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The possibility of using of judicial precedent and common law in the regulation of labor disputes

19 December 2016
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Authors: Tleuhabul, Abaideldinov, Berdimbetova A. Balaussa

         The possibility of using of judicial precedent and common  law in the regulation of labor disputes

         Acceptance  of the Constitution of the Republic of Kazakhstan determined the initial stage of development of the theory and practice of administrative justice.
At present, the judicial system of  Kazakhstan is under improvement. In connection with this very urgent is the theoretical understanding of the institution of state power.

         The Republic of Kazakhstan is widely spread the  idea of ​​building the society of universal labor, proposed by the President of the Republic of Kazakhstan N. Nazarbayev in his message to the people of  Kazakhstan "Social modernization of Kazakhstan: twenty steps to a society of universal labor".  In terms of the nation - "100 steps. The modern state for all "planned to be held in the country liberalization of labor relations, the development of the new Labor Code [1].
          The issues devoted to study of the judicial system in Kazakhstan were reflected in the works of a number of scientists and practical specialists-workers.  An attempt to form a conception of the judicial system of Kazakhstan due to several factors: objective and subjective. These circumstances have led to the development of a theoretical problem issues related to judicial practice in Kazakhstan.

         The relevance of the study of the problem stems from the fact that the protection of workers' rights and collective interests of the employees of enterprises and organizations is becoming increasingly important due to the problems that have accumulated over the years of reform the economy. The decline in production, mutual non-payment organizations, insufficient growth of new jobs and other negative factors of unstable economic conditions hinder the emergence of the labor market, give rise to an increase in unemployment. Many employers were not prepared for the changes that occur in the scope of work. Their desire to reduce the cost of labor is often accompanied by violation of labor rights and collective interests of workers. For its the  part  of  workers interested in improving wages and timely receipt of wages, respect for their labor rights, social security, respect and consideration of collective interests. The clash of conflicting interests of the employer and the employees or the employer violation of workers' rights often generates disagreement between them grow into labor individual and labor disputes.

         Legal reform and the associated significant changes in the legal system and legal practice of the Republic of Kazakhstan actualized the problem of the use of the legal heritage of the world and national civilization. In particular, it is possible to speak of "rehabilitation" and "legalization" of the legal system of the ancient Kazakhstan (traditional) source of  law as a common  and  accordingly such a form of law, common  law.

         Since the domestic legal system today is based mainly on the type of permissive regulation  before the courts almost could not legally apply common  rules. Now in connection with the recent partial legalization of common law legal framework of its application is largely expanded. Given the limited statutory regulation of certain spheres of social life not mention the possible contradictions and gaps in the legislation, unforgivable omission would be abandonment of other often more effective forms and methods of regulation. In addition, it is clear that the organs of justice, despite the gaps and shortcomings in the legislation should, where necessary, to take legal  essentially fair solutions [2].

         The  French scientist R. David wrote that nothing prevents the recognition along with the law and other important sources of  law  in particular the common of  "... natural and even necessary take into account the normal behavior of the people  to establish what is considered to be objective in a fair society ".

         However, bearing in mind the certain negative potential of common law of course, can not prevent   use of common rules that  contrary to reason, justice and other general principles of law. Usually considered the norm, obviously, it must be assessed by the court in terms of the law. Due to this remarkable assertion  famous Russian scientist G. Shershenevich that  "The court is required to apply the law, just as little called to ethical evaluation of common law, as well as legal norms," ​​so the usual norm, "the existence of which is installed with proper accuracy, it should fall under the court  even though contrary to the ethical views of the judges ".

          Now the legislator some extent allowed the use of conventional norms of justice practice of  Kazakhstan inevitably there is the problem of establishing and use of common norms in the jurisprudence. According to the Russian lawyer        G. Danilenko there is no need to develop a national doctrine to establish a common law which would be fundamentally different from currently accepted in international law, as it is likely to cause a lack of coordination in international jurisprudence that has accumulated enough experience in this area. We can use the appropriate international legal doctrine.

