The principle of bona fides: from the doctrine of Roman law to national justice

Abstract

The article examines the essence of the principle of bona fides, formed by the doctrine of Roman law, reveals its essence and analyzes the expediency of applying bona fides in the process of national justice. It is clarified that the principle of bona fides was the flagship in Roman law, but in the national legal system it is only an auxiliary principle. It was determined that the practical essence of bona fides in the judicial proceedings of the Roman legal system was that the judge, deciding this or that dispute, had the right to depart from the normative prescription if it contradicted bona fides, and decide the court case not «according to the law», but according to conscience, i. e. fairly. It was concluded that the Supreme Court, as the highest court in the judicial system of Ukraine, should have the exclusive right to apply bona fides when deciding court cases in the above-mentioned legal disputes, which enables it to use bona fides as the main, not auxiliary, source of law when deciding legal disputes. which is consistent with its exclusive judicial mission, namely: to ensure stability and unity of judicial practice, which is extremely important for strengthening the authority of the Supreme Court in society and in the court system of the Ukrainian judiciary. It was established that the national legal system inevitably recognizes precedent at the legislative level as a source of law that is applied by the court. This will enable the stability and unity of judicial practice, the restoration of violated individual rights, and will also establish the supremacy of justice over the law. Key words: principle of bona fides, justice, principles of law, Romano-Germanic legal family, Roman law, sources of law, judicial precedent.