On the place and significance of judicial practice and legal precedent in Russian civil procedural law

Abstract

The article examines the possibility of attributing judicial practice and judicial precedent to the sources (forms) of civil procedural law. The author claims that these categories are close, but not identical; analyzes various approaches to their understanding in the legal literature, and also formulates their definitions. The author distinguishes judicial practice in a broad and narrow sense, outlining the hierarchical boundaries of the latter from decisions made by the court of first instance to decisions of the Presidium of the Supreme Court of the Russian Federation, made in specific cases as supervisors; the author draws attention to the special nature of the Decisions of the Plenum of the Supreme Court of the Russian Federation and reviews of judicial practice approved by the Presidium of the Supreme Court of the Russian Federation, due to the fact that they are not acts issued in specific cases, and are taken out of procedural form. The author substantiates the thesis that the rulings of the Presidium of the Supreme Court of the Russian Federation, issued in exercising supervision, constitute a judicial precedent, currently implicitly recognized as the source (form) of the right at the legislative level, while the rest of the judicial practice within the specified limits individual elements, or in general, the source of law is not, and provides relevant examples. The author proposes the need to transfer implicit recognition of decisions of the Presidium of the Supreme Court of the Russian Federation, made in specific cases in the order of supervision to the category of explicit ones; and also notes the need to legislate additional conditions for the use of judicial precedent as a source (form) of law.