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INTRODUCTION

Urgency of a theme of dissertational research

The institute of the constitutional judicial review has strongly become current a modern life. If to the middle of 20th years of the XX-th century bodies of the constitutional justice functioned only in the USA and only the several states of continental Europe [1 [2] today the judicial review system behind constitutionality of standard legal acts has found firm institutsionalnoe expression already in overwhelming majority of the developed laws and orders. The specified bodies, realising the powers, embody the main, central ideas of constitutionalism during a life: beginning from protection of fundamental laws and freedom and finishing maintenance of leadership and direct action of the constitution. Therefore their decisions, certainly, take a key place in any legal system and play the important role in konstitutsionno-legal development of the state.

At the same time it is necessary to establish, that bodies of the constitutional judicial review not always happen in a condition to bear advantage to a society and the state and time of their decision can have even destructive character. As a rule, it occurs in view of miscarriages of justice when, on the one hand, in a judgement basis true knowledge is put not, and data and data which mismatch the validity. On the other hand, it takes place to be, when by court are lost sight - neosoznanno or specially - the facts having essential value for correct adjudication. As it is easy to guess, one of the main reasons for that is absence of effective rules about proving and proofs.

In the Russian constitutional litigation the institute of proving and proofs is developed extremely poorly. Absence testifies to it in Fede

ralnom the constitutional law «About the Constitutional Court of the Russian Federation» (further also - the Law on the Constitutional Court, FKZ about KS) the positions devoted, for example, to the ultimate fact. At legislative level the order of distribution of the onus of proving is not defined, rules of evaluation of evidence are disregarded. Standard fastening also have found concept and properties of proofs. Nevertheless, as reasonably notices And. V.Reshetnikova, «without proving of the facts entering into the ultimate fact, court cannot

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To resolve business ».

Absence of in advance certain and thought over evidentiary rules should affect quality of konstitutsionno-proceeding. probelnost operating remedial regulation, certainly, does process of an establishment of actual facts by more subjective and leads to decrease in guarantees of competitiveness and equality of the parties. Such state of affairs is represented inadmissible, especially with the account of that that decisions of the Constitutional Court of the Russian Federation (further also - the Constitutional Court) are definitive and to correct the errors admitted during collecting, research and evaluation of evidence, it is not obviously possible.

At the same time, being engaged in perfection of rules about proving and proofs in the constitutional litigation, it is the extremely important to take into consideration essence of the judicial review behind constitutionality of standard legal acts. The facts established by bodies of the constitutional justice, have specific character and differ from what come under to an establishment within the limits of consideration administrative, civil and criminal [3 [4]

Affairs [5].

Features of konstitutsionno-judicial proving are expressed in several aspects.

First, for the permission of konstitutsionno-judicial disputes it is necessary to establish not pravoprimenitelnye the facts characterising an essence of disputable legal relations and having the individual nature, and generalised (generalizirovannye) the facts which promote the decision of a question on constitutionality of checked standard positions. Under the maintenance the similar facts not always have a binding to the past, quite often are reflexion of certain laws, processes and the phenomena that causes necessity of attentive studying of property of the relevancy of proofs. On the other hand, konstitutsionno-control activity, being connected with the decision of matters of law, frequently demands the reference to the proofs which practically are not meeting in others jurisdiktsionnyh processes (to materials pravotvorcheskogo process, to the judgements testifying to a condition pravoprimenitelnoj of practice etc.) . This circumstance demands research of property of admissibility of evidence.

Secondly, in the constitutional litigation the permission is found by disputes which are, as a rule, socially significant. Decisions of bodies of the constitutional judicial review have a special validity and mention the rights and freedom of an uncertain circle of persons. It causes necessity during fact-finding to take into consideration not only legal positions of the persons participating in business, but also the persons who have been not involved in the constitutional litigation but which legal status the total decree can affect. It is especially actual in conditions when in the developed laws and orders process of transformation of traditional model of justice in socially-legal [6 [7] [8] is observed. Besides, in this context and in connection with special subject structure of konstitutsionno-judicial disputes there is a necessity of reconsideration of rules of distribution of the onus of proving for the constitutional litigation.

