Definition, legitimacy and motivation of judicial discretion
The creative nature of law enforcement activities is recognized by almost all lawyers. This is obvious, since the application of the legal norm, which is a general rule for a particular case of a particular disputable legal relationship, does not seem to be a practical use of the template, but always creative.
In the conditions of the development of a market economy, the increasing role of civil law as the main regulator of commodity-money and other relations emerging in the market economy, the significance of formalism in civil and arbitration processes is gradually diminishing. The inherent in the civil-legal regulation of the beginning of disposability, equality, mutual property responsibility of subjects subject to freedom of contract entail various forms of expanding the scope of their application and in legal proceedings. One such form is an increase in the legal capacity for exercising judicial discretion.
Excessive formalization of judicial proceedings leads to an unjustified increase in the timing of consideration of specific cases, which reduces the speed with which disputes can be liquidated in civil circulation.
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Using discretion by the judge reduces the "cementing" the effect of the formalism of civil and arbitration processes, allows you to avoid red tape in resolving legal situations.
In the most general form, the application of law is associated with a specific case of the rule of law and, accordingly, the cognitive process of judicial thinking does not mean a mechanical reflection of the legal relationship. An important role in it is played by value judgments, both in the statement of facts and in the application of law. Through the collected information about the facts and the applied assessments, the judge commits thought processes, the result of which is his decision.
The law enforcement process includes three stages.
The first step is to establish all the necessary factual circumstances of the case.
The second stage determines the specific legal norm that should be applied.
At the end of the third final stage of the law enforcement process, the actual side of the case is superimposed on its legal basis and, as a result, a legal decision is made in the case.
The judicial discretion is present at the second, most significant stage of the law enforcement process in determining the specific legal norm in the current situation. It is a procedural tool for considering a particular case and allows you to protect the rights and interests of participants in civil legal relations.
The judicial discretion is the legal capacity provided by law and exercised strictly within its framework by the court to resolve legal issues on the basis of the circumstances of the case, the general provisions of the law, the principles of law, economic laws and moral norms for finding the most optimal solution to the issue.
For judicial discretion, it is important not only to correctly determine the limits of choice enshrined in the rule of substantive law applicable to specific legal relations, but also to follow procedural rules established in relation to the procedure for review and resolution of cases. Judging discretion, unlike the discretion of officials of other state bodies, acquires significance only if the court strictly observes the rules of procedural law that strictly fix the procedure for reviewing and resolving the case.
Investigating the specifics of judicial discretion, DM Chechot singled out its peculiarities:
- the commission at the discretion of the court of any procedural action can take place only in cases directly provided by law;
- the solution of material and legal issues at the discretion of the court is possible only in cases provided for by law and relating to legal relations regulated by the legislator only partially so that their specification is carried out by the court.
The very term & quot; discretion & quot; assumes that such activities are carried out depending on the will of the relevant judge and are necessary in the absence of direct and exhaustive legal regulation of certain issues necessary for resolution in a particular case. Similar situations arise when:
- rights and obligations are not completely settled by the parties, and in the course of their implementation a dispute arose;
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- in the substantive law there are no imperative or dispositive norms that determine the scope of subjective rights and obligations of participants in legal relations;
- the legal norm grants the court the power to determine the content and scope of the rights and obligations not regulated by the parties;
- the rule of law in an alternative form gives the court the right to choose one of the possible ways of resolving the dispute.
When applying law or law by analogy, the court extends the effect of the right to cases similar to those that it regulates. The court, in its sole discretion, ascertains the legal nature of a public relation, although it is not directly regulated by a specific law, and applies the most closely related rules of law or resolves a dispute in accordance with the basic principles of law. Analogy is a way of filling gaps not in the law, but in terms of facts, in the circle of social relations subject to legal regulation. An analogy is a law enforcement and not a law-making process, therefore it is carried out with the use of judicial discretion.
The court's activities are of an imperious nature, and its actions are expressed in the form of judicial decisions, and therefore judicial discretion finds its fixing in the acts of the court. If there is a statutory requirement of motivation of the decisions made by the court, this has a direct bearing on the judicial discretion. The court in the decision should indicate for what reasons it made a certain choice when resolving the legal issue. In the CCP of the US, there is no firm indication of this, but in Art. 170 of the APC of the United States requires that the reasoning for the decision should specify, in particular, the laws and other normative acts that guided the court in making the decision, and the reasons why the court did not apply laws and other regulatory legal acts to which Referred persons involved in the case. The reasoning part of the decision should also contain justifications for decisions made by the court and justification for other issues. Thus, the arbitration tribunal should explain, following what reasons it made a certain choice when resolving a legal issue.
