The scientific-practical Law Journal
“Almanac of Law” Volume 12 (2021), 35-42 p
DOI: 10.33663/2524-017X-2021-12-6
Shutak I. D. Legal technique of judicial practice and its role in state legislation
Purpose. The purpose of the study is to reveal the features of the legal technique of judicial practice and its role in
law-making of the state. Methodology. First of all, the principles and techniques of formal-logical methodology are used.Elements of the structural-functional approach have been widely used. Thus, the identification of intersectoral links in judicial practice is based on the functional nature of law in general and procedural means in particular, which allowed us to see intersectoral links in judicial lawmaking. In addition, dialectical, system-structural and functional methods, the method of interpretation were used in the work. Judicial lawmaking is a separate area where completely different approaches are possible. Questions about the reflection of the legal technique of judicial practice and its role in the law-making process are considered in terms of both natural law and positivist and other areas of jurisprudence. Originality. The scientific novelty lies in the theoretical understanding and delineation of the legal technique of contract lawmaking, which is interpreted as a set of methods, tools and techniques used in developing the content and structure of judicial acts of any instance in the relevant proceedings. The specifics of judicial lawmaking are shown, which consists in the presence of such features that characterize it as an independent legal phenomenon that differs from other types of lawmaking. According to its functional purpose, judicial lawmaking creates the conditions for resolving specific court cases; eliminates gaps and ambiguities of certain legislation during the trial; complements the law-making system as a whole, consistently eliminating its shortcomings. The essence of such means of legal technique in judicial law-making as judicial interpretation and judicial concretization of norms of law is revealed. Results. The study found that the effectiveness of the courts depends not only on the number and content of judicial acts, but also on their technical and legal excellence. The role of judicial practice in law-making activity is strengthened, which is manifested in the need to take it into account, in the possibility of identifying shortcomings of current legislation, identifying possible law-making ways to overcome shortcomings in current legislation. Judicial law-making is an independent type of law-making that takes place within the competence of judicial bodies, when existing defects of legal regulation are eliminated by law-making court decisions as a result of interpretation and concretization of excessively generalized and abstract rules of law and by filling gaps in law. Practical importance. The results of the study can be used in law-making activities in order to identify shortcomings in current legislation and identify possible law-making ways to overcome shortcomings in current legislation.
Keywords: legal technique, law-making, law-enforcement act, court practice, court precedent.
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