Thirdly, bodies of the constitutional judicial review at delivering justice are guided, first of all, by positions of the constitutions which texts have abstract and lapidary character. In such conditions - in the conditions of width interpretatsionnogo fields - even most prima facie insignificant from the point of view of the constitutional positions the circumstance can affect constitutionality of checked standard legal acts. That in decision konstitutsionno-judiciary practice on the same legal questions change in the counter party under a cart - visually testifies to it

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Action of sociohistorical conditions and time contexts, besides that texts of constitutions and challenged standard legal acts remain invariable. Hence, the special attention is deserved by the mechanism of definition of a circle of the facts constituting a subject of konstitutsionno-judicial proving.

The put arguments confirm, that necessity for studying of evidentiary aspects of konstitutsionno-control activity has already ripened. At the same time for the productive decision of the put scientific problem it is difficult to do without use of a comparative method. The Russian institute of the constitutional judicial review cannot develop out of a universal context, in a separation from the best foreign an expert of the constitutional justice. If to speak about compared objects the choice American dokaza - telstvennogo the rights speaks that the institute of the constitutional judicial review has arisen in the United States of America and successfully functions on an extent more than two centuries. For this time both in the legal doctrine, and in judiciary practice of the USA considerable experience which should be considered and in the Russian practice of the constitutional justice has collected. Designs of the American law of evidence, namely the concept of the legislative fact, standards of an estimation of constitutionality, a rule of distribution of the onus of proving, legal presumptions, have confirmed the efficiency in konstitutsionno-judiciary practice of the USA.

As to comparability of objects of comparison she speaks that are exposed to the comparative analysis not external (sudoustrojstvennye) elements which really have diverse and nesootnosimuju structure, and substantial (sudoproizvodstvennye) questions which submit to general, universal laws of logic and informative activity. Comparison of evidentiary rules and practice of their application in the constitutional litigation of Russia and the USA allows not only to reveal merits and demerits of each evidentiary model, but also gives possibility more deeply to understand the basis of domestic experience.

With a view of rather-legal research the constitutional litigation of Russia and the USA is understood as a consideration and permission order by the Constitutional Court of the Russian Federation and federal courts of the USA of affairs about conformity of the Federal Constitution of obligatory rules of the behaviour proceeding from bodies of public authority, addressed to an uncertain circle of persons and calculated on numerous application.

The purpose of dissertational research consisted in that on the basis of rather-legal analysis of evidentiary rules and practice of their application in the constitutional litigation of Russia and the USA and the revealed features constitutional normokontrolja to offer optimum evidentiary model for the constitutional litigation.

For object in view achievement it was required to solve following problems:

- To formulate definition of concept of konstitutsionno-judicial proving, having opened a functional purpose of the facts at realisation constitutional normokontrolja and having designated signs which allow to distinguish the constitutional litigation from the litigations having pravoprimenitelnuju the nature (through a dichotomy of traditional and socially-legal models of justice);

- To define the ultimate fact maintenance in the constitutional litigation of Russia and the USA and to describe the mechanism (algorithm) of its formation with the account of structural features, characteristic for the constitutional norms which are coming under to application for the purpose of the permission of konstitutsionno-judicial disputes;

- To investigate institute of distribution of the onus of proving in the constitutional litigation of Russia and the USA and to reveal the factors influencing distribution of evidentiary burden, and also to analyse the maintenance of a presumption of constitutionality to Russia and the USA;

- To study structure (stages) of proving in the constitutional litigation of Russia and the USA, having paid special attention to an order of collecting of proofs and degree of an involvement into this activity of bodies of the constitutional judicial review of Russia and the USA;

