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11SOME ISSUES CONCERNING SOURCES OF LAW
Ahmedshaeva Mavluda Akhatovna, Tashkent state university of law, Tashkent, 100047, Uzbekistan
Annotation: the article deals with the issues relating to the forms (sources) of law and their types, the legal nature of the decisions of the highest judicial instances, in particular, on the legal and regulatory, as well as the precedent nature of the Supreme Court judgments. The author in the article analyzes some of the positions that take place in the legal literature on the above-mentioned issue.
Although, the author does not exclude the prospect of acquiring the nature ofprecedent of the decisions of the highest judicial instances of the Republic of Uzbekistan in the future, also provides justifications for their law enforcement character in the present. Proposals are presented on research the legal nature of the decisions of the higher courts.
Keywords: forms (sources) of law, legal act, judicial acts, legal nature of judicial acts, legal nature of decisions of higher courts, law-enforcement nature of decisions of the Supreme Court.
Аннотация: ушбу мацолада ууцуц шакли (манбаси) ва унинг турлари, юцори суд инстанциялари царорларининг, жумладан, Олий суд царорларининг норматив-ууцуций, шунингдек прецедентлик характерига оид масалалар куриб чицилган. Мацолада муаллиф цайд этилган масала юзасидан илмий манбаларда билдирилган цатор ёндашувларни келтиради. Муаллиф юцори суд царорларининг келажакда прецедент тусига эга булиш эутимолини истисно цилмаган уолда бугунги кунда уларнинг ууцуцни цуллаш характерига эга эканлигини асослантирган ва тегишли таклифларни илгари сурган.
Калит сузлар: ууцуц шакли (манбаси), норматив-ууцуций уужжат, суд царорлари, суд царорларининг ууцуций табиати, юцори суд инстанциялари царорларининг ууцуций табиати, Олий суд царорларининг ууцуцни цуллаш характери.
Аннотация: в статье рассматриваются вопросы, касающиеся форм (источников) права и их видов, правовой природы решений высших судебных инстанций, в частности, нормативно-правового и прецедентного характера Постановлений Верховного суда. Автор проводит анализ некоторых позиций, имеющих место в юридической литературе. Хотя автор не исключает перспективу приобретения прецедентного характера решений высших судебных инстанций Республики Узбекистан в будущем, но в тоже время приводит обоснование их правоприменительному характеру, а также выдвигает некоторые предложения.
Ключевые слова: формы (источники) права, нормативно-правовой акт, судебные акты, правовая природа судебных актов, правовой характер постановлений высших судебных инстанций, правоприменительный характер решений Верховного суда.
On understanding the forms (sources) of law in theory. The theory of state and law, as a fundamental science of the laws of development of state-legal phenomena, studies the multifaceted features of the functioning of the modern state and law, their role in the life of society and people. In modern conditions, when globalization processes penetrate into all spheres of public life, such important social phenomena as law and the state undergo various changes dictated by the progressive development of society.
In this regard, the knowledge of the law and its categories in dynamics is of a particular relevance. As M.N. Marchenko notes, "A dynamic approach to the knowledge of law makes it possible to see and, if necessary, correct the main directions of its functioning and at the same time determine the prospects for its further development and improvement" [1].
Among the issues that make up the subject of this science, an important place is occupied by the question of the concept of forms (sources) of law, as well as their types. When covering this issue, we will try to consider the dynamism of the development of the sources (forms) of law at the present stage.
It is noteworthy that although there are more than a hundred definitions of this category, however, among scientists, there is still no unanimity in the understanding of the forms (sources) of law, as well as their forms.
Moreover, in many textbooks and scientific works, this legal phenomenon still has a dual name, although many scholars recognize that the term source of law is much wider than the form of law [2].
As G.F.Shershenevich noted in his time, the term source of law "is of little use because of its ambiguity". According to his expression, the term "source of law" means:
a) the forces doing the law. For example, the source of law is considered "the will of God, the will of the people, sense of justice, the idea of justice, state power;
b) the materials underlying this or that legislation. This meaning of the source of law is used when it is ascertained, for example, that Roman law was the source for the preparation of the German Civil Code, or that the writings of the scholar Pote were used in the development of the Napoleonic Code;
c) historical monuments that "once had the meaning of the law in force". Such legal monuments as sources of law are spoken of when they use Corpus juris, Russkaya Pravda, etc. in research;
g) means of knowledge of the law in force. This meaning of the source of law is used when the right can be learned from the law [3]. It is not by chance that G.F. Shershenevich, argued that "the diversity of meanings attached to the expression" source of law "makes it necessary to circumvent it and replace it with another expression - "form of law". "By this name should be understood various types of rights, differing in the way of developing the content of norms.
