Судова реформа у контексті верховенства права

Abstract

In the article the issues of the reform of the domestic judicial system, the acquisition of its necessary and sufficient characteristics of the judiciary, – first of all, the independence, legality and legitimacy, are researched. The judicial branch is regarded as a separate branch of state power that has the exclusive right to administer justice in the state, the independence and effectiveness of which are essential conditions for the rule of law and the guaranteeing of human rights in a civilized, democratic society. The way of building such an authority is the reflection of the main features and peculiarities of Ukraine’s path to the European civilization and its universal values. It is emphasized on the examples of the formation of the U. S. judicial system and constitutional justice in Western Europe the relevance and significance of classical doctrines of the judiciary, the need for their consideration in the domestic practice. The basic conditions of the judges’ independence and the principles of their ethical conduct, enshrined in the international documents and practice of the ECHR, are revealed. Judicial practice is defined as a set of practical activities of judges in the administration of justice, the meaningful and accumulated due to its consequences experience of judgments in certain categories of court cases, the results of analysis and the generalization of this experience. In the light of judicial reform, the relevant scientific problem of recognition by the domestic judicial practice of lawmaking function is considered. Under the judicial lawmaking in the face of the Romano-Germanic law refers to the activity of the courts: 1) in judicial decision making, in which by the interpretation a new meaning to some legal norms is given (the creation of so-called «interpreting precedents»); 2) in the actual cancellation of the current normative legal acts or their parts by declaring them unconstitutional or illegal (so-called «negative lawmaking»). A real reform of the judicial system, the implementation of democratic principles of the judiciary, is defined as a prerequisite for the rule of law in Ukraine.