Legal nature of judicial practice Skorobogatov, A. V.; Krasnov, A. V.
Russian Journal of Economics and Law,
09/2022, Letnik:
16, Številka:
3
Journal Article
Recenzirano
Odprti dostop
Objective:
a comprehensive theoretical and legal study of the nature of judicial practice.
Methods
: the methodological basis of the article is postclassical rationality, which allows studying ...judicial practice in the context of its impact on the public relations regulation and establishing the legal nature of this phenomenon. This determined the integration of methods developed in the legal science (formal legal, comparative legal methods, method of legal modeling) and other humanities (hermeneutical, discursive methods).
Results:
the article considers judicial practice as an individual legal regulation, i.e. the activities of the authorized judicial bodies of the state aimed at consideration and resolution of legal cases, as well as the creation of individual legal foundations for the lawful behavior of subjects of public relations. The authors proceed from the fact that judicial practice is a unity of cognition, activity, and result, as it actively participates in the construction of legal reality. This leads to the conclusion that judicial practice should be understood dichotomically – as the activity of judges, the result of which is the creation of individual and generalizing legal acts aimed at constructing a legal reality (a specific form of legal communication), and as a material source of law (a set of generalizing legal acts (positions of courts) that have a legal impact on the consciousness and behavior of an indefinite circle of subjects of the same name).
Scientific novelty
: in the article, for the first time in the Russian legal science, a study of judicial practice is transferred from the level of sectoral analysis to the philosophical-legal level. At the same time, the authors emphasize the interdisciplinary, general humanitarian nature of judicial practice. The analysis and interpretation of judicial practice are carried out at the ontological and axiological levels of legal reality. This allowed identifying the specific role of judicial practice in the legal system as a means of communication between individual and general legal regulation.
Practical significance
: the main provisions and conclusions of the article can be used in scientific and pedagogical activities when considering the essence and content of judicial practice and its role in the creation and functioning of the Russian legal reality, as well as for improving judicial activity at all levels.
Abstract
The introduction of legal reforms in the sixteenth century that gave the Hanafi school its central place in the Ottoman legal system coincided with the arrival of new trade partners from the ...West, first France and later England and the Dutch Republic. The Ottoman authorities' own emphasis on the primacy of written proof and the marginalization of oral testimony was also reflected in the privileges granted to these new arrivals from the West. Although many European ambassadors and consuls distrusted "Turkish justice", the Ottoman legal system's stability and predictability contributed considerably to creating favourable conditions of trade.
The review presents changes in Russian legislation in the field of construction, real estate management, and housing and communal complex management.
The overview reflects the normative legal ...regulation of public relations in the establishment and legal status of a single customer in the field of construction, the authority of local governments on attracting the management of the organization, creating a universal mechanism for integrated development of territories, the establishment of procedures to ensure housing rights of citizens in the implementation of the integrated development of residential areas, etc.
The subject of the study is the segmental manifestation of the rule of law principle and its elements in the activities of justice authorities, courts and public associations, taking into account the ...economic basis of its influence. The purpose of the study is to examine the forms of manifestation of the rule of law principle and its individual elements in the activities of justice and court authorities, to clarify the role of the public in its practical application, and to identify opportunities for its economic support. Methodology. The study used general scientific and special methods of scientific knowledge: the method of system analysis, the dialectical method, the formal logical method, the structural and functional method, as well as a number of empirical methods. In particular, the method of comparison was used to determine the transformation of penitentiary bodies and their transformation into penitentiary justice bodies. The results of the study demonstrated the need for: qualitative consideration of the aspect of ensuring the correction of a convicted person after serving his or her sentence; involvement of representatives of civil society institutions in the resocialisation processes; and identification of potential ways to implement effective reforms that can increase the efficiency and fairness of the judiciary. Conclusion. The article reveals the relationship between the transformation of the penal system into the penitentiary system and the implementation of the rule of law in this area and its comprehensive enforcement. It is noted that the criminal executive system takes into account the aspect of ensuring the serving of sentences, and in the penitentiary system, which operates under the rule of law, the authors additionally identifies such a qualitative component as ensuring the correction of a convicted person after serving his/her sentence and his/her resocialisation. It was found that the economic rationale for the transformation of the judiciary based on the rule of law consists in reducing the costs of: court functioning due to the possibility of digitalization of the preparatory stages before the court hearing and the holding of court hearings in videoconference mode; reducing costs for the court apparatus through optimization of its functions; reducing the number of court cases due to active mediation and other possible options for resolving disputes peacefully, etc. It is noted that justice in judicial proceedings means not only formal compliance with the law, but also the exercise of rights and freedoms of individuals with due regard for equality, objectivity and impartiality. The authors prove that non-governmental organisations are an important institution capable of promoting the principle of justice as an integral element of the rule of law, since they ensure the right to apply to court and the right to protection of members and third parties. The role of the public in shaping the economic basis for reforms and the proper functioning of state bodies was also highlighted. It is noted that national legislation needs to be amended in terms of granting NGOs the right to apply to court in the interests of third parties, in particular, in cases where a person is unable to protect his or her rights for valid reasons. The study analyses the fundamental provisions on economic support for the implementation of the rule of law in various spheres of public relations.
