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§ 4 Certificates of the higher courts of justice as sources of the law of master and servant and a legal representation problem

The review of scientific discussion about a parity of judiciary practice with sources

The rights. The legal representation problem has old historical roots: it was a subject of discussions after occurrence of the Roman private law, further - in its reception in works of the West European lawyers, then - in jurisprudence of pre-revolutionary Russia, then in Soviet and in a modern science.

And definitively point in the given discussion with participation as theorists of the right, and representatives of branch jurisprudence is not put.

All theoretical views on a parity of judiciary practice with sources of law with those or other updatings can be divided into three basic approaches:

1) a recognition of wide legal representation and a recognition of judiciary practice as the source of law (pre-revolutionary lawyers: S.A.Muromtsev [522], N. M.Korkunov [523], L.I.Petrazhitsky [524], E.N.Trubetskoj [525]), the Soviet scientists (R.Z.Livshits [526]), modern researchers (G.A.Vasilevich [527], V.V. Ershov [528], etc.);

2) a recognition of the limited legal representation at the higher degrees of jurisdiction at level of the Supreme Court and (or) the Constitutional Court (M.I.Baru [529], A.K.Bezina [530], V.N.Bibilo [531], S.A.Ivanov [532], V.M.Lebedev [533], M.N.Marchenko [534]);

3) categorical negation of legal representation (G.F.Shershenevich [535], V.S.Nersesjants [536], O.S.Kuryleva [537], etc.).

During the Soviet period, and then and after disintegration of the USSR a number of collective monographies has been prepared and scientific discussions about value of judiciary practice in legal system [538] are organised, spent new monographic (M.N.Marchenko [539]), and also dissertational researches concerning judiciary practice and legal representation (I.J.Bogdanovskaja, O.N.Korostelkina, M.N.Pridvorova, V.J.Solovev, And. P.Rozhnov, D.S.Tihonovetsky, etc.) [540]. A number of dissertational researches has been spent to Russia about value of certificates of the higher degrees of jurisdiction in law-making [541]. The detailed review of their points of view is not included into a problem of the given work, but we will underline, that they have put in pawn a basis of the subsequent scientific researches.

Discussion about legal representation in a science of the law of master and servant.

Similar to three theoretical approaches considered above to judiciary practice it is possible to find out and in works of scientists in the field of the law of master and servant.

Among scientists-trudovikov there are opponents of idea of legal representation. A number of authors (K.N.Gusov, V.N.Tolkunova, O.S.Kuryleva, G.A.Rogaleva, Both. O.Snigireva and

Other) adhere to a sight traditional for the Soviet science denying value of all judiciary practice (including supervising) as sources of law. The position of the given authors is represented a little inconsistent as, on the one hand, they deny presence in decisions of Plenum of the Supreme Court of norms of the law of master and servant, and on the other hand, establish, that this court of justice in some cases meets lacks in the labour legislation, as a matter of fact, carries out pravotvorcheskuju function.

On the contrary, in support of legal representation expansion acted R.Z.Livshits, V.I.Mironov [542 [543] and E.B.Hohlov [544]. R.Z.Livshits to sources of the law of master and servant carried those judicial certificates which, first, really change the rights and duties of participants of labour relations and, secondly, are published. In particular, them, in his opinion, concern: decisions of Plenum of the Supreme Court of the Russian Federation; decisions of the Constitutional Court of the Russian Federation; decisions of the Supreme Court of the Russian Federation on the separate affairs, having basic character and published; the decisions of courts below approved by the Supreme Court (by cassation consideration, at drawing up of reviews of judiciary practice) [545]. Century The same way argued And. Mironov, seeing all signs NPA in decisions of the Constitutional Court of the Russian Federation and decisions of Plenum of the Supreme Court of the Russian Federation, and also case value of some published decisions of the Supreme Court (for example, the decision from 29.08.2001"About necessity of the monthly extra charge to the military men having the right to reception of pension») [546].

E.B.Hohlov has offered instead of dispute on, whether carry certificates of the higher courts of justice case character, to approach to this problem from a position of division of interpretation on standard and kazualnoe. The given scientist comes to conclusion that the certificates of standard interpretation which are carried out by the higher courts of justice, are not than other as special sort NPA, in turn «certificates kazualnogo the interpretation which are carried out by the Supreme Court, not simply create a rule for the given concrete case, but comprise the general rule having application in all similar cases, i.e. Are a source of the objective right» [547]. However, remains not clear, on what basis certificates kazualnogo interpretation will find application in all similar cases if they are not obligatory for courts below (the last can both to be guided by these "precedents", and to ignore them, deciding difference on - the). Besides, not clearly, what are the bases for reference of certificates kazualnogo interpretation (for the given concrete case) to norms of the objective right as they have concrete addressees and are calculated on unitary application, i.e. In them there are no standard signs of rules of law.

It is possible to carry to representatives of the third (intermediate) approach And. M.Lushnikova, M.V.Lushnikovu [548], K.S.Ramankulova, E.A.Shapoval [549], etc. So, in opinion And. M.Lushnikova and M.V.Lushnikovoj, two forms of judiciary practice it is possible to carry to additional sources of the modern Russian law of master and servant: supervising judiciary practice and decisions of the constitutional (authorised), general vessels on a recognition of normative acts invalid (void) [550]. The Same scientists carry the above-stated certificates of legal representation to "nonconventional" normative acts and do not see telling arguments in favour of a recognition of the judicial precedent a source of the law of master and servant », but on prospect suppose this possibility.

For giving of value of sources of law to decisions of Plenum of the Supreme Court, decisions of the Constitutional Court of Ukraine the Ukrainian scientists O.N.Jaroshenko [551], V.L.Kostyuk [552], P.D.Pilipenko [553], M.N.Shumilo [554] expressed at various times.

Among scientists of Kazakhstan and Kyrgyzstan adherents of the third (moderate) approach on an analyzed problem (for example, also prevail. R.Sergazinov [555]) though there are also representatives of the first approach (in particular, K.S.Ramankulov believes, that «decisions of local courts can be a source of the law of master and servant if they are approved by Supreme Court KR» [556] that is represented disputable enough).

