial, material and technical support, the status of judges of courts of the constituent entities of the Russian Federation in terms of compliance with federal legislation; to analyze the problems of delineation of powers between the Russian Federation and its constituent entities in the sphere of legal regulation of the organization and implementation of the judicial power of the constituent entities of the Russian Federation; develop recommendations for improving federal and regional legislation in this area.

Methodological and legal framework for the study. The research methodology is based on fundamental categories and principles of modern materialist dialectics. In the work on the dissertation, the system-structural, comparative-legal, formal-legal, formal-logical, legal-technical research methods were used.

vania. Various types of interpretation of legal norms were applied, conclusions and arguments were illustrated with examples from the practice of the judicial authorities.

The legal basis of the dissertation research was the Constitution of the Russian Federation, federal legislation, regulatory legal acts of the constituent entities of the Russian Federation, decisions of the Constitutional Court of the Russian Federation and constitutional (statutory) courts of the constituent entities of the Russian Federation, and other judicial bodies.

Scientific novelty of the dissertation consists in the very formulation of the problem of considering the unity of the judicial system in the constitutional and legal context. Although in legal science the issues of ensuring the unity of the constitutional and legal space, the system of state power bodies (especially executive bodies), the state legal system, as well as the problems of delimiting the subjects of jurisdiction and powers between the state power bodies of the Russian Federation and the state power bodies of the constituent entities of the Russian Federation, have been developed quite seriously, but constitutionally - the legal problems of ensuring the unity of the judicial system of Russia as a federal state, the delimitation of judicial powers and legislative competence in the sphere of organizing and exercising judicial power are not given due attention. Ensuring the unity of the judicial system comes down mainly to ensuring the unity of judicial practice, which, as it is believed, can be fully ensured by procedural means, and the issues of delimiting judicial power, in the opinion of individual authors, “received an unambiguous resolution in the Constitution of the Russian Federation in favor of the Russian Federation” and therefore do not require serious scientific understanding.

This work is a special monographic research of a dissertation nature, in which the author conducts a comprehensive constitutional and legal analysis of the unity of the judicial system of the Russian Federation, focusing on its federal component, examines the unity of the judiciary in social, functional, organizational and legal aspects, analyzes various types of ties , giving the judicial system of the Russian Federation the quality of unity, justifies its own

military judgments about the need to consider the Constitutional Court of the Russian Federation and the constitutional (statutory) courts of the constituent entities of the Russian Federation in a systemic unity.

The scientific novelty of the work is also determined by the fact that the unity of the judicial system is considered in relation to the principle of the division of the judiciary "vertically," specific state. The dissertation student made an attempt to determine the optimal form of combining the principles of centralization and decentralization of the judiciary in the Russian Federation, as well as to propose ways to improve the norms of federal and regional legislation in order to optimize and balance the distribution of powers between the federation and its subjects in the field of organizing and exercising judicial power in the constituent entities of the Russian Federation.

To the defense the following main provisions, practical conclusions, proposals and recommendations are made, contained in the dissertation research and having elements of novelty:

The use of a systematic approach in the scientific analysis of the judicial system of Russia allowed the author to assert that it is fundamentally irreducible to the totality of courts operating on the territory of the Russian Federation, since this equates the categories of “system of judicial power” and “judicial system”, while the system of judicial bodies is only the formal aspect of the judicial system, the external expression of its substantive aspect - the judicial power.

In the horizontal aspect, the judicial system of Russia, presented as a unity of the system of judicial bodies and the judicial power exercised by them, in addition to these elements, are the principles of the organization of the judicial system, governing bodies of the judicial system, bodies of the judicial community, the judiciary in a broad sense, consisting of judges as carriers of the judicial authorities, retired judges, people's, juries, arbitration assessors, a set of various connections and relationships between these elements. In this understanding of the judicial system, the entire judicial

power activity of the state from the side of its structural elements, static and dynamic state, mechanism of action, internal and external organization, promising directions of its reform. In a federal, vertical “cut”, the judicial system of the Russian Federation, which is of a centralized nature, cannot be considered as a set of independent subsystems - the federal judicial system and the judicial systems of the constituent entities of the Russian Federation, since none of them is an integral and complete formation without the other.

