Рroblems of legal regulation of deviation from the conclusion, expressed in the ruling of the Supreme Court (in the context of application of the criminal procedural legislation of Ukraine)

In the general mechanism of ensuring the unity of judicial practice, a special place is occupied by the institution of deviation from the legal positions of the Supreme Court, which addresses both the correction of previously admitted premature approaches to the interpretation of law and the dynamic development of law enforcement. At the doctrinal and normative levels, there is no consensus on the possibility of such a derogation by lower courts. The aim of the study is to develop an optimal normative model of the mechanism of deviation from the legal conclusions of the Supreme Court, which would ensure a balance between the independence of the court and the unity and stability of judicial practice.The methodological basis of the study were general and special methods, namely: dialectical, systemic, formal-legal and logical methods. The authors characterize the socio-legal significance of the institution of deviation from the legal position of the Supreme Court and emphasize the need for its detailed justification.The normative concept enshrined in the current legislation of Ukraine is analyzed, which allows to deviate from the legal position of the Supreme Court only by the Supreme Court itself according to a clearly defined mechanism.It is emphasized that given the importance of the independence of the court, the subject of the assignment can hypothetically be any lower court that implements the judicial discretion in making a decision based on the results of criminal proceedings.It is established that the optimal model of the precedent formula in Ukraine is seen in the statutory obligation of lower courts to comply with the legal conclusions set forth in the decisions of the Supreme Court, with the possibility of motivated deviation of the court from these legal conclusions. character.The authors suggest ways to improve the regulation of the level of binding legal positions of the Supreme Court and the procedure for derogating from them).

Doi: 10.31359/jnalsu.29(2).2022.292-312