In conclusion of the short review of discussion of scientists-theorists and experts in the law of master and servant we will notice, that the second is more proved now in member states EAES (intermediate, or moderated) the approach according to which certificates of bodies of the constitutional justice and the decision of plenums of the Supreme Courts have value of sources of the law of master and servant only that we will more in detail consider more low. Decisions of vessels (including Supreme) under concrete labour disputes, are addressed to the personified subjects, instead of an uncertain circle of persons, are calculated on unitary application, i.e. Their instructions have no signs of rules of law.

Value of certificates of bodies of the constitutional justice as sources of the law of master and servant.

Generalising approaches existing in a science concerning the legal nature of certificates of the constitutional vessels, it is possible to allocate following cores: 1) the standard legal act of case character (G.G.Arutyunyan [557], G.A.Vasilevich [558]); 2) doktrinalnonormativnyj a source (N.S.Bondar [559]); 3) standard-interpretatsionnyj certificate,

Similar to the judicial precedent (L. V.Lazarev [560]); 4) not the source of law, and a science source (the doctrine) constitutional law (N.A.Bogdanova) [561]; 5) a version

The modified sources of law (N. V.Silchenko [562]).

As the judicial precedent it is difficult to agree with treatment of certificates of the Constitutional Court. At decisions of the constitutional vessels much more differences from the judicial precedent, than similarities. First, the judicial precedent is formed by court above in relation to subordinate (obviously, that in relation to the Constitutional Court there are no courts below, at least, in the unitarian states). Secondly, precedent is the generated rule, obligatory at the permission of similar affairs or disputes (instead of at application of similar certificates and norms). If has put it is considered by the Constitutional Court with awarding judgement the last is definitive, and similar business cannot be considered in the future by any court of this state. Thirdly, in practice of the constitutional vessels in member states EAES there were cases when this body changed a position on a concrete question, reviewing the decisions [563].

G.A.Vasilevicha and I.J.Ostapovicha's position that «the legal nature of decisions of specialised body of the constitutional control is that that they form new obligatory rules of behaviour (normativnost)» [564] though from norms of the current legislation of member states EAES it directly does not follow is interesting. According to N.S.Bondarja, «legal positions of the Constitutional Court of the Russian Federation, expressed following the results of a legal investigation in its decision or definition, have obligatory character, quite often possess normativnostju and can admit sources of law» [565]. The given opinion is represented disputable as such source in theory of law does not exist, the truth, they can be carried to the legal doctrine (as to a kind of additional sources of law).

From consideration of the scientific points of view we will pass to the comparative analysis of the legislation of Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia, defining value of the certificates accepted by bodies of the constitutional control. We will notice, that in three of five member states EAES these bodies are called now as the constitutional vessels (Armenia, Belarus and Russia), in Kazakhstan - the Constitutional Council, and in Kyrgyzstan after reform of the judiciary of 2011 these functions are transferred the Supreme Court. And along with the Constitutional Court of the Russian Federation providing the control over observance of the Constitution of the Russian Federation as a whole in Russia, in subjects of the Russian Federation function of the constitutional control is carried out by specially created authorised courts (we leave the analysis of certificates of the last behind frameworks of the given work).

According to item 102 of the Constitution of Armenia the Constitutional Court accepts decisions and the conclusions in terms and an order, established by the Constitution and the Law on the Constitutional Court; decisions and the conclusions of the Constitutional Court are definitive. In ch. 4 items 102 and item 100 of the Constitution of Armenia are accurately defined on what questions the Constitutional Court of Armenia accepts the decision and on what draws the conclusions. According to ch. 5 items 61 of the Law of Republic Armenia «About the Constitutional Court» from 01.06.2006 [566] decisions of the Constitutional Court accepted under merits of case are obligatory for all state bodies and local governments, their officials, and also physical and legal bodies in all territory of Republic Armenia. If the question with obshcheobjazatelnostju decisions of the Constitutional Court of Armenia is solved in the specified law quite unequivocally, concerning hierarchical sopodchinennosti these decisions with others NPA neither in the given Law, nor in the item 11 and 24 Laws of Armenia «On legal acts» are not present clearness.

Legal base for a recognition of some conclusions of the Constitutional Court of Belarus sources of law are ch. 2 items 7, ch. 5 items 116 of the Constitution of Byelorussia, and also item 85 of the Law of Byelorussia from 08.01.2014"About the constitutional legal proceedings» [567]. According to ch. 3 items 85 of the Law «About the constitutional legal proceedings» NPA, recognised according to the conclusions of the Constitutional Court mismatching the Constitution, have no validity. Thereby the Constitutional Court at acceptance of the conclusions carries out a role «the negative legislator» as have the right to recognise the corresponding rule of law of not having validity (as a matter of fact, there is "cancellation" of corresponding rules of law). The question concerning is more difficult solved, whether can create the Constitutional Court in the certificate the new rule of law (instead of recognised unconstitutional), for example through a formulation of the of "a legal position». The current legislation analysis

Unequivocally positive answer does not allow to give Byelorussia on this question. Separate Russian scientists ideas expressed replacement of unconstitutional norm with the new norm following from a legal position of the Constitutional Court though such opinion is enough diskussionno [568]. As to decisions of the Constitutional Court of Belarus their value as sources of law undermines ch a little. 17 items 85 of the same law according to which the decision of the Constitutional Court on elimination in NPA blanks, an exception in them of collisions and legal uncertainty is obligatory for consideration by the state bodies, officials according to their competence. Literal tokovanie this norm can lead to a conclusion that the Constitutional Court cannot meet itself a lack, eliminate a collision or legal uncertainty that belittles a role of the given body.

According to ch. 3 items 74 of the Constitution of Kazakhstan of the decision of the Constitutional Council become effective from the date of their acceptance, are obligatory in all territory of Republic, definitive and to the appeal do not come under. According to ch. 5 items 10 of the Law of Kazakhstan «On legal acts» standard decisions of the Constitutional Council and the Supreme Court of Kazakhstan are out of hierarchy NPA established by given article, that also does not add clearness in the decision of a question on a place of the given certificates in hierarchy of sources of law (in particular the law of master and servant).

