ON THE ISSUES OF THE NATURE OF CASE LAW PRACTICE

Abstract

The article substantiates the necessity of using the joint concept of «case law practice» to overcome the differentiation of concepts «judicial practice» and «judicial precedent» in current conditions of legal development. The use of the unified term «case law practice» will help to overcome the traditional distinction, according to which the precedent is unique to common law, and judicial practice – to the civil law systems. The author discovers and analyzes the unified features of case law practice related to: the jurisdictional activity of judicial bodies; its creation in concrete court cases in conditions of legal uncertainty; its application in similar legal cases, where such legal uncertainty occurs; its contents – legal positions, which can be examples of different degree of bindingness and recommending; its forms – court decisions, which are subject to official publication; its addressees – the judicial authorities that deal with such litigation and other authorities and persons in other legal cases. Attention is drawn to the fact that complicated court cases in which various forms of legal uncertainty are identified can be solved differently by different judicial authorities. Consequently, the different solution of such complicated cases by different judicial bodies may lead to the different legal consequences in analogous court cases, to the violation of the unity of judicial practice in similar cases. Therefore, the legal position as the ground for solving a certain complicated court case should be relevant not only in this complicated case, in which the legal uncertainty was revealed and resolved, but as well in other similar complicated cases, in which the same legal uncertainty will be revealed and resolved. Therefore, in order to prevent the diversity of court decisions and to unify the court practice, the legal position as the ground for solving a complicated case should have role of an example (sample). It is substantiated that case law practice matters not only for judicial bodies in similar court cases, but as well for other authorities and individuals overcoming such legal uncertainty outside of such court cases. The author stresses that the general theoretical researches of various legal phenomena, including case law practice, should not be scholastic and speculative, but rather – aimed at solving significant applied issues of judicial practice. It goes about the research of the following aspects of case law practice ensuring mechanism: a system of legal means that facilitate the realisation of its purpose, in particular, the means of ensuring the creation and development, means of ensuring bindingness and application of case law practice, means of ensuring unity within case law practice, etc. The theoretical study of such a mechanism will promote and confirm the methodological and heuristic potential of legal theory in the current conditions of legal development.