German Vishnevsky1
  • 1 National Research University Higher School of Economics, 20 Myasnitskaya Str., Moscow, 101000, Russian Federation

Legal Opinion of Higher Courts as a Cause for Reviving Cases and Rule of Law

2014. No. 1. P. 70–79 [issue contents]

Vishnevskiy German - Deputy Head at the Judicial Department at OAO Evraziyskiy, member of the Board of Directors at OAO PO Vodokanal, postgraduate student, Department of Judicial Power and Justice, Law Faculty, National Re­search University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: vishnevskiy_g@mail.ru.

The article studies the issues of ensuring the rule of law principle at the stage of reviewing judicial acts having come into force due to the judgement (alteration) made by a higher court into the practice of applying the norms of the applicable legislation. The procedural mechanism of overcoming the legal force of judicial acts due to this position of higher courts is criticized by the author because of its inconsistency with the rule of law principle, based on its integral element — the principle of legal judgement requiring the observation of the res judicata principle. Res judicata presupposes the conclusiveness of the final judicial act, i.e. the act not subject to a separate appeal. The conclusiveness of the judicial fact supposes the ban on the review of the final judicial act by ordinary causes; necessity to review it within the strictly determined periods and according to the procedures only if judicial mistakes have been revealed which influenced the decision. At the same time the mechanism of reviewing judicial acts analyzed by the author supposes the cancellation of the final judicial acts on this usual circumstance due to such a cause as the breach of consistency in the views of the content of prescriptive texts. The cancellation of judicial acts during their review due to new circumstances subject to the legal position of higher courts is essentially similar to the reversal of judicial acts under point 1 part1 article 304 of RF Arbitration Procedural Code and point 3 of article 391.9 of RF Civil Procedural Code (violation by courts (arbitration courts) in terms of consistency in interpreting and applying legal norms. On the basis of case practice of the ECHR recognizing the reversal of judicial acts which have entered into force including during the procedure of judicial act review on new or recently revealed circumstances, due to their inconsistency with the interpretation of the norms of law by higher courts — an intolerable digression from the principle of legal certainty and the intervention in the private property law, the norms of applicable Russian procedural legislation regulating the review of the case due to the position of a higher court, in their interpretation of judicial practice, the author arrives at a conclusion that the cancellation of the final judicial acts delivered on the cases pursuant to civil-law rela­tions due to the position of a higher court contradicts the rule of law principle. As to the cases on public-law relations the cancelation of the judicial acts having come into force due to a new position of a higher court is allowed only if the conditions of citizens and associations disputing with the state improve.
Rule of law means an interdependence of state power subjects, their supreme value in society and state. Rule of law is not a formal legality as it suggests the primacy of human rights in regard to laws and the activity of state power subjects and ensuring formal equality by power subjects as human rights are the values conditioning the activity of authorities.

Citation: Vishnevsky G. (2014) Formirovanie vysshim sudom pravovoy pozitsii kak osnovanie dlya vozobnovleniya proizvodstva po delu i verkhovenstvo prava [Legal Opinion of Higher Courts as a Cause for Reviving Cases and Rule of Law]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 70-79 (in Russian)
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