3. In order to develop a unified constitutional and legal framework for regulation
judiciary in the Russian Federation, the dissertation proposed the following
model formulations of the norms of the constitutions (charters) of the constituent entities of the Russian Federation, on
sacred judiciary in the subject of the Russian Federation:

“The system of judicial authorities in the Russian Federation is established by the Constitution of the Russian Federation and the Federal Constitutional Law“ On the Judicial System of the Russian Federation ”.

Judicial power in a constituent entity of the Russian Federation is exercised by the constitutional (charter) court of the constituent entity of the Russian Federation and justices of the peace of the constituent entity of the Russian Federation, who are judges of general jurisdiction. Federal courts are formed and operate on the territory of a constituent entity of the Russian Federation in accordance with the Constitution of the Russian Federation, the Federal Constitutional Law "On the Judicial System of the Russian Federation", and other federal laws.

The powers, procedure for the formation and activities of the constitutional (statutory) court of a constituent entity of the Russian Federation and justices of the peace of a constituent entity of the Russian Federation are established by the Federal Constitutional Law "On the Judicial System of the Russian Federation", federal laws and laws of the constituent entity of the Russian Federation.

Courts operating on the territory of a constituent entity of the Russian Federation are part of unified judicial system of the Russian Federation ”.

4. Understanding of the judiciary in a systemic unity, which gives
thinking about her as a kind of holistic education predetermined the need for
the ability to consider it through the prism of social, functional and organization
legal unity. In a social aspect, the judiciary

viewed as a unity of conditions for the realization of human rights and freedoms; in functional terms, the exercise of judicial power by all courts is based on the unity of three fundamental functions - resolving social conflicts, ensuring human and civil rights and freedoms, and exercising control in the mechanism of separation of powers; the only form of exercising judicial power is justice. The unity of the judiciary in the organizational and legal sense means the presence of a community of principles for the organization and operation of courts, the unity legal basis building a system of the judiciary as an institutional embodiment of the judiciary and the unity of the ongoing judicial policy. Thus, the unity of the judiciary is based on the unity of functions, principles, forms and methods (methods) of its implementation, conditions and directions of activity of the system of judicial authorities, internal and external relations, a dynamic state, a mechanism of action focused on solving certain problems, the implementation of promising trends in the development of the judiciary.

The relationship between the constitutional courts of two levels is based on the principle of the unity of the judiciary, which presupposes the unity of the goals of their activities, directions and forms of its implementation, organizational and legal unity. The quality of unity to the system of constitutional courts is given by various system-forming connections: connections of functioning, interactions (first of all, connections of properties), cooperative and conflict connections.

The ratio of the principles of the unity of the judicial system and the vertical delineation of the judiciary objectively determines the emergence of a new political-state and legal phenomenon of judicial federalism for the Russian Federation, the content of which, based on federal terminology and the general semantics of a federal state, can be represented by two aspects: 1) as an optimal form division and interaction of the judiciary between the federation and its constituent entities, as well as judicial competence (jurisdiction) between federal courts and courts of the constituent entities of the federation, while maintaining the unity of the judicial system of the Russian Federation

the Russian Federation; 2) as a legal basis for the delimitation of competence between the Russian Federation and the constituent entities of the Russian Federation in the field of regulation of issues of the judicial system, legal proceedings, the organization and activities of judicial bodies, the volume of judicial power exercised, the status of judges, etc.

7. The essence of Russian judicial federalism is revealed through
the principles that make up its ideological basis and certain dissertation
tant as ideas that are fundamental, fundamental to
building a judicial system in a federalist environment and expressing the most
the most significant features of the relationship between the Russian Federation
tions and subjects of the Russian Federation on the delimitation and implementation of judicial
authorities. These principles are the principles of: constitutionality; unity
the judicial system of Russia; delineation of judicial and power powers between
do by federal courts and courts of constituent entities of the Russian Federation only by the Constitution of the Russian Federation and
federal constitutional laws; inadmissibility of transfer is complete
urges of courts of constituent entities of the Russian Federation to federal courts (and vice versa)
the bordering of the subjects of jurisdiction and powers between the bodies of state
the authorities of the Russian Federation and state authorities of the constituent entities of the Russian Federation; providing with
observance of constitutional rights and freedoms of man and citizen when playing
reduction of judicial and power powers; independence of state bodies
military power of the constituent entities of the Russian Federation in the exercise of judicial power and regulation
nii judicial-power relations under their own jurisdiction; op
the optimal combination of centralization and decentralization of the judiciary.

