The Definition And Essence Of The Judicial Precedent As A Source Of Law: General Theoretical Foundations

Abstract

The study of role and place of judicial precedent in the system of sources of law is the purpose of the article. Nowadays the judicial precedent becomes especially popular among the sources of law.

Judicial precedent is a decision taken by a higher judicial authority in a particular case, which is considered binding on other courts when considering similar cases.

Traditionally, England is commonly known as the birthplace of precedent. The development of public relations has led to the centralization of power. In the absence of legislative acts there was necessity to adopt similar decisions by the courts when considering similar cases.

There is no consensus among scholars as to the place of judicial precedent in the system of sources of national law. In the continental legal system, judicial precedent exists alongside other sources of law. Instead, the influence of the court on the formation and development of law has been reflected in the theory of case law. Established judicial practice is recognized as a source of law in the countries of the Romano-German legal family, including in Ukraine.

In our country, judicial precedent is not attributed to the sources of law, since it is only advisory. The fact that the law is expressed and implemented in legislation and bylaws confirms that it cannot be expressed in court precedents at all, since the judicial precedent is not officially a source of law in Ukraine. At the same time, there is a tendency to increase the importance of case law in the settlement of public relations.

Judicial precedent in Ukraine is in fact a precedent for interpretation, which develops and details the provisions of legislative acts, interprets the contradictory or unclear content of legal norms, i.e. grants the law with compelling content and promotes a unified approach to the application of legal norms.