The identification and assessment of risk factors are facilitated by law administration and enforcement. Decisions of the judicial authorities constitute one of the directions. In this regard, first, ...the analysis and generalization of judicial practice show the range of problems of various aspects of activities, and second, it allows forming a model of suppressing or minimizing legal risks. Sociological research conducted from 2008 to 2020 by the Department of Healthcare Organization and Medical Law of the Regional State Budgetary Educational Institution of Additional Professional Education “Institute for Advanced Training of Healthcare Professionals” (Khabarovsk) revealed that these specialists had no idea about the number of litigations in so-called “medical cases”, or about the amounts recovered on claims of patients to medical organizations of the Khabarovsk Territory. Meanwhile, having information on the quantitative and summary indicators of court cases, it is possible to adjust interaction with patients at both pretrial and trial stages. The study aimed to analyze and summarize judicial practice in these cases, to selectively examine defects that served as the basis for filing claims and had an impact on the amounts recovered, as well as to form practical recommendations for the prevention of legal risks in the activities of a medical organization, based on a regional model. The relevance of the problem of legal risks of medical activity is shown from the standpoint of analysis and generalization of judicial practice. The article provides a statistical analysis of court proceedings on claims of patients for compensation for material damage and moral harm to medical organizations subordinate to the Ministry of Health of the Khabarovsk Territory. A selective examination of the claims of patients is executed considering the impact on the reasons for legal recourse and the total amount recovered. Practical recommendations for regional healthcare institutions are annually formed and approved by the Minister of Health of the Khabarovsk Territory based on the results of the study.
Merchant shipping is one of the most demanded types of transportation in the modern world. According to some reports, up to 80% of all cargo is transported by sea. In this regard, the issues of legal ...regulation of this complex and full of implementation nuances activity acquire particular importance. The specific condition of such seaports as Sevastopol and several other ports on the Crimean Peninsula is since Russia is under the influence of negative economic measures (“sanctions”) imposed by a large number of foreign states. Under these conditions, with the same effect of international and Russian legislation in the entire territory of the Russian Federation, the nature of their application in some cases has a certain specificity concerning these territories. In this regard, the analysis of judicial practice in this area was of particular interest. The purpose of this study is to analyze judicial practice from the point of view of the implementation of international and Russian law norms in the field of merchant shipping, as well as to identify certain trends in the activities of the subjects of the relevant legal relations. Analysis, synthesis, the comparative method, and the method of expert assessments are the methods used in the preparation of this work. The following structural analysis of the available material was used: first, the judicial practice was studied, only after that the work with legislation and other sources was carried out. As a result of the performed research, some problematic aspects of the legal regulation of merchant shipping in Russia have been identified. The trends based on which the Russian maritime law can be transformed have also been identified. The novelty of the research lies in the combination of proposals for further improvement and law enforcement practice in the field of merchant shipping.
