NON-APPLICATION BY THE COURT OF AN ACT CONTRADICTING THE LAW: PROBLEM STATEMENT

Abstract

This article deals with the specifi city of the non-use by the court of an act contrary to the law as a way of protection of civil rights. The main doctrinal positions on the nature of the right to protection and on methods of protection are set out. The article is particularly relevant because of the fact that so far no comprehensive studies have been carried out on the particularities of the non-application by the court of an act contrary to the law from the point of view of the institution of administrative justice and the protection of civil rights, on the one hand, and the principle of legality and independence of judges, on the other. This issue became particularly acute in view of the adoption by the Constitutional Court of the Russian Federation on December 6, 2017 of the Resolution № 37-P, the subject of which was the constitutionality of part 13 of the Article 12 of the Civil Code of the Russian Federation. On the example of judicial practice the author demonstrates the atypical nature of the considered method of protection as well as the procedural diffi culties arising in connection with the part 13 of Article 12 of the Civil Code of the Russian Federation. On the basis of theoretical and practical arguments, the author concludes that the non-use by the court of an act contrary to the law does not fi t into the traditional perspective of the protection of subjective rights and the institution of administrative justice.