CORRELATION BETWEEN THE CONCEPTS OF “JUDICIAL PRECEDENT” AND “JUDICIAL PRACTICE”: THEORETICAL AND LEGAL ASPECTS

Abstract

The article carries out a theoretical and legal research of the correlation of concepts “judicial precedent” and “judicial practice” as sources of law in the legal system of Ukraine. In particular, concepts such as “judicial precedent”, which is a decision made by a higher judicial body in a particular case and is binding on other courts when considering a similar category of cases, are studied and “judicial practice”, which is the practical activity of judicial bodies to make only those decisions that contain legal provisions and has a secondary nature, as it is based on the principle of the rule of law. In addition, aspects of the correlation of concepts of “judicial practice” and “judicial precedent” are identified. In particular, the ratio of these concepts can be considered as the ratio of general and specific. After all, judicial precedent is a kind of legal provisions that arise as a result of judicial practice, which is directly aimed at bridging gaps in legislation. Judicial precedent is not enshrined in Ukraine as a source of law, but its existence in the national legal system can be said. First of all, judicial precedent in Ukraine is in fact a precedent-interpretation (one of the types of precedent, which is distinguished in the theory of law), which develops and details the provisions of legislative acts, interprets the contradictory content of legal norms, and thus gives the law a convincing character. approach to the application of legislation. Judicial practice, as a kind of legal practice, has a certain feature – the ability to regulate public relations faster than a legislative act, as the adoption of a legislative act requires a procedure that takes some time. The main task of judicial practice is to resolve the conflict in accordance with the principle of the rule of law and to provide protection to those rights for which there is no legislative regulation. The article focuses on the peculiarities of the existence of judicial precedent in Ukraine. In particular, it is noted that judicial lawmaking can be observed in the activities of the Constitutional Court of Ukraine. Given Ukraine's integration into the European Union, the issue of adapting not only Ukrainian legislation but also judicial practice to European law is becoming relevant. The application of the case law of the European Court of Human Rights at the national level is becoming important.