Legal opinion of the Supreme Court as a source of judicial lawmaking

Abstract

The article reveals the modern concept of legal opinion of the Supreme Court as a source of judicial law-making. The author reviewed scientific approaches to understanding the place and role of court precedent in general and its presence in the legal system of Ukraine. It has been clarified which features of the legal position of the Supreme Court give it the properties of a judicial precedent, and also the ever-increasing importance of knowledge and use of the legal positions of the Supreme Court in the activities of all civil servants, lawyers, as well as representatives of other professions who apply the relevant norms in their work has been proven legislation.
 It has been proven that the legal opinion of the Supreme Court is the result of judicial law­making. Based on the analysis of scientific sources, the author concluded that judicial law-making in modern conditions is gaining weight, although it remains a very debatable issue. It is argued that judicial law-making should be considered in broad and narrow senses. It was found that in a broad sense, judicial law-making is the formation of conclusions by courts of all instances during the administration of justice in order to eliminate gaps in legislative regulation in the absence of a law regulating disputed legal relations. It is proved that in a narrow sense, judicial law-making is the law-making of the Supreme Court, the result of which is the formation of a judicial precedent (legal opinion).
 The author substantiates the opinion that the binding of courts during the consideration of a case by a specific way of applying the rule of law, determined in the decisions of the courts of cassation instance (court precedents) in similar legal relations, applies not only to the system of common law, but also to the states belonging to the continental systems of law. It has been proven that the binding nature of the Supreme Court's conclusions for courts of all instances should be based on the necessary balance between the independence of judges and ensuring the unity and stability of judicial practice.