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Доступная роскошь и правовые талисманы: о конституционном измерении внесудебной юрисдикции. К юбилею Т.Г. Морщаковой
The active introduction and spread of various non-judicial forms of resolving legal conflicts and confirming
rights raises the fundamental question of whether it is permissible to exclude certain cases
from judicial jurisdiction and transfer them to non-judicial jurisdiction. Over the past forty years,
Russian legal system has gone from recognizing the competence of courts on a residual basis («except
in cases where the resolution of disputes is assigned by law to administrative or other bodies»)
to denying the very possibility of excluding any cases from the jurisdiction of courts, and finally to
recognizing the inevitability of the coexistence and coordination of judicial and extrajudicial procedures.
Today, not only arbitration tribunals, but also tax authorities, notaries, and various administrative
institutions make decisions that have a direct impact on the relations between individuals
and the state. This is justified from a socio-economic perspective — courts cannot and should not
consider millions of similar cases, the number of which is growing, and even the increase in state
duties and the introduction of modern technologies are not able to seriously relieve the judicial system.
But where is the constitutional divide between a court and non-court? What do we understand
by justice, a dispute that requires specifically judicial resolution? The author analyzes constitutional
provisions, the practice of higher courts, foreign and historical experience, and theoretical works.
He refers to the concepts of separation of powers, judicial decision-making and right to fair trial in
their universal and domestic interpretations to demonstrate that the relevant problem is acute not
only in Russia, but worldwide. Based on the views of professor Tamara Morshchakova — the prominent
jurist, whose anniversary the article is dedicated to, he concludes that the Constitution provides
ample room for the introduction and development of extrajudicial procedures for the final resolution
of civil and economic disputes, with the exception of cases that involve not just the application of the
law to a factual situation, the forcible seizure of property, or a response to an offense, but the individualized
protection of rights and freedoms, and as a result, require consideration by an institution
that is independent in constitutional sense of any executive or legislative authority — a court.