Gaps in the criminal procedure legislation, caused by the recognition of norms unconstitutional
( Pp. 96-99)

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Maltseva Angelina Anatolyevna aspirantka. Podrazdelenie: kafedra ugolovnogo processa.
Ural state law Academy
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Abstract:
Gaps in the law and in the criminal procedure, in particular, may be caused by a number of objective and subjective reasons. One of such reasons can be a situation, when the functioning of the rule of law is recognized unconstitutional. A question arises: can the constitutional Court, in its practice, recognizing the unconstitutionality of the norm, offers the decision of the arisen gap? On the basis of the analysis of a specific resolution, you can make a conclusion that the constitutional Court has proposed temporarily solve the existing gap concerning the deadline for the submission of the complaint. The article discusses several options which applies to the nature of such decision: to consider as the legislative activities, the analogy of the law or the analogy of the statute. The question of the law-making activities of the constitutional Court in science remains controversial and meets a negative assessment. Using the analogy of the statute in this case it is also questionable, because when making the decision, the Court disregarded the rule of inadmissibility of the application by analogy of the dead law. It seems to be more faithful to evaluate the resolution of a gap like the use of analogy of law that is the appeal to the General principles of law. Touched upon the problem is relevant in the present time, as legislative bodies are not in a hurry to make appropriate changes in recognized as unconstitutional the norms, which raises issues of the law enforcement bodies.
How to Cite:
Maltseva A.A., (2013), GAPS IN THE CRIMINAL PROCEDURE LEGISLATION, CAUSED BY THE RECOGNITION OF NORMS UNCONSTITUTIONAL. Business in Law, 1 => 96-99.
Reference list:
Zor kin V.D. Pretsedentnyy kharakter resheniy Konstitutsionnogo Suda Rossiyskoy Federatsii // ZHurnal rossiyskogo prava.2004. № 12.
Lazarev L.V. Pravovye pozitsii Konstitutsionnogo Suda Rossii. M., 2008.
Nersesyants V.S. Sud ne zakonodatel stvuet i ne upravlyaet, a primenyaet pravo (o pravoprimenitel noy prirode sudebnykh aktov) // Sudebnaya praktika kak istochnik prava. M., 1997.
Problemy obshchey teorii prava i gosudarstva / Pod red. V.S. Nersesyantsa. M., 2002. S. 472.
Keywords:
The Constitutional Court, criminal procedure law, a gap in the law, the analogy of law, analogy of the law, lawmaking.


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