In item 32 of the Constitutional law of Kazakhstan «About the Constitutional Council of Republic Kazakhstan» from 29.12.1995 № 2737 three kinds of decisions are defined

The constitutional Council of Kazakhstan: 1) decisions, including the standard decisions which are a component of the law in force of Republic Kazakhstan; 2) the conclusions; 3) messages. In ch. 1 item 38 of the above-stated Law with reference to the total decision, in essence, is repeated ch. 3 items 74 of the Constitution of Kazakhstan. According to item 39 of the same Law acceptance legal effects by the Constitutional Council of the total decision, including that laws and others NPA, recognised unconstitutional, including striking the rights fixed by the Constitution and freedom of the person and the citizen, lose a validity are defined, do not come under to application and are cancelled. Decisions of vessels and others pravoprimenitelnyh the bodies, based on such law or other NPA, do not come under to execution (ch. 2) [569]. From interpretation of the above-stated norm it is possible to draw a conclusion that decisions of the Constitutional Council of Kazakhstan, with which those or other laws and others NPA (including decrees of the President, the governmental order) are recognised by unconstitutional, prevalirjut over laws and subordinate legislation NPA on a validity as legally such decisions cancel norms of checked certificates of the legislation recognised as the unconstitutional.

According to item 97 of the Constitution of the Kirghiz Republic the body which is carrying out the constitutional control is the Constitutional chamber of the Supreme Court. In ch. 8-10 items 97 of the same Organic law finality of decisions of the Constitutional chamber of the Supreme Court, and also legal effects of a recognition of laws by the unconstitutional is established: cancellation of their action in territory of the Kirghiz Republic, and also action of others NPA, based on laws or their positions recognised unconstitutional, behind some exceptions. In item 100 of the same Constitution compulsion of the certificates which have entered validity of vessels for all state bodies, local governments, legal bodies, public associations, official and physical persons is fixed. It is interesting, that in the Law «On standard legal acts of the Kirghiz Republic» decisions of the Constitutional chamber of the Supreme Court are not mentioned (unlike similar laws of Armenia, Belarus and Kazakhstan). In the item 46 Constitutional laws «About the Constitutional chamber of the Supreme Court of the Kirghiz Republic» are defined four kinds of certificates of the Constitutional chamber: decisions, the conclusions, decisions and definitions. To a validity of certificates of the Constitutional chamber it is devoted item 51 of the same Law: the validity of the decision on recognition NPA or its parts the unconstitutional cannot be overcome repeated acceptance same NPA or its parts of the same maintenance (ч.1); certificates of the Constitutional chamber are obligatory for all state bodies, local governments, officials, public associations, legal and physical persons (ч.2). Legal effects of an establishment of illegality of laws and others NPA or their positions are settled in ч.3 and 4 similarly as well as in Kazakhstan [570].

According to ch. 6 items 125 of the Constitution of the Russian Federation certificates or their separate positions recognised unconstitutional, become invalid; mismatching Constitutions of the Russian Federation international treaties of the Russian Federation do not come under to introduction in action and to application. According to item 71 of the Federal constitutional law from 21.07.1994 №1 - FKZ (red. From 14.12.2015) «About the Constitutional Court of the Russian Federation» total decisions of the Constitutional Court of the Russian Federation, as a rule, are given the shape the decisions, all other decisions - in the form of definitions. According to item 79 of the given Law devoted to a validity of decisions of the given court, we will pay attention to its following norms: the decision of the Constitutional Court of the Russian Federation operates directly and does not demand acknowledgement by other bodies and officials; the validity of the decision of the Constitutional Court of the Russian Federation about a recognition of the certificate the unconstitutional cannot be overcome repeated acceptance of the same certificate (ch. 2); Certificates or their separate positions recognised unconstitutional, become invalid; recognised mismatching the Constitution of the Russian Federation not become effective international treaties of the Russian Federation do not come under to introduction in action and to application. Decisions of vessels and other bodies, based on certificates or their separate positions recognised as the decision of the Constitutional Court of the Russian Federation unconstitutional, do not come under to execution and should be reviewed in the cases established by the federal act (ch. 3). We will notice, that in ch. 5 items 71 of the given law are legalised concept «a position of the Constitutional Court of the Russian Federation» which of conformity of the Constitution of sense NPA or its separate position given by it pravoprimenitelnoj by practice, expressed in the decision of the Constitutional Court of the Russian Federation, comes under to the account pravoprimenitelnymi bodies from coming into force of the corresponding decision of the Constitutional Court of the Russian Federation [571]. In the decision of the Constitutional Court of the Russian Federation from 16.06.1998 on business about interpretation of separate positions of item 125, 126 and 127 Constitutions of the Russian Federation it has been noticed, that decisions of the Constitutional Court in which result unconstitutional NPA lose a validity, have the same sphere of action in time, space and on a circle of persons and a general meaning as decisions normotvorcheskogo body that is not inherent pravoprimenitelnym in certificates of vessels of the general jurisdiction and arbitration courts [572].

With the account before the approaches stated in a science and the current legislation of member states EAES it is believed, there are all bases for a recognition sources of law of those decisions of the Constitutional Court (irrespective of their name) which contain the obligatory instructions recognising those or other rules of law, containing in the legislation, unconstitutional or the legal positions formulated with a view of time completion of a blank or elimination of a collision in legal regulation of those or other public relations (including labour and connected with them). Thus as the source of law the certificate of the Constitutional Court (Council, Chamber), instead of legal positions, in them containing which act not as the form, and the maintenance of legal instructions (rule of law) or result of interpretation of the constitutional positions, in our opinion, will act.

Does not raise the doubts presence at the Constitutional Court of the right to give kazualnoe interpretation to norms of the Constitution, but from this logically the conclusion that decisions of the Constitutional Court should go to hierarchies of certificates after the constitution (L at all does not follow. O.Murashko) [573] or to stand good in law constitutions (N.I.Vitruk [574]).

Decisions of the Constitutional Court of Belarus (not considering the conclusions) concede on a validity to acts. Moreover, the validity of decisions (instead of the conclusions) the Constitutional Court is based on norms of usual laws, instead of the Constitution. For Russia, Kazakhstan and Kyrgyzstan the given argument is not applicable, as the legal status of the Constitutional Court (Council, Chamber) and certificates accepted by them in these countries is defined not usual, but constitutional laws.

