Judicial (internal) discretion and judicial conviction. Judicial discretion as the basis of the cognitive and evaluative function of the court. Value judgment and subjective opinion are not subject to judicial protection Interpretation of subjective opinion in court
What are the consequences of the subjectivity of the court.
The court acts at its own discretion
In modern Russia, the last instance in resolving disputes is the court. However, the eternal human factor, which is present in abundance in all spheres of the life of Russian society, is ruining everything in the bud. Judges in the Russian Federation have the right to assess the evidence presented by the parties in the case and make many legally significant decisions in the case “at their own discretion”. As a result, instead of an objective approach, a purely subjective method of analyzing incoming information (including legal norms) is often used.
Evidence of such a deplorable state of the law enforcement system is a large number of explanatory, recommendatory norms of the highest judicial instances - the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation.
The Russian practice and the reality of the law enforcement system in general are such that the highest judicial instances have to literally chew on the lower courts how exactly it is worth applying certain norms of substantive law, because judges (using their right to subjectivity of judgment) often manage to interpret the same norms according to in different ways. It is for the uniformity of judicial decisions that such judicial acts are issued. And although we officially do not have a judicial precedent as a source of law, but, in fact, it acts as such, since both the parties to the process and the judges themselves often refer to the explanations of the Plenum of the Supreme Court of the Russian Federation. If such normative acts constantly appear, then the logical conclusion suggests itself that it is the analysis of the judicial practice of the courts of the first and second instances that provides the basis and information ground for this.
What are the consequences of the subjectivity of the court
Thus, it can be concluded that the courts of first instance, when making a decision on the case, should more carefully study the evidence presented by the parties, not only individually, but also in their totality. The insufficient attention of the courts to the details of the evidence base and their subjective assessment ultimately lead to unlawful and unfair decisions that violate the legitimate rights of citizens. Which is unacceptable, as this leads to the formation of negative judicial practice and discredits the reputation of the judiciary in the eyes of the public.
Value judgment and subjective opinion are not subject to judicial protection
The court considered the claim of the agricultural consumer marketing cooperative "Tuymaada-Nam" against OJSC "MTS-Bank" for the protection of business reputation, recovery of lost profits in the amount of 9,000,000 rubles. Case No. A58-6176/2014.
The subject of the evaluation and study of the court was a letter from MTS-Bank OJSC to the head of the Namsky District Municipality and the head of the Small Business Development Fund. SPSK "Tuymaada-Nam", referring to the fact that the information indicated in the letter is not true and discredits its business reputation, on the basis of Article 152 of the Civil Code of the Russian Federation, filed a lawsuit with the arbitration court.
The court, after analyzing the content of the letter, evaluating the stated phrases in the context of the letter as a whole, taking into account its semantic orientation and form of submission, came to the conclusion that the text of the letter is a value judgment (opinion) regarding the situation, indicating the presence between the SSSPC “Northern rivers” and SPSK “Tuymaada-Nam” of relations under the contract for the sale of the building of the meat workshop and the land plot, including the failed transaction, the subject of the contract being pledged by OJSC “Rosselkhozbank”.
Judgments about the actual deprivation of sources of income, respectively, the repayment of credit obligations of the Northern Rivers SSSPK to MTS-Bank OJSC, incl. the intentions of SSSPC "Northern Rivers" to fully repay the debt are conjectural in nature and are a direct consequence of the defendant's subjective perception of the named problem.
When making a decision, the court was guided, among other things, by paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 24, 2005 N 3, which provides that, in accordance with Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 29 of the Constitution of the Russian Federation, which guarantee everyone the right to freedom of thought and speech, as well as to freedom of the media, the position of the European Court of Human Rights, when considering cases on the protection of honor, dignity and business reputation, the courts should distinguish between statements of facts that take place, the correspondence of which to reality it is possible to check, and value judgments, opinions, beliefs, which are not the subject of judicial protection in accordance with Article 152 of the Civil Code of the Russian Federation, since, being an expression of the defendant's subjective opinion and views, they cannot be checked for compliance with their reality.
The court also found unproven the plaintiff's claim for compensation for lost profits in the form of non-receipt of income from the conclusion of the contract of sale.
Thus, the court dismissed the claims. A state fee in the amount of 72,000 rubles was collected to the federal budget.
Alexei! I understood your idea. Emotionally, of course, a little, but nothing. Frankly, I did not think that my post would provoke such a detailed answer :))))). For my part, I will try to answer. However, everything is in order.