- To compare approaches to evaluation of evidence in the constitutional litigation of Russia and the USA and to define degree of influence on them of a principle of free evaluation of evidence which was fixed in the Russian legal tradition, and the standards of proving used by the American vessels;

- To specify the maintenance and properties of konstitutsionno-judicial proofs with the account of the features inherent in activity on realisation of the judicial review behind constitutionality of standard legal acts;

- To consider practice of use of proofs, atypical for usual judicial pravoprimenenija, but the extremely necessary for the decision of a question on constitutionality of standard positions;

- On the basis of the carried out research to develop offers on perfection of the legislation regarding proving and proofs in the Russian constitutional litigation.

As object of research the public relations arising at fulfilment of legal proceedings, connected with proving and proofs in the constitutional litigation of Russia and the USA have acted.

Object of research the rules of law regulating proving and the proofs in the constitutional litigation of Russia and the USA, and practice of their realisation in the Constitutional Court of Russia and federal courts of the USA, including the Supreme Court of the USA, and also Russian and American doktrinalnye have constituted the researches devoted to evidentiary aspects of konstitutsionno-judicial activity.

Degree of a scientific readiness of a theme of research

For the past decades from the moment of establishment in Russia of institute of the constitutional judicial review the numerous publications devoted to various aspects of the constitutional legal proceedings were issued. Bibliographic lists testify to degree of extensiveness of the scientific literature on the constitutional justice, constituted by M.A.Mitjukovym which include more than 16 thousand bibliographic records [9]. At the same time direct acquaintance with proceedings allows to establish, that the questions connected with proving and proofs in the constitutional litigation, have not received due attention and remain the least studied in domestic jurisprudence.

One of the first Russian jurists, made an attempt to investigate evidentiary aspects of konstitutsionno-judicial activity, there was H.B.Shejnin who in the scientific article [10] published more twenty years ago in the Bulletin of the Constitutional Court of the Russian Federation, has managed in detail to designate a research problematics [11]. However, unfortunately, since then one master's thesis [12 [13] has been protected only and some scientific articles are published.

Nevertheless among the researches which have brought the important contribution to working out of an evidentiary problematics, it is necessary to allocate article E. V.Taribo. Having studied practice of the Constitutional Court in taxation sphere, it has formulated the basic conclusions, forcing to review developing doktrinalnye representations about inadmissibility of fact-finding in the constitutional litigation. The separate questions connected with proving and proofs in the constitutional litigation, also were shined in D.A.Basangova, P.D.Blohina, O.V.Brezhnev, G.V.Vajpana, G.A.Gadzhiev, O.N.Krjazhkovoj, A.A.Liverovskogo, M.V.Petrov, V.A.Sivitskogo's works, etc.

As to the mentioned master's thesis in it key aspects of proving and proofs in the constitutional litigation of Russia in details reveal. At the same time some certainly worthy positions demand specification. First of all, it is a question of subjects and objects of proving, about necessity of allocation of "legal circumstances» etc. Besides, in A.J.Golovkovoj's work the problem specially was not put to investigate questions of realisation of a principle of competitiveness, distribution of the onus of proving and use of presumptions, and also to state an estimation to the problems connected with vneprotsessualnoj by evidentiary activity of bodies of the constitutional judicial review.

Separately it is necessary to mention that some attempts to investigate evidentiary aspects of konstitutsionno-control activity are undertaken within the limits of textbooks and manuals on the constitutional litigation [14], comments to the legislation on the Constitutional Court [15], and also the special grants addressed to practising lawyers. At the same time the format of the specified editions does not favour to a detailed and problem statement of investigated questions. However, despite it, it is necessary to highly appreciate practical guidance under the reference with the complaint in the Constitutional Court of Russia, prepared by P.D.Blohinym and O.N.Krjazhkovoj [16] in whom the problems connected with burden and evidences in the constitutional legal proceedings are in detail studied, use of materials of legislative process and pravoprimenitelnoj experts, the foreign right etc. As a whole it is necessary to establish, that the Russian literature on investigated a theme

Tic has fragmentary character, and the general condition of scientific researches in this area leaves much to be desired.

