Invalidation of Non-Compliant Legislation Acts (Comparative Legal Analysis)
The work is devoted to the study of the universal method of protection of rights, carried out when the court recognize acts of state bodies or local representative or executive body that do not comply with the legislation invalid. Theoretical and practical problems connected with the use of this method in the protection of private or public rights are disclosed. The author notes that the opinions of previous and modern researchers regarding the expediency, universality, and effectiveness of the considered methods of protection of rights are divided. Some researchers assume that considered method of protection of rights is harmful in those cases when it excludes the possibility of using other methods of protection of rights, the second ones recognize contradiction to the mechanism of “separation of power”, some find it useful in the system of protection of rights, and some compare it with the institute of judicial control. Judicial decisions from the bank of judicial acts of the Republic of Kazakhstan in cases of challenging the legality of normative legal acts, the results of summarizing judicial practice of the courts in this category of cases for 2015, as well as statistical data on the consideration of such cases by local courts for 2016-2017 show that that this method is almost never used. At the same time, it was noted that the lack of statistics on cases of challenging the legality of legal acts, on the one hand, creates difficulty in identifying the effectiveness of rules protecting the rights of the court, and on the other, confirms the lack of access to information about the activities of courts in the Republic of Kazakhstan. The author draws attention to several circumstances that impede the implementation of the protection of rights in court by these means. Firstly, the absence of a separate form of legal proceedings applicable to cases arising from public relations. Secondly, the lack of special procedures for challenging the legality or validity of legal acts in the form of judicial nullification. Thirdly, the lack of a formed system of administrative justice. Fourthly, the lack of administrative-procedural forms of protection in court. Fifth, the absence of specialized administrative courts, whose competence includes the consideration and resolution of disputes from the category of public law. Sixth, the absence in the activities of courts of governing normative decisions explaining the procedural order challenging the legality or validity of legal acts.