Formation of legislative omission's concept within the practice of The Constitutional Court of Ukraine in the context of comparative jurisprudence

The relevance of the research is due to the fact that gaps in the law were traditionally analyzed in the national legal doctrine in the context of determining the means of overcoming them from the position of the general theory of law or within some sectoral studies. The concept of legislative omission is well known to the practice of most constitutional jurisdiction agencies in European countries. The Constitutional Court of Ukraine assumed for a long time that filling “gaps in the laws” does not belong to its powers and is the prerogative of the legislator. The purpose of the article is to study the formation of the concept of legislative omission within the practice of the Constitutional Court of Ukraine in the context of comparative jurisprudence. The methods of this research are formal and legal, logical and legal, comparative and legal and other special research methods. It has been established that constitutional courts, as a rule, do not distinguish between a legal gap and a legislative omission. It has been proved that a legislative omission, on the one hand, can be defined as a type of legal gap that violates constitutional prescriptions in the constitutional aspect, and on the other hand, as the concept of constitutional judiciary, which allows constitutional courts to consider and provide a legal assessment of legal gaps that exist in relation to social relations, the obligation, whose legal regulation is established by the Constitution at the level of law. The author has defined the main provisions for understanding legislative omission within the practice of the Constitutional Court of Ukraine: 1) there is an obligation of the legislator to provide legal regulation at the level of law to certain social relations (as a rule, insufficiently regulated), if it is directly or implicitly enshrined in the Constitution of Ukraine; 2) there is a need in such legal regulation in order to fulfill the constitutional prescriptions or for the purpose that enshrined human rights and freedoms will be fully protected, secured, implemented, and the relevant principles will be observed; 3) non-fulfillment of the constitutional obligation by the legislator to regulate certain relations at the level of law leads to the violation of constitutional prescriptions, primarily those defining the rights and freedoms (excessive restriction, discrimination); 4) in fact, the standard of law is recognized as unconstitutional in the part that contains insufficient legislative regulation of certain relations, whereafter the legislator must regulate these relations (specific demands are often put forward regarding such regulation). The practical value of the research is the fact that the author of the article has proved that the concept of legislative omission within the practice of the Constitutional Court of Ukraine is in the stage of its formation.

legal gaps, gaps in the law, legislative omissions, Constitutional Court of Ukraine, constitutional judiciary, comparative jurisprudence