As to the American jurisprudence it gives to problems of konstitutsionno-judicial proving much more attention. Practically all modern American doktrinalnye researches on a theme anyhow are based on dichotomizing division of the facts on legislative and pravoprimenitelnye which was offered to K.Devisom in its scientific article and was recognised in jurisprudence and wide application in konstitutsionno-judiciary practice of the USA. Great value A.Chejza's devoted to process of transformation of traditional model of justice in socially-legal the scientific article also has. The given work serves as serious help for explanation of essence of konstitutsionno-judicial proving as by and large the institute of the constitutional judicial review shows quintessence of the given transformation.

Among key works of monographic type it is necessary to allocate D.Fejgmana's research which is entirely devoted value of the facts for konstitutsionno-judicial activity [17 [18] [19]. Its feather also posesses set of scientific works on various problems of konstitutsionno-judicial proving [20]. Similarly E.Larsen concerns number of leading researchers. As a whole the American jurisprudence studies the basic evidentiary aspects of konstitutsionno-judicial activity that does possible research of institute of proving and proofs in the constitutional litigation of the USA in a comparative key.

Methodology of dissertational research

Theoretical conclusions and the basic results of dissertational research have been received thanks to a complex of the general and private methods of scientific knowledge. Among the general methods it is necessary to allocate a dialectic method, a method of the analysis and synthesis, deduction and an induction, abstraction and a concrete definition, analogy and modelling. Among private methods of scientific knowledge - a legallistic method, methods rather-legal and istorikopravovogo the analysis, a method of the analysis and judiciary practice generalisation.

As the basic method of research rather-legal method which has allowed to study main principles, concepts and designs of the general theory of courts of evidence in their refraction in the constitutional litigation of Russia and the USA has acted. Thus the research accent was put not so much on evidentiary rules, and how many on the bases of their occurrence, development and functioning. The Istoriko-legal method has allowed to track genesis of separate evidentiary designs and approaches to evaluation of evidence in continental and Anglo-Saxon legal traditions. By means of a method of the analysis and judiciary practice generalisation the features of proving caused by the maintenance constitutional normokontrolja have been revealed.

The theoretical basis of dissertational research was constituted by proceedings pre-revolutionary (E. V.Vaskovsky, A.H.Golmsten, K.I.Malyshev, E.A.Nefedev, with. V.Pahman. V.Popov, V.A.Rjazanovsky, T. M.Jablochkov, etc.), Soviet (V.D.Arsenyev, R.S.Belkin, L.A.Vaneeva, A.J.Vyshinsky, M.A.Gurvich, V.I.Kaminskaja, A.F.Klejnman, Ampere-second. Goats, With. V.Kury-a lion, T.A.Liluashvili, L. P.Smyshljaev, M.S.Strogovich, A.I.Trusov, F.N.Fatkullin, J.L.Shtutin, K.S.Judelson, etc.) and Russian protsessualistov (G.O.Abolonin, O.V.Baulin, V.S.Balakshin, A.T.Bonner, A.A.Davle-tov, And. V.Ilyin, And. G.Kovalenko, V.J.Koldin, V.V. Molchanov, E.A.Nahova, With. V.Nikitin, G.L.Osokin, J.K.Orlov, Both. G.Rents, And. V.Reshetnikova, S.B.Rossinsky, T. V.Sahnova, J.A.Serikov, M.K.Treushnikov, M.A.Foki-

On, S.A.Shejfer, V.V. JArkov, etc.), and also works of experts in the field of the Anglo-American law of evidence (R.Allen, I.Bentam, U.Blek-groan, K.Broun, J. Vigmor, M.Damaska, P.Dzhinelli, D.Dix, J.Dennis,

R.Ijds, K.Klermont, J. Kokott, J. Langbejn, E.Morgan, D.Nens, M.Pardo, A.Stajn, J. Stifen, J. Tajer, U.Tvajning, J. Taylor, D.Fleming,

R.Frier, S.Haak, H.L.Ho, etc.).

