Kelman M., Kelman R. The legal principle of the newest system of Ukrainian law in the activity of the judiciary is legalized

DOI: 10.33098/2078-6670.2021.11.23.57-66

The purpose: to study the rule of law as a principle in the judiciary in such aspects as to clarify the origins of the idea of the rule of law, the relationship between the concepts of the rule of law and the judiciary, analysis of relevant doctrine in Ukraine. Methods: dialectical, hermeneutic, prognostic, comparative-legal, formal-logical, method of modeling, decomposition, complex analysis, intersectoral method of legal research, logical methods that were used as tools to achieve this goal. Results: Applying the principle of the rule of law, the judge must remember it as a global goal of justice – the rule of law in society. The resolution of every dispute and any legal conflict must be aimed at adhering to this principle. Scientific novelty: From a practical point of view, the rule of law determines the place of the judiciary in the system of public power, which should attest not only to the real separation of powers but also to the judiciary’s ability to limit the discretion of the legislature and the executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally – an element of the concept of the rule of law) brings together the concept of the rule of law and the idea of the rule of law in modern conditions.

The principle of the rule of law in the modern state is studied. Emphasis is placed on the scope of the rule of law, which includes: legality, which provides for a transparent, accountable and democratic process for the implementation of legal provisions; legal certainty; prohibition of arbitrariness; access to justice; respect for human rights; prohibition of discrimination; equality before the law. Conceptually, the rule of law is to limit the arbitrariness of public authority over society and the individual.

Different ways of establishing the system of the rule of law (the court through the application of human rights directly forms the system of the constitution – the English tradition; it is created by the people through the exercise of constituent power – the European continental tradition) are not fundamental. From a practical point of view, the rule of law determines the place of the courts in the system of public power, which must attest not only to the real separation of powers but also to the judiciary’s ability to limit the discretion of the legislature and executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally an element of the rule of law) brings together the concepts of the rule of law and the rule of law.

The article is devoted to a comprehensive study of the theoretical foundations of judicial law enforcement in Ukraine as a special process of practical achievement of the rule of law in the daily activities of courts, carried out after the constitutional reform of justice in 2016-2017.

The acute theoretical and applied need to find ways and means to ensure the unity of law enforcement after this reform, which allowed to form a new scientific approach to solving problems of judicial law enforcement. The problem is solved with the help of intersectoral methodology and integration in law, given the expansion of the functions of the judiciary, in particular, in terms of increasing the law-making role of courts (the theory of “soft” separation of state power).

The article proves that the current state of transit legislation in Ukraine leads to the fact that the courts of first instance (sometimes – the appellate court as courts of first instance) take on challenges – to consider the case, guided by the rule of law, taking into account not only the balance of public and private interests, but often the existence of gaps in laws or applying poor quality legislation. The result of judicial enforcement in such cases is the completion of a rule of law, which in fact can be considered a judicial rule and become the basis for the emergence of a new law, the maintenance of which during the review of the court decision gives it a precedent, and thus lower courts promote judicial supremacy.

Key words: principle of law, Rule of Law, court, Council of Europe, constitution.

References

1.Bergel, J. L. (2000). Obshchaya teoriya prava [General theory of law]. M.: Izdat.dom Nota bena, 576 p. (in Russian); Korchevna, L.O. (2005). The problem of multi-source law: an experiment in comparative jurisprudence: Dr. of law Dis. Odessa. 411 p. (in Ukrainian)

2. Petrishin, O.V. (Ed.). (2013). Pravova doktryna Ukrainy [Legal doctrine of Ukraine]. (Vol. 1: General theoretical and historical jurisprudence). H.: Law. 976 p. (in Ukrainian)

3. The Constitution of Ukraine of June 28, 1996 № 254k / 96-VR as amended by the Law of Ukraine of June 2, 2016 № 1401-VIII “On Amendments to the Constitution of Ukraine (Regarding Justice)”. Vidomosti  Verkhovnoyi Rady Ukrayiny, 28, Art. 532. (in Ukrainian)

