Установление содержания права в судебных решениях

Abstract

The problem of establishing the nature of law has deep theoretical roots, because no one can reveal the phenomenon of law. In spite of various scientific aspects of this concept, in practice it is necessary to recognize its role as a single tool. The authors conclude that the court is not only the subject of the interpretation of the jus, not only the enforcer or entity conflict resolution relationship, it introduces its own innovations to the search for justice, it is the creator of the law. The article substantiates the role of the court not only as a guarantor of the existing legal system, but also as an institution imperatively harmonizing the system. The relevance of the study is explained by the fact that the establishment of the nature of law, even in the acts of the Constitutional Court of the Russian Federation is a very complex problem, which has not been adequately investigated, especially with regard to court’s decisions. But all courts create the “living law”. Without the will of the state, no law is possible, but the jus does not embrace the whole law and the latter always takes priority over the jus. Transformation of a legal activity in the aspect of searching for the law is necessary for all judicial authorities. If the first instance courts shut themselves within the framework of the law, their mission will be extremely limited. They won´t even be able to outline the legal boundaries, where the authorized review judicial authorities and persons involved in the case could in-depth study, evaluate the circumstances associated with the search for and finding of the most justified solution. The authors believe that the law revealed in court decisions, forms the foundation of the rule of law and therefore requires additional account as an important information resource, necessary for the formation of unified law enforcement, for its use by a legislator for the purpose of implementing the models of legal relations, as reflected in the decisions, into legislative acts.