Open AccessDetermination of the judicial precedent in the system of sources of Ukrainian law
Author(s) -
Liudmyla Nikolenko
Publication year - 2021
Publication title -
vìsnik nacìonalʹnogo tehnìčnogo unìversitetu ukraïni «kiïvsʹkij polìtehnìčnij ìnstitut». polìtologìâ, socìologìâ, pravo
Language(s) - English
Resource type - Journals
eISSN - 2706-5626
pISSN - 2308-5053
DOI - 10.20535/2308-5053.2021.3(51).246464
Subject(s) - law , political science , legislation , ukrainian , supreme court , common law , normative , judicial review , philosophy , linguistics
The article analyzes and determines the place of judicial precedent in the system of sources of Ukrainian law. The relationship between judicial precedent and case law is analyzed. It was found that the precedent gives the court decision on a particular case of a normative nature, determining the legal position of the judge is mandatory when considering similar cases. It is proved that this feature distinguishes precedent from judicial practice, which is understood as a set of court decisions on specific legal issues. It is determined that the principle of unity of judicial practice is not absolute, as the Supreme Court is endowed with procedural legislation in the prescribed manner to deviate from the previously formed legal position. The establishment of any restrictions will have a negative impact on the development of procedural law and judicial practice, will exclude the possibility of progressive development of law and social relations. The activity of the Supreme Court as the highest body of the judiciary with the functions of ensuring the uniform application of legislation and ensuring the unity of judicial practice, the acts of which are of paramount importance, is analyzed. It has been proved that the introduction of the “exemplary case” and “typical case” institutes is a step towards the recognition of judicial precedent in Ukraine and the unification in the legal system of our state of features and peculiarities of both legal families, Anglo-Saxon and Romano-Germanic. The position of scholars who refer the decisions of the Constitutional Court of Ukraine to “quasi-precedents” is supported. It is noted that European Court of Human Rights judgments are used as precedents for Ukrainian courts to apply in their own cases. It is concluded that given the positive impact of precedent on court cases, as well as in general on the regulation of public relations and overcoming gaps in the legislation, it is necessary to implement it at the legislative level as an official source of law.