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5.3 Ways of perfection of judicial application of civil-law norms

Special specificity is inherent in process of development and realisation of effective ways of perfection of process of judicial application of civil-law norms. This major side of a problem of application of the right practically is not developed in a science, did not become a subject of separate research.

In works of scientists some are listed, laying on a surface, measures on the further development judicial pravoprimenenija, but in a context of studying of general-theoretical questions. Thus the attention to urgencies and depth of offered measures is not focused, level of their sufficiency and coherence, universality and width is not analyzed. Not applying for completeness of a statement and the all-round approach to an investigated problem, we will try to formulate and more in detail to open basic ways of perfection of judicial application of civil-law norms offered by us:

- Improvement of quality pravotvorcheskoj activity for the purpose of the further perfection of the operating civil legislation realised in the course of judicial pravoprimenenija;

- Establishment of stronger feedback between law-making and judicial application of civil-law norms;

- Achievement by court of high level civil pravoprimenitelnogo process on each of its stages with obligatory observance of statutory procedures of application of civil-law norms;

- Increase of efficiency of overcoming by court of blanks in civil law for the purpose of perfection of legal regulation of civil matters;

- The further all-round perfection of judiciary practice on the civil cases, playing a main role in uniform understanding and application of norms of the civil legislation;

- Studying and generalisation of practice of application of laws and other standard legal acts vessels in civil-law sphere;

- Activization of the judicial review of court above behind remedial activity of courts below;

- Careful selection of shots in the judicial case;

- Continuous development of legal culture and sense of justice of judges, preventive maintenance of their professional deformation and legal nihilism;

- Obligatory improvement of professional skill of judges in a combination to strengthening of a role of self-education;

- Maintenance of the scientific organisation of work of collective of the court of justice and healthy microclimate in it;

- Strengthening of material base of vessels, maintenance of judges with all technical and information possibilities for timely reaction to changes of the civil legislation, studying of experience of colleagues in Kazakhstan and abroad on application of civil-law norms;

- Qualitative theoretical and practical preparation by high schools of the country of highly skilled lawyers.

It would be desirable to stop on more detailed characteristic of separate ways of perfection of judicial application of the civil-law norms which have not found sufficient reflexion and a substantiation in the previous sections of research. Additional treatment position about necessity of achievement by court of high level pravoprimenitelnogo, in our opinion, do not demand process on each of its stages; increases of efficiency of overcoming by court of blanks in civil law; judiciary practice perfection on civil cases and some other as above numerous aspects of the specified problems have been considered sufficiently. The analysis of the involved theoretical data has given the chance revealings of "weak places» in the course of application of civil-law norms by court and to formulate the basic ways of perfection judicial pravoprimenitelnoj activity in the field of civil law.

Application of civil-law norms by court – not the abstract category, and an actual reality defined by is social-legal conditions, level and which quality, first of all, are caused by a condition pravotvorcheskoj activity and the most civil legislation. Quality of the civil law – the integral condition of its efficiency on which its final value depends. The law can correspond to due level of legislative technics, but, nevertheless, cause negative consequences and break social justice, brake, instead of provide normal functioning of adjustable relations [244, с.109].

Certainly, the legislator cannot expect completely all socially-legal consequences of the pravotvorcheskoj activity. He not always knows, how people will react to the passed law: the social life is too difficult, the legal validity is too various. But it at all does not mean, that the state cannot and should not predict a consequence of the legislative efforts. The legal culture of a legislature just in that also consists, that he should know, understand, feel pravomentalnye, pravopsihologicheskie steady types of mass and public sense of justice. The given circumstance is for pravotvortsa essentially important and characterises its legislative solvency or, on the contrary, an inconsistency [245, с.16].

Importance pravotvorcheskoj state activity in civil-law sphere consists that its results create necessary conditions for effective pravoprimenenija, influence on judicial pravoprimenitelnuju to practice. The court main task will be thus exact revealing, comprehension of will of the legislator, legitimate interests of citizens and legal bodies. In modern conditions of construction of a lawful state and rapid development of commodity-money market relations correct application of civil-law norms by court especially actually. Huge value gets civil-law maintenance of development of business. I.V.Amirhanovoj's special monography [246] is devoted the given problem.

The factor promoting perfection of process of application of norms of civil law by court, the establishment of stronger feedback between law-making and judicial application of civil-law norms is. Unfortunately, the court almost does not use the right of stay of proceedings given to it and references in the Constitutional Council with representation about annulment of the law and other standard legal act in case of infringement it of the rights fixed by the Constitution and freedom of the person and the citizen. Use of the specified right – the important indicator of high qualification of the judge. Chairmen of regional and other vessels of republic could to recommend pay attention persistently of judges to possibility and necessity of application of item 78 of Constitution RK, and to the Supreme Court, probably, would be reasonably useful to prepare corresponding recommendations about realisation of the given norm, and in due course and to plan decision acceptance about practice of application by vessels of item 78 of Constitution RK. Lawyers and public prosecutors can actively participate In functioning of the mechanism of participation of vessels in legislation updating, cutting off from it out-of-date norms [247, s.187-188]. However the situation and for today remains former: direct influence of courts below on pravotvorchesky process rather slightly. The exception represents activity VS RK, publishing, according to the item 1.ст.4 to Constitution RK, standard decisions, obligatory for application by vessels.

