Ostapovich I.Y. «Positive» Rule-Making in Practice of Bodies of the Constitutional Control of Russia and Foreign Countries

Abstract: The legislation and the doctrine of the Russian Federation and foreign countries in the field of "positive" rule-making carried out by bodies of the constitutional control is analyzed in the article. The role of body of the constitutional control as "positive" legislator isn't provided (Austria) in a number of the countries. It is noted that the Islamic states differ in specifics in the considered sphere. Regulations on the Constitutional court of Croatia, Romania, Serbia are interesting for analysis. Except everything in article features of legal regulation of the constitutional control in the Asian states on the example of which it is possible to see or reception of the Austrian model (with categorical denial of a role of judicial precedent, for example in Uzbekistan, Tajikistan), or practical restriction of powers with questions of discharge from a position of the highest officials (Mongolia, Taiwan) or in general total absence of special body as that with assignment of control functions on regulatory authority (China, Vietnam, Turkmenistan) are analyzed. The comparative and legal method, and also a method of the system analysis of the legislation are used for disclosure of the designated problem at research. Complex analysis of the designated problem is investigated for the first time. The analysis of the Russian and foreign experience of "positive" rule-making in practice of bodies of the constitutional control allows to draw the following conclusions. The body of the constitutional control can carry out function of the "negative" legislator, "positive" legislator, and in his activity these beginnings can equally mix up in Russia. In the majority of the countries where judicial constitutional control is used, courts don't act as the "positive" legislator though the relevant decision which the provision of the law is recognized contradicting the Constitution, becomes obligatory. The decision can be applied further by consideration of similar business, but doesn't substitute for itself the law. Activity of the "positive" legislator is carried out restrictedly and as a rule as a result of preliminary constitutional control in the countries with quasi-judicial authorities of the constitutional control function.

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