The system of sources of civil procedural law and the place of judicial precedent in it

Abstract

This article is devoted to the analysis of the sources of the field of civil procedural law of Ukraine and the outline of the role of court precedent among them. A schematic analysis of normative legal acts, international treaties, customs and judicial acts as sources of civil procedural law of Ukraine is carried out. The importance of normative legal acts is noted, where the norms of civil procedural law, which systematically regulate the procedure for consideration and resolution of civil cases, are located the most. An analysis of codified and non-codified laws is carried out, it is indicated that the latter have an interdisciplinary character. The ratio of international treaties and normative legal acts as sources of civil procedural law of Ukraine is determined, attention is drawn to the peculiarity of their application in the civil process.
 A lot of attention is paid to the so-called "judicial sources" of the civil procedural law of Ukraine, which are understood as decisions of the Constitutional Court of Ukraine, resolutions of the Plenums of the Supreme Court of Ukraine and the Higher Specialized Court of Ukraine on consideration of civil and criminal cases, decisions of the Supreme Court, court decisions of local and appellate courts, decision of the European Court of Human Rights. The last judicial act is officially recognized as a source of law in Ukraine, while there are heated discussions among scientists and practitioners regarding the possibility of their recognition as a source of law, which is intended to record a new norm of law, including civil procedural law. It is indicated that in most cases, when they talk about the precedent nature of judicial acts of domestic courts, they are primarily talking about precedent-interpretation, which formally cannot be recognized as a source of law, since explanatory work on the application of a rule of law cannot be equated with rule-making. On the other hand, there are cases when the decision of the Supreme Court de facto can become a judicial precedent in its classical sense due to changes in the Civil Code of Ukraine in October 2017. In particular, if the Supreme Court, during the consideration of a civil case, chooses such a method of defense, which is not provided for by law, but does not contradict it, if it is necessary for effective defense. True, such a decision cannot be considered a source of civil procedural law, since the "method of protection" should refer to material, not procedural rights of the parties to the case.