The court as a subject of judicial law-making in the civil justice system of Ukraine

Abstract

The practice of scientific research in the field of civil procedural law shows that scientists quite often direct their research to substantive procedural legal institutions, paying little attention to the seemingly invisible work of judges, who perform not only organizational functions aimed at researching evidence and evaluating it, but also engage in law enforcement activities with the aim of achieving accuracy in the regulation of disputed relations by legal norms. This question is one of the most important and at the same time the most difficult in justice. This work is dedicated to this issue. Today, the law enforcement practice of courts of general jurisdiction more and more often goes beyond the mechanical enforcement of legal norms, which has always been characteristic of the positivist theory of law. Continental law, which is based on this theory, presupposes, and hence the stability of statutory law, which covers all legislative acts without exception. Such stability was observed in Europe from the 18th century to the end of the first half of the 20th century. Since that time, social relations caused by the rapid development of science, technology, information technologies, globalization of the economy, migration processes began to significantly outpace the law-making capabilities of the legislator, who objectively does not have time to regulate more and more new relations that arise in society every day. Thus, justice both in European countries and in our country is more and more often faced with the fact that certain social relations are not regulated by legal norms or are regulated incompletely, vaguely or inconsistently. This means that a number of legislative acts have some or other legislative gaps, which the legislator has no real opportunity to promptly eliminate. Thus, law enforcement courts begin to resort to judicial law-making, thereby overcoming existing legislative gaps.The article examines the mechanism of legal interpretation and the peculiarities of establishing legal analogies, during which a certain level of legal novelty occurs in such processes, which characterizes judicial law-making from the point of view of judicial practice.