Judicial precedent: its place in the foreign and Russian law

What is the legal precedent?The concept originated in ancient Rome, derived from the Latin "praecedens", which means "prior".The traditional understanding of legal precedent called the decision by the courts to account when considering the cases pending before the High Court decisions in similar cases, which take effect in this case, the source of law and be binding on the courts.This position for a long time (since the 13th century) is stored in the foreign law - Great Britain, New Zealand and other countries in general or civil law, which was formed initially as an unwritten social law "common law".

should be emphasized, however, that the binding is not the solution itself in a particular case, and the doctrinal conclusion in a special part of the decision of the High Court, extends to indefinite number of persons and situations.Thus, legal precedent provides implementation of the principle of the common law legal thinking - the direction of the movement of thought from the particular to the general.

modern Russian legislation dictated by the location of judicial precedent laid down in the main law of the country - the Constitution - the principle of separation of powers in the state of the executive and the legislative and judicial branches.According to this principle, no one branch of government should not perform the functions of the other two, what is achieved, according to local legislators, the most efficient, transparent and democratic construction of the state power.Accordingly, the courts have no right to become pravotvortsami, performing the functions of parliament and taking decisions required for the subsequent ships.Therefore, the judicial precedent in Russian law officially to the sources of law does not apply.However, Russian law and practice of court cases has its undeniable role as it is the basis for the study of the formation of the general judicial positions.At the same time, in terms of some of the activities of the Constitutional Courts of the authors on the publication of decisions on the recognition of legal acts with or in contravention of the Constitution of possible approaches to their legislative function, existing on the brink of violation of the principles declared by the Constitution.The fact that these solutions provide a clear and consistent position of the Constitutional Courts, which will become mandatory for law enforcers, thus, in effect, gaining features a source of law.In addition, the decision-making process of the non-compliance of certain legislation of the Constitution, the court shall have the power to decide on the abolition of their actions and even filling them with different content.Opponents of this theory argue that the decisions and legal positions of the Constitutional Court - it is not a legal precedent, as they do not act independently norms and based on the direct power of the main law of the country.Moreover, the recognition of judicial precedent of legal positions expressed by the Constitutional Court in its judgments, in itself violate the principle of separation of powers and therefore inadmissible.It seems that at the moment in the development of the domestic right holds a transitional period during which the Constitutional Court (as the body belongs to the judicial system), indeed, partially performs the functions that belong to the legislative branch, creating a legal precedent.