However, modern judicial practice demonstrates a weak motivation or a complete lack of motivation for judicial discretion. Often reducing the penalty to be recovered or the amount of the debtor's liability, the arbitration courts are limited only to the reference in the court decision, respectively, on art. 333 of the Civil Code of the United States relating to cases of apparent disparity in the forfeit and the consequences of a breach of an obligation, when the court really has the right to reduce its size, or at art. 404 of the US Civil Code providing for the possibility to reduce the amount of the debtor's liability if the creditor himself deliberately or through negligence contributed to an increase in the amount of losses caused by non-performance or improper performance or did not take reasonable steps to reduce them. At the same time, the decisions do not contain specific facts of the case, which allowed the court to draw such conclusions. For example, very often in the decisions of arbitration courts one can find the following formulation:
Given the compensatory nature of the forfeit and its sheer disproportion to the consequences of the breach of the obligation, as well as the absence of any negative consequences from the plaintiff arising from the breach by the respondent of the terms of the contract, the court found the penalty to be reduced.
Or this statement:
Despite the accuracy of the forensic calculation of the forfeit charged to the defendant, according to the acts ... 0.5% per day in the amount of 292,369.75 rubles, the court finds legal grounds for reducing the amount of the penalty assessed by the plaintiff from 292,369 , 75 rubles. up to 17,542.18 rubles, due to the apparent disparity in the forfeit of the consequences of the obligation violated by the defendants, taking into account the payment terms established by the additional agreement to the debt transfer agreement of 07.03.2007, in the absence of circumstances aggravating liability (Article 333 of the Civil Code of the Russian Federation)
More appropriate to the requirement of motivation is the wording in which it can be seen that the arbitration court reflects the specific circumstances that made it possible to conclude that there was no disproportion in the penalty collected from the defendant, in particular a much longer delay in payment of the goods than the delay in its delivery:/p>
The court found it impossible to take into account the defendant's argument about the disproportionate penalties collected from him due to the fact that the provisions of Art. 333 of the US Civil Code, and there is no claimant. In this connection, the court explained that the delay in payment for the goods made by the respondent was much longer than the delay in the delivery, part of the money was not paid until the case was examined in court. According to the court, the withdrawal of money in the amount of debt for a long time entails more negative consequences for the business entity than in this case the delay in supply.
A similar situation is observed in the judicial practice on the recovery of court costs, compensation for moral harm. And it has been traced for a considerable period of time since the mid-1990s. up to now both in courts of general jurisdiction and in arbitration courts.
So, the court's decision satisfied the claim of citizen M. to the management of the Moscow railway about compensation for damage caused during the transportation of things by rail, and compensation for moral damage. The essence of the requirements was that when transporting the plaintiff's things from the city of Grozny to the city of Tula, the container was damaged, in which things were transported. When goods were transferred to another container and subsequently transported, some of the items were seriously damaged, and the other part was stolen. The claimant also claimed a claim for compensation of 100 thousand rubles. moral harm, and the claimed amount of claims they did not justify. Respondent did not recognize the claim and did not appear in the court session. The court, fully satisfying the claims, justified its position only that the failure of the railroad workers to perform their duties to transport things and the untimely payment of material damage for lost and damaged things caused significant moral damage to the plaintiff. Thus, the motivation of the judicial discretion regarding the application of the principles of reasonableness and justice in this case is practically not traced.
In another case on the examination of the claim of citizens of P. and M. to the municipal enterprise, "Wholesale and Retail Base" on the recovery of damages in the amount of 487,387 rubles, caused by the sale of plaintiffs of low-quality refrigerators of the brand "Saratov", the court, partially satisfying the claims, generally confined itself to a statement of compensation for moral damage in the amount of 100 thousand rubles. to each claimant without having reacted to the fact that the size of claims and motivations brought by the plaintiffs themselves were completely different. In similar circumstances, one claimant claimed compensation in the amount of 150 thousand rubles, which, in his opinion, was determined by the lack of a refrigerator for his family for a long period of time, as a result of which not only food was lost, but there was also the possibility of forming some stocks products to facilitate the further life of his family in the face of rapid price increases. Another plaintiff demanded to compensate him for moral damage in a much larger amount (300 thousand rubles.), Determining it based on his average earnings, since he spent a lot of time on the elimination of the consequences of an unsuccessful purchase. The arguments of the plaintiffs were ignored by the court, and the reasons for the reduction in the amount of compensation for moral harm in the judgment were not explained at all, which undoubtedly reduced its quality.
