Sergey Sarbash. "The interpretation of law by highest courts should not be feared of" // 25.07.2014

Jul 25, 2014
“Theory knows such kind of interpretation as an interpretation contra legem, when a court interprets a law contrary the latter’s literal meaning. As far as I understand, this is exactly the thing which gives rise to greatest fears among positivists. In my view, it is indeed a dangerous thing, but in some cases we cannot get on without it, because the legislator may err or the law may cease conforming to new circumstances. By the way, there were cases of interpretation contra legem in the practice of the Supreme Court as well”. 

On judicial dissent: “My functional understanding of dissent in the proceedings: it is designed for the superior court which will be reviewing the decision and be able to see that the positions of judges have diverged. But there is no court above the Supreme Commercial Court, therefore a dissent in it may have significance not for courts but, rather, for the legislator. He must monitor the court practice and note that not all judges of the highest court agree with a certain rule. Perhaps, it is unclear and should be made more precise. Probably, dissents may have significance for science – for scholars who study the respective problems. They may have significance for students as an educational material. Possibly, the executive power will see in a dissent the signal about a problem and will take it into account.  But this question lost practical significance due to the circumstances of the reform that occurred: there is no such institution in the [new] Supreme Court”. (Full version)
Judge: Sarbash Sergey