         In international jurisprudence establishing the presence of a common norm is determined primarily by careful study of the practice of international relations. When it comes to the general common rules of international law  you must study the practice of all or most of the states and other subjects of international law. When talking about regional or local standards  analyzes the practice of certain groups of states. In this regard  it is appropriate to give a characteristic statement of the International Court of Justice  that the presence of common norms established by the findings  "based on an analysis of a fairly common practice and convincing, and not on inferences derived from already existing opinion" [3].

         Under the  international law  in the case of a judicial dispute  the parties are not required to prove the existence of a common rule. I must say that the position of the International Court of Justice  on the question of the burden of proof of common rules have not always been consistent. For example, in the case concerning the right for refuge (Colombia vs. Peru, 1950), the Court proceeded from the fact that the rationale for mandatory regional common is the responsibility of the party which it is referenced. The Court took a similar position, and in a case of American citizens in Morocco (1952). This practice, which the Court, in fact, freed himself from the obligation of  knowledge of law, subjected to fair criticism of legal scholars. Later  several times Court noted in their decisions  that  "the burden of establishing or proving rules of international law can not be assigned to any of the parties, as is the right to the knowledge of the Court". Agreeing with this, G. Danilenko emphasizes that the Court "should independently investigate all existing international law regardless of the evidence that may be presented by the parties".

         In the study of State practice and other subjects of international law and the analysis of possible accounting of all documents and materials that may be evidence of common law. UN  International Law Commission in one of its reports (1950) noted that any document that shows the behavior of  States in respect of the various problems that arise in international relations it may be evidence of certain practices.

         As international common rules are fairly common they are often directly reflected in various international instruments: conventions (agreements), resolutions and other acts of international organizations, decisions of international judicial practice, primarily the Court, In addition to the study of such sources to prove elements of the practice of international relations as additional sources necessary to establish normal standards, investigates various international documents, preparatory materials (for conventions, conferences,  etc.), including the draft conventions as well as a special (scientific) literature, especially the works of reputable international lawyers [4].

         For example, the Court as a "subsidiary means for the determination of legal norms" use judicial decisions and the teachings "the most highly qualified publicists of the various nations".

         However, the analysis of written sources should be extremely careful, as written fixation common rules can not be the form of formal or informal expression "which would serve as final and indisputable evidence of their normative content and legally binding".

         This is due to the specificity of common rules, one-stage lock that can not give a "precise normative content of existing common law". In analyzing the common legal practices of a particular State  which usually determine its international legal obligations. It is possible and necessary to study all forms of manifestation of the position of the State on certain important issues of international relations. To do this we study the external and internal practices of the state. In particular the legislative and judicial practice; official statement the head of state, the government or the Ministry of Foreign Affairs, reflecting the position of the country on an international issue; official statements at international conferences and in international organizations; contractual practices; protests, the actual observance of the mutual relations with other nations certain rules of conduct [5].

         Such a thorough analysis of the practice of international relations and other sources relating to common international law, it is necessary to determine whether the basic conditions, sufficient for the emergence and functioning of any common rule. The modern doctrine and practice of international law as such criteria called  in general acceptance of certain rules of conduct and the corresponding actual behavior and in  general recognition of the legal nature of the legally binding rules.

         International legal doctrine to establish the common is now widely recognized and used for a long time in the national courts of countries recognizing the common international law. For example, the United States, like other countries of the "common law" (Anglo-Saxon legal family), traditionally take the view that common international law is part of domestic law. This position has long been reflected in the jurisprudence. For example, the US Supreme Court in the judgment in The Paquete Habana (1900) confirmed that "in the absence of the agreement applicable to the case of the executive or legislative act or judicial decision should apply to the commons and usages of civilized nations; and as evidence of this  to the work of lawyers and commentators who have become experts in their field as a result of many years of work, research and experience. Such works are used by all judicial authorities, but not as a speculation about what should be a right, as a credible evidence that is truly right ".  Already today in judgment Filartiga versus. Pena-Irala (1980), considered in the US Federal Court of Appeals Judge IR Kaufman, convinced of the validity of the approach previously installed solution The Paquete Habana, from the point of view of modern international law, having studied the relevant international instruments, the general practice of states that apply  judicial decisions and the work of scientists, lawyers, concluded that torture is now being carried out by official persons prohibited by common international law.

