Influence of the theory and practice on criminal procedure law

Do legal theories or practice of application exert a greater influence on the form and content of a law? When considering the development of domestic legislation (including criminal procedure), for the last three decades, we can have an impression that the answer lies on the surface - it is the theory. One of inter - branch problems of modern law that appeared at the beginning of judicial reform after 1991, is the question of ways of collecting evidence in a pre-trial procedure, at a more private level, about the use of results of the operative search activity (OSA) in criminal procedure proof. A theoretical concept about the impossibility to use the results of operative search activity as evidence was formulated during the Soviet period. The circumstance that the data received during operative search activity fail to meet the characteristic of admissibility formed the basis for such approach. The Code of Criminal Procedure in its Article 74 does not contain the direct instruction on such source of obtaining evidence as the (results) of operative search activity, and does not establish the order of their collecting. When solving the problem of using the results of operative search activity (operative search events) in proof we should remember about the importance of the theory connected with the ways of collecting evidence to which the main means - investigative actions is referred. Some years ago the idea of enshrining standard regulation of non-public ways for collecting evidence into the Criminal Procedure Code and giving them the status of procedural actions was proposed as one of the ways for solving the problem of use of operative search activity results in proving. Another way is also possible. Which one? To return to the doctrine that evidence is the result of court activity. The results of investigation by administrative bodies are not evidence. The results of actions of the investigator and inquiry officer can be admitted as evidence after their research and assessment by the court and if they were obtained in the course of a pre-trial procedure based on judgment. The Court will be the only subject the activity of which results in evidence. Legal regulation in the form of Item 3, Article 240 of the Criminal Procedure Code of the Russian Federation is insufficient for the formation of such interpretation of the law of and legal regulation. It is necessary to maintain the Court in Part1, Article 74 of the Criminal Procedure Code of the Russian Federation etc. as the subject of proving.

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