Types of forms (sources) of law. Discussions held and held in the legal literature on this subject before and after Shershenevich enough. In this regard, it would not be superfluous to note that the subject of the training course in the theory of state and law should mainly contain specific knowledge that reflects the patterns of development of modern state and legal reality, rather than scientific discussions.
Based on the above, and taking into account the opinions of numerous authors, the question arises: is it inappropriate to call the "source of law" the "form of law", meaning by it only the external expression of law? That is, the formalization ("location") of legal norm in the relevant sources, such as legal acts, judicial precedents, regulatory treaties or legal customs, etc.
It should be noted that in the legal literature there is also no unity in the question of the types of forms (sources) of law. Moreover, in textbooks on the theory of state and law there are different approaches in determining the types of forms (sources) of law proposed by scientists [4].
In general, this process is to a certain extent natural, since different legal systems and legal families differ from each other in many parameters, in particular, according to sources of law.
On the legal nature of the decisions of higher courts. In this article, we would like to dwell separately on the issue of the legal status of decisions of higher courts that has been discussed recently in legal literature.
According to A.V. Illarionov, "the question of whether Russian courts can exercise lawmaking powers, and the relevant judicial decisions contain norms of law and therefore can be sources (forms of expression) of these norms, is debatable. Some scientists, on the basis of a widespread approach to judicial decisions as law-enforcement acts that resolve a legal case on the merits, recognize the legal value, in fact, only for judicial precedents, while noting their absence in the Russian legal system" [5]. Other researchers pay attention to the existing variety of forms of judicial law and the inadmissibility of its identification with case law [6].
Discussion of this issue in the domestic legal literature. In the domestic legal literature, this issue is also debatable when it comes to the legal nature of the decisions of the Plenum of the Supreme Court of the Republic of Uzbekistan [7]. Separate scientists, considering the role of resolutions of higher courts in the system of normative legal acts (legislation), in the legal regulation of public relations, put forward proposals for their normativity.
They consider that the decisions of the Plenum of the Supreme Court are normative legal acts, appealing at the same time to Article 110 of the Constitution of the Republic of Uzbekistan and Article 5 of the Law of the Republic of Uzbekistan "On Courts", which establishes the general obligation of court decisions. So, doctor of legal sciences F.F. Mukhitdinova argues that the legal status of the ruling of the Plenum of the Supreme Court should be recognized and legally enshrined. In her opinion, in modern conditions, in addition to law enforcement, courts inevitably carry out law-making functions [8].
On the character of judicial precedents of some decisions of higher courts. It is well known that, unlike the common law legal systems, in the continental legal system, acts of higher courts are not always considered sources of law. It is symptomatic that in the legal systems of the CIS countries, mainly related to the continental legal family, there are different positions on the issue of the legal nature of the decisions of the higher courts. For example, in Kazakhstan, this issue is resolved at the legislative level, in contrast to the Russian Federation and other countries of the post-Soviet space.
As academician M. Suleimanov wrote, "If there are still disputes over the legal nature of the Decrees of the Constitutional Court of the Russian Federation and the Plenums of the Supreme Court of the Russian Federation — whether they are normative acts or precedents, then this issue has been resolved at the constitutional level. Resolutions of the Constitutional Council and normative decisions of the Supreme Court of the Republic of Kazakhstan are normative legal acts binding for execution" [9].
In our opinion, in the future such a prospect cannot be ruled out for our country. As F.F.Mukhitdinova noted, "the judiciary would not have the same equal powers with other branches of government if it could not influence the legal space itself. Currently, in addition to law enforcement, precedent principles (highlighted by us. MA) are also characteristic of justice, which are manifested in judicial practice" [10]. This thought is shared by the above-mentioned Kazakh scientist, noting that "it is necessary to strive to ensure that the decisions of the Supreme Court in specific cases gradually become exemplary court decisions that would be applied by all the courts of Kazakhstan when considering similar cases " [11].
