Anti-montescie principle in the system of separation of state power in Ukraine

Abstract

The legal construction of the system of the check and balances, as well as the characteristic features of its determination in the Ukrainian Constitution, and the implementation mechanism in law-enforcement acts are studied in the article based on the results of the systematic monitoring of the legal reality by using several modern methods of the scientific knowledge of social phenomena and, in particular, methods of comparative analysis and reflection. Employing this approach, the author has determined the imperfection of the implementation of the constitutional provisions of this system to identify the causes and nature of the imbalance in the structure of the state mechanism and the functions of its particular elements. The reason for the separation of the judiciary from the system of checks and balances is underlined in this article. Besides, the author has examined the special place of the judiciary, alongside it’s rise above other state bodies and the factors that have caused the constitutional crisis in Ukraine and the confrontation between the Constitutional Court and other state bodies and civil society. The peculiarity of the appointment mechanism of judges of the Constitutional Court of Ukraine, the reasons for possible political dependence of judges is examined as well. The European and American constitutional control systems are compared, attention is focused on different legal concepts of understanding the constitutional control, the practice of constitutional justice. A legal mechanism for overcoming the constitutional crisis and reforming the Constitutional Court of Ukraine is offered in the article. Proposals are made for the legal improvement of the legal structure of the system of checks and balances based on the transition to the American system of constitutional control. Key words: constitutional crisis, Constitutional Court, state mechanism, system of constitutional control, system of checks and balances, political dependence of judges, principle of separation of powers, state body.