CONDITIONS OF LEGITIMIZATION OF THE COURT PRECEDENT MECHANISM (ON THE EXAMPLE OF THE INSURANCE SECTOR)

Abstract

The relevance of the study is due to the fact that currently in Ukraine sufficient prerequisites have been created for the legitimization of court precedent. As for the objective prerequisites, the success of the judicial reform, the quality of the judiciary in the country, and its compliance with European requirements will depend on this. And this is the recognition by the West of the effectiveness of judicial reform, and accession to the EU, and investments, and citizens' trust in the judicial branch of government. Judicial precedent is not recognized as a source of law in Ukraine. At the same time, in practice, during the resolution of this or that dispute, the decisions of the higher specialized courts are taken into account by the courts of the first and second instance. That is why questions regarding the final legitimization of court precedent within the framework of the legal system of Ukraine are relevant and deserve consideration and discussion. In judicial practice, especially in the Decisions of the Supreme Court, in their motivational part, such principles of law enforcement as are characteristic of European courts are often encountered, such as the prohibition of contradictory behavior (venire contra factum proprium) or estoppel (equitable estoppel); manifestation of the highest good faith (uberrima fides); interpretation of the words of the contract against the person who wrote them (contra proferentem); prohibitions on committing fraudulent acts (fraus creditorum); realities of business transactions; due legal procedure (fair procedure); piercing/lifting the corporate veil; prohibition of the use of "fruit of the poisonous tree", unconditional completeness of liquidator's actions, presumption of good faith behavior of the head of a legal entity, etc. These doctrinal ideas of sending judicial proceedings are not in the law, but analytically "derived" by the Supreme Court from the actual circumstances of the cases in which they are applied or implemented from the judicial decisions of the Anglo-Saxon legal system, the European Court of Human Rights. In order to legitimize the mechanism of judicial precedent in domestic legislation, it is advisable to create a list of judicial precedents in similar cases, to introduce certain judicial reporting on the used precedents and their publication, in the procedural codes it is advisable to provide for the rules of proving the presence/absence of judicial precedents, as well as for the purpose of unity of judicial practice to provide non-application of judicial precedent in the case when it is subject to application – as a basis for annulment of a court decision.