The cohesion of trial practice as a component of legislation

Keywords: court, the Supreme Court, practice, cohesion, application, interpretation, rule of law

Abstract

The effectiveness and stability of legal regulation is ensured and conditioned by many factors and tools. The sustainability and
cohesion of trial practice are one of the main. The analysis of the base of sources of mentioned questions has been conducted. For this
moment in national and foreign literature the problem of Supreme courts conclusions’ binding nature has been studied partially.

The highest judicial body in the general-jurisdiction court system is the Supreme Court of Ukraine. It provides the trial practice’s
unity; implements the analysis of judicial statistics and synthesis of trial practice; ensures the same application of rule of law by the
courts in different specialization according to the procedural law.
According to the results of judicial statistics’ analysis and trial practice’ synthesis, The Plenary of the Supreme Court provides
the guidelines on how to implement the legislation in legal proceedings that have only recommendatory nature. In order to exercise of
the powers conferred by article 13 of the same Act, the legal effect of the Supreme Court’s acts and their degree of obligatory nature
have been defined.
The binding nature of The Supreme Court’s conclusions was distributed not only at the disputing parties, but also the other subjects.
This has strengthened the position of the highest judicial instance. In doing so, there is an hierarchy of the Supreme Court’s conclusions,
namely, conclusions of panel; conclusions of chamber; conclusions of the consolidated chamber; conclusions of the Grand
Chamber. If there are differences in addressing a specific issue in the conclusions of panel, consolidated chamber or the Grand chamber,
the court applies the Supreme Court’s conclusion.
Therefore, the conclusions of the Supreme Court of Ukraine are mandatory, because before go around them, the matter question
has to be reviewed by the Supreme Court.
Thus, by the interpretation of the rules of law in the specific cases and in addressing the specific issues, the Supreme Court formulated
the legal positions which govern the public relations in conjunction with the other legal regulators.
The meaningful analysis of the Supreme Court’s orders demonstrates their regulatory impact. All of its components, such as:
explanations, recommendations and definitions, are not personified, but comprise general and abstract rules. They are addressed to all
the judicial system; are aimed at not one-time application; are in force until they will be replaced or cancelled. The Supreme Court’s
orders establish the regulatory legal tools as principles of existing legislation’s implementation and rules-explanations, rules-recommendations,
rules-definitions. These rules set the direction in interpretation and implementation of legislation for the judicial authorities.
The legal provisions in this situation are unambiguous: the necessity of position’s “binding nature” is expressly foreseen, abo -
lishing the derogation from the Supreme Court’s positions, for the lower courts and the regulation of derogatory procedure at the level
of cassation.
In the future, all the above mentioned would positively influence on the cohesion of the judicial system. It would contribute to
the restoration and building of citizens’ confidence in the judicial system. It would further facilitate the foreseeability and predictability
of judicial decisions. It would enhance the independence of the judicial power and increase the efficacy of courts’ activities.

Published
2020-11-10
How to Cite
Parkchomenko, N. (2020). The cohesion of trial practice as a component of legislation. Law Review of Kyiv University of Law, 1(3), 26-30. https://doi.org/10.36695/2219-5521.3.2020.02
Section
State and law theory and history. Philosophy of law