Conclusion. It is possible that the highest court instance, when considering a specific case in the first instance and in the cases established by law, will make such an optimal decision, which, because of its most reasonableness, legality and fairness, can serve as a benchmark when considering similar cases by lower courts in the future.
In conclusion, I would like to note that in the domestic literature, few studies have been conducted to substantiate the nature and legal nature of the decisions of higher courts, therefore it is necessary to fill this gap;
Article 110 of the Constitution of the Republic of Uzbekistan and Article 5 of the Law of the Republic of Uzbekistan "On Courts", which establishes the universality of judicial decisions, in our opinion need clarification, doctrinal interpretation;
there are also few scientific studies, both on the comparative study of the legal nature of the judicial decisions of countries belonging to the Roman-German legal family, and on the Anglo-Saxon legal family;
over time, due to the increased competence of the judiciary, strengthening the legality, reasonableness and fairness of their decisions, it is impossible to exclude a certain reference character, exemplaryness of these decisions when considering similar cases by lower courts.
Referenses:
1. Marchenko M.N. Trends in the development of law in the modern world. - Moscow: Prospectus, 2015. - p.3.
2. M.N.Marchenko. Source and rights. M.: TK Velbi, Ed. Prospect, 2008, p. 282-283. (760 p.); Theory of State and Law. 2-ed. Moscow. "Prospectus .2018, 820 p. (351-367p.); Theory of State and Law. Moscow, Justitia, 2019, 472 p. (134-148p.); A.N. Mironov, S.N.Ushakov. Normativeness of state and municipal administration. -M.: INFRA- b, 2019. - 201p.
3. Shershenevich G.F. General Theory of Law. Issue 2.M., 1991, p.369 .; M.N. Marchenko. Problems of the theory of state and law. - Moscow. Prospect, 2011. - p. 472-473.
4. M.N.Marchenko. Source and rights. M.: TK Velbi, Ed. Prospect, 2008, p. 282-283 (760 p.); Theory of State and Law. 2-ed. Moscow. "Prospectus .2018.820p. (351-367p.); Theory of State and Law. Moscow, Justitia.2019, 472 p. (134-148 p.); A.N. Mironov, S.N.Ushakov. Normativeness of state and municipal administration. -M.: INFRA-b, 2019. - 201 p.
5. Nersesyants V.S. The court does not legislate and does not govern, but applies the law (on the enforcement nature of judicial acts) // Judicial practice as a source of law. M., 1997.-P. 34-41; Kutafin O. E. Sources of constitutional law of the Russian Federation. M., 2002. P. 141-147; A.V. Illarionov. On the question of the types of regulatory court decisions // Bulletin of Chelyabinsk State University, 2008, 11 (421).
6. Ivanov R.L. On the question of the sources of the norms of law in the Russian Federation // Bulletin of Omsk State University. Ser. Right. 2004. № 1. P.13-16; Vereshchagin, A. N. Judicial law-making in Russia. Comparative legal aspects. M., 2004. pp. 137-182; Marchenko, M. N. Judicial law-making and judicial law. - M., 2007. - p. 84-141.
7. In Uzbekistan, as a result of ongoing reforms in the judicial system, a single highest judicial authority in the sphere of civil, criminal, administrative and economic justice was created - the Supreme Court of the Republic of Uzbekistan. Such an institutional change took place on the basis of the merger of the Supreme Court and the Supreme Economic Court in accordance with Decree of the President of the Republic of Uzbekistan №UP-4966 dated February 21, 2017 "On measures to fundamentally improve the structure and improve the efficiency of the judicial system of the Republic of Uzbekistan ". See: www.lex.uz.
8. Mukhitdinova F.F. Formation and development of the judiciary in the Republic of Uzbekistan. Dissertation for the degree of Doctor of Law. - T., 2012. -p.23.
9. Suleimanov M. Right as a system. - M.: Statute, 2016. p. 360 pp .; He is: Prospects for the introduction ofjudicial precedent in the legal system of Kazakhstan. p.4. http://pravo.zakon.kz.
10. Mukhitdinova F.F. Formation and development of the judiciary in the Republic of Uzbekistan. Dissertation for the degree of Doctor of Law. - T., 2012. - p.23.
11. Suleimanov M. Right as a system. - M.: Statute, 2016. p. 360 pp.; He is: Prospects for the introduction ofjudicial precedent in the legal system of Kazakhstan. p.4. http://pravo.zakon.kz.
