Along with common sources of law, there are less known, but no less relevant, to which the case law and legal practice.Under the precedent refers generally pronounced by a court decision or other authorized state body with regard to the specific legal situation, which is obligatory for implementation.Thus, the legal precedent - is not just a solution to a specific situation, and a decision has legal force, capable entail certain consequences.
Legal or legal precedent can be divided into two kinds: judicial and administrative.
to judicial precedent include all decisions made by the court in a particular case, the use of which is used not only in the particular proceedings, but also in similar cases.
to the administrative precedent include all the decisions taken by the executive authorities considered their cases where the decisions are the rules to be applied in similar situations.
Legal precedent is different from the other sources of law the following items:
- In contrast to the PPA, such as law, decrees, regulations, case law as a source of law arises in the enforcement system.
- Precedent has specific answers for each of the situation and while the rule of law are of a general nature for situations that may arise in the future.
- Legal precedent has the flexibility to use.For example, if the application of the rules of law it is necessary to strictly observe, then using the precedent law enforcer has the discretion to choose the rule, which is more in line not only to all the circumstances of the case, but also the closest to the legal norms.
legal precedent: the pros and cons
The main positive aspect of legal precedent can be attributed to "humanized".When using the precedent law-governed by the rule of law does not dry, and his logic, ideology and experience.The second advantage is its dynamism.Enforcers may decide, based on the changes that have taken place both within the country and in the world.
The disadvantage is the lack of authority, characteristic of the regulation, and high threat of spontaneous application of the rules.
precedent as a source of law is widely used in the legislation of the Anglo-Saxon system.The Russian Federation does not consider it as the main source, but, in practice, the courts' decisions are often based on the decision of the Supreme Court and legal practice.
legal custom as a source of rights - the most ancient kind of social norms.The practice itself quite strict and conservative, as has occurred in the process of constant repetition of the most rational decisions, handed down from one generation to another.
legal tradition from ancient times was intended to regulate such relations in which the intervention of the authorities or of the law was not desirable or acceptable.
relationship to the customs law is ambiguous.
Those who represent any kind of duress or inequality, is strictly forbidden by law (for example, in the old Criminal Code of Ukraine has been a mandatory norm - the bride price, for non-fulfillment of which provides liability).
And rules governing certain relations, on the contrary, encouraged and are reflected in the regulations.However, the practice is not passed as a norm, it is a specific reference in the article.For example, Article KTM the Russian Federation regulating the terms of loading cargo on a ship makes reference to the terms adopted in the port.Thus, the custom law takes the form of fixed rules to be executed.
