Bulkat M. Theoretical basis of the judicial power: modern concept.

Українська версія

Thesis for the degree of Doctor of Science (DSc)

State registration number

0519U001762

Applicant for

Specialization

  • 12.00.01 - Теорія та історія держави і права; історія політичних і правових вчень

15-11-2019

Specialized Academic Board

Д 26.236.03

Institute of State and Law. V.M. Koretsky National Academy of Sciences of Ukraine

Essay

The dissertation examines the theoretical basis of the doctrine of the judicial power. One of its features is a generalized study of the domestic constituent doctrine of the judicial power. During the course of the research, the achievements of more than four hundred modern monograph studies on the issues of the judicial power, as well as individual articles, reference materials, etc., were taken into account. Have been made provisions for development, refinement, refinement, unification or revision. As well as proposals for determining the appropriate categorical apparatus in the doctrine of the judicial power are formulated. Based on the results of the research, an approach to understanding the correlation between the processes of historical development of the judiciary and the doctrine of the judicial power is formulated, which consists in the existence of two imaginary parallel «direct» ones. The definition of «historical development (genesis) of the judiciary, the judicial power» – the process of evolutionary transformation of the judicial power in the temporal dimension: from the implementation of relevant activities in the early stages of the development of statehood to the exercise of judicial functions by various persons in the early states, and subsequently to the formation of the judiciary and the judicial power, as well as the judicial power in democratic, rule of law states; «development of the doctrine of the judicial power» – the process of improving all available knowledge of justice, the judiciary, the judicial power in various forms: from ancient sources to scientific works, from ideas of justice and judiciary, understanding, interpretations, hypotheses, approaches to the judiciary and the conception of the judiciary, the judicial power, the formation of the theory of the judicial power, based on the theory of the three-component division of state power in democratic, rule of law states. The definition of «the feature of the judicial power» is formulated – an essential characteristic of the judicial power, which reflects its legal nature as a component (part) of the state power of a democratic, legal state, taking into account the meaning of the relevant primary concepts that shape its content. An approach to understanding the specifics of the relation of the concepts of features and attributes of the judicial power is proposed. The feature reflects the legal nature of the judicial power as a state-legal concept, and the attribute – its characteristic in relation to other objects, objects, phenomena, in interaction with them. The definition of the concept of «system of features of the judicial power» as a scientifically substantiated set of essential features of the judicial power, which reflects its legal nature as a component (part) of the state power of a democratic, rule of law state and has a corresponding structure, is proposed to scientific use. Generalized approaches to understanding the system of features of the judicial power in substantively homogeneous groups are summarized: «normative», «imperious», «two-tier». The unified understanding of the system of features of the judicial power in the form of a three-level structure is substantiated: the first level is a complex «attribute of appointment» as a generalized reflection of the content of the theoretical provisions on the judiciary in a democratic, rule of law component of state power, the second level includes the group of features of the judicial power, which characterize it as a component of state power, the third level – the group of features of the judicial power, reflecting its own specificity. The system of functions of the judicial power as a component of state power is outlined. A comprehensive theoretical approach is proposed, according to which the step-by-step classification of functions within the judicial power is the basis for understanding this system. It is determined that the basis of the system of functions of the judicial power is the principle of separation of state power and the application of the relevant criterion «on the principle of separation of powers». It is justified that in order to have a fair understanding of the system of functions of the judicial power it is necessary to apply the classification criteria «by sphere of activity», «by object», «by subject».

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