Judicial practice as a result of state law-making

Abstract

In the content of the article, the author revealed the relevance of scientific knowledge of judicial practice issues as a result of the implementation of law-making by the state through the relevant authorized subjects. It was noted that the participation of the state in law-making in the modern conditions of legal development in Ukraine is the subject of many discussions and discussions on the part of representatives of legal doctrine. However, the most controversial and ambiguous result of scientific research remains the question of the law-making role of judicial practice, the subject of which is generated exclusively by the subjects of the judicial system. The participation of the state in the formation and approval of the results of judicial practice is absolute and without alternatives, such powers cannot be delegated and cannot be waived. And therefore, this indicates the exclusive monopoly of the state on the formation of judicial practice, granting it a law-making status, ensuring its renewal and monitoring its implementation. In connection with this, in the cognitive plan, the question of the peculiarities of judicial practice as a law-making phenomenon, in the context of balancing the participation of the state and civil society in the mechanism of modern law-making, is relevant. Based on the analysis of scientists' views on the issue of state participation in the generation of judicial practice, it was concluded that judicial practice is defined by its multifaceted nature and can be defined as: 1) a means of identifying deficiencies in legal regulation; 2) a law-making means of overcoming gaps in the legislation; 3) a means of generalizing the law-making influence on social relations; 4) a means of creating law-making proposals to improve the provisions of the current legislation; 5) a means of interpreting legal norms, which is carried out by realizing and clarifying the law­making intention, which is embedded in the content of the provisions of the legislation, and explaining it to the subjects of the law; 6) a means of law-making control, which provides, during the consideration of a court case, a check of the current legal norms for their compliance with the norms established by the Constitution, norms of international law or norms established by law­making acts of higher legal force, as well as for compliance with the rules of temporal and spatial effect of legal norms; 7) a means of law-making initiative, according to which judicial practice is considered as a special means of developing law­making proposals and initiating their consideration by competent bodies.