DEVELOPMENT OF JUDICIAL PRACTICE AS SOURCES OF RIGHTS IN UKRAINE AND PROSPECTS OF APPLICATION IN CIVIL PROCESS
Journal Title: «Приватне та публічне право» - Year 2018, Vol 2, Issue
Abstract
The article is devoted to the definition of the concept of judicial practice, in particular, in the context of its application as a source of law in Ukraine. Possible forms of expression of judicial practice are considered, functions and contents of each of them are determined. In the article, on the basis of a comprehensive study of scientific literature, the role of the judicial practice of the Supreme Court of Ukraine and the Constitutional Court of Ukraine as the higher bodies of the court fee is determined and analyzed. The article presents an analysis of the current state of development of judicial practice in Ukraine, taking into account the features of the national legal system. The proposed study highlights the importance of the participation of the judicial branch in the development of lawmaking, which contributes to the more comprehensive and comprehensive provision of the necessary volume of normative acts that regulate social relations, in particular civilian. The emphasis is also placed on the fact that the most motivated court decisions are the primary and main source for improving domestic lawmaking. The theoretical approach to the concept of “judicial practice” is elucidated and it is determined that this is a legal provision of the jurisdictional bodies that specify the norms of law. The article classifies judicial practice, formed in the course of civil cases, and a set of decisions of courts of various instances for consideration of specific civil cases and the application of the rules of substantive and procedural law; a decision of the courts of higher instances with the definition of ambiguous positions regarding the application of the rules of law; a decision of the courts of higher authorities, which is a form of interpretation of the rules of law and is mandatory for lower courts; specific acts of higher courts, clarifying the application of the norms of the current legislation. Also, an analysis of the activities of domestic judicial institutions, which, in the form of their activities and the sphere of influence of their acts, are the bodies that form judicial practice in Ukraine. In particular, the role of the Plenum of the Supreme Court of Ukraine, as an institution, is being studied, which ensures the formation of a unified approach to the application of the norms of material and procedural law in civil legal relations. The attention was paid to the fact that the work of the Supreme Court provides for the possibility of a fair solution to conflicts and overcoming the gaps in law. The specifics of the activity of the Constitutional Court of Ukraine – as the body that carries out an official interpretation of the Constitution and laws of Ukraine – are investigated. The article outlines an ambiguous approach to determining the legal force of acts of the Constitutional Court of Ukraine and the question of the possibility of extending the range of subjects of legislative initiative. Separately analyzed the role of the European Court of Human Rights judgments in the formation of domestic judicial practice, the special case-law nature of the Court’s decisions, which is atypical for the domestic legal system, is indicated, but effective in fair regulation of social relations, overcoming of gaps in law. The priorities for further possible application of judicial practice as a source of law in Ukraine as a whole, as well as in civil justice in particular, are determined.
Authors and Affiliations
Л. О. Самілик, О. О. Овдієнко
Keywords
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