In recent years, novelization of national procedural codes from the perspective of the rule of law is also manifested in the statutory consolidation of new legal constructions designated to create prerequisites for the utmost protection of the rights and interests of a person in law in a particular legal relationship. Such constructions as “exceptional legal issue” and “the need for development of law” allow for review by the Grand Chamber of the Supreme Court of cases considered by cassation courts as part of the Supreme Court. Irrespective of a clearly positive significance in the context of legal protection in court, these legislative formulations create prerequisites for a broad discretion of court which entails a threat of excessive subjectivity. Therefore, with a view to achieving unity and consistency of court practice in the application of the said statutory provisions, their general theoretical characteristics become increasingly relevant.

The article aims at clarifying the content of the concepts “exceptional legal issue” and “the need for development of law”, and also at analyzing the practice of their application, providing the definition of exceptional legal issue and the need for development of law, marking out distinctive features, establishing the relationship between these constructions, and developing proposals with regard to the limits of discretion of court where they are applied.

Based on the research results, the author has established that exceptional legal issue is the possibility that the same legal provisions may be applied to identical social relations in a non-uniform way which stems from shortcomings of legal provisions, their abstract and evaluative nature, lack of statutorily determined forms and ways of overcoming. If exceptional legal issue arises in the course of law application, this serves as an objective basis for stating the “need for development of law”. However, development of law cannot be a process whereby a new rule is created, it is just an activity aimed at its concretization and certain clarification. Development of law as a form of court law-making (by the way, in the continental legal system this is not a function of the judicial branch) can be manifested rather as a way to overcome the shortcomings of current legislation and its lack of formality via law application by courts. Another promising form of court development of law is its interpretation.

With the aim of achieving the uniformity of court practice, where legal constructions “exceptional legal issue” and “the need for development of law” are used, the author proposes that a set of recommendations be developed with regard to their understanding and their rules of use. It is also important that courts of all levels in their decisions motivate (provide arguments for) the root causes and the forms of manifestation of exceptional legal issue and the need for development of law.

Bibliography

Authored books

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2. Rabinovych P, Osnovy zahalnoi teorii prava ta derzhavy: navchalnyi posibnyk [Fundamentals of the General Theory of Law and State: Study Guide] (Krai 2008) (in Ukrainian).

Edited books

3. Zahalna teoriia prava: pidruchnyk [General Theory of Law: Textbook] (Koziubry M zah red, Vaite 2015) (in Ukrainian).

Dictionaries

4. Busel V (red), Velykyi tlumachnyi slovnyk suchasnoi ukrainskoi movy [Large Explanatory Dictionary of the Modern Ukrainian Language] (Perun 2009) (in Ukrainian).

Journal articles

5. Kosovych V, ‘Tekhniko-yurydychni nedoliky normatyvno-pravovykh aktiv Ukrainy: osnovni riznovydy’ [‘Technical and Legal Shortcomings of Laws and Regulations of Ukraine: Main Types’] (2014) 8 Pravo Ukrainy 169–77 (in Ukrainian).

6. Kosovych V, ‘Yurydychnyi tekhniko-tekhnolohichnyi instrumentarii ta verkhovenstvo prava: (metodolohiia doslidzhennia)’ [‘Legal Technical and Technological Tools and the Rule of Law: (Research Methodology)’] (2018) 66 Visnyk Lvivskoho universytetu Seriia yurydychna 14–26 (in Ukrainian).

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Thesis

9. Hryshchenko A, ‘Pravovyi zakon: pytannia teorii ta praktyky v Ukraini’ [‘Law Consistent with Principles of Law: Issues of Theory and Practice in Ukraine’] (avtoref dys kand yuryd nauk, 2002) (in Ukrainian).

Websites

10. Bernaziuk Ya, ‘Vyrishennia vykliuchnoi pravovoi problemy yak sposib zabezpechennia odnakovoho zastosuvannia norm prava’ [‘Resolution of Exceptional Legal Issue as a Way to Ensure Equal Application of Law’] (Sudovo-iurydychna hazeta, 25.02.2019) <https://sud.ua/ru/news/blog/136144-virishennya-viklyuchnoyi-pravovoyiproblemiyak-sposib-zabezpechennya-odnakovogo-zastosuvannya-norm-prava> (accessed: 24.01.2020) (in Ukrainian).

11. Studennikov S, ‘Moratorii na zemliu: Verkhovnyi Sud vyrishyt vykliuchnu pravovu problemu’ [‘Land Moratorium: The Supreme Court to Resolve the Exceptional Legal Issue’] (Tsentr suddivskykh studii, 14.03.2019) <http://www.judges.org.ua/dig16018. htm> (accessed: 24.01.2020) (in Ukrainian).