4. Holovatyi, S. (2006). Verkhovenstvo prava [Rule of Law]. (Kn. 3: Verkhovenstvo prava: Ukrainskyi dosvid). Kyiv: Feniks. 1747 p. (in Ukrainian)

5. Shemshuchenko,  Yu.  S. (Ed.). (1998).  Yurydychna entsyklopediia  [Legal  encyclopedia].  (Vol. 1). K.: Ukr. entsykl. (in Ukrainian). Semchik, V. (1998). Yurydychna syla zakonu [Legal force of law]. Bulletin of the Academy of Legal Sciences of Ukraine, 4 (15), pp. 18-22. (in Ukrainian); Maidanyk, R.A. The place of judicial precedent in the system of sources of Ukrainian law. Retrieved from: http://westudents.com.ua/glavy/72119-mstse-sudovogo-pretsedentu V-sistem-djerel-ukranskogo -prava.html; Orzikh, M. (1997). Verkhovenstvo prava princip prakticheskoj detyal’enosti gosudarstva i obshchestva [The rule of law is the principle of practical detail of the state and society]. Yurydychnyi visnyk, 3, pp. 40.  (in Russian)

6. On amendments to the Commercial Procedural Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine and other legislative acts: Law of Ukraine. № 2147 – VІІІ.  (2017, October 3). Vidomosti  Verkhovnoyi Rady  Ukrayiny. 2017. 48, Art. 436. (in Ukrainian)

7. On the judiciary and the status of judges: Law of Ukraine № 2453 – VІІ (2010, July 7) (as amended). (in Ukrainian)

8. Metlova, I. S. (2016). Decisions of the European Court of Human Rights in the system of sources of Russian law: PhD thesis abstract. M. 20 p. (in Russian)

9.Tkachuk, O. S. (2016). Realization of judicial power in civil proceedings of Ukraine: structural and functional aspect: Doctor of Law thesis. Kharkiv. 547 p. (in Ukrainian)

10. European Commission for Democracy through Law (Venice Commission). Checklist of questions to assess compliance with the rule of law. Adopted at the 106th plenary session of the Venice Commission (Venice, 2016, March 11-12). (in Ukrainian)

11. Kozyubra, M. (Ed.). (2019). Kryterii otsinky dotrymannia verkhovenstva prava v Ukraini [Criteria for assessing compliance with the rule of law in Ukraine].  Kyiv. 141 p. (in Ukrainian)

12. Shevchuk, S. V. (2001). Osnovy konstytutsiinoi yurysprudentsii [Fundamentals of constitutional jurisprudence]. К.: Ukr.tsentr. pravn. studii. 296 p. (in Ukrainian)

13. Holovaty, S.  (2006). Verkhovenstvo prava [Rule of Law]. (Vol. 3. Rule of law: Ukrainian experience. with. K. 1747 p. (in Ukrainian)

14.Gordovenko, V. (2018). Pryntsyp pravovoi derzhavy u praktytsi Konstytutsiinoho Sudu Ukrainy: evoliutsiia y perspektyvy vykorystannia u zviazku iz vvedenniam instytutu konstytutsiinoi skarhy [The principle of the rule of law in the practice of the Constitutional Court of Ukraine: evolution and prospects of use in connection with the introduction of the institute of constitutional complaint]. Visnyk Konstytutsiinoho Sudu Ukrainy, 5, pp. 106–110. (in Ukrainian)

15. Gauder, Paul. (2018). Verkhovenstvo prava v realnomu sviti [The rule of law in the real world]. Kharkiv: Pravo, 392 p. (in Ukrainian)

16. On early termination of powers of the Verkhovna Rada of Ukraine and calling early elections: Decision of the Constitutional Court of Ukraine in the case on the constitutional petition of 62 people’s deputies of Ukraine (constitutionality) of the Decree of the President of Ukraine № 6-r / 2019 (2019, June 20). Retrieved from: https: //zakon.rada.gov.ua/laws/show/v006p710-19#Text.