Judicial law-making as a way to overcome the "exceptional legal problem" in continental and general law

Abstract

The article examines issues related to the enforcement process in civil proceedings both in the field of continental and common law. In particular, the work draws attention to the fact that today a new procedural and legal reality has essentially emerged in the civil justice system of Ukraine, when the settlement of disputed relations is carried out at the expense of judicial law-making in the presence of legislative gaps.
 At the same time, the author emphasizes that although courts do not make law, but in the presence of legal inconsistency of legal norms or their uncertainty regarding disputed relations, the court is forced to resort to judicial law-making in the presence of incompleteness, vagueness or contradiction of legal norms or their absence.
 The institution of judicial law-making also has a place in the field of general (precedent) law. Unlike continental law, the basis for such a law-making process is a legal case, which is overcome at the expense of the law-making process, based on the judge's perception of justice, existing social and moral values, customs or traditions.
 The work reveals the different legal nature of judicial law-making, which is inherent in both continental and common law. In particular, the work claims that judicial law-making in continental law is based exclusively on current legislation, within which there are legislative gaps. Thus, judicial law-making in continental law will always have a local character, as it is aimed exclusively at filling local legislative gaps (vacuities), and therefore it cannot go beyond a certain field of statutory law. At the same time, judicial law-making in common law is of a general nature and is not based on statutory law, as it is aimed at overcoming a legal case during which a new legal doctrine, principle or new rule or provision is formed. For these reasons, judicial law-making in continental law will never "pass" into the sphere of common law, although in both the first and second cases, legal formulas created by judges to settle disputed relations may be of an imperative nature for law enforcement practice and those other courts.
 Thus, the presence of the institution of judicial law-making in both of these legal families gives grounds for asserting that continental and common law, albeit slowly, are beginning to converge and penetrate each other's procedural matter.