8. Search for optimal forms of combining the principles of centralization and decens
legalization in the judicial system of the Russian Federation, as well as analysis of problems
delineation of powers between the Russian Federation and the constituent entities of the Russian Federation in
the sphere of legal regulation of the organization and implementation of the judiciary
subjects of the Russian Federation allowed the author to formulate a number of proposals for
advancing legislation. First, the strengthening of the decentralization of destinies
power in the system of courts of general jurisdiction is seen in the expansion of the computer
tendencies of justices of the peace by vesting a magistrate with the right to consider
a certain category of administrative cases that do not represent a large

difficulties, for example, cases of challenging decisions territorial bodies self-government (below the district level), on appeal against actions (inaction) of municipal employees, on appeal against decisions of state bodies and officials on the imposition of punishments for minor administrative offenses, etc. Secondly, there is a need to introduce a certain federal component into the legal regulation of the procedure of constitutional proceedings in the constituent entities of the Russian Federation. The general principles of regional constitutional proceedings should be enshrined in federal legislation. It is also advisable to adopt the Federal Law “On General Principles of Constitutional Judicial Proceedings in the Subjects of the Russian Federation”. Thirdly, the need to ensure the unity of the status of judges in the Russian Federation requires improving the content and structure of the RF Law "On the Status of Judges in the Russian Federation" in order to more clearly establish the elements of the legal status of judges that are common to all judges and are not subject to legal regulation by the laws of the constituent entities of the Russian Federation. , and elements that may be regulated by the legislator of the subject RF.

The practical significance of the study consists in the fact that the conclusions and proposals formulated in the dissertation work can be used to improve the current federal and regional legislation in order to optimize efforts aimed at ensuring the unity of the judicial system in Russia and delimiting judicial and power powers between the two levels of government. The provisions of this study are also of a certain value for law enforcement, teaching courses on constitutional law, constitutional justice, constitutional foundations of the judiciary, as well as special courses on regional problems of organizing state power (regional law, constitutional law of constituent entities of the Russian Federation) in institutions of legal education; organization of student research; increasing the level of professional knowledge of employees of the apparatus of state authorities. The results of the dissertation analysis also seem to be useful for further theoretical developments on the problems of providing

the unity of the Russian judicial system, the vertical delimitation of the judiciary, the deepening of comprehensive scientific and practical research on the problems of lawmaking of the constituent entities of the Russian Federation in the field of organization and implementation of the judiciary in the constituent entity of the Russian Federation.

Approbation of research results. The main provisions of the dissertation were tested by the author in publications on the topic of research, in speeches at scientific conferences held on the basis of institutions of higher legal education in Khabarovsk. On the basis of the research carried out, scientific reports were prepared, presented by the author in 2002 and 2004 to the annual competition of young scientists of the Khabarovsk Territory in the nomination "Social Sciences". Research Article dissertation "The independence of the Constitutional Court of Russia in its relationship with other state authorities" was recognized better work submitted to the International Competition for Postgraduate Students and Young Scientists, which was held in 2003 by the Institute of Law and Public Policy within the framework of the VI International Forum on Constitutional Justice "The Constitutional Court as a Guarantor of the Separation of Powers". The research results are used in the educational process during lectures and practical classes in the disciplines "Constitutional Law of the Russian Federation", "Regional Law", "Constitutional Justice", "Constitutional Foundations of the Judicial System of the Russian Federation" with students of the law faculty of the Khabarovsk State Academy of Economics and Law. The provisions of the dissertation were also introduced into the law enforcement practice of the Arbitration Court of the Khabarovsk Territory, related to the resolution of cases on challenging legal acts, and into the activities of the court to ensure the unity of judicial practice.