1. I can only express my opinion on the behavior of this or that judge, you understand that in principle it cannot be objective, since I will only express my feelings from my perception. I don’t know the reasons that prompted the judge to conduct this way, although I guess, but in any case I don’t know 100%. Now a little about the judges. A judge - acts on behalf of the Russian Federation, he is a representative of the authorities, he has authority by virtue of the law, by default - as soon as he receives judicial status. He personifies the authority of the judiciary as a whole. I want to say right away that I do not sing praises to judges. It’s just that, whatever they are, it’s impossible to say that this one is like this, and this one in general .... Yes, they must behave appropriately, but this does not always work out, for various reasons. But... even if I describe the actions of this or that judge, then, as I wrote above, our city is not big and you can always recognize yourself. After all, suppose if I say that someone is behaving inappropriately, because there will always be someone who will argue the opposite. You write that they don't care about the opinions of people they'll never meet. But this is unlikely. I go to the courts very often, I come across those about whom (which) I could write, very often. And if they don't care, then I don't. I believe that my opinion regarding any judge should remain with me. This is too subjective, the expressed subjective opinion, and even more so about the judge, does not do honor to me in the first place. I know one lawyer, he is a lawyer. So he very often speaks negatively about the judges. However, it is disgusting for me to look at it and hear it from the outside. It is necessary not to wag your tongue, but to prove by deeds that you do not have mayonnaise in your head.
2. About the reputation. I have come across lawyers who have taken a "double" position. I mean collusion. Faced in processes with weak lawyers from the opposite side. They were losing cases. But what is most interesting, well, I think that even if the case is lost, then this is not the end. You can look further, figure it out, think and innovate so that the client gets at least something. And I, for example, before or after s / s, gave advice and tried to help "that" side. But of course, the advice of a lawyer of "that" side is perceived exactly the opposite. Therefore, my opinion about such lawyers is unequivocal. But I can’t say in front of everyone about someone out loud. This again does not paint me and looks disgusting. I will say this. We have a university in Saratov, which is known throughout the country and graduates lawyers. In addition, we generally have a lot of universities and each graduates lawyers. In the city (and it is not very big), there are DARKNESS lawyers!. I think if we count all the lawyers per resident of Saratov, we will take first place in Russia! So the choice is there and the competition is huge. But, in my opinion, literate units. Of all this number. So customers have to choose. Unscrupulous people are everywhere. In some of my cases, clients themselves came to the s / s and saw how their lawyer screwed up. That's when you need to think about whether you need this lawyer or not to fuss a lot and find someone who will win your case.
Regarding your answer, I do not urge not to take the case lost before you by some kind of lawyer. Moreover, I do not urge anyone to deprive protection. Meanwhile, I think the comparison in this case with doctors is not correct. If I checked the work of judges, well, imagine the impossible, or legal representatives, if there was such a service, then I would not shield the judge or representative if I saw unprofessionalism.
Yes, we know a lot about each other, but due to the specifics of the profession, we either cannot share, or we share very carefully, and even then not all.
And you can talk about an error when it is installed, i.e. not in this case.
So I don't think it's ethical on a public site to describe situations in which someone might recognize themselves. Especially on a branch with a legal theme. so I think you are my conclusion about the reputation of lawyers
Introduction
1. The concept of judicial discretion.
3. Types of discretion in law
4. The judge as a subject of the right to judicial discretion.
5. Legality and judicial discretion.
Conclusion
Literature
Introduction
The results of many years of research into judicial practice indicate that the effectiveness of the administration of justice, the improvement of which was discussed at the VII All-Russian Congress of Judges by the President of Russia D.A. Medvedev, is one of the key directions in the development of the judiciary and directly depends on the level of maturity of the legal consciousness of the bearers of the judiciary. It is necessary not only to update the substantive and procedural legislation, but also to radically “reform” the legal consciousness of judges as bearers of the judiciary, their attitude to law enforcement practice based on the generally recognized principles and norms of international law and international treaties of the Russian Federation governing legal proceedings.
The famous Russian civil lawyer E.V. Vaskovsky, referring to the problem of judicial discretion, noted that “despite all efforts, despite the most careful observance of all rules of interpretation, the court is not able to establish with full certainty the norm that it needs as a big premise for constructing a syllogism. Then, in view of the impossibility of turning to the legislator for guidance and clarification, there is room for judicial discretion.
There are enough gaps in the law. Therefore, the problem of judicial discretion, its nature, limits in making decisions in a particular case is so relevant. To derive a single formula that determines with mathematical precision the algorithm of judicial discretion, and to determine the legal and moral mechanisms for its limitation, would mean to open a universal way of administering justice. It is possible to eliminate the danger of subjectivity and arbitrariness by introducing judicial discretion within the framework of certain legal restrictions: procedural and material.
Discretion is the main element of inner conviction. With its help, the judge evaluates the evidence, guided by the law and conscience (Article 17 of the Criminal Procedure Code of the Russian Federation). In this regard, it is important to observe the moral criteria of judicial discretion, which are not spelled out in the procedural rules. For the bearer of judicial power, it is necessary to use their discretion sensibly, reasonably, fairly and motivatedly.
