| Abstrakt: |
The article reveals the modern concept of a legal opinion of the Supreme Court and substantiates the opinion that such an opinion is characterized by a significant number of signs of judicial precedent. A review of scientific approaches to understanding the place and role of court precedent in general and its presence in the legal system of Ukraine was conducted. It has been clarified which features of the legal position of the Supreme Court give it the properties of a judicial precedent, and also the ever-increasing importance of knowledge and use of the legal positions of the Supreme Court in the activities of all civil servants, lawyers, as well as representatives of other professions who apply the relevant norms in their work has been proven legislation. Based on the review of scientific concepts and approaches to understanding the concept of "judicial precedent", the author proposed an improved definition of this concept. It has been proven that a judicial precedent (stare decisis) is a legal conclusion formulated during the consideration of a specific case in the decisions of the courts of higher instance regarding the method of application of the norm of substantive or procedural law. It is argued that the judicial precedent is designed to ensure the formation of a unified approach in matters of interpretation of this norm, resolution of contradictions or gaps in legislative regulation, and is mandatory for application when courts resolve disputes in similar legal relationships. The author proved that judicial precedent is a source of judicial law-making, in the process of which a new rule of law (rule of conduct) is not created, but a mandatory method of applying the rule of law is determined, a unified approach to resolving contradictions between norms of legislative acts (overcoming conflicts) or filling gaps in legislative regulation. It is argued that a certain exception can be considered legal conclusions formed in the process of applying the analogy of law and analogy of law by the court to normalize the established gap in the legislative regulation of certain social-administrative legal relations. [ABSTRACT FROM AUTHOR] |
