Fonte: Revista Turismo Estudos e Práticas - RTEP/UERN; No. 01 (2021): Caderno Suplementar 01; 1-6
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Resumo: The objective of the article is to find optimal ways to develop the judicial interpretation of legal norms as a form of application (explanation) by courts of norms of current legislation. Justice is one of the most important security functions of the judicial power system in Russia and, according to the Constitution of the Russian Federation, is exercised in civil, administrative, criminal, and constitutional court proceedings. The inevitability of the existence of the judicial lawmaking institution implies the necessity to adjust the understanding of the principle of the separation of powers so that the lawmaking function is distributed among the legislative, executive, and judicial branches of power. The leading method of studying the problem is deductive, which allows studying the legal nature of the judicial interpretation of legal norms. The article concludes that the existence of discretion in the legal system is conditioned by several objective factors. These factors include the objective impossibility of regulation by the general norm of all individual legal relations; the existence of evaluative concepts, dispositive, and peremptory legal norms containing relatively certain or alternative sanctions; the existence of open legal lists, gaps in the law, and collisions of legislation. The thesis is argued that it is impossible to level out by subjective preferences one of such objective phenomena of legal regulation as legitimacy and law enforcement discretion. At the same time, legitimacy is a phenomenon of a higher order. In a sustainable democratic legal system, law enforcement discretion can function only in terms of legitimacy.
