UNIFICATION OF PROCEDURAL LEGISLATION IN THE FIELD OF JUDICIAL LAWMAKING AND ITS BOUNDARIES

Abstract

The article analyzes the features of unification of procedural legislation in the field of judicial lawmaking and itsboundaries in terms of civil, administrative and commercial law in Ukraine.The author argues that judicial lawmaking is a natural pattern, because the legislator will never be able to reacha level of legislation at which there would be on the one hand absolute unambiguity of law, and on the other suchlegislation would be unchanged, stable. Since judicial lawmaking as a legal category is not linear, not systemic, itcan take place only when there are legislative gaps (cracks) on the one hand and the impossibility of overcomingthem by legal analogies – on the other. At the same time, such law-making is binding on the court, although it doesnot depend on the will of the legislator, as such a will is not enshrined in procedural law. It is an unconditionalfact that judicial lawmaking is characteristic of common law, but its penetration into the scope of continental lawgradually leads to the convergence of these legal systems and their traditions.Acceleration of this process in the field of convergence of the two legal systems is caused on the one hand bythe rapid development of social relations and the lag of the legislative process from the realities of public life and onthese grounds excessive aging of current legislation, and on the other – the presence of legislative omissions due tostylistic errors relations, about which the legislator, adopting this or that legislation, simply could not know. Judiciallaw-making is the last limit where legislative gaps (gaps) are overcome by forming a certain legal formula forthe purpose of the most accurate legal qualification of disputable relations, when it is impossible to apply a certaintype of legal analogies. Of course, judicial lawmaking is not an indulgence of the court to create grounds for a biased trial. This is a separate procedural category, which takes place only where and when there is a need to overcomelegislative gaps (gaps) or there is a certain legislative incompleteness, controversy or stylistic or legal uncertainty.