Dissertation structure, due to the logic of the study, its goals and objectives, is presented by an introduction, two chapters, consisting of six paragraphs, a conclusion, a list of used regulatory legal acts, judicial practice and literature. The volume of the dissertation research corresponds to the requirements for candidate dissertations.

Constitutional foundations of the systemic structure of the judiciary in the Russian Federation

One of the quality characteristics modern science is the widespread use of a systematic approach to the study and knowledge of complex organized objects. What is understood in modern literature as a systematic approach to objects of science, their system analysis, systemic research, is a complex and multifaceted scientific phenomenon. It finds its expression in various fields of knowledge, in various types of research, at various levels of building knowledge. Without setting ourselves the goal of a detailed study of the systemic approach itself, we note that, according to the just remark of E.S. Markarian, “it is one of the fundamental strategies of scientific research, historically caused by the need to study complex systems with adequate cognitive means” 1. The systematic approach allows one to discover the internal mechanism of not only the action of the components of the whole, but also their interactions at various levels. This opens up prospects for the discovery of an organizational "multilayer" system, a deep dialectical connection and interdependence of substantive-meaningful parts, structures and functioning of phenomena2.

The science of constitutional law quite actively uses the main conclusions of the theory of systems, they are the basis for the study of the corresponding constitutional and legal phenomena. System-wide categories, such as unity, integrity, structure, element, part, whole, organization, hierarchy and others, determine the content of many constitutional and legal categories, concepts, principles and norms. At the same time, the very concept of "system" is the starting point in the characterization of a number of state-legal phenomena. This is natural, because the systematic study of society, state and law allows us to consider them comprehensively, in the interconnection and interaction of the constituent components and parts that form the dialectical unity and struggle of opposites as a source of self-movement and development. It is no coincidence that the Constitution of the Russian Federation repeatedly uses the term "system", in particular, in Part 3 of Art. 5, Art. 12, 15, item "g" of Art. 71, item "n" Art. 72, part 3 of Art. 75, art. 77, h. Zet. 118, h. 1 st. 1293.

Since, as a rule, a system is understood as an integral set of interrelated and interacting parts, components, elements4, the purpose of applying a systematic approach in the scientific analysis of the judicial system can be formulated not only as a study, analysis of its composition and properties of various elements manifested in their interaction, but as a search for scientific means with which it is possible to express its integrity, that is, to characterize those specific features, properties, signs, connections, relations that make the object of this research a "system". In this sense, the main problematic of the systematic approach essentially depends on the chosen method of “dividing” the judicial system, as well as identifying and researching various connections and relationships between the elements that unite them into a single whole, determine new integrative qualities of the system that are not inherent in its constituent components.

A systematic analysis of the phenomena associated with the implementation of the judicial power also depends on what is actually understood by the term “judicial system of the Russian Federation” (hereinafter, it is emphasized by the author - A.N.) and how it relates to the categories “judicial system authorities ”and“ the system of judicial authorities ”. These terms are widely used in legislation, legal science and practice, they are formalized and require clear definitions that reveal their legal content, however, many issues of not only the organization of the system of judicial authorities, but also the conceptual apparatus still remain debatable.

Lack of current Russian legislation clear definition of the judicial system leads to various kinds of disputes on this issue. Focusing on various aspects of the judicial system that are significant for their scientific research, the majority of scientists are unanimous in one thing: the judicial system of the Russian Federation is a set of courts operating on the territory of the Russian Federation and exercising judicial power5. At first glance, this approach also reflects the Federal Constitutional Law "On the Judicial System of the Russian Federation" of December 31, 1996 (as amended by the Federal Constitutional Law of April 5, 2005), establishing that the judicial system of the Russian Federation is composed of federal courts, constitutional ( statutory) courts and justices of the peace of the constituent entities of the Russian Federation (part 2 of article 4) 6. Such a limited understanding of this category was laid down in the Law of the RSFSR "On the Judicial System of the RSFSR" of July 8, 1981 (as amended by the Federal Law of August 20, 2004), which is currently in force in the part that does not contradict the Federal Constitutional Law " On the judicial system of the Russian Federation ". Section III of this Law “The Judiciary” is dedicated exclusively to the judiciary.