Note that at the same time in a similar case, another court satisfied B.'s demand for compensation for moral damage in the amount of 5 thousand rubles., caused by the sale of LLP "Helios" poor-quality refrigerator brand "Chinar" and the unreasonable refusal of the defendant to replace him for a long period of time (more than six months). The court decision stated that claims for compensation for moral harm are subject to satisfaction, since the plaintiff's family spent more than six months without a refrigerator, the plaintiff repeatedly applied to the claims, which the defendant, having a real opportunity to execute, unreasonably rejected. The very low amount of compensation appears to be due to the absence of any mention of its amount in the statement of claim for moral damages in general.
However, the judicial practice has enough positive examples, when the judges in the making of the decision paid due attention to the motivation for the amount of material and moral damage to be exacted.
The authors purposefully use the decisions made by the courts back in the mid-1990s, when the court practice on disputes on the protection of consumers' rights, on the protection of honor, dignity and business reputation was being formed. This circumstance shows that even in the context of limited judicial practice and the existence of significant ambiguity in enforcement issues, since the judicial practice in these categories of cases was only being formed, the courts were not eliminated from the duty to motivate the chosen position in the case, proceeding from the requirements of the law.
So, by the decision of the Kalininsky District Court of Tyumen at P.'s claim against the Tyumen Air Enterprise and the company "Surgut-Avia" were satisfied with his demands for recovery of penalties for delayed departure of the aircraft, as well as compensation for moral damage. And the court, seeking in favor of the plaintiff 2 million rubles. in compensation for non-pecuniary damage, indicated that, in accordance with Art. 81 of the Air Code of the United States of March 19, 1997 No. 60-FZ, the carrier is obliged to organize passenger service, take care of them, provide accurate and timely information on the movement of aircraft, and the passenger has the right to use services, including a rest room, and the child during a break in transportation due to the fault of the carrier or the forced delay of the aircraft in transit. The court found that during the delayed flight for 18 hours the defendants did not provide the plaintiff flying with the plane along with two small grandsons, accurate and timely information on the movement of the aircraft, did not provide a free room for rest and a room for the mother and child. Staying in a stuffy place for a long time caused the plaintiff and children physical discomfort and nervous suffering, which caused damage to health in one of the children.
In another case, the Central District People's Court of the city of Khabarovsk, justifying the amount of compensation for moral damage, took into account such circumstances as the failure by the respondent - JSC "Crystal" (a workshop that provides warranty repair of household appliances) - reliable information on the rules for the performance of warranty repair of a vacuum cleaner delivered by the plaintiff B. As a result, 2,700 rubles were illegally obtained from B. for a new motor for a vacuum cleaner and payment for work during repairs, lasting more than a year. During this long period of time B. was deprived of the opportunity to use a vacuum cleaner, since the workshop did not provide him with a similar vacuum cleaner for use during the repair period, which had to be done in accordance with the existing rules for the manufacture of warranty repair of household appliances. Thus, according to the court, the 80-year-old citizen, in addition to the very considerable inconvenience caused by the lack of a vacuum cleaner in his use for a long period of time, had to repeatedly turn to the workshop and demand protection of his rights, which determined a very high degree of moral harm to the citizen and , respectively, a significant amount of the monetary compensation due (150 thousand rubles.). Attention is drawn to the decision of the court of the city of Tula, who, in satisfying M.'s claim for recovery of compensation for moral harm caused to the plaintiff by painful sensations from the impact of electric current on the trolleybus steps, collected 10,000 rubles from the tram and trolleybus office of the city of Tula in favor of the plaintiff. (undenominated). At the same time, the Tula Regional Court, verifying the court's decision on the cassation complaint, one of the reasons for which was a request to increase the amount of compensation for moral harm, increased its size 15 times, bringing it to 150 thousand rubles. The cassation instance motivated its decision by the fact that the court of first instance, when making its decision in respect of compensation for moral harm, did not take into account the degree and severity of the physical suffering suffered by the healer, which posed a serious danger to her life and health, which resulted in the temporary incapacity for work of the plaintiff. > Thus, unfortunately, we have to state that after almost 20 years, neither the relevance of such disputes nor the conviction that, with the correct approach to the performance of the powers conferred by law, the judges do not always fulfill the requirement to draft a reasoned judicial decision, although must do it.
