The decision of the Constitutional Court is independent source of the law - Статья

Abstract work THE DECISION OF THE CONSTITUTIONAL COURT IS INDEPENDENT SOURCE OF THE LAW Till present the domestic legal science has paid not enough attention to the concept the source of the law. Professor S.F. Kechekyan has specified, that this concept belongs to the most unclear in the theory of the law. There does not only exist conventional definition of the given concept, but even the very sense of it is disputable. In fact the source of the law is an image which should more help understanding, than give the concept designation of its expression [1]. The only thing in which experts converged in opinion; defining the concept the source of the law is that it is necessary to understand not the reasons generating legal rules, but the ways of formation of legal norms, forms of statement of the law. The English jurist K. Ellen defines the source of the law as activity, by means of which norms of behavior get the character of the law, becoming objectively certain, constants and first of all obligatory [2]. In conditions of the Soviet legal system the unique source of the law has been admitted the statutory act. Therefore the concept the system of sources of the law» usually replaces the concept the system of the legislation. Ethatetic theory of the law in interrelation with concepts of state and law gave the priority to the state. The law was considered as the way of formation of the state will. Certainly, the statutory act is the dominating source of the law. In the opinion of O.A. Puchkov it has the following conclusive advantages: - The statutory act can be issued operatively, can be changed in any part, that allows reacting rather quickly to social processes; - Statutory acts, as a rule, are definitely systematized, that allows carrying out easily search of the necessary document for application or realization; - Statutory acts allow fixing precisely the contents of legal norms that helps to carry out the uniform policy, not to suppose any interpretation and application of norms; - Statutory acts are supported and protected by the state. In case of infringement of regulations of statutory acts infringers are pursued and punished on the basis of the law [3]. Fixing by the Constitution of the Russian Federation of 1993, alongside with the laws and other statutory legal acts, as sources of the law of the international contracts, and of the conventional principles and norms of international law has given the reason for reconsideration of practically all general-theoretical concepts, including the system of sources of the law. The legal science faced the problem to explain theoretically the importance of inclusion in system of sources of the modern Russian law such kinds of acts as acts of the supreme judicial authority and to create the complete system of sources of the modern Russian right, including alongside with all federal sources of the law the sources created at other levels - regional, municipal, corporate (local). In the legal science the concept of the source of the law is perceived differently. In the continental law including the law of Russia, the right of the legislator is dominating, in Anglo-Saxon law the first place is given to the judicial practice - the right of judges . It is the classical theory. However the law does not develop in the direction of pure division in two parts. There exists gradual rapprochement of legal systems, their convergence. Here the great role belongs to the decisions of the European Court on human rights. In the Russian Federation there have been created bodies of the constitutional justice, whose decisions are obligatory and have high validity. The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation give explanations on questions of judiciary practice, offer the uniform decision of legal problems. These explanations are especially important whereas the Civil, Family, Civil Remedial, Arbitration Remedial Codes of the Russian Federation suppose analogy of the law and analogy of the right. However our legislation does not allow recognizing explanations of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation on questions of judiciary practice as sources of the law. In spite of the fact that explanations of these courts render significant influence on the subsequent judgments and somehow get case value, they do not contain legal norms. Decisions of courts of the common and arbitration jurisdiction are law applying acts. By virtue of Article 118 of the Constitution of the Russian Federation Courts of general and arbitration jurisdiction, including the Supreme Court and the Supreme Arbitration court, at consideration of the concrete case make decision according to the law. If the court at consideration of the case comes to the conclusion about discrepancy of the law of the Constitution of the Russian Federation applied, it is obliged to suspend applied to proceeding on the