Legal nature, role, meaning and grounds of Constitutional Court interpretation and doctrinal interpretation: their interconnection

Abstract

That article studies the questions on the legal nature, significance and grounds of the Constitutional Court of Ukraine (hereinafter - CCU) and of doctrinal interpretation as well as their interconnection. The author analyzes the types of interpretation by the subject and notes that among the subjects of the official interpretation the Constitutional Court plays an important role, while for the informal interpretation the doctrinal interpretation is crucial. The paper defines the legal basis for exercising of the right of interpretation by the Constitutional Court of Ukraine, as a specific body, which is the latter at national level aimed at exercising exclusive special powers in protecting the rights and fundamental freedoms of human and citizen. It is stated that the CCU is a quasi-legislative body whose acts are binding and have the features of a source of law, the paradigm of its activity is determined, first of all, by the rule of law and then by the supremacy of the Constitution of Ukraine. The article also pays attention to the ratio between the legal positions and decisions of the CCU.

The article analyzes the changes of the legislation on the activity of the CCU in the context of reducing the power to interpret laws, limiting it only to the right to interpret the Constitution of Ukraine.

The author also emphasizes that as the subject of court interpretation may act a scientist who interprets a certain norm of law and works as a judge of the CCU. In this case, the interpretation is based on the results of a scientific research for a judge. Therefore, it is reasonable to say that judges of the Constitutional Court of Ukraine can to some extent be considered as “subjects of doctrinal interpretation”, especially taking into account the fact that these days there are many legal scientists, scientists with academic degrees and titles working at the posts of judges and performing scientific and judicial activity at the same time.

The author also studies certain aspects of the doctrinal interpretation and the definition of its role and significance in the historical aspect on the example of different states. Questions on the ratio between doctrinal and court interpretation are also paid attention by the author.

It is noted that, in general, in Ukraine scientific doctrine is not recognized as an official source of law, but at the same time plays an important role in the formation of legal consciousness, worldview and lawmaking. Therefore, it can be noted basing on the results of the analysis of legal norms and court practice, that many doctrinal legal positions over time are reflected both in the rulemaking process and in court decisions, turning into court legal provisions.

References

Sadovsʹkyy, M. (2016). Basic formal features of doctrinal interpretation. Natsyonalʹnyy yurydycheskyy zhurnal: teoryya y praktyka, 1, 20-24 [in Ukrainian]
Maznytsya, A. A. (2013). Judicial interpretation of the legislation of Ukraine: problems of theory and practice. Porivnyalʹno-analitychne pravo, 2013, 3–1, 47-50. [in Ukrainian]
Tykhyy, V. (2001) Protection of Constitutional Rights and Freedoms by the Constitutional Court of Ukraine on the Applications of Individuals and Legal Entities. Visnyk Konstytutsiynoho Sudu Ukrayiny, 2, 67-71. [in Ukrainian]
Samilo, H. O. (2017). Problems of interpretation of legal norms. Zaporizhzhya: ZNTU [in Ukrainian]
Nersesyants, V. S. (Ed.). (2004) Problems of the general theory of law and state: a textbook for universities. M.: Norma [in Russian]
Kostyuk, L. M. (2017). Theoretical and Legal Foundations of Normative Interpretation. Candidate’s thesis [in Ukrainian]
Berestova, I. (2018). The Constitutional Court of Ukraine in the system of jurisdictions: general provisions. Pidpryyemnytstvo, hospodarstvo i pravo, 9, 154-159 [in Ukrainian]
Morshchakova, T. H. (Ed.). (2012). Fair Justice Standards (International and National Practices. M.: Myslʹ [in Russian]
Kostytsʹkyy, M., Kushakova-Kostytsʹka, N. (2019). On improving the paradigm of the Constitutional Court of Ukraine activity at the present stage. Visnyk Konstytutsiynoho Sudu Ukrayiny, 5. 102-103 [in Ukrainian]
Tatsiy, V. , Todyka, YU (2001). Questions of the Limits of Interpretation by the Constitutional Court of the Constitution and the Laws of Ukraine. Visnyk Akademiyi pravovykh nauk Ukrayiny, 4 (27), 31-40 [in Ukrainian]
Nalyvayko, O.I., Senʹkiv, O.M. (2015). Theoretical and applied problems of interpretation of the Constitution of Ukraine and laws of Ukraine by the Constitutional Court of Ukraine. Molodyy vchenyy, 2 (17), 813-816 [in Ukrainian]
Radchenko, O.I. (2018). Official interpretation of the law in the context of improving the national mechanism of human rights protection in Ukraine. Zakhyst prav lyudyny: natsionalʹnyy ta mizhnarodno-pravovyy vymiry: zbirnyk tez dopovidey XIII Mizhnarodnoyi naukovo-praktychnoyi konferentsiyi «Vid hromadyansʹkoho suspilʹstva – do pravovoyi derzhavy» (pp.674-677). - Kharkiv [in Ukrainian]
Tkachuk, P. (2010). The Role and Place of the Constitutional Court of Ukraine in the Protection of Fundamental Rights and Freedoms. Visnyk Konstytutsiynoho Sudu Ukrayiny, 4, 118-131 [in Ukrainian]
Selivanov, A.O. (2006). The Rule of Law in Constitutional Justice: An Analysis of Constitutional Jurisdiction. KH.: Akad. prav. nauk Ukrayiny [in Ukrainian]
Selyvanov, A. (2019). The judge is responsible for how he judges Holos Ukrayiny. 14.05.2019. Retrieved from: http://www.golos.com.ua/rus/article/316932 [in Russian]
Paleshnik, S. I. (2014) Doctrinal Interpretation in Court Practice. Naukovyy visnyk Uzhhorodsʹkoho natsionalʹnoho universytetu. Seriya: Pravo, vyp. 29. t. 1, 40-44 [in Ukrainian]
Yevhrafova, YE.P. (2010) Doctrinal interpretation of law: nature and implementation. Visnyk Akademiyi pravovykh nauk Ukrayiny, 2, 40-51. [in Ukrainian]
Davyd, R. (1998). Basic legal systems of the present. M.: Mezhdunarodnye otnoshenyya [in Russian]
Lazarev, V.V. (1969). On the role of the doctrinal interpretation of law. Sovetskaya yustitsiya, 14, 14-15 [in Russian]
Khabriyeva, T.YA. (1997). Interpretation of the Constitution of the Russian Federation: theory and practice. Doctor’s thesis. M. [in Russian]
Nadezhin, G.N. (2005). Doctrinal interpretation of the rule of law. Extended abstract of candidate’s thesis. Novgorod [in Russian]
Nedil’ko, YU.V. (2016). On the correlation of doctrinal and judicial interpretation in the law enforcement practice of European states. Vestnik Krasnodarskogo universiteta MVD Rossii, 1 (31), 16-21 [in Russian]
Sir Edward Coke. (1644).The Third Part of the Institutes of Laws of England. reprints.
Funken K. The Trend of Convergence. Retrieved from: http://www.jurawelt.com
Petryshyn, O.V., Pohrebnyak, S.P., Smorodynsʹkyy, V.S. (2014). Theory of State and Law. Petryshyn O.V. (Ed). KH.: Pravo [in Ukrainian]
Published
2020-04-15
How to Cite
Antoshkina, V. (2020). Legal nature, role, meaning and grounds of Constitutional Court interpretation and doctrinal interpretation: their interconnection. Law Review of Kyiv University of Law, (1), 33-38. https://doi.org/10.36695/2219-5521.1.2020.04
Section
State and law theory and history. Philosophy of law