MONITORING OF THE CIVIL LEGISLATION OF UKRAINE BASED ON THE RESULTS OF SUMMARISING JUDICIAL PRACTICE

Abstract

The article is devoted to the peculiarities of judicial monitoring of civil legislation of Ukraine based on the results of generalisation of judicial practice. The author establishes that it is the judicial system which is forced to direct its efforts towards identifying legislative gaps and eliminating them through judicial lawmaking as an effective mechanism for overcoming the legal vacuum, since the use of legal analogies no longer solves the problem of rapid response to the emergence of new relations. Accordingly, the task of modern civil proceedings is not only to consider cases in a fair, impartial and timely manner, but also to find the law that can most accurately regulate disputed legal relations. This function of legal monitoring based on the results of the analysis of court statistics and generalisation of court practice is directly enshrined in Article 71 of the Law of Ukraine «On Lawmaking». In view of this, judicial monitoring should include work on checking civil legislation for compliance with the Constitution of Ukraine, fundamental principles of law, and the EU acquis communautaire. Accordingly, the «litmus test» for determining the effectiveness of the Civil Code of Ukraine is the statistics of its application in practice through the use of feedback from law enforcement to the legislator. Accordingly, enshrining the function of judicial monitoring in the provisions of the Law of Ukraine «On Lawmaking» will help to maintain a balance between the legislative, executive and judicial branches in the areas of lawmaking and law enforcement, based on the safeguards enshrined in the Constitution of Ukraine. Such a tandem, in which the court, having identified gaps and conflicts in the provisions of civil law, carries out lawmaking in order to ensure the administration of justice, and on the basis of which the relevant legal act is amended, will lead to the formation of a proper legal policy and the necessary balance of private and public interests. The judiciary is the entity that has the relevant competence to analyse such monitoring objects as the Civil Code of Ukraine and other legislative acts. Judicial monitoring is aimed at both improving the mechanisms of legal regulation of private law relations and updating both civil and civil procedural legislation, since it is aimed at identifying and resolving the problems inherent in these areas.