The subject of this paper is the analysis of court proceedings conducted in connection with the criminal offense of violation of a grave (Article 354 CC) which were held before the courts on the ...territory of Autonomous Province of Vojvodina. The analysis covers all finalized court cases of the aforementioned courts for the period from 01.01.2010. (i.e. from the introduction of the current organization of courts in the Republic of Serbia) to 01.07.2018. The research is primarily focused on the statistical presentation and analysis of data obtained from court decisions (which the author independently obtained from courts in original, raw form), as well as the identification of relevant criminal (material and procedural) and criminological characteristics. On the basis of the totality of the results, different regularities were noticed, with regard to the spatial and temporal distribution of the court proceedings, the types of court decisions, the type and amount of criminal sanctions imposed, as well as with regard to the characteristics of the perpetrators of the criminal offense in question. As a unifying conclusion, it can be stated that the crime of violation of a grave is relatively less represented in the practice of courts in the territory of AP Vojvodina, and that its spatial and temporal distribution is uneven (due to the absence of more specific regularities considering criminal expression). The penal policy regarding the crime in question can be characterized as in principle harmonized with the one at the level of the entire state regarding the same criminal offense. On the other hand, it is noticeable that the mentioned penal policy is somewhat stricter in relation to the general penal policy of the courts in the Republic of Serbia. However, this factual situation is potentially somewhat relativized by the specific features of the analyzed court proceedings (above all, the high percentage of recidivism and the frequent presence of other aggravating circumstances), as well as by the fact that all prison sentences were imposed only in the lower third of the envisaged range of the sentence (from one month to one year, although this criminal offense is punishable by up to three years in prison). Regarding the characteristics of the prosecuted perpetrators, it is noticeable that the convicts for the crime of violation of a grave were mainly nationals, and dominated by: adults over juvenile offenders; male over female; general recidivists over special recidivists; persons without education, with primary and secondary education over (non-existent) highly educated offenders; unemployed persons and persons without permanent employment over permanent employees. Considering possible strategies for prevention, it was concluded that important criminogenic factors are the low level of education of most perpetrators and their unfavorable socio-economic status, which gives grounds for assuming that timely educational work and providing conditions for improving their material opportunities could achieve significant results in the domain of both general and special prevention, especially in relation to the identified most risky categories of potential perpetrators (recidivists, illiterate persons, persons without primary education and persons in a state of severe social vulnerability).
On the eve of the 2020 Spring Festival, the new coronavirus pneumonia broke out, normal social order was affected, and crimes involving the epidemic increased. On February 6, 2020, the Supreme ...People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued “Opinions on Punishment of Crimes Obstructing the Prevention and Control of the Novel Coronavirus Infection Pneumonia Epidemic According to Law”, which clearly stipulates nine types of crimes that hinder the prevention and control of the epidemic. In order to clarify and solve some outstanding problems of inconsistent understanding of the application of laws in the practice of epidemic prevention and control, the Supreme People’s Procuratorate selected cases that accounted for a large portion of cases, reflected many problems, and urgently required practical practices; they then issued ten batches of “Typical Cases of Crimes Obstructing the Prevention and Control of the New Coronary Pneumonia Epidemic by Procuratorial Organs across the Country”. This article is mainly based on the “Prosecutors across the country handle typical cases of crimes obstructing the prevention and control of the new crown pneumonia epidemic in accordance with the law”, analyzing economic and property crimes, crimes that disrupt the order of social management, and crimes that endanger public safety.
The article is devoted to the study of the judicial practice essence as a pre-condition for preventing contradictory judicial decisions. It is made the analysis of recent publications and researches ...on the specifics of judicial practice, classification of judicial practices, advantages and risks of the judicial practice existence as a source of law. It is released the features of the judicial practice use in the activity of the European Union Court, the European Court of Human Rights, noted at the same time the feasibility of a systematic updating of the judicial practices, which is associated with the society development, the change of the legal regulation of social relations. It is noted that States that have ratified the Convention for the protection of human rights and fundamental freedoms have undertaken to use the practice of the European Court of Human Rights as a judicial practice. It is established that one of the potential innovations of the judicial reform of Ukraine is the introduction of the Institute of exemplary decisions to reduce the burden on judges, ensure the unity of law-enforcement practice, rapid and uniform solution of similar cases, which also indicates the possible use of judicial practice in Ukraine. It is noted that the primary questions that require answers are still determining the subject authorized to create judicial practices, establishing the legal bases for the existence of judicial practice, since ignoring these aspects will lead to the fact that judicial practice as a source of law negatively affect the quality of justice, will slow down the development of the state as democratic and legal.
This article explores the dynamics of the law in action beyond the binary formal/informal, using Tunisian jurisprudence in the field of prostitution as a case study. It examines what the ...formal/informal distinction means in an authoritarian context where formal norms contrast significantly with informal norms: do judges apply the formal norm, or do they apply the informal one, and if so, how do they justify this? This article argues that judges instrumentalise a formal norm (i.e. the ban on prostitution) to impose an informal one (prohibiting extra-marital sex). As a result, the norm prohibiting extra-marital sex can no longer be situated in the formal/informal divide: it is not informal, as judges are State officials punishing the violation of this norm; and it is not formal either, since the norm does not form part of legislation and Tunisian judges, exercising their profession in a civil law country, do not make law.
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