To the issue of functional and structural characteristics of judicial practice in Ukraine

Abstract

The article examines the problems of the significance and effectiveness of judicial practice in Ukraine thanks to the application of a systemic approach to identifying its functional and structural characteristics. Separate works of scientists on the methodology of scientific research of judicial practice as a source of law have been analyzed. It has been proven that the main questions that arise in the course of the study of judicial practice in Ukraine as a legal phenomenon should be analyzed with the help of complementary and interconnected elements, namely theoretical and methodological, then their combination gives grounds for considering the theory of law as a component of legal science and methodological approaches - as a set of various scientific knowledge and methods that are interrelated. The need to study the functional and structural characteristics of judicial practice in Ukraine as a legal phenomenon that combines law-making and the specifics of the implementation of legal norms is substantiated. It was found that the study of the functional and structural characteristics of judicial practice should be carried out on a number of criteria, among which it is necessary to distinguish the impact and cognitive criteria. In particular, according to the criterion of the influence of judicial practice on real reality, internal (judges’ legal perception of the mechanism of application of the principle of analogy in making court decisions) and external (influence of judicial practice on law-making and human rights protection activities) its functional and structural characteristics are distinguished. According to the cognitive criterion, the heuristic elements of judicial practice are determined, namely: the latter is a type of legal practice; lack of conceptual identity with judicial precedent and judicial law-making; an additional means of influencing social relations in combination with a legal prescription; a means of implementing the principle of unity; a defined circle of its subjects; ensuring direct exchange of information between the judicial and legislative branches of government. It is emphasized that the proposed list of heuristic functional-structural elements of judicial practice is not exhaustive and can be supplemented.