During the activity the Constitutional Court of Belarus repeatedly (more than 25 times) in the conclusions and decisions addressed to questions of conformity of the legislation on work and practice of its application to the Organic law and the international legal certificates as which participant Byelorussia acts. By estimates of the Chairman of the Constitutional Court of Byelorussia P.P.Miklashevicha, the given Court in 2012 has formulated more than 20 legal positions, thus not having considered any cases in an order of the subsequent constitutional control [575]. The situation essentially has not changed and the next years. So, from 2007 till January, 2017 in

The constitutional Court of Belarus has not arrived any reference of the authorised state bodies as the subsequent constitutional control concerning check on conformity of the Constitution of certificates of the labour legislation.

The analysis accepted by the Constitutional Court (Council, Chamber) in member states EAES of certificates shows, that they influence in the various image the legal validity. In particular, it is possible to specify following ways of such influence:

- Recognition of norms of the certificate of the legislation unconstitutional and not having a validity;

- The reference of attention of others pravotvorcheskih bodies on presence of blanks and collisions in legal regulation of corresponding relations with recommendations about their elimination;

- Illegality recognition pravoprimenitelnoj experts;

- Instructions for a way of overcoming of a blank or a collision in the legislation.

In activity of the Constitutional Court (Council, Chambers) its basic function under the control over constitutionality of the legislation (according to national constitutions of member states EAES) closely intertwines with pravotvorcheskoj function though the second and is subordinated by the first, is auxiliary.

The constitutional Court (Council, Chamber) though cannot replace with itself the legislator, have the right to accept NPA in the form of decisions, definitions, the conclusions or the decisions having high enough validity. Thanks to this right the body of the constitutional justice has legal possibilities on realisation pravovospolnitelnoj functions in relation to collisions revealed in the legislation, legal uncertainty, and also blanks, including what are formed owing to a recognition by it of corresponding norm of not having validity. This pravovospolnitelnaja a role of certificates of the Constitutional Court (Council, Chamber) is shown and that at revealing of a collision of norms by it or a blank in the legislation it has the right to generate in the certificate a legal position with the sample of the permission of a collision or overcoming by vessels and others pravoprimeniteljami the gap in law.

About influence of certificates of the constitutional vessels on labour legislation development scientists in the field of the law of master and servant (write also A.F.Nurtdinova [576], etc.).

As examples we will result some such certificates of the Constitutional Court of the Russian Federation in which he addressed to norms of the labour legislation.

In item 2 of the substantive provision of the Decision of the Constitutional Court of the Russian Federation from 18.07.2013 № 19-P «On business about check of constitutionality of point 13 of a part of first article 83, the paragraph of the third part of second article 331 and article 351.1 of the Labour code of the Russian Federation in connection with complaints of citizens V.K.Barabash, A.N.Bekasova and others and inquiry of the Murmansk regional Duma» the interconnected positions of item 13 ch are recognised. 1 items 83, paragraph 3 ch. 2 items 331 and item 351.1 TK the Russian Federation in a certain measure mismatching items 19 (ch. 1 and 2), 37 (ch. 1), 46 (ch. 1 and 2) and 55 (ch. 3) Constitutions of the Russian Federation, and in a certain part - mismatching items 37 (ch. 1), 49 (ch. 1) and 55 (ch. 3) Constitutions of the Russian Federation [577].

As one more example of maintenance of action of the constitutional principle of gender equality we will result the business initiated and considered in the Constitutional Court of the Russian Federation under the complaint of A.E.Ostaeva in 2011 In the Decision of the Constitutional Court of the Russian Federation from 15.12.2011 № 28-P «On business about check of constitutionality of a part of fourth article 261 of the Labour code of the Russian Federation in connection with the complaint of citizen A.E.Ostaeva» the conclusion, that position ch has been drawn. 4 items 261 TK the Russian Federation mismatch the Constitution of the Russian Federation, its item 7, 19, 37 (ch. 1) and 38 (ch. 1 and 2) in that measure in what in system of operating legal regulation it, forbidding dismissal at the initiative of the employer of the women having children is elderly till three years, and other persons who are bringing up children of specified age without mother, excludes possibility to use this guarantee to the father who is the unique supporter in a large family, bringing up juvenile children, including the child about three years where mother in labour relations does not consist are elderly and is engaged in care of children [578].

Examples of certificates of the Constitutional Court of the Russian Federations aimed at maintenance of direct action of norms of the Constitution of the Russian Federation for gradual konstitutsionalizatsii of the labour and social legislation of Russia, it would be possible to continue [579].

Legal positions concerning separate norms of the labour legislation are contained by a number of certificates of the Constitutional Court of Byelorussia.

In the decision of the Constitutional Court of Byelorussia from 28.11.2012 № R - 779/2012 «About the right of workers to the reimbursement on journey at official journeys» the Constitutional Court has come to conclusion that established in TK Belarus the right of the worker to indemnification of expenses during official journeys cannot be limited NPA the ministries [580].

In the decision from 11.12.2013 №Р-877/2013 «About legal regulation of an order of the resolution of disputes, the accidents connected with investigation on manufacture» the Constitutional Court of Belarus had been expressed a position that the regulation in the subordinate legislation certificate of questions which should be regulated at law level, has led to ambiguous understanding and various application in practice of the rules of law defining an order of the resolution of disputes, the accidents connected with investigation on manufacture. As a result the Constitutional Court of Belarus has come to conclusion that with a view of maintenance of the constitutional principle of the supremance of law, realisation of a constitutional law of everyone on judicial protection and elimination of legal uncertainty in legal regulation of an order of the resolution of disputes, the accidents connected with investigation on manufacture, is necessary to provide conformity of the item 78-84 Rules of investigation and the account of accidents on manufacture and the occupational diseases approved by the decision of Ministerial council of Byelorussia from 15.01.2004 № 30, to norms TK of Belarus and other acts regarding regulation of specified public relations [581].

