Sources of arbitration. Sources of arbitration procedural law
The sources of the arbitration process are externalform of expression of legal norms. Since the Russian Federation belongs to the Romano-Germanic legal family, respectively, the most popular sources are normative acts.
Types of expression forms
Sources of arbitration procedural law are divided into two types:
- Subordinate legal acts.
In addition, Article 3 of the APC of the RF defines assources not only the above-mentioned concepts, but also includes the Constitution of the state, Federal constitutional laws, as well as a number of international treaties.
A prerequisite for allsources of the arbitration process - belonging to the sphere of activity in question. Thus, only those international treaties, acts and conventions that govern the described area will be recognized as a form of expression of legal norms.
Incredibly complex in design and stagesis the arbitration process. Legal proceedings of this type are regulated only by federal legislation. Regions have a small range of powers and issues that can be affected by issuing relevant documents.
Features of arbitration process as a branchthe law, which includes mainly procedural rules, is that this sphere of activity is regulated only by legislation. Judicial precedents, customs, as well as other forms of expression of law are not authoritative for arbitration.
Separate types of sources
Chapter Seven of the RF Constitution establishes the generalprovisions that regulate the activities of the entire judicial system, in particular, the arbitration process. The concept, types, as well as other basic sections in the Basic Law can not be found, but on the basis of available information, it is possible to draw certain conclusions. For example, it is in this section that the general principles of the functioning of the judiciary are fixed. More recently, the provisions of the Constitution in this area have been applied directly in practice.
A special role in arbitration is played by regulationsPresidium of the Supreme Arbitration Court. Official documents issued by this body are not sources of law, nor do they contain existing legal norms. However, the role of resolutions is to clarify contentious issues.
The role of FZ and FKZ
Sources of the arbitration process include in theirsystem of federal and federal constitutional laws. Some of them are directly devoted to the implementation of judicial proceedings, while others only indirectly concern this type of activity. In any case, each of them is the source of legal norms. Among all the variety, the most important are:
- FKZ "On the judicial system", as well as "On arbitration courts in the Russian Federation".
The meaning of the first ABM is that itestablishes the basis on which the entire judicial system as a whole is based. The second directly determines the system of the arbitration process: jurisdiction, jurisdiction, composition of the court and so on.
- Arbitration Procedural Code of the Russian Federation.
Sources of arbitration procedural law include the agrarian and industrial complex of the Russian Federation. This normative legal act contains a number of procedural rules that are directly applied in the arbitration process.
- Law "On the Status of Judges".
Refers to the entire judicial system of Russia, regardless of belonging to a particular court. This law establishes legal protection and guarantees for persons authorized to administer justice.
Codes in arbitration
As discussed earlier, the arbitration process as athe branch of law is based not only on federal laws, but also on codes that have the status of the above regulatory and legal acts. The main body of norms that regulate and determine the procedure for conducting arbitration proceedings is concentrated in the text of the agrarian and industrial complex of the Russian Federation. This is the basic normative document, where concepts, terms, conditions for acceptance or non-acceptance of an application, a circle of persons and so on are present.
In this connection, the question arises: why not accumulate all the norms in a single legal act and build the activities of arbitration courts in accordance with it? The answer is obvious and simple. Many sources of arbitration process have a special character. They are applied and used in relation to a certain category of cases. Thus, it makes no sense to fix the norm in the Code that is not generally applicable, but is regulated by a separate regulatory legal act.
The sources of the arbitration process are full of variety. The table of their distribution by legal force will show that the normative acts of an international character top this list.
Part 4 of Article 15 of the Constitution of the Russian Federation says that,that international treaties and agreements, acts, conventions, as well as other documents are part of the legal system of the state. This includes not only universally recognized principles, but also the rules of substantive and procedural law.
A vivid example of such provisions is theAgreement governing the procedure for resolving disputes arising from the implementation of economic activities. Of no less importance is the Convention, which abolishes the requirement for legalization of official documents on the territory of a foreign country. The importance of the arbitration process is so great that the source is even the European Convention on Human Rights. Namely, Article 6 says that every citizen of the state has the right to a fair trial.
About judicial practice
Despite the fact that the dominant role of regulationpublic relations belongs to the legal norms, the judicial practice of the Russian Federation in one way or another affects the resolution of a certain category of disputes. To date, most academic lawyers say that judicial practice is not only law-forming, but also right-implementing impact.