It is represented, that perfection of practice of application of civil-law norms by court is impossible without the decision of essential problems on development of legal culture and sense of justice of judges, preventive maintenance of their professional deformation and legal nihilism. Process of application of civil-law norms by court directly mentions the vital rights and legitimate interests of subjects of civil matters owing to what questions of legal culture of judges are regarded as rather important. Therefore it is possible to consider legal knowledge, sights, estimations, installations, the professional skill based on got professional experience, personal intellectual, emotional, strong-willed qualities of the judge without exaggeration solving. The listed components assume presence of wide legal outlook of the judge, that is knowledge it of spirit of the civil legislation, its principles, problems, the purposes. Besides, in the course of application of civil-law norms the judge should possess steady internal belief in necessity of strict observance of norms of the civil legislation. In modern conditions when the logic of construction of the democratic state dictates an imperative need of full warranting of the rights and interests of subjects of civil matters, requirements to observance by judges of professional duties, responsibility for the charged business repeatedly increase at application of civil-law norms, to following to the obligatory procedural moments at the permission of civil cases which would bring to nothing an element of chance and subjectivity.

It is necessary to notice, that, despite of all versatile measures taken in our society on purposeful formation of due level of professional legal culture and sense of justice pravoprimenitelej, including judges, in certain conditions it can be shown and the defective sense of justice, including various degrees of depth of deformation. The considerable practical resonance from this negative phenomenon unequivocally reducing efficiency judicial pravoprimenenija, demands development of preventive measures of struggle against various forms of legal deformations. Thus it is very important to underline, that pravoprimenitelnaja court activity also has the big influence on formation of legal culture and sense of justice of all subjects of legal relations, citizens of the country, promoting development in them feelings of high civilisation, respect for the right and the law, irreconcilability to infringements of rules of law.

It is necessary to address separately to such significant, but in practice to an often enough ignored way of perfection of application of rules of law court, as maintenance of the scientific organisation of work of collective of the court of justice and a healthy microclimate in it. The functional aspect judicial pravoprimenenija should be based on scientifically developed criteria of efficiency pravoprimenitelnogo process for the purpose of correct definition of priority directions, problems, problems in work of collective of the court of justice, realisation of the planned plans, mobilisation, stimulation and the control of activity of judges. In it the huge role is played by the person of the head of the court of justice. From correct selection of shots by it, professional competence, organisation, discipline of judges the success of performance of problems pravoprimenitelnogo body depends. Management of court collective will be successful only in a case when along with the purposes directly pravoprimenitelnogo character the scientific organisation of work of the given collective is provided, purposeful formation of the rallied collective consisting of highly skilled professionals-judges is carried out, dynamics of movement of shots is considered. Creation of a healthy microclimate in collective of the court of justice should be constant care of its head which is always obliged to remember words from the Message of President RK to the people of Kazakhstan: «the Official of new generation is a servant of the nation, patriotic and fair, betrayed to the business both professional. Creation and support of high reputation of public service – our strategic problem which we should solve the next years» [248, с.58].

The problem of strengthening of material support of vessels has found the reflexion in the Government program on perfection of the judiciary developed within the limits of the Concept of the Policy of Law and calculated for 2005-2007. In it strengthening of independence of vessels, their technical equipment, creation of the uniform information analytical system including constant updating of a databank of judgements and introduction of automated system of distribution of lawsuits [249, с.5] is provided. The attention of the state to questions of strengthening of material support of process of application of the right testifies to its big importance.

Specificity of professional work of the judge is connected with the major function carried out by it on maintenance of the rights of citizens, legal bodies and the states on the basis of application of civil-law norms for which due performance the specialised education and skills, special competence is required. Therefore qualitative and all-round training by colleges of law of experts let out by them is an actual problem of today. The organisation is necessary for effective realisation of a problem of perfection of judicial application of civil-law norms at the state level of the juridical education based on a principle of connection in educational process of disciplines, giving not only theoretical knowledge of the law (including civil), but also bringing up respect for its spirit. Other integral party of a quality education – acquisition of good practical skills within the limits of high school, at passage of educational practice in judicial and others pravoprimenitelnyh bodies. Undoubtedly, personal and professional experience of the judge collects eventually, but the strong and system knowledge received at training in high school, serves as the necessary base in its most complicated activity on application of civil-law norms and in many respects defines success of office career. It is even more important to underline, that only the highest qualification of the judge based on a profound knowledge, allows it to send fair justice and to provide protection of constitutional laws and interests of subjects of civil matters, to promote a legality and law and order celebration in a society. The state aspires not to lose sight of a serious question on vocational training and young judges. « Now in the judicial case works over five hundred judges which judicial experience constitutes less than two years. Therefore it is necessary to organise seminars not only in regions, but also effectively to use possibilities of Judicial academy. In turn, it is necessary for academy to raise teaching level, to finish formation of constant teaching structure, to organise high-grade work of chairs »[249, s.4-5].

The care of the state of the young judicial case is shown and in other directions: in acceptance of the special program on rendering assistance to young judges in vocational training and acquisition of skills of judicial work for 2005-2007, approved by the order of Chairman VS RK from 12.09. 2005; in working out of recommendations about rendering of the practical help in passage for the first time the appointed judges of the adaptable period in a justiceship, approved by the order of Chairman VS RK № 114 from June, 20th, 2005.

Thus, the listed ways of perfection of activity on application of civil-law norms by court far not ischerpyvajushchi. The objective scientific analysis of a condition is necessary For the decision of problems available in given sphere judicial pravoprimenitelnoj for activity in modern is social-legal conditions. Only on the basis of the results received during research probably to make scientifically proved forecast of development of process of application of civil-law norms court and all legal system of Kazakhstan for the long period.

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A source: ALIMBEKOV MUSABEK TURGYNBEKOVICH. Legal representation and application of the civil-law Norms in the mechanism pravorealizatsii. The dissertation on scientific degree competition Doctors of juridical science. Republic Kazakhstan Almaty, 2010. 2010

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