PROBLEM OF THE JUDICIAL RULEMAKING IN THE CONTEXT OF LEGISLATIVE REGULATION OF THE JUDICIAL BRANCH ACTIVITY IN UKRAINE

Abstract

Abstract. The article deals with the problem of judicial rulemaking in the context of the power-sharing principle as well as legislative regulation of judicial branch activity in Ukraine. The author analyzes the provisions of the Constitution of Ukraine as well as of legislative acts, particularly the Law of Ukraine On Judiciary and the Status of Judges in the context of determination of the category of “justice” that describes the conceptual task of the judiciary branch. Also the provisions of the Civil Procedural Code of Ukraine as well as of the Economic Procedural Code of Ukraine are researched in the key of defining the content of the category “dispute resolution”, “trial and resolution of the case” and “judiciary” in order to define the functional features of the judicial branch activity in Ukraine. Particular attention is paid to the analysis of the provisions of the Law of Ukraine On Lawmaking Activity as a legislative act determining the juridical and organizational fundamentals of lawmaking activity, principles and order of it realization. It is concluded that a serious attempt has been made by legislative provisions of Ukraine to empower court only by the function of rule-enforcement. But at the same time the “rulemaking” power of court neither sanctioned clearly by the law, nor prohibit or either disproved by them. The judiciary activity itself which as a general rule deals with “execution of justice” is currently defined through the form of such activity i.e. “judiciary” which content are disclosed by the procedural codes provisions. Consequently from the point of view of abovementioned problem resolution according to legislative provisions the case is that the conceptual provisions of the Constitution of Ukraine as well as of the Law of Ukraine On Judiciary and the Status of Judges (that is the basic act for the determination of legal status of the court and establishment of the juridical nature of judicial activity) do not define neither the essence of “justice” (judiciary) nor the complete mechanism or comprehensive instruments of judiciary power execution. At the same time these provisions does not prohibit clearly the possibility of judiciary branch to exercise certain forms of rule-making activity in aspect of its versatility and wide range of such an activity.