The topic of judicial discretion in law, its limits and moral criteria is particularly relevant. Currently, attention is paid to it not only by Russian and foreign scientists, the topic of judicial discretion, especially when imposing punishment, does not leave the pages of various publications and is widely discussed in the media. The interest in the problem under consideration is explained both by the growth of crime in our country and by the growing distrust of law enforcement and the courts. The distrust of citizens in domestic courts, as well as in the decisions they make, is also evidenced by the fact that the number of Russians seeking justice outside their homeland is increasing every year. According to the statistics of the European Court of Human Rights, from 20,000 to 50,000 appeals and complaints from citizens about the actions of officials or violations in the justice system are received from Russia annually.
All of the above determines the relevance of this course work on the problems of judicial discretion in law.
1. The concept of judicial discretion
Discretion is an essential property of law enforcement. The matter of law is so diverse and comprehensive that it does not allow it to be covered by the narrow framework of normative acts. Therefore, the law enforcer is given the opportunity in certain cases to act at his own discretion. In addition, in the modern realities of the development of society, under the condition of a crisis and the formation of ever new social relations, the legislator is simply not able to foresee and reflect in detail all possible options for their development in the law. Under such conditions, law enforcement discretion is of particular importance, in which the law enforcer, under certain conditions, is entitled to choose the option of resolving a legal issue, guided by his own discretion.
The generally accepted concept of judicial discretion in legal science has not yet been formed, however, a comparison of its various interpretations makes it possible to identify the generally recognized properties of this phenomenon. Firstly, judicial discretion is exercised by a special object - a judge, secondly, judicial discretion is reduced to a certain relative freedom of choice from a number of possible decisions, thirdly, judicial discretion is limited by the right and the limit of powers exercised by the court.
Thus, it can be argued that judicial discretion is a relatively free choice of possible legal decisions exercised by the court, limited by the law and the limit of powers exercised by the court.
From this definition, first of all, it follows that a relatively free choice of a possible legal solution in relation to a specific life situation, carried out by the court, is not an absolute unconditional opinion of the court, but a choice within certain boundaries, which in legal science are called the limits of judicial discretion. .
2. Limits and principles of judicial discretion
Under the limits of judicial discretion, some authors understand “the boundaries established by means of special legal instruments, within which the subject of law enforcement, based on a comprehensive analysis of the circumstances of the legal case, is authorized to make the best decision from the point of view of the principles of legality, expediency and fairness. Other authors conclude that “the limits judicial discretion is a framework established by authorized entities, with the help of legal legal means, clearly limiting the scope of application of the law. According to K.P. Ermakova, the limits of judicial discretion are a type of legal restrictions established by legal entities with the help of special legal means in regulatory legal acts, other forms of law, other forms of law, which establishes the boundaries within which the court has the possibility of a volitional choice for the optimal resolution of a legal issue. The problem of the content of legal limits in the theory of law has been little studied, therefore it seems that the limits of judicial discretion can be identified and grouped based on the type of activity carried out by the court. Some authors refer to the processes of discretion of the court as “interpretation of the principles and norms of law, overcoming conflicts between the principles and norms of law, the application of alternative and optional norms of law, the application of relatively certain principles and norms of law, as well as dispositive norms of law, overcoming gaps in normative legal acts and other rules of law” Based on this, it can be assumed that the limits of judicial discretion are manifested in the process of using the analogy of law by the court, overcoming conflicts of rules of law, as well as in the process of applying the principles and rules of law by the court. In a separate group, manifestations of the discretion of the court in the process of giving meaning to evaluative concepts can be distinguished.
For the holder of judicial power, it is necessary to use his discretion sensibly, reasonably, fairly and motivated.
Common sense, as one of the principles and effective mechanisms of its moral limitation in the administration of justice, recognizes as unacceptable the introduction of innovations with the aim of unreasonably simplifying legal proceedings, such as: consideration of the case in the office, the use of simplified colloquial vocabulary in the text of an official document, etc. Improper application of this principle of discretion leads to the annulment of the judgment or decision of the court.
Reasonable discretion implies a high level of legal awareness of the law enforcer and his knowledge in the field of clear rules for the administration of justice.
Justice is the first and basic principle, the basic truth that a person who is faced with a judicial machine can and should count on. “Discretion is the knowledge of what is fair from the point of view of law” It is important that the formally correct application of the law does not turn into a real injustice
Motivation is the most important principle and property of judicial discretion and its target designation, which helps in choosing a solution to a case. European Court of Human Rights in 1994. included in Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the duty of judges to issue motivated judicial acts.
