REQUEST (REFERENCE) FOR A PRELIMINARY RULING AS THE INSTITUTE OF DERIVATIVE JUSTICE IN THE LAW OF PROCEDURE OF FRANCE: AN ISSUE OF NATIONAL RECEPTION
Creators: name: Kostruba, Anatoliy
Publisher: name: figshare
Year: 2020
Subjects: subject: 180121 Legal Practice, Lawyering and the Legal Profession
subject: FOS: Law
subject: Law
subject: 180199 Law not elsewhere classified
subject: 180104 Civil Law and Procedure

description: Setting up of a consistent court practice at the current stage of development of justice in Ukraine is a methodological issue resting on a respective empirical foundation. It is underlain by the lack of approaches in the procedural activities of the Supreme Court which would ensure compliance with the principle of legal certainty. The recent reform of the Ukrainian procedural laws has formed the bases for the administration<br>of justice in the country; however, in the context of the above, some practical aspects of their implementation require respective improvement. It should be noted that in the legal literature no well-established position still exists with regard to the integral mechanism of the uniform court practice, and it still remains uncertain which legal means should ensure its efficiency.The purpose of the article is to find a solution to the issue of ensuring the sustainable practice of the Supreme Court by providing the rationale for introduction of analog legal structures of the EU community law of procedure and the law of procedure of France into<br>the national legal system. It is established that a non-uniform application of legal provisions contributes to the deformation of structural consistency of court practice. One of the ways to overcome this process is to introduce the institute of a request (reference) for a preliminary ruling into the national legal system of Ukraine. This institution of derivative justice is gaining its procedural expansion not only within the framework of national judicial procedure in the European countries, but is also used as a means for unification of court practice in supranational justice.A request (reference) for a preliminary ruling is a form according to which a court of a certain jurisdiction level (which applies national law while establishing the factual circumstances) requests a competent judicial authority of the national legal system reviewing court rulings passed at the trial or appellate level via the cassation proceedings to provide its opinion on the application of a certain legal provision in disputed legal relations by means of a delegated interpretation of its meaning.The legal essence of a request (reference) for a preliminary ruling is manifested through the features of its form (judicial initiative, informatory availability, time limit, discreteness) and content (issue of the application of law, presence of any problem in respect of the consistency of law application, novation nature of the issue of law application, absence of cassation proceedings regarding the subject matter of the dispute within the framework of a request for a preliminary ruling).The analysis of the law of procedure of France shows that improvement of the national legislation is needed in the context of the convention obligations of Ukraine. It is expedient to introduce into the legal system of Ukraine the institution of a request (reference) for a preliminary ruling as a means of forming the consistent court practice which will ensure appropriate implementation of the requirements of articles 6, 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and facilitate an enhancement of the level of justice in the country. In this context, a draft law on the introduction of the institute of a request (reference) for a preliminary ruling and unification of cassation proceedings, which has been developed in Ukraine, requires further elaboration taking into account the positive experience of France.