РОЛЬ І ЗНАЧЕННЯ СУДОВОГО ПРЕЦЕДЕНТУ В СИСТЕМІ ДЖЕРЕЛ ПРАВА

Abstract

The article explores the concepts of sources of law and their main types. The source of law means the way of external influence of legal norms, which certifies their binding nature. The concepts and place of judicial precedent in the system of sources of law are defined. It is noted that judicial precedent should be understood as a court decision rendered in a particular case and entered into force, and which is the basis for resolving similar cases by other bodies. As part of the integration process in Europe, two important judicial bodies have been formed – the European Court of Human Rights (hereinafter – the ECtHR) and the Court of Justice. Each of these courts plays an important role in the rule-making process within its competence. The ECtHR's function is not limited to dealing with specific complaints. Its decisions also provide a comprehensive interpretation of the main provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. As a result, they acquire a special significance that is precedent-setting. Therefore, the application of the case law of the ECtHR is considered as a source of law. It is also noted that EU courts play a role in the development of the rule-making process within the EU. They interpret the main provisions of the founding treaties and other regulations and formulate autonomous concepts and concepts that complement and clarify the provisions of regulations and implement new fundamentally important for the development of integration law provisions. Recognition of judicial precedent as a source of law means that judicial bodies perform not only a jurisdictional function (resolving conflicts on the basis of law), but also law-making. This function increases the role and importance of the judiciary in the mechanism of checks and balances of abuse of state power.