Without focusing on Part 2 of Art. 4 of the Federal Constitutional Law "On the Judicial System of the Russian Federation", we note that, in general, the content of this Law indicates that the legislator more broadly approaches the term "judicial system", including in its content the principles of building a system of judicial power and administration of justice, fundamentals of the status of judges, bodies of the judicial community and governing bodies of the judicial system. Indeed, it would be illogical to consider these elements outside of connection with the judicial system, outside of its framework.

Unity as a principle for the exercise of the judiciary and the organization of the judiciary

Unity as an essential feature of power was identified by ancient philosophers and is defined as its main characteristic by researchers of the early (F. Aquinas, M. Padua) and late (N. Machivelli, J. Boden) middle ages, modern times (G. Grotius, T. Hobbes, J. Rousseau, B. Spinoza, etc.). It is put at the forefront by modern jurists (L. Petrazhitsky, N. Korkunov, V. Khvostov and others), many modern theorists both abroad (R. Barth, E. Canneti, B. Russell, etc.) and in Russia (V. Veselovsky, I. Kravchenko, V. Mushinsky, E. Osipov, I. Umnova, Y. Tikhomirov, E. Chirkin, etc.). With all the diversity of the author's characteristics, they can be reduced to a common denominator, which determines, first of all, in our opinion, the qualitatively defined integrity of power in the interconnectedness of its objective-functional content and form. In this aspect, the concept of "integrity" reflects the harmonious unity and interaction of parts according to a certain ordered system, but we will consider unity as such a stage in the development of the judiciary and the judicial system of the Russian Federation, in which the connection of elements as a whole is most clearly manifested. Indeed, the emergence of unity takes place only if its components exist, the systematization of which leads to unity53. Thus, we will call a system a set of elements interconnected in such a way that unity arises.

Based on the understanding of unity as a certain commonality of the elements of the system, the unity of the judiciary is such a property of it, which excludes the presence in the state of several separate institutional structures, each of which sovereignly exercises judicial and power powers. However, the unity of power in this aspect should not be understood as power embodied in the activities of a single “body” or as an undistributed function or competence. The unity of the judiciary is manifested in a single organized "volitional direction" 54, a single mechanism of influence on society, focused on its stability and stability, and on a national scale - on the integrity, stability and stability of the state, the unity of the constitutional and legal space and the state legal system.

V.E. Chirkin notes that the theory and practice of the unity of state power has three different aspects: social unity, the unity of fundamental goals, directions and forms of activity of state authorities, and organizational and legal unity55. Based on these conceptual provisions, we will try to present our own vision of the mechanism for ensuring the unity of the judiciary in the Russian Federation.

As part of a single state power, the judiciary has the same essential nature and comes from a single source - the people as the bearer of sovereignty. As M.F. Vyatkin, “the legal nature of the judiciary lies in the fact that it, being a reflection of the unity and indivisibility of the power of the people as a source and subject of all state power, acquires a state character as a special legal category... The judiciary acts as a state institution associated with the embodiment of the supreme power of the people in a specific sphere of implementation, including social relations that have increased value for the state ”56. Thus, it is the freely expressed will of the people that produces the unity of the judiciary. That is, in the social aspect, the unity of the judicial system presupposes the unity of the nature of the judicial power, since its different social content would exclude its systemic nature.

The system of the judiciary in the social aspect can also be viewed as a unity of conditions for the realization of human rights and freedoms. In this sense, the unity of the judiciary is not an end in itself, but should guarantee the equality of citizens before the law and the court, a single standard of their rights, equal opportunities for them. judicial protection rights and legitimate interests based on the rule of the Constitution and the law.