From the above examples of judicial practice of different courts in different years, it follows that courts in the course of consideration and resolution of specific civil (arbitration) cases when applying the rules of law implemented their judicial discretion. The motivating parts of the judgments usually contained references to the relevant articles of the normative acts, however, as a rule, there were no explanations and motivation for choosing and applying the specific provision of the law.
The law specifies various restrictions on the choice of judicial discretion, for example, reasonableness, expediency. So, in the US Civil Code there are indications to the definition of "reasonable business management" (Item 2 of Article 72, paragraph 2 of Article 76), "reasonable price" (Article 397), "reasonable measures" (Item 1, Article 404), "intelligently understood interests" (item 2 of item 428), "of the reasonable term" quot; (clause 2 of article 314, clause 2 of article 345, clause 2 of article 375, article 397, part 2 of clause 1 of article 399 and other articles of the Civil Code of the Russian Federation). Some laws mention that when determining the amount of compensation for moral harm, the requirements of "reasonableness and fairness" must be taken into account. (part 1 of item 2 of article 1101 of the Civil Code of the Russian Federation); expenses for the services of a representative (Article 100 of the US GP, Part 2 of Article 110 of the APC of the RF), compensation for the loss of time to a bona fide party in a dispute at the expense of an unfair party (Article 99 of the RF Code of Civil Procedure) is collected by the court within "reasonable limits" the court's establishment of procedural terms should be subject to the principle of reasonableness (Article 107 of the RF Code of Civil Procedure).
Some experts reasonably believe that any legislative act should differ in the clarity of the terminology. The use of such appraisal categories in the law, in their opinion, does not contribute to the effectiveness of the enforcement of the judicial mechanism for the protection of rights, therefore, it is proposed to establish specific amounts of cost recovery payments for minimum wage or fixed rates.
However, the legislator is forced to establish the requirement of reasonableness as a general rule in cases where it is impossible to provide and normatively fix all possible elements of the legal relationship. Such laws are relatively specific, containing the category of reasonableness and fairness, legislation introduces in case of uncertainty of the behavior of the subject in specific circumstances. And this category is the limit of choice in the exercise of judicial discretion.
And while such formulations and evaluation categories are present in the law and judges are guided by them when making their decisions, one should understand the algorithm of their enforcement.
Reasonability is a material limitation of judicial discretion, consisting in a conscious intellectual struggle between several legitimate opportunities, in which the judge applies objective standards. The duty of the judge in this case is that of all the possibilities to choose one that seems to him the best.
According to some experts, reasonableness, along with fairness and expediency, seems to be an average component, since moral evaluation is superimposed on property interest.
The connection of reason with the objective side of the subject's actions allows one to characterize the action of a person indirectly, by comparing his behavior with the possible behavior of the average person in specific circumstances. In this connection, for example, in determining the costs of paying for the services of a representative within reasonable limits, the judge should relate the category of reasonability to the object of judicial protection, take into account the specific circumstances of the case, rely on the "average fair judge" similar services. In the legal literature, the opinion was expressed that the legal order in each society is governed not by the letter of written laws, but, to a certain extent, by the sum of ideas that are only embodied in law and legal norms, i.e. principles of law. This gives grounds for a number of authors to come to the conclusion that in the right state, including in its judicial activity, not the law rules, but the law itself. In this regard, the task of the court in a developed democratic society is precisely the application and interpretation of the law, the establishment on its basis of law in the broadest sense of the word as a state of justice in society.
Justice in civil cases and economic disputes is ensured by legal fairness. However, the legal norm applied by the court, designed to regulate disputable legal relations established by the court, can not always lead to a fair decision, since it may not correspond to the principles, meaning and content of the law, expressed in the US Constitution and other legal acts that do not contradict it. In the case of legal misunderstanding, injustice is not a problem, but an illegal law, which should not have been accepted by the legislator, but if it exists, it can be remedied by a court that does not have to apply it.
In this connection, the question arises about the ratio of judicial discretion and judicial arbitrariness, which is based on the freedom of the law enforcer in the commission of legal actions. At the same time, the progressive development of law is accompanied by the gradual restriction of personal arbitrariness, the expansion of the influence of the public will of the law and, consequently, the application of judicial discretion. The main difference between discretion and judicial arbitrariness is the possibility of exercising discretion in the process of resolving a legal issue, fixed by the rule of law.
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