The judicial precedent: its place in foreign and Russian law
What is a judicial precedent? The concept originated in ancient Rome, derived from the Latin "praecedens", which means "preceding". In the traditional sense, judicial precedent refers to the adoption by courts of attention to the consideration of decisions of the higher court in the same cases that are in the proceedings, which in this case take the power of the source of law and become binding on the courts.This position since ancient times (since the 13th century)is preserved in foreign law - the United Kingdom, New Zealand and other countries of general or continental law, which was formed initially as an unwritten public law "common law".
It should, however, be emphasized that the mandatoryforce is not the decision itself on a particular case, but the doctrinal conclusion made in a special part of the decision of the highest court that extends its effect to an indefinite circle of persons and situations. Thus, the judicial precedent provides an implementation of the principle of thinking of lawyers of common law - the direction of the movement of thought from the private to the general.
Modern Russian legislation placejudicial precedent dictated by the principle laid down in the main law of the country - the Constitution - the principle of the separation of power in the state into executive, as well as legislative and judicial.According to this principle, no branch of power isshould fulfill the functions of the other two, which, according to domestic legislators, is the most effective, transparent and democratic construction of state power. On this basis, the judiciary does not have the right to become pravotvoretsami, performing the functions of parliament and taking decisions, mandatory in the future for the courts. Therefore, the judicial precedent in the Russian law officially to sources of law does not apply. However, in Russian law, the practice of court cases has its undoubted role, since its study is the basis for the formation of a common judicial position. At the same time, from the point of view of some authors, the activity of the Constitutional Courts in issuing decisions on recognizing legal acts as relevant or contradicting the Constitution brings their functions as close as possible to legislative ones, on the verge of violating the principles declared by the Constitution. The fact is that such decisions contain a clear and consistent position of the Constitutional Courts, which becomes mandatory for law enforcement, thereby, in essence, acquiring the features of the source of law. In addition, in the process of making decisions on the inconsistency of certain legislative norms of the Constitution, this court is authorized to take a decision to revoke their actions and even to fill them with other content. Opponents of this theory say that the decisions and legal positions of the Constitutional Court are not a judicial precedent, because they do not act as independent norms, but are based on the direct power of the country's main law.Moreover, the recognition by judicial precedentlegal positions set forth by the Constitutional Court in its decisions, in itself violates the principle of separation of powers and is therefore unacceptable. It seems that at the present time in the development of domestic law there is a transitional period during which the Constitutional Court (as a body included in the judicial system), in fact, partially performs functions belonging to the legislative branch of power, creating judicial precedents.