Russian judicial federalism: concept, content, principles

The principle of the unity of the judicial system as the basis for the balance of relations between the Russian Federation and the constituent entities of the Russian Federation in the sphere of the implementation of judicial power introduces a "unitary component" into the system of judicial power and ultimately serves the integrity of the federal state. At the same time, however, unity cannot be perceived as absolute centralization. The unity of the judiciary is directly related to its vertical division between the Russian Federation and its subjects. This vertical division is hierarchical. This means that a certain subordination of the power of the federation and its subjects is established. Due to the special social role of the judiciary - ensuring the rule of law in various kinds of legal conflicts and protecting human rights according to a single standard - most of the judicial powers are vested in federal courts. This does not mean a denial of the judicial power of the constituent entities of the Russian Federation, as some authors believe, especially since the Constitution of the Russian Federation creates the preconditions for the existence of regional judicial bodies. The delimitation of a single judiciary does not presuppose the destruction of national unity, but the differentiation and balance of the judiciary. The principle of federalism in this case opposes the administratively subordinate centralization of courts, and not the unity of the judicial system.

The ratio of the unity and division of the judiciary in the Russian Federation is of significant scientific and practical importance. The exaggeration of the role of the vertical division of the judiciary between the Russian Federation and its subjects makes the importance of the parts in their relationship with the federal system absolute, justifies the fragmentation of the judiciary in the country, stimulates the creation of their own judicial systems in the constituent entities of the Russian Federation, which in the context of the Russian model of delimiting the subjects of jurisdiction and powers between The Russian Federation and its subjects give rise to disintegration processes that violate the unity and integrity of the federal state. On the contrary, underestimating or ignoring the role of the division of judicial power leads to an unjustified limitation of the independence of the subjects of the Russian Federation, the absence or loss of federal principles in the judicial system of the Russian Federation.

In this regard, one of the most pressing theoretical problems requiring its solution is the formation of a unified approach to understanding and defining the essence of Russian judicial federalism. In a federal state, the problem of the scientific understanding of this phenomenon occupies a key position in matters of building a unified judicial system. In a strictly scientific sense, a coherent theory of judicial federalism, as well as a clear, complete definition of this concept does not exist.

A very limited range of scientific literature on this topic allows us to formulate two completely different general approaches to the definition of this category.

According to the first approach, the emphasis is on the judicial resolution of disputes between the federation and its subjects. Judicial federalism here means a system of procedural, legal-technical and organizational methods (methods) and forms of resolving constitutional and legal disputes between the federation and its subjects, clarifying and clarifying the content constitutional norms and elimination (or overcoming) conflicts between them in order to fix and expand the positive constitutional and legal space for cooperation and interaction between the central and regional levels of government in a federal state153. Supporters of this point of view focus on various disputes existing in federal states, problems of their judicial resolution, judicial and legal regulation of federal relations. M.S. Salikov, in particular, points out that the regulation of relations between the union and the states, the establishment of "limits of action" within the federal system forms the so-called judicial federalism, which is not an independent phenomenon, but mediates American federalism itself, is its judicial-legal form154.

Indeed, federalism as a principle of organizing state power, as the basis of the constitutional order, actualizes the problem of resolving various conflicts in a federal state, and in this sense, the essence of judicial federalism is based on the understanding of the basic category of federalism as a "constant process of settling relations between the central government and the constituent parts of the federation." , "As a means of uniting and settling contradictions" 155.

However, federal terminology and the semantics of a federal state are not limited to such an understanding of federalism. Hence, there is a second approach to the category of "judicial federalism", which is a manifestation of the tendency to highlight models of federalism on the basis of areas of activity in which the delineation of powers between the federation and its subjects seems to be the most problematic. Modern topical research on this issue is the work on economic, tax (fiscal), budgetary and financial federalism. Expressing a fundamental disagreement with the selection of these models, L.M. Karapetyan writes that “these spheres of activity are characteristic not only of the federal state, but also of any other state. If we follow such definitions and interpretations of federalism, then with no less reason we can talk about "industrial federalism", "agrarian federalism", "defense federalism", "scientific and educational federalism", etc. " According to A.M. Karapetyan, actually "federalism" is a political and legal concept that expresses the form of state structure, which, of course, contains and regulates economic, budgetary, transport and other relations between federations and its subjects, but not reducible to them "

