Article title Standard of Proof, Judicial Law-Making and Their Special Procedural Relationship

Graduate Student of the Faculty of Law of Sumy National Agrarian University (Sumy, Ukraine) ORCID ID:


Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 5/2021
Сторінки [228-237]

A constant problem for judges of the first instance is the problem of judicial lawmaking regarding the interpretation of legal norms in relation to cases when disputed legal relations are not regulated by law or do not have the appropriate accuracy, and therefore their settlement is based on the law governing such legal relations. in their absence, the court due to the interpretation of procedural principles, methods of protection, etc., based on other general principles of law (analogy of law), must consider the case.

At the same time, an integral part of judicial lawmaking both in the field of analogy of law and in the field of analogy of law is the presence of a standard of proof, which is formed by the court in its comprehensive examination of all means of proof provided by the parties. Since these two procedural categories are always interrelated, the absence of such interdependence makes it impossible to draw such a conclusion as to the legal qualification of the disputed legal relationship.

Thus, on the basis of the standard of proof, in the absence or casuistry or inconsistency of substantive law, the court may make an accurate interpretation of similar to the disputed legal norms, expanding their content, which covers the essence of the disputed legal relationship, and in the absence of close to the disputed legal relationship. rights, the court by interpreting the general principles of law with reference to the content of the means of proof, may consider the case on the merits, giving the disputed legal relationship the appropriate legal qualification.

Today, the rapid development of social, scientific, technical, technological relations objectively does not allow the legislator to regulate all without a legal relationship rules of law or promptly amend such rules, which means that the problem of judicial lawmaking in the courts of first instance and its integral parts – the standard of proof, will be strengthened as the rules of law quickly “age”.

The aim of the article is to study the theoretical and legal aspects of both judicial lawmaking and the standard of proof in courts of first instance and their relationship in the application of analogy of law and analogy of law, taking into account trends in society and justice in modern Ukraine.


Keywords : judicial lawmaking; standard of proof; analogy of law; analogy of law


Authored books

1. Cross R, Wilking W. Outline of the law of evidence (Butterworths Law 1986) (in English).

2. Reutlinger M, Evidence: Essential Terms and Concepts (Aspen Law & Business 1996) (in English). 3. Yasynok M, Osoblyvosti okremoho provadzhennia u tsyvilnomu protsesualnomu pravi Ukrainy (Alerta 2014) (in Ukrainian).


Journal articles

4. Luts L, ‘Perspektyvy stanovlennia sudovoho pretsedentu yak gzherela prava Ukrainy’ (2006) 6 Visnyk Tsentru suddivskykh studii 9–15 (in Ukrainian).

5. Maslov V, ‘Deiaki aspekty dokazuvannia pry naiavnosti sudovoho pretsedentu’ [2015] 4 (3) Pravo i suspilstvo 92–7 (in Ukrainian).

6. Romaniuk Ya, ‘Sudova pravotvorchist v umovakh reformuvannia pravosuddia: rol Verkhovnoho Sudu Ukrainy’ (2016) 10 Pravo Ukrainy 9–19 (in Ukrainian).

7. Zelenko I, ‘Pravovi peredumovy ta metodyka vykorystannia yurydychnykh analohii’ (2009) 1 Pidpryiemnytstvo, hospodarstvo i pravo 60–3 (in Ukrainian).



8. Fasii B, ‘Subsydiarne zastosuvannia norm tsyvilnoho zakonodavstva v Ukraini: teoriia ta praktyka’ (avtoref dys kand yuryd nauk, 2017) (in Ukrainian).

9. Kalashnyk O, ‘Prohalyny v tsyvilnomu protsesualnomu zakonodavstvi ta yikh usunennia’ (avtoref dys kand yuryd nauk, 2016) (in Ukrainian).

10. Zavalniuk S, ‘Analohiia prava za tsyvilnym zakonodavstvom Ukrainy’ (avtoref dys kand yuryd nauk, 2015) (in Ukrainian).