Личичан О.П. Региональная правовая система и правовая система Российской Федерации

Аннотация: Recently many scholars, including those working in law of legal procedure, turn to problems of execution of judicial power and justice in sphere of civil procedure. Monographs by M.I. Kleandrov, S.K. Zagainova, S.L. Degterev and other publications are good examples of this trend. No less importance is devoted to these problems in other branches of legal science as well as in general theory of law. The author of the article thinks that clarification of the essence of justice is possible only in connection with judicial power and it can be done only outside of the borders of any concrete branch of law. The main idea of the article is that justice is a single notion as well as judicial power. There is no criminal, civil, constitutional justice as a separate legal phenomenon, but there is execution of justice in different spheres of judicial procedure. The article criticizes identification of justice with judicial procedure. When finding out correlation between judicial power and justice, the author addresses to definition of judicial power and its functions made by N.A. Kolokolov in his scientific study on judicial power. The conclusion of this scientist concerning single mechanism of state power – is in a way a key to solve the problem of functions of judicial power. Another starting point of the discussion was the definition of function given by V.N. Protasov who defines “function as the kind of activity, the influences which should be produced by this or that system (state, law, state organ, science, theory and so on) in order to fulfill its tasks, and reach its targets.” From this position the author gives her critical evaluation of opinions of the scientists who identify function with task or target. Another position where justice is regarded as a target of judicial power is considered to be wrong. The author states that justice is a “multifunction” of judicial power. In other words, justice is regarded as an integral many-sided multifunctional due activity of organs of judicial power. Approach to justice as to due activity (multifunction) in contrast with real activity, i.e. on concrete actions, gives the author reasons for creation of multi-sided characteristics and approaches to justice. First of all, she considers it reasonable to regard justice as a function of judicial power stated as a norm of law. In other words, legal norms defining justice in all its multitude will be the object of analysis. But there exists another approach which is no less important. It is comparing of due action and real action: in frameworks of judicial procedure justice may be executed or it may be repudiated. In case of repudiation judicial procedure (as a process) will take place, but there will be no justice. Undoubtedly, there is a need to analyze reasons and conditions which make judicial procedure unjust.

Abstract: Recently many scholars, including those working in law of legal procedure, turn to problems of execution of judicial power and justice in sphere of civil procedure. Monographs by M.I. Kleandrov, S.K. Zagainova, S.L. Degterev and other publications are good examples of this trend. No less importance is devoted to these problems in other branches of legal science as well as in general theory of law. The author of the article thinks that clarification of the essence of justice is possible only in connection with judicial power and it can be done only outside of the borders of any concrete branch of law. The main idea of the article is that justice is a single notion as well as judicial power. There is no criminal, civil, constitutional justice as a separate legal phenomenon, but there is execution of justice in different spheres of judicial procedure. The article criticizes identification of justice with judicial procedure. When finding out correlation between judicial power and justice, the author addresses to definition of judicial power and its functions made by N.A. Kolokolov in his scientific study on judicial power. The conclusion of this scientist concerning single mechanism of state power – is in a way a key to solve the problem of functions of judicial power. Another starting point of the discussion was the definition of function given by V.N. Protasov who defines “function as the kind of activity, the influences which should be produced by this or that system (state, law, state organ, science, theory and so on) in order to fulfill its tasks, and reach its targets.” From this position the author gives her critical evaluation of opinions of the scientists who identify function with task or target. Another position where justice is regarded as a target of judicial power is considered to be wrong. The author states that justice is a “multifunction” of judicial power. In other words, justice is regarded as an integral many-sided multifunctional due activity of organs of judicial power. Approach to justice as to due activity (multifunction) in contrast with real activity, i.e. on concrete actions, gives the author reasons for creation of multi-sided characteristics and approaches to justice. First of all, she considers it reasonable to regard justice as a function of judicial power stated as a norm of law. In other words, legal norms defining justice in all its multitude will be the object of analysis. But there exists another approach which is no less important. It is comparing of due action and real action: in frameworks of judicial procedure justice may be executed or it may be repudiated. In case of repudiation judicial procedure (as a process) will take place, but there will be no justice. Undoubtedly, there is a need to analyze reasons and conditions which make judicial procedure unjust.