In the decision of the Constitutional Court of Byelorussia from 18.09.2014 № R - 946/2014 «About concept« the unwed mother »in labour legal relations» is expressed a legal position that in TK Belarus the legal uncertainty expressed in impossibility of an exact establishment of a circle of persons on which guarantees provided by it for unwed mothers extend contains. Presence of the given uncertainty, according to a position of the Constitutional Court, interferes with maintenance of realisation of the named guarantees and consequently, can lead to infringements of constitutional laws and legitimate interests of corresponding categories of citizens. With a view of maintenance of a principle of the supremance of law, protection warranting in labour relations of constitutional laws of citizens the legal uncertainty caused by absence in TK of clear and exact definition of a circle of persons on which guarantees provided by it extend at the conclusion and the termination of the employment contract for unwed mothers, comes under to an exception the legislator by means of addition TK with the norm defining, what persons concern unwed mothers [582].

In the decision of the Constitutional Court of Byelorussia from 10.07.2014 № R - 945/2014 «About legal regulation of the size of payment of time of enforced idleness» on the business initiated on the basis of the reference of open joint-stock company «ZHeldorservis Mogilyov» the position not only concerning a question on has been expressed the worker restored on former work, whether the sum of monetary indemnification for not used holiday to go to offset can at definition of the size of payment for enforced idleness, but also about, whether has the right there was a Supreme Court Plenum in the decision to settle the given question. As a result the Constitutional Court of Belarus has come to conclusion that «position of the decision of Plenum of the Supreme Court actually contains not an explanation concerning application of the legislation on work, and the new rule of law establishing, what payments come under to offset at definition by court of the size of payment of time of enforced idleness whereas public relations in sphere of the relations labour and directly connected with them should be regulated on the basis of certificates of the legislation on work and others specified in ch. 1 items 7 TK of sources of regulation» [583]. The problem in this case at all that Supreme Court Plenum has temporarily met a lack in the labour legislation, having formulated the new rule of law, and that thus it has limited laws of master and servant of workers, and in it and is expressed, in our opinion, illegality of the explanation made to it.

Further we will consider some examples of expression of legal positions bodies of the constitutional justice of Armenia, Kyrgyzstan and Kazakhstan.

In the decision of the Constitutional Court of Republic Armenia from 11.10.2011 № ПКС-991 «On business« About definition of a question of conformity of point 11 of a part of 1 article 113 and point 5 of a part of 4 articles 114 of Labour code RA of the Constitution of Republic Armenia on the basis of Government RA reference », stated in the form of the resume, the Constitutional Court of Republic Armenia has enacted, that item 11 ch. 1 items 113 and item 5 ch. 4 items 114 TK of Armenia correspond to the Republic Armenia Constitution, considering legal positions of the Constitutional Court the Republics Armenias expressed in the present Decision [584]. Thus the reasoning of the decision expressing legal positions of the Constitutional Court of Armenia of why the age cannot be considered as the lawful reason of cancellation of the employment contract, except for cases when the worker has acquired the right to reception of the old-age pension or receives this pension, in officially published decision (in the form of the resume) it is not resulted.

In the decision from 04.10.2006 № ПКС-649 «On business about definition of a question of conformity of article 11 of the Law of Republic Armenia« About social security cards »Constitutions of Republic Armenia on the basis of statements gr. M.Kocharyan and gr. G.Davtjan» the Constitutional Court of Armenia recognised as void and contradicting item 3 requirements, 6 (parts 1 and 2), 42, 43 and 48 (items 12) of the Constitution of Armenia of position of a part of 2 articles 11 of the Law «About social security cards» concerning blocking of realisation of the rights fixed by item 31, 32 (ch. 2) and 37 Constitutions of Armenia [585].

In the decision of the Constitutional chamber of the Supreme Court of the Kirghiz Republic from 04.07.2014"On business about check of constitutionality of paragraph 3 of a part of 2 articles 84 of the Labour code of the Kirghiz Republic in connection with reference Saatova Taalajbeka Dzhaparovicha in interests of citizen Dzhanseitova Kubanychbeka Asanovicha» norms of paragraph 3 ch. 2 items 84 are recognised by not contradicting the Constitution. In the given decision of the Constitutional chamber of the Supreme Court of Kyrgyzstan the legal position has been based that the legislator could, proceeding from objectively existing features of character and the maintenance of work of the head of the organisation, its assistant and other executives, to provide special rules of cancellation with them the employment contract that cannot be considered as infringement of a principle of equality of all before the law and the court, guaranteed by item 16 of the Constitution of the Kirghiz Republic [586].

Decisions of the Constitutional Council of Republic Kazakhstan directly did not mention the relations labour and directly connected with them. At the same time some certificates of the given body concerning pension and social security were accepted. As an example we will result the decision of the Constitutional Council of Republic Kazakhstan from March, 10th, 1999 № 2/2 «About official interpretation of points 1 and 2 articles 14, point 2 of article 24, subparagraph 5) point 3 of article 77 of the Constitution of Republic Kazakhstan», according to which item 1 and 2 items 14 of the Constitution of Kazakhstan with reference to a reference subject should be understood so, that carrying over of payments of social benefits from republican in local budgets does not attract discrimination of citizens on a residence and infringements of a principle of equality of all before the law. By the constitutional Council in the same decision it is defined, that item item 2 24 Constitutions of Kazakhstan do not establish concrete kinds of social protection which are defined by the corresponding law. With reference to the question put in circulation this constitutional norm according to position Konstitutsionnlogo of Council should be understood so, that the exception of unemployment benefits does not attract infringement of the right of citizens on social protection from unemployment [587].

As the second example we will refer to the decision of the Constitutional Council of Republic Kazakhstan from 20.04.2004 № 3 «About conformity of the Constitution of Republic Kazakhstan of subparagraph 5) point 1 of article 23 of the Law of Republic Kazakhstan« About a provision of pensions in Republic Kazakhstan »and subparagraph 1) point 4« Rules of realisation of pension payments from the pension accumulation generated at the expense of obligatory pension payments, voluntary professional pension payments from memory pension funds », approved by the governmental order of Republic Kazakhstan from July, 4th, 2003 № 661», which podp. 5 items 1 of item 23 of the Law «About a provision of pensions in Republic Kazakhstan» and the aforementioned Rules accepted in its development have been recognised by corresponding to the Constitution of Kazakhstan [588].

