Конференция Иркутск, 22 марта 2013 г


Precedent as the Source of Law: Pros and Contras



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Precedent as the Source of Law: Pros and Contras
There is a process of globalization in modern (contemporary) world in all spheres of public relations: in policy, economic and even in cultural sphere. This process characterizes not only forgoing spheres but the legal sphere too. There are two huge legal systems in the world: common law and civil law. But despite the fact that the legal systems differ greatly from each other, globalization helps to create the background for their convergence. This is due to a large number of institutions that have an increasing influence on the development of law which interrelates and interacts with each other.

Tendency towards convergence of legal systems is down to convergence objectively: that there are no perfect and ideal political and legal systems, so global world demands in creating a single common legal system on the basis of the legal families, which would include positive characteristic of each legal system. It is admissible and even necessary to form an "intermediate" legal family on their basis, which would include all legal ideas, position, institutions, and agencies that are inherent in both civil law and common law.

According to some researchers, such legal system should eventually become the EU legal system796, where the continental law represented by its speakers – most of the countries of the European Union – is in constant and direct contact with the general common law represented by its traditional speaker – Great Britain.

In recent years judicial decisions significance in regulatory practice is very high, attention to them is growing. Court decisions are not considered to be a direct source of law – the precedent – in all legal systems. Moreover, precedential character of courts decisions inherent in common law countries. However, Russia has recognized the jurisdiction of the European Court of Human Rights, when it ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms on the 30 of March in 1998797. The Russian Constitution states that "If an international treaty or agreement of the Russian Federation establishes other rules than those envisaged by law, the rules of the international agreement shall be applied". According to this, extensive case law of the European Court of Human Rights constitutes an important component of the regulatory system of Russian law.

Though many scientists believe, a precedent is not to be a source of law for Russian system of law, the precedent possesses some advantages.

First of all, precedent is more flexible and dynamic than the laws. It is unachievable for the legislator to consider all possible ways of public relations development. Frequently, one can faces some gaps in the legislation that in the common law system are eliminated by making amendments directly to the legislative acts. The law amending procedure takes a lot of time and goes through many stages. Among the latest changes in legislation is the change of Article 159 of the Criminal Code called "fraud". The bill on amendments was prepared by the Supreme Court of Russian Federation in April 2012, in accordance with the ordinance (decree) of the President of Russian Federation Vladimir Putin on the 7 of May, the State Duma adopted this bill in the first reading on the 23 of October, it was passed by the Parliament on the 23 of November, the Federation Council approved the bill on the 28 of November, and finally the bill was published on the 3 of December and came into effect on the 10 of December in 2012798. The law changing takes a lot of time and adoption procedure is cumbersome, while precedent is able to respond quickly to new folding public relations.

Secondly, the case law provides uniformity in administration of law. While rules of civil law are applied differently sometimes. A striking example is Article 14 of the Criminal Code application – petty crime. In 2011, the bank districts court of Magnitogorsk convicted a resident of Magnitogorsk for possession of one cartridge shell (patron) without special permission799. A similar case was heard by a military court in Volgograd in 2012. Mr. Voblov was accused for possession of one cartridge shell (patron) without special permission. But Volgograd military court acquitted him due to insignificance of an offence800.

But the case law is not perfect and also has some disadvantages.

Firstly, there is a huge amount (range, number) of judicial decisions. There are a big number of instances that can create precedent (ranging from judicial decisions of lower courts and finishing with the decisions of higher courts). The precedent had a long history, for example, in England they operate from 10 to 100 years. Therefore a large amount of precedents formed. Such volume (extent) is difficult to put in a system, so it makes it harder to find relevant (needful, necessary) court decisions. Precedent does not (expire) has any currency (duration), so even a very old precedents are still considered in England. Number of precedents, which gives unique identity throughout the English legal system, is still quite high. Their number is about 800 thousand. About 300 volumes (books, parts) of judicial practice published annually in the U.S., and despite the widespread usage of computer technology, the search for precedents is not easy801.

Secondly, the subjective factor is the quality of the judiciary. Because of the insufficient competence and professionalism of judges illegitimate (wrong, incorrect) precedent may be formed. Such kinds of precedents subsequently could have a significant impact on future decisions of the courts. For example there were some cases in the United States and Britain when the courts have formed incomplete (imperfect, deficient) and even erroneous (mistaken) precedents. Thus, in February 1997, the U.S. Supreme Court decided that the Commission on futures trading of capital lost the right to observe for the foreign exchange markets. As a result, no one’s zone formed in the U.S. foreign exchange market, in which fraudulent firms (companies) that had been built on the principle of financial pyramid rushed802.

So the precedent seems to be advantageous in many respects. The above listed disadvantages can be overcome by means of modern technologies. Special computer database of court decisions can be created. This program would help to structure the incoming information and make the search of decisions easier, etc.

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