Besides, research is based on works of the Russian and American (foreign) constitutionalists, and also experts in theory of state and law and various branches of law, among which - S.S.Alekseev, To. V.Aranovsky, V.K.Babayev, S.A.Belov, M.L.Belyh, P.D.Blohin,

N.S.Bondar, O.V.Brezhnev, G.V.Vajpan, N. V.Vitruk, G.A.Gadzhiev,

And. V.Dolzhikov, And. P.Yevseyev, T.D.Zrazhevskaja, V.D.Zorkin, And. G.Karapetov, A.T.Karasev, S.D.Knyazev, O.A.Kozhevnikov, A.N.Kokotov, M.A.Kokotova, S.A.Komarov, K.N.Koroteyev, M.V.Krotov, V.A.Krjazhkov, O.N.Krjazhkova,

L. V.Lazarev, A.A.Liverovsky, And. V.Mazurov, M.A.Mitjukov, S.E.Nesmeyanov, Z.I.Ovsepjan, V.N.Rudenko, P.I.Savitsky, M.S.Salikov, V.A.Sivits-ky, N.N.Tarasov, E. V.Taribo, A.F.Cherdantsev, H.B.Shejnin, B.S.Ebzeev, G.Bikel, K.Borgman, K.Brajant, A.Vulhendler, D.Gorod, J. Dobbins, K.Devis, R.Ismer, G.Kelzen, D.Kennedy, E.Larsen, D.Hashimoto, D.Makginnis, K.Meshershmidt, D.Oliver-Lalana, R.Pajn, R.Pozner, M.Ponomarenko, T.Sullivan, D.Solov, D.Straus, E.Suord, M.Tashnet, D.Fejgman, R.Fellon, A.Chejz,

E.Chemerinski, K.Shou, etc.

Standard basis of dissertational research have constituted operating system of legal regulation as Russia (the Constitution of the Russian Federation, the Federal constitutional law «About the Constitutional Court of the Russian Federation», Regulations of the Constitutional Court of the Russian Federation), and the USA (the Constitution of the United States of America, the Code of the USA, Federal rules about proofs, Federal rules of civil legal proceedings, Federal rules of appeal manufacture, the Supreme Court Rule

The USA), and also legal positions of the Constitutional Court of Russia and precedents of the Supreme Court of the USA.

The empirical basis of dissertational research was constituted by decisions of the Russian and American vessels, authorised to carry out the control over constitutionality of standard legal acts, including the Constitutional Court of Russia and the Supreme Court of the USA, remedial documents and materials of the affairs considered by them, and also videorecordings of public meetings of the Constitutional Court of Russia and an audio record of public hearings of the Supreme Court of the USA.

The materials taken as a principle of dissertational research, have been collected during passage of scientific training at School of the right of Uejnsky university (Detroit, the USA, August - December, 2014), an industrial practice in the device of the judge of the Constitutional Court of the Russian Federation (St.-Petersburg, January - March, 2015), works in libraries of faculty of law of University of Oxford (Oxford, the Great Britain, April, 2015) and the Swiss institute of the comparative law (Lausanne, Switzerland, August - September, 2016), and also scientific training at School of the right of University of Wisconsin in Madison (Madison, the USA, August, 2017 - January, 2018). Besides, the work writing became possible thanks to the Russian fund of the basic researches which have given financial support for realisation of the scientific project № 17-03-50274 «Proving and proofs in the constitutional litigation of Russia and the USA: sravnitelnopravovoe research ».