It is reflected in the decisions of the International Court of Justice,and in the decisions of the Supreme Courts, and in the decisions of the Justices of the Peace. Based on the analysis of numerous court decisions, the judges render the ruling or resolution on an equal basis with the rules of law, guided by the previous decisions of the courts. And the priority is given to those bodies that are at the very top of the official ladder, that is, the Higher forms of justice.
Reasons for using judicial precedent
It would seem that in the Russian Federation allprerequisites for the sources of the arbitration process to exist only in normative norms and regulations. However, the judicial precedent is increasingly used in judicial activities due to the following reasons:
- The final decisions are rendered directlyinfluence on the activities of legislative and executive authorities. Moreover, the impact is not only at the federal level, but also at the regional and even local level. Thus, judges involuntarily control the activities of other state bodies, although in fact this should not be. That is why the probability of making a mistake is completely excluded. In order to make the right legal decision that meets all legal norms of the Russian legislation, it is easiest to take advantage of the experience of your colleagues and do the same.
- The legal system of the state is on a newstage of development. Gradually, the borders and the number of collisions expand, which can not be settled only by the rules of law. To date, it is impossible to create a single codified act that has streamlined all areas of relations in society. Moreover, each of them is divided into several types. For example, in civil law there are property and personal non-property relations, among which exclusive and other legal relations stand out as a separate category.
International law enforcement practice
Sources of arbitration on legalforce include a judicial precedent that exists in international law. Russian judges analyze the judgments of the European Court of Human Rights as one of the leading organs of justice.
In addition, the European Conventionhuman rights, determines that the decisions of the above-mentioned body are binding on the territory of the Russian Federation. If a citizen has exhausted domestic means of protecting his legal status, he has every reason to apply to the European Court.
Procedural consequences of decisions of international bodies of justice
The practice of applying international solutionsThe European Court of Justice gives rise to certain consequences that are mandatory for implementation in the territory of the Russian Federation. According to the APC of the Russian Federation, if the proceedings in the case are in the proceedings of the international justice body, then in the territory of the Russian Federation all actions in this case are terminated.
If after the decision was institutedappeal proceedings, which resulted in violations of the provisions of the Convention, this fact is the basis for the revision of the judicial act issued by the European Court of Human Rights on newly discovered circumstances.
Practice of federal courts
Sources of arbitration with examplesflaunt on official websites of federal courts. Special importance in the procedural activity of arbitration courts is given to the decisions of the Constitutional Court of the Russian Federation.
If previously all powers to resolve disputes inthe sphere of civil proceedings belonged to the Supreme Arbitration Court, but now this sphere of activity is referred to the competence of the Supreme Court of the Russian Federation. A distinctive feature of this category of solutions is that they are mandatory not only for individuals and legal entities in the territory of Russia, but also for representative, executive and legislative bodies, as well as LSGs.
Specificity of the decisions of the Constitutional Court
The peculiarity of this category of solutions isin the fact that after the proclamation it immediately comes into force. Moreover, all decisions of the Constitutional Court are not subject to appeal, do not require confirmation by other officials and any state bodies.
Importance of the decisions of the Constitutional Courtis that the revision of certain provisions of the Constitution directly affects the legality of justice, including in the implementation of arbitration proceedings. All decisions made by the court, which are based on the norm that is subject to review by the Constitutional Court, are subject to cancellation.
It should be noted that the practice of the ConstitutionalThe court includes a number of decisions attributable to arbitration and procedural activity. Most often, attention is drawn to the agrarian and industrial complex, whose provisions are sometimes recognized as inadequate to the Constitution of the Russian Federation. More recently, changes were made to the legislation on the review of cases by arbitration courts on newly discovered circumstances.
All sources of legal norms are divided intolegal force. The Constitution of the Russian Federation tops this list, and judicial practice has an indirect meaning. In any case, the legal system of Russia develops over time and gives new ways and forms of expression of legal norms, as well as regulatory and legal regulation. Moreover, a wide range of public relations, regulated by arbitration legislation, is constantly expanding. This is evidenced by the numerous opinions of legal scholars, not only at the level of the Russian Federation, but also on the international format.