Доктрина, законотворчество, судебная практика: вопросы взаимовлияния.

Abstract

The book presents the author's concept of the systemic relationship of doctrine, lawmaking and judicial practice. Taking into account modern tendencies of constitutional development, the role and importance of the doctrine in lawmaking and law enforcement, judicial practice, actual problems of normative control, issues of implementation of judicial decisions are revealed. The work is devoted to the issues of the correlation of doctrine and legislation; Role of judicial practice in law-making work; The use of the doctrine in the practice of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation; Problems of legislative initiative of higher courts of the Russian Federation and implementation of court decisions in the legislation of the Russian Federation. The study of the issues of using the doctrine in the drafting of bills allows us to see not only the content of legal norms, but also the dynamics of the development of social relations regulated by them. The doctrine describes legal phenomena, it is a kind of prediction of foresight of situations that can develop in the sphere of legal regulation. The Doctrine formulates and develops the principles of law, which are the basis for regulating social relations in cases of a gap in law, when it is impossible to apply the analogy of law. Legislators and law enforcers turn to legislative comments, where the doctrine fully meets legal gaps, develops law and formulates new legal provisions. In many respects the problems of legislation, the inefficiency of draft laws, leading to multiple amendments to laws; Unsystematic legislation; The numerous laws - are due in part to the insufficiency of the use of legal doctrine. The lack of a unified approach to the problems of improving the legal regulation, the overall concept and strategy for the development of legislation, a clear understanding of the stages and main directions of the state strategy for the development of legislation leads to a chaotic update of norms in various branches of legislation, uneven development of its individual institutions. Judicial norm-setting has a special impact on the legislator, since the forms of judicial rule-making in the form of precedent, judicial practice, legal positions of the highest judicial bodies are in effect a regulator of public relations, overcome legislative gaps. Analysis of the practice of the Constitutional Court shows that the failure to implement the decisions of the Constitutional Court of the Russian Federation is caused by a number of reasons, including: lack of proper legislative base, weak activity of state structures in the process of execution of decisions of the Constitutional Court of the Russian Federation, legal nihilism, low level of legal culture, lack of financial resources from the state.