In conclusion of the short comparative review of certificates of bodies konstititutsionnogo justice of member states EAES we will notice, that, despite distinctions in kinds of accepted certificates, their differences in a subject and kinds of the constitutional control, volume of checked certificates of the labour and social legislation, they are consolidated by that the given bodies scoop legal positions from norms of the Constitutions establishing fundamental laws and freedom of the person and the citizen, including in sociolabor sphere. Thus the greatest number of certificates in Russia and Belarus was accepted by the constitutional vessels with reference to norms about the employment contract, about guarantees and indemnifications, features of regulation of work of separate categories of workers. Practice of bodies of the constitutional justice with reference to sphere of the law of master and servant in Armenia, Kazakhstan and Kyrgyzstan is less extensive. The given certificates as a whole answer all signs of sources of the law of master and servant (in formal or objective sense), including such universal, as formal definiteness of instructions containing in them (legal positions, recommendations), normativnost and obshcheobjazatelnost.

Legislation effect of decisions of Plenums Supreme (Cassation) vessels in work sphere.

The second court of justice, whose decisions can be ranked as sources of law in member states EAES, the Supreme Courts (their plenums) are. Leaving behind work frameworks scientific discussion on the given question which was led about 1940th in the Soviet jurisprudence and well-known the two essentially opposite positions (from a recognition behind them legislation effect before full negation), we will consider their competence regarding acceptance of similar decisions (instructions) in the current legislation.

The recognition of instructions of Plenums of the Supreme Court and certificates of the Constitutional Court of Belarus as sources of law was directly affected by acceptance of the operating Civil code of Byelorussia in 1998 [589] and the Law «On standard legal acts of Byelorussia» in 2000 [590] In the beginning in Civil code item 3, and then and in item 2 of the specified Law among kinds NPA certificates of the Constitutional Court, the decision of Plenums of the Supreme Court and the Higher Economic Court (now this body is abolished), accepted within their competence on regulation of the public relations, have been specified by the established Constitution and other acts accepted according to it. Thus, the problem of the legal nature of decisions of Plenum of the Supreme Court on which discussions among scientists-lawyers were led and proceed, in certain degree legislatively in Belarus is solved.

According to item 53 of the Code of Byelorussia about the judicial organisation and the status of judges the Supreme Court besides realisation of other powers «makes explanations on

To questions of application of the legislation ";" develops offers on legislation perfection », and according to item 58 of the same Code Supreme Court Plenum« gives as judicial interpretation to vessels of the general jurisdiction of an explanation concerning legislation application »[591]. We will notice, that the right of Plenum of the Supreme Court of Belarus to accept standard decisions, obligatory for vessels, citizens and legal bodies is direct in data Kodese, is not provided.

For comparison we will note, as in the legislation of Kazakhstan standard decisions of Plenum of the Supreme Court also are considered as NPA [592]. As marks L. V.Lazarev, «decisions of the constitutional vessels (or their part) are defined as effective as law (Germany, Lithuania), containing pravopolozhenija (Austria), the legal doctrine (Spain), as the normative acts which are a component of the law in force (Kazakhstan), as regulatory legal acts or certificates of standard character (Azerbaijan, Armenia)» [593].

In the Republic Kazakhstan Law «On legal acts» 2016 the term "authorised body" designates the state bodies and officials of Republic Kazakhstan which have the right to accept legal acts according to their competence established by the Constitution of Republic Kazakhstan, by the given Law, and also the legislation of Republic Kazakhstan defining a legal status of these bodies and officials. Among these bodies will mention also the Supreme Court of Kazakhstan (item 1 item 34). In item 2 of item 7 of the same Law standard decisions of the Constitutional Council, the Supreme Court concern principal views NPA. Thus standard decisions of the Supreme Court, no less than the Constitutional Council, are out of hierarchy NPA established by item 10 of the Law «On legal acts» [594]. So the question on their validity remains opened. According to podp. 3 items 2 of the item 17 Constitutional laws of Republic Kazakhstan from 25.12.2000 № 132-II «About the judiciary and the status of judges of Republic Kazakhstan» the Supreme Court accept standard decisions, makes explanations concerning judiciary practice [595]. As we see, under the current legislation of Kazakhstan the Supreme Court of the given republic is allocated by the right to accept within the competence standard decisions which should have subordinate legislation character.

In Armenia besides the Constitutional Court the higher court of justice is the Republic Armenia Court of review, called to provide uniform application of the law (item 3 of the Judicial code of Republic Armenia from 07.04.2007 № Zr - 135 [596]). And decisions, decisions or sentences of the given court also admit legal acts (item 5 ch. 1 items 4 of the Law of Republic Armenia «On legal acts» 2002) . According to item 51 of the Judicial code of Armenia the certificate of the Court of review becomes effective from the moment of its announcement, is definitive and to protest does not come under. The question on a parity of certificates of the Constitutional Court and other certificates of vessels of the general jurisdiction is settled in item 22 of the Law of Armenia «On legal acts» [597]. On the one hand, it agree ch. 2 given articles judicial certificates of vessels of the general jurisdiction should not contradict requirements of the legislation, departmental legal acts of Republic Armenia and Republic Armenia international treaties. On the other hand, on ч.3 same article decrees and orders of the President of Republic Armenia, the governmental order, the Prime minister, departmental legal acts and legal acts of local governments, Republic Armenia international treaties (except for ratified by Republic Armenia National assembly), internal and individual certificates should not contradict the judicial certificates which have entered validity. From the comparative interpretation of the above-stated two parts of item 22 of the Law «On legal acts» the conclusion arises that judicial certificates (in particular the Court of review), though have subordinate legislation character (if to start with narrow sense of concept "legislation" in ch. 2 specified articles), prevail on hierarchy over legal acts of the President, the Government, the Prime minister, local governments. At the same time the contradiction between ch is seen. 2 and 3 items 22 Laws «On legal acts» in a question on a parity of judicial certificates and departmental legal acts, and also international treaties. We believe, what exactly the departmental legal acts conceding on legal force to legal acts of the President, the Government and the Prime minister, should correspond to judicial certificates of the Court of review, rather the reverse. As to a parity of judicial certificates and international treaties, that, possibly, in ch. The Armenian legislator has forgotten to specify 2 items 22 in a sign ratifitsirovannosti Republic Armenia international treaties.

