Russian Journal of Economics and Law (Dec 2017)
Legal practice of specification of the grounds for a normative legal act admitted inoperative
Abstract
Objective: to identify the option for eliminating the lacuna in law, identified in judicial practice, which consists in establishing the grounds for declaring a normative legal act invalid (Chapter 21 of the Administrative-Procedural Code of the Russian Federation).Methods: universal dialectic-materialistic, formal-legal, analysis and synthesis of reasoning in judicial cases related to abstract control of norms.Results: the author formulates the following proposals: 1) to introduce amendments to Article 213 of the Administrative- Procedural Code of the Russian Federation regarding the need to establish, in a judicial procedure on administrative cases on disputing a normative legal act, the compliance of the disputed normative legal act to the requirements of the formal certainty of legal norms, excluding their ambiguous interpretation in the law enforcement practice, as well as their compliance to the principles of law and the objectives of the legal regulation established by law;2) to supplement the Administrative-Procedural Code of the Russian Federation with Article 215.1 establishing that the disputed normative legal act, which violates the rights, freedoms and legitimate interests of the administrative plaintiff or persons in whose interests an administrative claim is filed, must be adjudged invalid in whole or in part in the following cases: a) the revealed violations of the requirements of normative-legal acts defining the powers of an authority, organization or official to adopt normative legal acts; it stipulates the shape and form in which a body, organization or official is entitled to adopt normative legal acts; it stipulates the procedure for adopting the disputed normative legal acts; it contains the rules for introducing regulations into effect, including the manner of publication, state registration (if state registration of these acts is stipulated by the Russian legislation) and its entry into force; b) non-compliance of the disputed normative legal act or its part to the regulatory legal acts of greater legal force; c) inconsistency of the disputed normative legal act with the requirements of the formal certainty of legal norms, excluding their ambiguous interpretation in law enforcement practice; d) non-compliance of the disputed normative legal act to the principles of law and the objectives of legal regulation established by law; 3) to introduce changes in Art. 209 of the Russian Administrative-Procedural Code regarding the administrative complaint disputing a normative legal act and recognizing a normative legal act invalid.Scientific novelty: a lacuna in law is identified (Chapter 21 of the Russian Administrative-Procedural Code); to eliminate the lacuna, reasoning of court decisions is systematized on the recognition of normative legal acts invalid due to defects in normative legal acts, which literally do not constitute grounds for recognizing them invalid.Practical significance: the conclusions and provisions of the article can be used in scientific, legislative and law-enforcement activities, in the educational process of educational institutions of higher education.
Keywords