         In Kazakhstan  as in any other country in the Roman-Germanic legal family, the judge is subject to strict legislation and to make decisions primarily on the basis of the law. A judge can not evade this obligation in cases of uncertainty or omission ship legislation. However, he can not and formulate a new norm. In this respect the incomparable authority of the judges of England, where "the application of existing law to new circumstances never clearly different from the creation of a new rule of law [6].

         Although domestic law formally there is no provision similar to the established in Article 5 of the French Civil Code, according to which prohibited judges to adjudicate in a general order, nevertheless actually true. We believe, however, that the partial legalization of common law by the Civil Code of the Republic of Kazakhstan (General part),  December 27, 1994 and a strengthening of the role of the Court to some extent improved the situation in the republic.

         For the first time in modern legal practice in Kazakhstan common was officially  recognized as a source of law in the Fundamentals of Civil Legislation of the Soviet Union  and the republics of the May 31, 1991, where there are links to business practices as well as "international common recognized by the Soviet Union".

         The Supreme Council of the Republic of Kazakhstan a special decree "On regulation of civil relations in the period of economic reform",  30 January 1993  established  a temporary basis until the adoption of the new Civil Code.

         If you rely solely on the law, common law can now be installed the same way as a court established rules of foreign law.
As is known, pursuant to paragraph 1 of Article 5 of the Civil Code of the Republic of Kazakhstan (General part) of December 27, 1994, when provided for in paragraphs 1 and 2 of Article 1 of this Code are.  Property and related with their moral relations regulated by civil legislation are not directly regulated by legislation or agreement of the parties, and absence applicable to them commons, to such relations  as it does not contradict their essence, the rules of civil legislation regulating similar relations. In accordance with paragraph 2 of Article 5 of the Civil Code with the inability to use in these cases similar legal rights and obligations of the parties are determined on the basis of general principles and sense of civil legislation and the requirements of good faith, reasonableness and fairness.

         Returning to the issue of the establishment and application of common law itself. Common law and right in general, assumed to be known to the judge ex officio (ex officio). As a general principle of law are matters within the exclusive competence of the court, it is assumed that the latter knows, at least have to know all the legal rules relating to the case. In any case, it is necessary to proceed from the fact that the judge, as a competent, qualified lawyer  knows the rules, which should be applied in a particular case, including the applicable common rules. Therefore, in accordance with the principle of  jura novit curia (the court knows the law), the court is not entitled to oblige any of the conflicting parties to provide evidence of the presence or absence of the usual norm. This, of course, does not mean that the parties can not provide such evidence confirming or denying the existence of a particular common rule on their own initiative.

         In the case of uncertainty the usual norm judge or one of the parties involved in the case, it is necessary to  establish that is essentially the problem of establishing the right or dilemma justum et injustum - problem of distinguishing legal and not legal. As a general rule, it is necessary to prove only the facts, but not the norm, not the right.  Establishment is the question of having a common license or a question of fact? At one time in the jurisprudence of the opinion that the common law is a question of fact, so ordinary rules had to be proved by the party that referred to them, otherwise they could not be applied.  Although we believe the obvious positive answer to this question, however, should it prove, since it affects, to whom should the burden of proof.  In a number of countries in Africa are currently common law is officially classified as a point of law in connection with the normal rules formally considered mandatory for.  In particular, the justice system, set by the special procedure of proof.  However, the actual judicial practice of these countries until now dominated by former colonial method of establishing the normal rules as a matter of fact.

