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Gavrilova Yu.A. The Features of the Specification of the Law and Legal Qualification in the Process of Constitutional Judicial Control

DOI: https://doi.org/10.15688/lc.jvolsu.2019.1.6

Yuliya A. Gavrilova, Candidate of Sciences (Jurisprudence), Associate Professor, Department of Theory and History of Law and State, Volgograd State University, Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. https://orcid.org/0000-0002-8055-4710


Introduction: the article deals with the problem of the interaction of specifying the law and legal qualifications in the process of the activities of the Constitutional Court of the Russian Federation. This problem has not been studied deeply in Russian law. Meanwhile, it is of significant theoretical and practical importance for the development of legislation and forecasting the main trends in legal practice. The purpose of the study is to determine the peculiarities of the concepts “specification of law” and “legal qualification” in constitutional judicial proceedings. The objectives of the study are to highlight the main features and the role of law specification, to characterize the nature and provide examples of legal qualification in the procedure of abstract judicial control. Methods: the article uses formal legal, concrete sociological and comparative legal research methods. Results: the specification of law has a multifunctional target character in the process of constitutional judicial proceedings and can be meaningpreserving, meaning-changing and meaning-creating according to the criterion of orientation towards the knowledge of the meaning of law. This shows its universal nature for the legal system, which distinguishes it from its specification in lawmaking and law enforcement. An essential feature of the constitutional- judicial specification of the law is also an orientation towards the constitutionalization of law enforcement practice. The legal qualification has a multistage character in constitutional justice. At the first stage a standard pattern of legal assessment of the facts is created, which has a precedent character and is based on taking into account the reception of an analogy, as well as expressing a certain degree of discretion of judges. At subsequent stages, a specific legal assessment of circumstances is carried out, taking into account / without taking into account the standard option, and depending on the specifics of the considered situation the gaps, uncertainty, inconsistency of legal norms may be established. Conclusions: the author formulates the conclusion that the considered methods of specification of law and legal qualification are interrelated in the process of abstract constitutional control within the concept of meaningmaking, the use of which as a Russian term is preferred in domestic law.

Key words: constitutional judicial control, interpretation, specification, legal qualification, meaning-making.

Citation. Gavrilova Yu.A. The Features of the Specification of the Law and Legal Qualification in the Process of Constitutional Judicial Control. Legal Concept, 2019, vol. 18, no. 1, pp. 49-56. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2019.1.6

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