We all watch TV and have seen many times in the cinema the judges refer to the judicial precedent. But no one really knows what it is, and many are trying to find out if there is case law in Russia. And if so, what good is it?
Let's try to figure it out.
According to the theory, there are two legal systems. Namely, the Romano-Germanic and Anglo-Saxon.
The first is also called continental law, and it is widespread in countries such as Germany, France, Spain and Russia. Its essence boils down to the fact that a legislative act is used as a rule of law.
The Anglo-Saxon system, however, uses as a legal norm just judicial precedent, that is, an already pronounced court decision in a similar case. As the name suggests, this system is used in the UK and the USA.
What is case law? This is inherently a procedural right in which a court decision on a specific case can be used to resolve such cases. That is how things are in the countries of the Anglo-Saxon legal system. Thus, case law does not use a legislative act as a norm of a common law as a normative legal act, but a specific court decision. But then again, no one says that this decision is taken from nowhere. It is also based on law. Simply, this norm of the law could be adopted 250 years ago and the decision made in those years would also be a judicial precedent.
In Russian law, the judicial authorities refer to legislative acts in order to adjudicate a case. Moreover, there is a clear division of them vertically. There are laws and regulations that cannot contradict the law. Also, no law of the Russian Federation can contradict the Basic Law - the Constitution of the Russian Federation.
However, it cannot be said that case law does not apply at all in Russia. This is not so, since the use of judicial practice is possible as a regulatory framework . But at the same time, making a court decision only on the basis of a precedent is impossible. The law is always primary, and judicial practice is an interpretation of the application of the law.
In our country, many fear that case law may lead to judicial errors, given corruption. As an argument, a completely absurd argument is given that a court decision made under any influence on a judge, becoming a legal norm, will allow future illegal decisions to be taken. To understand the incorrectness of such a formulation of the question, it is necessary to recall that the law is the only correct regulatory framework, and if the court’s decision contradicts it, then it cannot be decided on the basis of another case.
Even assuming that this is possible, the higher court will reverse this decision.
The doctrine of Russian law was originally based on the principle of separation of powers into legislative, judicial and executive. Each of them carries out its functions and complements the other. Thus, the legislature creates laws, and the judiciary applies them. However, according to the legislation of the Russian Federation, decisions and decisions of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation are a way of expressing the rule of law and can be designed for repeated use. But at the same time, they still apply to by-laws. That is, case law is only possible as an auxiliary tool for a court decision.