Судебная практика как источник гражданского права | LEGAL PRACTICE AS A SOURCE OF CIVIL LAW
2015
Didenko A. A. | Kobylinsky N. D.
The article deals with the analysis of the role and place of court practice in the system of civil-law sources. The author introduces a debatable matter of the possibility to acknowledge the Russian law as case law; analyses significance of the judicial practice in the system of sources of the Russian law; outlines positions of experts on this matter and draws her own conclusions. The article provides a review of opinions of Russian law academics' and practitioners' on the topic of acknowledgement of judicial practice as a source of Russian law. The author debates and further concludes that assigning courts with the law-making function would benefit the efficiency of current legislation refinement. The author draws a conclusion that in the continental legal family court practice, which earlier wasn't considered a civil-law source, started gradually to turn into a secondary after civil legislation law source. The reason for it is because of more complicated social relations civil legislation failed to cope efficiently with the detailed legal regulation which is needed in property relations reglamentation. The author reveals the difference between the notions of "court practice" and "judicial precedent" and concludes that vesting courts with law making power can facilitate the improvement of the legislation in force, as well as the development of the civil law regulation. The final conclusion is that the litigation irrespective of the form of expression cannot be the independent source of law
Show more [+] Less [-]Bibliographic information
This bibliographic record has been provided by Kuban State Agrarian University