LEGISLATIVE OMISSION: STATUTORY AND DOCTRINAL ASPECTS OF INTENDMENT, REVEALING AND ELIMINATION

Abstract

In constitutionally-legal theory and practice the absence or improper legal regulation of social relations is called a legislative gap, legislative omission, legislative vacuum etc. The essence of the category “legislative omission“ and its correlation with the adjacent notion “legal gap“, which essentially constitute defects of law-making, are studied in the article. It is considered that a legislative omission cannot be equated with a legislative gap, since a legislative omission exists in the sphere of functioning the most important social relations therefore it is a constitutional delict, which consists in violating the Constitution of Ukraine and therefore cannot be overcome by interpreting constitutional norms and principles. The authors, based on the analysis of constitutionally-legal theory and practice, define a legislative omission as a violation of constitutional norms and principles, which is expressed in the failure by authorized subjects to provide a legislative basis for the functioning an effective legal mechanism with the aim of properly regulating the most important social relations because the need to regulate them is directly required or provided for by the Constitution of Ukraine. Legislative omissions are revealed not only in the process of professional activity of Constitutional Court of Ukraine, courts in the judicial system of Ukraine, but also during doctrinal cognition of legal phenomena. It is concluded that the legislative omission cannot be completely overcome through the interpretation of constitutional norms and principles, since the Verkhovna Rada of Ukraine is the only body of legislative power in Ukraine, however, the Constitutional Court of Ukraine can and is obliged to ascertain the presence of legislative omissions in legal regulation.