         According to the British doctrine of precedent, problems related to the specific question of law or fact in itself is a matter of law. As you know, in those countries where operates the jury, there is a general principle that the jurors decide questions of fact and questions of law - a professional judge. When the sole consideration of the case the judge in his decision summarizes and evaluates the evidence, he expresses his opinion on the disputed facts, analyzes the arguments of the parties, sets out the reasons which guide, conclusions  and finally read out their own solutions. The trial by jury the judge examines the circumstances of the case, turning to the jury and make a final decision based on the conclusions to which they came. It would be strange if the question of the presence or absence of a common rule jury decided. In other words, in English law the establishment and use of common rules, of course, relate to points of law.

         In general, binding legal norms, including normal, it is determined as well-known. If any of the usual rate is known to the court and the disputing parties, the court can and should treat it as any legal norm, respectively, using the deliberations. Thus, at the end of the XIX century. Official Russian courts were apply common law known to them in addition and even against the will of the parties, regardless of whether the latter knew of its existence. If the common law were not known to the court, it has been found in one of the appeals of decisions of the Senate (1891), the court is required to link the parties to "take all means at its disposal to get acquainted with him," such as "cause persons capable provide the necessary guidance on this issue ".

         French lawyer Jean Carbonier writes that in the jurisprudence of the Western countries to prove the "professional practices that are relevant to trade and labor rights" necessary to conclude "special experts." As a rule, the interested party is relevant certificate prepared by any organization (Chamber of Commerce, Association of  Entrepreneurs, unions and others) .

          Carbonier J. rightly notes that this type of evidence indisputable objective conclusion, at least in some cases it may be questioned. Therefore, it offers greater impartiality charging conducting forensic examinations similar to those skilled in the field of sociology of law. Expert sociologist, in his opinion, should, first, examine the facts of the case. The current practice in this area, and secondly, to study the public opinion in order to establish the existence of opinio juris  or opinio necessitatis.

         G. Danilenko notes that in the event of a dispute about the presence or absence of a particular common rule known application of uniform criteria would exclude arbitrary interpretation and would make an informed decision as being a common norm  and about whether it is associated a specific subject.

         The scientist, like many other international lawyers, calling two main criteria usual rules: 1) opinio necessitatis, general agreement on the need for specific actions and the corresponding behavior; 2) opinio juris, common belief in the legal obligation, the legal nature of this provision.

         Finally, common rules may be established in court, as mentioned above, as well as sometimes requires the establishment of foreign law, which the judge often does not know or ought to know. Consequently, the establishment of common rules is a matter of law. So, judge when considering any case in which is possible to use common rules should examine all available sources that could contain necessary reliable information, namely legal, business practices, legislation, court decisions in similar cases, the views authoritative legal scholars, a special (scientific) literature to be more or less clear idea of ​​the applicable common rules, qualified to evaluate the evidence submitted by the parties, the actual composition of the case and, therefore, justify own conclusions on the basis of which the decision will be made. With self-establishing the normal rules of the judge can and must apply to the mentioned and other authoritative sources of information, including experts on particular common law, involving them in case of need, as professionals (experts).

         Within the framework of the law, judges may choose to apply the normal rules and praeter legem (except law). Even if we are not talking about the use of common as an independent source of law.  As a legal basis for a decision on the merits, it is quite possible involvement of commons (common norms) for a more adequate interpretation of statutory regulations, which could greatly facilitate the "finding a fair solution". In addition, common rules may be used for the interpretation of various concepts, terms and expressions used in particular in various commercial transactions (agreements).

         Common rules contra legem (against the law) can not be taken into account by any judicial authority was provided that such a rule clearly established by law. The authorities of justice, especially in the Roman-Germanic legal family, by definition, rather severely limited in their activities. As R. David, the courts generally "do not like to speak out against the legislative power", especially where their law-making role is reduced to a minimum. It is difficult to have a situation where an official court applied to the usual norm, contrary to the law, without the express permission of the legislator. The informal court of arbitration in such a situation is more freedom, even though it is largely limited to the mandatory requirements of the legislation, at least until the legal system in the dominant type of permissive regulation.

