JUDICIAL LAW-MAKING AS A WAY TO OVERCOME LEGISLATIVE GAPS AND AN EXCEPTIONAL LEGAL PROBLEM IN THE LAW ENFORCEMENT PROCESS OF CIVIL JUSTICE OF UKRAINE

Abstract

The article researches and reveals the concept of “judicial law-making”, “legislative gaps” and “exceptional legal problem” in the law enforcement process of civil justice of Ukraine. It has been proven that judicial law-making aimed at overcoming legislative gaps and for these reasons is essentially a component of the concept of “exceptional legal problem”. It was determined that at the doctrinal level, “exceptional legal problem” means: a) complete or partial absence of legal norms, which makes it impossible to settle social relations that have become controversial; b) the presence of substantive inconsistency of legal norms regarding their incompleteness, vagueness or contradiction or their final archaicness and “obsolescence”. At the same time, the Grand Chamber of the Supreme Court, based on practical law enforcement practice, recognizes the concept of “exceptional legal problem” based on its quantitative and qualitative indicators, the essence of which is revealed in this work. At the same time, the author emphasizes that an exceptional legal problem arises where and when there is a meaningful presence of legislative gaps in relation to individual norms of law, which cannot be overcome at the expense of legal analogies or legal interpretation practice. At the same time, “judicial law-making” from a procedural point of view can take place only in the presence of substantive and legal grounds, which are enshrined in the procedural legislation of Ukraine in the form of the absence of incompleteness, inaccuracy or contradiction of legal norms (Part 10, Article 10 of the Code of Civil Procedure of Ukraine). From a material and legal point of view, this is the elimination of legal uncertainty regarding the content of certain legal norms or legislative gaps during the law enforcement practice of civil proceedings. The work emphasizes that the institution of “judicial law-making” is essentially the first step towards the convergence of continental and common law in Ukraine, and as a result, the foundations for the formation of a precedent model of civil justice are being laid in the civil justice system of Ukraine today. And although such trends do not yet have their clear outlines, the very legal essence of judicial law-making indicates that with the help of such a mechanism, an “exclusive legal problem” is overcome, law develops and the unity of law enforcement practice is formed.