3. Types of discretion in law
Judicial discretion can be classified on various grounds, depending on the chosen criterion. The issue of classification of judicial discretion, according to O.A. Papkova, it is hardly necessary to decide in a formally logical plan, pursuing the sole goal of creating harmonious, exhaustive divisions of discretion into types. Therefore, among the various possible “divisions” of discretion in law, first of all, it should be put forward that which expresses the essential features, advantages of the application of judicial discretion and allows you to clearly see the features and actions of this phenomenon.
Currently, there are many gaps in the legislative regulation. That is why in judicial practice there are difficulties with determining the norm necessary for resolving the case.
In the legal literature, there are different views on the assignment of the application of the analogy of law and law to the field of judicial discretion. For example, A.T. Bonner believes that “the resolution of a case on the basis of an analogy of law or law cannot be recognized as a form of judicial discretion, since there is no freedom in choosing solutions. In this case, the court must implement the law governing disputed legal relations.
The Supreme Court of the Russian Federation investigates the complex issues of protecting intangible benefits in a 194-page review of judicial practice published on February 17, the first of this year.
In the section devoted to the practice of the Judicial Collegium for Economic Disputes, the Supreme Court, in particular, notes that since the defendant's statements are statements of facts, the conformity of which can be verified, they may be the basis for filing a claim for the protection of business reputation.
The plaintiff filed a lawsuit against the defendant in the arbitration court to recognize the information disseminated by the defendant on the Internet as discrediting the business reputation of the plaintiff, on the obligation of the defendant to refute this information by posting the relevant information on the Internet, and to recover compensation.
The plaintiff referred to the fact that he carried out construction work related to the implementation of the federal target program, which implies the conclusion of contract agreements with third parties for the conduct of archaeological work. The defendant posted the following unreliable information on the VKontakte social network, discrediting the business reputation of the plaintiff:
“The real cost of the work is underestimated…, it is initially dumping”, “Such tender documentation testifies either to the complete incompetence of its compilers, or to the presence of a corruption component in the form of an agreement with potential performers”, “Do not become a pawn in the hands of scammers!”, “… exposes for a tender with practically illegal conditions, an archaeologist (we omit his last name) was found who takes it upon himself for a kickback.
By the decision of the court of first instance, left unchanged by the decisions of the court of appeal and the arbitration court of the district, the claims were denied. The courts proceeded from the fact that the disputed information cannot be recognized as discrediting business reputation, since they represent judgments expressed by the defendant and a subjective opinion regarding the problem under discussion.
The Judicial Collegium of the Supreme Court annulled the named judicial acts and sent the case for a new trial to the court of first instance on the following grounds.
Based on the clarifications contained in paragraph 5 of the Review of the Practice of Considering Cases by Courts on Disputes on the Protection of Honor, Dignity and Business Reputation, approved by the Presidium of the Supreme Court on March 16, 2016, in accordance with the provisions of Art. 29 of the Constitution of the Russian Federation and Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantee everyone the right to freedom of thought and speech, as well as to freedom of the media, the positions of the European Court of Human Rights when considering cases for the protection of honor, dignity and business reputation, it is necessary to distinguish between statements of fact , the validity of which can be verified, and value judgments, opinions, beliefs that are not the subject of judicial protection in accordance with Art. 152 of the Civil Code, since, being an expression of the defendant's subjective opinion and views, they cannot be verified for their compliance with reality.
In the decisions in the cases Lingrens v. Austria of June 8, 1986, Greenberg v. the Russian Federation of June 21, 2005, the European Court of Human Rights, protecting the right of the author of the information to a value judgment, pointed out the need to carefully distinguish between the facts and value judgments, the existence of facts can be proven, while the truth of value judgments is not always amenable to proof, the latter must be motivated, but proof of their validity is not required.
The information disputed by the plaintiff in this case is information about the plaintiff's illegal and dishonest behavior, formulated in the form of statements. The presentation of information does not indicate that the facts described in it are assumed by the author or that the author personally evaluates the plaintiff's behavior in this way. The style of presentation chosen by the author indicates the presence of the described facts in reality (the fact of underestimation of the cost of work, the fact of setting a dumping price, the fact of the incompetence of the compilers of the tender documentation, the facts of corrupt and other illegal behavior, fraud).
Under such circumstances, the conclusions of the courts about the subjective nature of the disputed information are not correct. The above facts can be checked for their correspondence to reality. This argument is confirmed by the position of the defendant himself, who proved in the framework of this case that his statements were true.
In addition, it follows from paragraph 6 of the Review that the value judgments, opinions, and beliefs contained in the disputed statements of the defendants, if they are offensive, may also be the subject of verification when considering claims for the protection of business reputation.
Information indicating the unlawful nature of the behavior of the subject is offensive in nature, therefore, even if it is presented as the subjective opinion of the author, it may be the basis for making a claim for the protection of business reputation (definition of the Supreme Court of the Russian Federation No. 309-ES16-10730).