         So, if it is  taking into account the type of permissive legal system of the Republic of Kazakhstan official courts rather rigidly connected to the activity of the legislative regulation that restricts the use of conventional legal rules, the arbitration courts, the emergence and widely spread in the country in which the development of business relations we can predict with a high probability is much more free in this sense. At least, there is no any serious circumstances that would have prevented the courts of arbitration at its discretion, are widely used, for instance, in disputes relating to commercial relations, common trade rules.

         Official recognition of regulatory decisions of the Supreme Court as a source of law, together with the laws and other legal acts (Paragraph 1 of Article 4 of the Constitution) was an important milestone and a characteristic symptom of the apparent increase in the law-making role of the judiciary of the Republic. Taking into account the acquired lawmaking powers, the Supreme Court could stimulate the use of certain conventional norms by the lower courts, and thus, the development and the broader functioning of common law in the legal system. Taking into account the predominant passivity of judges of lower courts in this case, the decisive factor could be the use of conventional norms directly by the judges of the Supreme Court of the republic, although probably not do without the publication of the normative order. In India, for example, the Supreme Court has repeatedly stated in its decisions need to ensure the rights of the parties when considering any cases to refer to practices that "can not be ignored by the courts" [7].

         Thus, allowing for the possibility and the need to establish common rules in court, it should be emphasized that this does not mean assigning common law and problems of its evidence to the issues of fact. At the same time, using the jurisprudence of the republic criteria for the validity of common rules, now recognized as a legal science and accepted in the international and foreign court practice, one should bear in mind their lack of certainty and, therefore, the need to further their development.

         In addition, we believe that the use and application of the common standards in the practice of law, and therefore, the operation of common law in the legal system of the country is largely determined by the role and significance of the judiciary. In other words, strengthening the role of the courts is likely to stimulate the growth of the importance of common law. The judiciary, especially the Supreme Court of the Republic of  Kazakhstan called and can play a main role in the integration of the national legal system in particular through a more or less organic integration of common law and the rights of the official.

 

THE LITERATURE

1. N. A. Nazarbayev " Strategy Kazakhstan - 2050":   is a new political course". Message to the  people of Kazakhstan. Astana, 2012, December  // www.akorda.kz

2. Mami K.A. "Perfect Justice system - the basis of the rule of law". The magazine  «Зангер»,  2014

3.Abdrasulov E. The judiciary and its role in law protected activities. The magazine  «Зангер»,  2014

4.The Reports of Judgments of the Supreme Court of the Republic of Kazakhstan, 2013

5.Labor Code of the  Republic of Kazakhstan: accepted on May, 15, 2007,             №251 - III (with changes and additions on the state on 04.07.2013)  // the Informative system "Paragraph", 2013. http://online.zakon.kz.

 

6.Abaydeldinov T.  Nabiyev B. International scientific conference of students and young scientists "Farabi alemi", 13-16 April 2015

7.Abaydeldinov T.  Normative legal acts of the Supreme Court of the Republic of Kazakhstan in the system of sources of labor law // Law Series. 2007. №3 (43). S.68-70.

 

Bibliography and references
1. N. A. Nazarbayev " Strategy Kazakhstan - 2050": is a new political course". Message to the people of Kazakhstan. Astana, 2012, December // www.akorda.kz 2. Mami K.A. "Perfect Justice system - the basis of the rule of law". The magazine «Зангер», 2014 3.Abdrasulov E. The judiciary and its role in law protected activities. The magazine «Зангер», 2014 4.The Reports of Judgments of the Supreme Court of the Republic of Kazakhstan, 2013 5.Labor Code of the Republic of Kazakhstan: accepted on May, 15, 2007, №251 - III (with changes and additions on the state on 04.07.2013) // the Informative system "Paragraph", 2013. http://online.zakon.kz. 6.Abaydeldinov T. Nabiyev B. International scientific conference of students and young scientists "Farabi alemi", 13-16 April 2015 7.Abaydeldinov T. Normative legal acts of the Supreme Court of the Republic of Kazakhstan in the system of sources of labor law // Law Series. 2007. №3 (43). S.68-70.

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