Problems of interrelation of judicial practice and judicial precedent

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Purpose: The purpose of the work is to solve a complex scientific problem on the development of a theoretical concept of interrelation of judicial precedent and judicial practice, based on the study and analysis of international legal standards, as well as legal systems of foreign countries, the development and scientific substantiation of proposals for its legal support and use in law enforcement practice. To achieve this goal, the following tasks were formulated: consider the theoretical and methodological foundations of the concept of judicial practice; to reveal the concept of judicial precedent as a source of law and its relationship with judicial practice. Methodology: The methodological basis of the study is a set of general scientific, special-scientific and specifically scientific methods that are used not in isolation, but in combination with others. Results: The article is devoted to the issues of determining the role of judicial practice and judicial precedent in the domestic doctrine. It is noted that for the convenience of applying the judicial precedent, its division into types is applied in order to correctly understand and apply the law. We also emphasize that the judicial precedent, which plays a key role in the development of the Anglo-Saxon legal family, is becoming an increasingly significant source in the Romano-Germanic legal family. From this perspective, it is erroneous to associate the judicial precedent only with the formation of the common law system in the countries of the Anglo-Saxon legal family, since, by virtue of human nature, the desire of judges and statesmen to follow the practice of their predecessors or rely on their own previously adopted decisions can be traced throughout the entire history of mankind and in almost all legal systems. Novelty/originality/value: The article highlights the main problems of defining the concepts of judicial practice and judicial precedent, and their correlation based on the provisions of the domestic theory of law, thus it is concluded that it is necessary to study the influence of judicial practice on the formation of judicial precedent as a full-fledged source of law, which allows enhance the effectiveness of law enforcement.

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Judicial precedent, judicial practice, application of law, legal doctrine, source of law, lawmaking, legislation

Короткий адрес: https://readera.org/140257893

IDR: 140257893   |   DOI: 10.52068/2304-9839_2021_50_1_100

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