Scientific novelty of dissertational research

The given work represents the complex research of institute of proving first in domestic jurisprudence and proofs in the constitutional litigation of Russia and the USA, allowed in sravnitelnopravovom a key: to define value of the facts for check of constitutionality of standard legal acts; to find out essence of konstitutsionno-judicial proving; to open the ultimate fact maintenance in the constitutional litigation of Russia and the USA; to describe the mechanism of its formation in interrelation with positions of the Russian and American Constitutions; to designate an order of distribution of the onus of proving in the constitutional litigation of Russia and the USA; to establish the reasons causing inkvizitsionnyj character of the constitutional justice; to open features of structure of proving in centralised (Russian) and decentralised (American) models of the constitutional judicial review; To specify the maintenance and properties of proofs in the constitutional litigation; to analyse involving practice in a konstitutsionno-judicial turn of proofs which are not typical for the litigations having pravoprimenitelnuju the nature; to develop recommendations about perfection of the legislation on the Constitutional Court regarding the questions connected with proving and proofs.

By results of the carried out dissertational research on protection the following positions possessing scientific novelty are taken out:

1. Following the results of comparison of characteristics traditional and obshchestvennopravovoj models of justice and revealing of differences between the litigations having pravoprimenitelnuju the nature, and the constitutional litigation author's definition of concept konstitutsionnosudebnogo provings as which it is offered to understand the set of the legal proceedings which are carried out by court settled by rules of law, persons participating in business and uncertain circle of the subjects interested (in the broad sense of the word) directed on an authentic establishment of circumstances of the past, the facts-conditions and events which have probability to come in the future, for the decision of a question on constitutionality of checked standard positions, and also realisation of other powers of bodies of the constitutional judicial review is formulated.

2. It is established, that necessity of operating by the facts which are entered into a konstitutsionno-judicial turn by means of proofs, it is caused by that any pravotvorcheskoe the decision should have adequate faktologicheskoe a substantiation. Standard regulation, being result tsele

The directed activity, it is always set by social requirements and it urged by optimum image to order public relations. In this sense the facts should underlie accepted pravotvorcheskih decisions, explaining to their logician and testifying about their constitutionality. Hence, key feature of the constitutional litigation consists that the ultimate fact on business is constituted not by juridical facts (except for the procedural facts), that is circumstances with which the right connects occurrence, change and the termination of legal relations, and the facts characterising pravotvorcheskie the decisions, forming their basis (konstituirujushchy aspect) and testifying to validity and rationality of the selected legal regulation or the confuting mentioned characteristics (estimated aspect). In this sense in the course of departure of the constitutional justice the facts act as a context, allowing to give pravotvorcheskim to decisions substantial constitutional estimations. Therefore representation developing in a domestic constitutional law that constitutional normokontrol does not assume fact-finding, requires reconsideration.

3. It is revealed, that unlike the ultimate fact in the litigations having pravoprimenitelnuju the nature, borders demonstrable in the constitutional litigation are washed more away. It is connected by that the constitutional principles which are coming under to application by bodies of the constitutional judicial review, have so abstract and lapidary character that they in itself without the interpretation given with the account of a context, defined by the rules of law which constitutionality comes under to check, are not capable to specify in circumstances which come under to an establishment within the limits of concrete disputes. In the dissertation it is shown, that the specified feature of the mechanism of formation of the ultimate fact actually transforms the supreme bodies of the constitutional judicial review (the Constitutional Court of Russia and the Supreme Court of the USA) into the central figure of evidentiary activity allocated with possibility at own discretion to outline the ultimate fact on business. As consequence, (value of legal positions of bodies of the constitutional judicial review essentially increases in Russia), standards of an estimation of constitutionality and judicial precedents (in the USA) as sources of formation of the ultimate fact in the constitutional litigation.