Combination of the principles of centralization and decentralization of power in the judicial system of the Russian Federation

A characteristic feature of the developing federal relations in Russia is a certain degree of their conflict, in some cases going beyond the framework of a single constitutional and legal space173. As the main contradiction that permeates all levels social system, in macrosociology, they distinguish “the contradiction between differentiation and integration, understood not only in statics, but also in dynamics, that is, not only as a temporary cut of the state of society, but also as a tendency of its historical development". In judicial federal relations, this contradiction appears as a contradiction between the decentralization of the judiciary (differentiation of the social system) and its centralization, the need to preserve the unity and integrity of the judicial system, the judicial system (integration of the social system). And in this sense, the main trend of judicial federalism is the search for optimal forms of relationship between the federal bodies of state power of the Russian Federation and the bodies of state power of the constituent entities of the Russian Federation on the basis of a combination of the principles of centralization and decentralization regarding the exercise of judicial power in the Russian Federation, as well as the delineation of judicial powers between federal courts and courts of the constituent entities of the Russian Federation while ensuring a sufficient level of independence of the constituent entities of the Russian Federation in the legal regulation of the activities of regional courts, but proceeding from the need to ensure the unity of the judicial system of the Russian Federation.

In a constitutional democratic state, the optimal combination of centralization and decentralization predetermines the effectiveness of power, associated with the parameters of equilibrium and balance of the state-power system. It is believed that an organically balanced stable government is constructive and capable of performing organizational, control and regulatory functions in society. As such, it is able to act as the main guarantor of the foundations of the constitutional system, the rights of the individual and civil society. On the contrary, an imbalance in the balance of forces striving for and achieving power in the direction of excessive centralization or, conversely, decentralization entails dysfunction and can lead to the disintegration of the federal system. Hence, there is a constant need to search for optimal and effective forms of the balance of power between the federation and its subjects, including in the judicial and power sphere.

The general scheme of the correlation between the principles of centralization and decentralization of judicial power in the modern judicial system of the Russian Federation was proposed by I.A. Umnova: “If the judicial system, including courts of general jurisdiction and arbitration courts, is built on the principle of centralism, which essentially reflects the presence of state structure elements of unitarianism, then in relation to the so-called constitutional (statutory) courts, the principle of non-centralization is carried out, which has actually been brought to absolutism. " From these positions, the Russian judicial system, which acts as an organizational form of the judiciary, at the moment can be characterized as over-centralized with a very limited number of elements of decentralization.

The degree of independence of the subjects of the Russian Federation in the exercise of judicial power manifests itself in different ways when it comes to justices of the peace or constitutional (statutory) courts.

The constitutional (statutory) courts of the constituent entities of the Russian Federation exercise their competence in the areas under the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation within the powers of the constituent entities of the Russian Federation or in the exclusive jurisdiction of the constituent entities of the Russian Federation. Thus, the activities for the protection of the constitution (charter) of a constituent entity of the Russian Federation are aimed at ensuring the rule of law, protecting the rights and freedoms of man and citizen (clause "b", part 1 of article 72 of the Constitution of the Russian Federation); constitutional control exercised by constitutional (statutory) courts directly contributes to ensuring the compliance of constitutions and laws of the republics, statutes, laws and other regulatory legal acts of other subjects of the Russian Federation with the Constitution of the Russian Federation and federal laws(clause "a" part 1 of article 72 of the Constitution of the Russian Federation). Wherein regional body constitutional justice is intended to apply exclusively the legislation of a constituent entity of the Russian Federation; the norms of federal legislation are used by him, as a rule, to strengthen the argumentation of the court's conclusions. The procedure for the activities of the constitutional (statutory) court is determined by the law of the subject of the Russian Federation (part 3 of article 27 of the Federal Constitutional Law "On the judicial system of the Russian Federation"). Thus, the volume of judicial power exercised by constitutional (statutory) courts can be characterized as significant, and the degree of independence of the subjects of the Russian Federation in the exercise of regional judicial power through constitutional proceedings is practically absolute.

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