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Механизм сдержек и противовесов как способ предупреждения и разрешения конституционно-правовых конфликтов: сравнительно-правовой аспект
The subject. The paper is devoted to legal analysis of category “checks and
balances” in the scope of constitutional legal coercion.
The purpose of the paper is to confirm or disprove hypothesis that mechanism
of checks and balances is a method of prevention and resolution of
constitutional conflicts.
The methodology of the study includes comparative legal method as well as
general scientific methods (analysis, synthesis, description) and particular
academic legal methods (formal-legal method, interpretation of legal acts).
The main results and scope of their application. While the Russian legal tradition
focused on the search for optimal "checks" and "balances" as well as defended
the theoretical model of formalism in this matter, the English legal tradition, on
the contrary, focused on finding the optimal functional balance of all branches
of government. The system of checks and balances serves the purpose of
resolving constitutional and legal conflicts, when it is based on a functional
approach rather than a formal one. The factors of “checks and balances”
mechanism are:
– formation of the three branches of government in different ways;
– comparability of powers of the Supreme authorities belonging to various
branches of the powers with discrepancy of terms of their powers;
– authorities of every branch of government must have "counterbalance" – the
powers of compensatory, substituting type – besides it’s traditional powers. The
executive and legislative authorities have "quasi-judicial" powers, the executive
authorities have "quasi-legislative" powers often.
– authorities of every branch of government must have "checks" – possibility to
participate in the mechanism of constitutional and legal coercion in relation to
another branch of the power.
The executive branch can prevent a constitutional conflict generated by a gap or
defect of laws through delegated law-making. The executive branch receives
"quasi-legislative" powers with delegated law-making. It allows this authorities
not only to respond promptly to changing public relations, but also to fill
legislative gaps in a timely manner. This "counter-balance" is aimed at
preventing constitutional and legal conflicts.
Conclusions. The mechanism of checks and balances, which is based on the
principle of separation of powers, is the primary way to prevent constitutional
and legal conflicts, and also serves the purpose of resolving conflicts that have
already arisen. The main manifestations of this function are the presence of
compensatory and substitutive powers of various branches of government and
the possibility of one branch of government to participate in the mechanism of
constitutional and legal coercion in relation to another branch of government.