4. It is shown, that if within the limits of usual judicial pravoprimenenija the onus of proving is redistributed (the mechanism of the general distribution remains identical) mainly the legislator by fastening of special rules of distribution of evidentiary burden in norms of the substantive law with reference to the constitutional litigation at it such possibilities practically are absent. This results from the fact that bodies of the constitutional judicial review are guided by the constitutional norms which usually do not provide special rules of distribution of burden of konstitutsionno-judicial proving (rare exceptions sometimes meet, for example in the republic of South Africa, however Constitutions of Russia and the USA do not contain such positions). At the same time it at all does not mean, that the onus of proving in the constitutional litigation is redistributed less flexibly as, on the one hand, bodies of the constitutional judicial review can be engaged in redistribution of evidentiary burden, giving interpretation to the constitutional norms as obliging this or that party to confirm or confute legislative proposal. On the other hand, bodies of the constitutional judicial review can actively resort to presumptions of fact.

In a context of distribution of the onus of proving the conclusion that in the constitutional litigation of Russia the constitutionality presumption acts only as a legal principle, not capable to determine conclusions about existence (absence) of the facts testifying to constitutionality pravotvorcheskih of decisions, whereas in the constitutional litigation of the USA the given presumption really also is drawn, considering its limited action by consideration of some categories of konstitutsionno-judicial disputes and presence of the differentiated approaches to an estimation faktologicheskoj validity of standard legal acts, has the presumption status.

5. On the basis of extrapolation of positions of the concept doprotsessualnogo interest on the maintenance of a subject of konstitutsionno-judicial proving in the dissertation the following model of distribution of the onus of proving in the constitutional litigation is offered: the procedural facts, and also the substantial facts, konstituirujushchie pravotvorcheskoe the decision, should be proved by the bodies which have accepted challenged standard legal acts, whereas their negative displays and pravoprimenitelnye lacks - the person initiating the constitutional litigation. In other part each party should prove existence of those facts on which she refers as to the bases of the constitutional requirements and objections, including the facts of remedial character.

6. It is given reason, that independent collecting of proofs by bodies of the constitutional judicial review should not be regarded as othozhdenie from a competitiveness principle (even in the USA which are considered as the native land of adversary procedure) as during departure of the constitutional justice the establishment is come under by the facts pravotvorcheskogo values that is why the parties by definition cannot have data on them on the "exclusive" beginnings. In this sense the legislative facts can arise both to, and in connection with acceptance of challenged standard positions, to exist constantly and invariably, expressing properties of certain objects and the phenomena to cease the existence to (be found out) by the commencing a suit moment in court etc. Hence, and bodies of the constitutional judicial review, and the persons participating in business, occupy ravnoudalyonnoe position in relation to the facts constituting the ultimate fact on business.

7. It is proved, that use of the decentralised (American) model of the constitutional judicial review actually leads to occurrence independent and not the evidentiary systems subordinated each other (within the limits of manufacture in trial courts, in vessels of appeal instance and in the higher degree of jurisdiction). In view of necessity of granting to judges of possibility freely to build the konstitutsionno-judicial argument sound proving of the facts characterising pravotvorcheskie the decisions, it can be carried out during trial in vessels practically any instance. Situations when this or that legislative fact will be established for the first time in the higher degree of jurisdiction though with institutsionalnoj (procedural) point of view it to it is not adapted are not excluded even; or when the legislative facts established by trial courts, will be ignored by vessels of higher instances. In this connection it is proved what to build logically verified and consistent evidentiary system within the limits of the centralised (Russian) model of the constitutional judicial review is much easier.

8. It is established, that konstitutsionno-control activity, being connected with an estimation pravotvorcheskih decisions, demands - unlike usual judicial pravoprimenenija - researches of materials legislative (pravotvorcheskogo) process, the judgements testifying to a condition pravoprimenitelnoj of practice, the foreign right and statistics. By results of the analysis of extensive konstitutsionno-judiciary practice of Russia and the USA the jural significance of data on the facts received by the reference to specified sources is defined. While evidentiary value of materials of legislative process in many respects depends on quality faktologicheskogo a substantiation given pravotvorcheskimi by bodies to the standard decisions, the specified materials can have the jural significance even when they do not contain any data on the facts. In particular, at putting on on the legislator of a duty to prove entered by it pravoogranichenija legislative process materials actually turn to the unique admissible proof of their constitutionality. As a whole legislative process materials receive evidentiary value at judicial review realisation as on material, and to formal criteria of constitutionality while the judgements testifying to a condition pravoprimenitelnoj of practice, data on the foreign right and statistics promote exclusively substantial konstitutsionnosudebnoj to an estimation pravotvorcheskih decisions.