In Kyrgyzstan (also as well as in Belarus and Kazakhstan) it is founded and the Supreme Court in which frameworks there is a Plenum as the higher degree of jurisdiction in system of vessels of the general jurisdiction (item 12 of the Law of the Kirghiz Republic from 18.07.2003 № 153 «About the Supreme Court of the Kirghiz Republic and local courts» [598]) operates. At the same time, it normotvorcheskaja the competence of the given law is not defined. In the specified law the principle of compulsion of judicial certificates (item 9) is fixed, studying and judiciary practice generalisation is carried to powers of the Supreme Court (item 2 ch. 2 items 14), and to the competence of Plenum of the Supreme Court - consideration of materials of studying and generalisation of judiciary practice and a summer residence of explanations concerning judiciary practice; consideration of materials on application of laws and others NPA the Kirghiz Republic local courts (item 15). We will notice, that in the Law «On standard legal acts of the Kirghiz Republic» decisions of Plenum of the Supreme Court are not mentioned. Thus, unlike the legislation of Belarus and Kazakhstan directly the right of acceptance of standard decisions in the given republic is not fixed by Plenum of the Supreme Court of Kyrgyzstan. Basically activity of the Supreme Court of Kyrgyzstan is reduced to revision in the exercise of supervisory powers before the accepted decisions of courts below, including on labour affairs (as an example we will refer to Full court definition on civil cases of the Supreme Court of the Kirghiz Republic from 14.10.2015 on Teltaeva K. A's business to kyrgyzsko-Turkish university "Манас" about restoration on work, collecting of the salary during enforced idleness [599]).

At last, we will consider the problem on, whether allocates the federal legislation of Russia Plenum of the Supreme Court of the Russian Federation normotvorcheskimi with powers? According to item 126 of the Constitution of the Russian Federation the Supreme Court of the Russian Federation is the higher court of justice on civil, criminal, administrative and other affairs, vessels of the general jurisdiction cognizable, carries out in the remedial forms provided by the federal act judicial supervision behind their activity and makes explanations concerning judiciary practice.

According to ch. 4 items 19 of the Federal constitutional law from 31.12.1996 №1-ФКЗ (red. From 05.02.2014) «About the judiciary of the Russian Federation» the Supreme Court of the Russian Federation with a view of maintenance of uniform application of the legislation of the Russian Federation makes to vessels of an explanation concerning judiciary practice [600]. The given norm as a matter of fact is repeated and in item 1 ч.7 item 2 of the Federal constitutional law from 05.02.2014 №3 - FKZ (red. From 15.02.2016) «About the Supreme Court of the Russian Federation» according to which the Supreme Court of the Russian Federation with a view of maintenance of uniform application of the legislation of the Russian Federation makes to vessels of an explanation concerning judiciary practice on the basis of its studying and generalisation [601]. According to item 3 ch. 1 item 5 of the same law Plenum of the Supreme Court of the Russian Federation considers materials of the analysis and generalisation of judiciary practice and makes to vessels of an explanation concerning judiciary practice with a view of maintenance of uniform application of the legislation of the Russian Federation. Thus, also as well as in Kyrgyzstan, in Russia of express indications in the above-stated laws on acceptance by Plenum of the Supreme Court of standard decisions and about degree of their compulsion for pravoprimenitelej is not present.

Generalising the carried out comparative analysis of the current legislation about the competence of the higher degrees of jurisdiction of system of vessels of the general jurisdiction, it is possible to draw a preliminary conclusion that legislators of member states EAES use three various models:

1) one states (Belarus and Kazakhstan) have allocated plenums of the Supreme Courts through laws about NPA (legal acts) subordinate legislation normotvorcheskimi with powers, including the right not only to explain to vessels questions of application of labour and other legislation, but also in some cases it to supplement, entering new rules of law;

2) other states (Kyrgyzstan, Russia) assign to plenums of the Supreme Courts is only right to make on the basis of generalisation of judiciary practice the explanations addressed to courts below;

3) Armenia has occupied intermediate position, allocating the Court of review with the right to accept legal acts to which legal acts of the President, the Governments and of some other bodies and officials cannot contradict, but not naming these certificates of the Court of review standard.

The second of the above-stated three models actually allocates Plenum of the Supreme Court by the right to form so-called "pravopolozhenija". But whether have these explanations and pravopolozhenija value of the judicial precedent - a question opened.

Concerning a judicial precedent problem we will notice, that legislative preconditions for ascertaining of the fact of its existence in Russia, and in other member states EAES while is not present though we can agree with M.V.Lushnikovoj and A.M.Lushnikova's opinion [602] about possible prospects of its occurrence. That fact, that at times courts below in a reinforcement of accepted decisions refer to some judicial decisions of the Supreme Court [603], does not speak about their legal coherence these decisions and compulsions to follow these legal positions. In the future giving of such status to Supreme Court judicial decisions on the concrete affairs having basic character and officially is possible

Published, that offered earlier R.Z.Livshits, V.I.Mironov and K.S.Ramankulov.

Supreme Court plenum in decisions concretises estimated concepts, gives interpretation to those or other norms causing difficulties at their application for vessels, at times meets lacks and resolves collisions in the legislation on work.

By present time Plenum of the Supreme Court of Byelorussia accepts four decisions in sphere of labour relations:

«About some questions of application by vessels of the legislation on work» from 29.03.2001 № 2 [604];

«About application by vessels of the legislation on a liability of workers for a damage caused to the employer at execution of labour duties» from 26.03.2002 № 2 [605];

«About practice of consideration by vessels of the labour disputes connected with the contract form of hiring of workers» from 26.06.2008 № 4 [606];

«About practice of application by vessels of the legislation on a labour discipline and a disciplinary responsibility of workers» from 28.06.2012 № 4 [607].

For comparison: in Russia one of the most important decisions explaining application of norms of the labour legislation, the Decision of Plenum of the Supreme Court of the Russian Federation from 17.03.2004 № 2 «About application of the Labour code of the Russian Federation by vessels of the Russian Federation» 611 [608], in Kyrgyzstan - the Decision of Plenum of the Supreme Court of the Kirghiz Republic from 28.11.2013 № 11 «About judiciary practice on affairs about restoration on work» [609] is.

Examples of norms of the law of master and servant and pravopolozheny, containing in

The above-stated decisions, it is possible to result in a considerable quantity, but for the given work we will be limited only following to two.

