On the issue of judicial law-making in civil proceedings

Abstract

The article studies the institution of judicial law-making and its connection with the institution of legislative gaps in the historical and legal context of the development of civil justice. Along with this, the grounds for the emergence of legislative gaps, their types and ways to overcome them during the law enforcement practice of general courts are determined. The authors conduct a comparative analysis of the features of continental and common law in the field of both legislative gaps and their overcoming through judicial lawmaking. At the same time, attention is drawn to the fact that the courts do not have the right to deny a person justice on the grounds of the absence, incompleteness, vagueness or inconsistency of the rules of law, which is a key provision directed towards judicial lawmaking. In this part, the authors pay attention to the judicial law-making of the Grand Chamber of the Supreme Court and the imperativeness of its legal positions, which develop law in our state. At the same time, the paper notes that European countries, including Ukraine, are gradually approaching convergence justice, where the rules of law are widely applied, but along with this, the courts are not deprived of the right to judicial lawmaking. In particular, in countries such as Germany, the courts are even obliged to legislate when necessary. Therefore, judicial law-making is not an unlimited concept. It can always take place only where there are legislative gaps on the one hand, and on the other, where there is a dispute about the law, since it is precisely when such a dispute is settled by the rules of law that all the shortcomings of the legislation appear, such as vagueness, inconsistency or incompleteness, otherwise and the lack of rules by which the court could resolve disputed relations.