The theoretical and practical importance of dissertational research

The theoretical importance of work consists that it expands scientific representations about the nature of judicial proving and the maintenance of courts of evidence for the account of reconsideration of their essence in a context constitutional normokontrolja; warns domestic jurisprudence from further kontseptualizatsii so-called «legal circumstances» as a part of the ultimate fact in the constitutional litigation; reveals fundamental divergences in the evidentiary systems, caused by use of the centralised or decentralised model of the constitutional judicial review and legal traditions of Russia and the USA; creates a theoretical basis for the further scientific researches of evidentiary aspects of konstitutsionno-judicial activity.

The practical importance of work consists in working out and a substantiation of offers on perfection of the Russian legislation regarding the positions devoted to proving and proofs in the constitutional litigation. Besides, theoretical positions and the conclusions received by results of carried out dissertational research, can be used by preparation of references in bodies of the constitutional judicial review and at conducting konstitutsionno-actions of proceeding, and also in process teaching of disciplines of a konstitutsionno-legal profile, including special courses on the constitutional litigation.

Degree of reliability and approbation of results of dissertational research

Reliability of the received scientific results is provided for the account of considerable volume of the empirical sources employed, and them

The all-round analysis. So, it has been investigated more than 120 decisions of the Constitutional Court of Russia and the American vessels, including the Supreme Court of the USA, videorecordings of sessions of the Constitutional Court of Russia are seen and audio records of public hearings of the Supreme Court of the USA are heard. The methods of scientific knowledge used in work correspond to the purposes and research problems.

Substantive provisions and conclusions of dissertational research are published in the leading reviewed scientific magazines recommended by the Higher certifying commission of the Ministry of Education and Science of the Russian Federation. Besides, they were sounded and discussed at Conference of young scientists at University of Wisconsin in Madison (Madison, the USA, on July, 26th, 2018), at session of expert group of XI session of the Evropejsko-Asian legal congress (Ekaterinburg, on June, 9th, 2017), on II Uralsk a forum of constitutionalists (Ekaterinburg, on October, 7th, 2016), on III Summer school of young scientists MGJUA of O.E.Kutafina «innovative models in legal science and the praktiko-focused technologies in the juridical education» (Moscow, on June, 21-27st, 2016), at session of expert group of X session of the Evropejsko-Asian legal congress (Ekaterinburg, on June, 10th, 2016). Besides, author's theoretical workings out have found successful application within the limits of the All-Russia competition on the constitutional justice «the Crystal Themis» (St.-Petersburg, 2013, 2015; Moscow, 2017, 2018) in which the author of dissertation won four times.

The dissertation has been prepared on chair of constitutional law FGBOU IN «the Ural state legal university» where has passed reviewing, discussion and has received the recommendation to protection.

Structure of dissertational research

Work consists of the introduction, three heads including eight paragraphs, the conclusions, the list of sources and two appendices.

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A source: CHirninov Aldar Munkozhargalovich. PROVING And PROOFS In the CONSTITUTIONAL LITIGATION of the RUSSIAN FEDERATION And the UNITED STATES Americas: rather-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg - 2018. 2018

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More on topic INTRODUCTION:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction
  13. INTRODUCTION
  14. Instead of Introduction …
  15. PRACTICAL INTRODUCTION OF RESULTS OF WORK
  16. 5. Attention strengthening to questions of legal introduction.
  17. Introduction
  18. Introduction