So, if in ch. 1 item 64 TK the Russian Federation is only mentioned business qualities of the worker in item 6 and 7 decisions from 17.03.2004 № 2 Plenum of the Supreme Court of the Russian Federation explains the given estimated concept, carrying out its concrete definition [610].

In Decision item 32 «About some questions of application by vessels

Legislations on work »from 29.03.2001 №2 Plenum of the Supreme Court of Belarus, having explained to vessels value of such estimated concept as« regular default of labour duties »with reference to the basis of cancellation of the employment contract, provided in item 5 of item 42 TK of Belarus, in essence, was expanded with the literal sense of norm of the law, following of historical, grammatical and system interpretation, sorientirovav courts on application of the given norm at repeated infringement by the worker of labour duties [611]. To this problem for a long time paid attention in O.S.Kuryleva's publications [612] and other authors, but the given explanation is not corrected till now. Moreover, the Government of Byelorussia prepares a bill [613] to which is supposed to change the given norm in the item 42 TK Belarus in sense which to it was unreasonably given by judiciary practice, and later has legalised also the Decree of the President of Byelorussia from 15.12.2014 № 5 [614].

From resulted and other examples of the explanations containing in decisions of plenums of the Supreme Courts in member states EAES, it is possible to draw a conclusion that the given bodies carry out subordinate legislation standard regulation of relations in work sphere in following cases: at a concrete definition of estimated concepts of the law of master and servant; in the presence of open lists or others concerning certain norms in the corresponding articles TK leaving a place to the judicial discretion; at collisions of norms of an equal validity; at blanks in the labour legislation.

In the Russian Federation and Republic Armenia to sources of law (including labour), being a judiciary practice version, it is possible to carry case practice of the European Court under human rights (further - ESPCH). According to item 1 of the Federal act from 30.03.1998 № 54-FZ «About ratification of the Convention on protection of human rights and fundamental freedoms and Reports to it» [615 [616] Russia officially recognised jurisdiction ESPCH obligatory concerning interpretation and application of the Convention and reports to it. According to E. G.Lukjanovoj with whom we agree, «means it, that it is legislatively offered to Russian vessels to consider in the activity case practice of the European Court, and before pravotvorcheskimi bodies of Russia a task in view of perfection of the Russian legislation according to its case practice». As widely known example it is possible to refer to business under the complaint of the military man To. And. Markin - the lonely father who is bringing up three children who could not receive holiday on care of the child before achievement of age of three years by it which not having achieved the positive decision in the Constitutional Court of the Russian Federation, has addressed in ESPCH in March, 2012 the Big chamber ESPCH has accepted K.A.Markin's finding for [617]. By the present moment extensive practice ESPCH, including on the affairs initiated against Russia (the peak of number of references has fallen 2009 and 2010 - to 13 666 and 14 293 complaints accordingly) [618] is saved up.

Keeps an urgency for Armenia and Russia the decision of a problem of a parity of certificates of the Constitutional Court and ESPCH. We will notice, that in practice of the Constitutional Court

The Russian Federation is observed the inconsistent approach on the given question [619] in aspect of interpretation of norms of the Constitution of the Russian Federation and the Convention on protection of human rights and the fundamental freedoms, concluded within the limits of the Council of Europe. The federal constitutional law № 7-FKS had been made from 14.12.2015 changes and additions in Federal

The constitutional law «About the Constitutional court of the Russian Federation», to the given court it was authorised to them to recognise unrealizable decisions of international courts (including ESPCH) in case of their contradiction of the Russian Constitution [620]. The given problem, under the general rule Is represented, that, should dare in favour of decisions ESPCH since they do not come under to the subsequent cancellation and revision, and member state of the Council of Europe ratifying the Convention on protection of human rights and fundamental freedoms, was obliged to carry out both the given Convention, and decisions ESPCH interpreting it with reference to concrete affairs. As the second argument we will specify also that ESPCH has the status international jurisdiktsionnogo body, and the Constitutional Court of the Russian Federation is a national court, though and allocated with the constitutional powers.

In conclusion of the paragraph as the general conclusion we will notice, that normotvorcheskaja the component in activity of the higher degrees of jurisdiction in member states EAES should not prevail over their basic purpose consisting in realisation of justice, and for the Supreme Court - and in a direction of activity of courts below of the general jurisdiction. The constitutional and Supreme courts should not substitute for themselves the legislator. Them normotvorcheskaja activity has secondary, subordinate legislation character: they should formulate legal positions and rules of law only in the presence of real blanks and collisions in the law of master and servant, and to Plenum - also concerning estimated concepts and concerning certain norms.

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A source: TOMASHEVSKY Cyril Leonidovich. SYSTEM of SOURCES of the LAW OF MASTER AND SERVANT of MEMBER STATES EAES: the THEORY And PRACTICE. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2017. 2017

More on topic § 4 Certificates of the higher courts of justice as sources of the law of master and servant and a legal representation problem:

  1. § 3. Research of questions of sources of the law of master and servant in a pre-revolutionary, Soviet and modern science of the law of master and servant
  2. CHAPTER 1 HISTORICAL REGULARITIES And THEORETICAL ASPECTS of the PROBLEM of SOURCES of the LAW OF MASTER AND SERVANT
  3. CHAPTER 2 of the PROBLEM of FUNCTIONING of NATIONAL SOURCES of the LAW OF MASTER AND SERVANT In MEMBER STATES EAES
  4. Some aspects of legal influence of the state on the public relations entering into a subject of the law of master and servant, in formation of the law of master and servant in Russia
  5. 6.1 Pravoprimenitelnye certificates of courts of justice on civil cases and their law-enforcement and pravoustanavlivajushchy character
  6. § 2 Collisions between sources of the law of master and servant and formation of a conflict legal mechanism in member states EAES
  7. § 4 Concepts of system of sources of the law of master and servant and their classification
  8. CHAPTER 4 FORMATION NADNATSIONALNYH of SOURCES OF LAW And the WAY of HARMONIZATION of SYSTEMS of SOURCES of the LAW OF MASTER AND SERVANT To MEMBER STATES EAES
  9. § 1 Concepts of the international law of master and servant and system of its sources
  10. § 3 Blanks in sources of the law of master and servant and the mechanism of their overcoming