Methodology of the judicial right and basis of classification of modern judicial systems
Автор: Grebennikov Valery Vasilyevich, Grudtsyna Lyudmila Yurevna
Статья в выпуске: 3 (28), 2017 года.
Purpose: Research of methodology of the judicial right and justification of the author’s concept of classification of judicial systems of the present. Methodology: Historical and legal, system and formally legal methods were used. Results: In article author’s definition of methodology of the theory of the judicial right which is understood as set of the theoretical principles, receptions, ways and means of a research of structure and system of judicial authority, legal mechanisms of legal proceedings, judicial system forms, and also interactions of judicial authority with other branches of the government and influence of activity of judicial authority on the public relations is given. If the right source (the law or a judicial precedent), then bases of a tipologization of judicial systems of the present by the nature and methodology, according to authors of article, is the basis for the become classical tipologization of legal systems of René David more difficult. It is represented to authors that the fullest classification of judicial systems of the present can be carried out taking into account the following characteristics of judicial systems and features of sudoproizvodstvo of the modern countries of the world: a) the place and a role of judicial system in system of division of the authorities, structure of public administration; b) legal mechanisms and features of interaction of links (elements) of judicial system with each other; c) existence (centralization) or absence (dissociation) of uniform superauthorized judicial authority (highest judicial authority); d) complexity and plurality of judicial instances and justices, their interaction with other public authorities; e) the place and a role of institute of prosecutor’s office in activity of links of judicial system (in particular, belonging of prosecutor’s office to executive power, investment of prosecutors with big powers and so forth); e) the place and a role of legal profession and lawyers in legal proceedings (in particular, institute of rendering free legal aid). Proceeding from pyramidal creation of judicial system, the place and a role of judicial authority in system of division of the authorities and values of a judicial precedent in national legal system in the world are distinguished four types of judicial systems («judicial families»): 1) romano-German (continental) judicial right; 2) Anglo-Saxon (case) judicial right; 3) dualistic judicial right; 4) the religious and moral judicial right. Novelty/originality/value: Article has the high scientific value as is one of the first attempts to consider classification of judicial systems («judicial families») of the present and to give definition to methodology of the theory of the judicial right.
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