stice within the framework of the European model. As a result such unsimilar are the Federal Constitutional Court of Germany, the Constitutional council of France, the Constitutional tribunal of Poland, the constitutional courts of Italy, the Russian Federation, Bulgaria, etc., from the point of view of their place and role in the state mechanism Moreover, the functional assignment of these organs differs in many respects.arguments of Kelzen for necessity of existence of the constitutional court are:
а) The condition of the constitutional law and order is the logic unity provided with the attitude to the constitution as to the supreme law;
б) The constitutional organs can participate, and participate in disputes with each other, and their acts can contradict the constitution. There should exist the element of the unique state mechanism which resolves these disputes. It should supplement the functions of the legislator (the negative legislator);
в) Protection of the rights of minority (delimitation of willfulness of the majority), and it, in its turn, is the most important pledge of stability of democracy [2] .analysis of the theory of the organic constitutionalism, the defect of the state mechanism of the modern state, allows to put forward the counterarguments against creation of the special organ of the constitutional justice:
. Allowing the court to supervise laws is opening of the way for judicial law-making (parallel creation of the constitution);
. The court should not realize in force the decisions in political space and as consequence protection of the constitution becomes weak and unsystematic (by the way, this argument simply does require inclusion as the element of the compound nature of such organ - on the hand, the political factor which would realize relations with this sphere of the state, and necessity of the complex analysis of such, substantially estimated categories as, for example authority of the special organ of the constitutional justice raquo ;, as in fact its power is based upon such components as impartiality, etc., that is the synthesis of the criteria of psychological and legal elements) .arguments based on functioning of the similar organs in the countries of Europe can be probably formulated in the following way:
. Creation of special organ of the constitutional justice can testify to disproportionate strengthening of one of the branches of the power, as the way of elimination of disorders of newly reformed or founded state mechanism (the National council of France,);
. Being politized, and the given organ is extremely declined to such tendency, levels the values ??of the democracy, capable to create disputed situations, thus, even protecting democracy, has no practical means for such protection, except its own authority (the position of the Constitutional Court of the Russian Federation in 1993);
. The existing practice of assignment testifies against democratic essence of this organ and creates opportunities for bias in its work, politization, etc. (activities of the Federal Constitutional Court of Germany) .reflection (leveling) of these arguments the special organ of the constitutional justice will not play the role of bitter, but necessary medicines for the organism of democracy. This is the task for the legislator and science of the constitutional law. It is necessary to find out and realize the ways of such reflection. Establishment of the rational place of such organ in the system of checks and balances, its valid nature, functional characteristics, optimum volume of powers, eventually, the definition of its position according to the principle of division of the powers is hardly the unique means of neutralization of artificial and organic defects of this organ. Such counteraction to the negative sides in activities of the special organ of the constitutional justice, can include in the most optimal and effective selection of the powers of this organ, namely, for the certain model of the state system; Adequate to the model of division of the powers and the mechanism of their counterbalances, the way of formation of such organ; criteria of conformity, principles of rotation and its direct structure; means from outside which are counterbalances relatively to special organ of the constitutional justice, for creation of impossible situations of its withdrawal from the constitutional field.a matter of fact, the argument of Kelzen concerning creation of the special organ of the constitutional justice (synthesis of three theories - institutional, organic, public agreement plua the own arguments of abstract character) can explain only the necessity for such organ and can suit only the American model of the constitutional justice. Concerning formation o...
