The dissertation is devoted to the study of judicial discretion as a guarantee of independence and efficiency of the judiciary. Established standards of a democratic, civilized model of Western society outline the conditions under which state power should be exercised on the basis of its division into legislative, executive and judicial branches. The defining condition of such a division is precisely the prevention of the usurpation of state power, without violating the principles of its unity. The main content of the preventing factors of usurpation is that all three branches of government, complement each other, cooperate with each other, however, at the same time perform the functions of mutual control. One of the basic decrees on the division of the organization of state power in Ukraine is to ensure the functioning of the system of "checks and balances" in Ukraine, the content of which is to prevent the concentration of power in one hand. Judicial discretion, in turn, is one of the fundamental factors influencing the independence of the judiciary and gives the court the opportunity to coexist with other branches of government and maintain real influence in the system of "checks and balances". The institution of the functioning of judicial discretion, as well as the resulting judicial lawmaking, are closely related to the problems of constitutionalism, the rule of law, the rule of the constitution, because from the point of view of positivism they are an indisputable element in its practical application. However, many issues on this topic remain unresolved. Issues related to judicial lawmaking, its legitimization and coexistence with lawmaking are becoming increasingly important. Improving constitutional norms on the basis of the rule of law legitimizes positivism in law and promotes the rule of law and guarantees human rights and freedoms. The court, being the subject of law enforcement, conducts its activities on the basic elements of the rule of law, the ideology of which is the basis of modern constitutional construction. Analyzing judicial discretion as a phenomenon that operates on the basis of the rule of law, it should be noted that scientific papers are about the need to rethink its essence and practical significance in law enforcement and lawmaking. Judicial discretion, being a tool of a practical nature, is gaining weight as a lever of influence in the system of "checks and balances". In this dissertation research the concept of discretion is defined, the content and classification of types of discretion, among which judicial discretion is investigated. The constitutional principles of judicial discretion as a component of the functional element of the independence of the judiciary in Ukraine and its constitutional boundaries are revealed. Also, the concept of judicial discretion and its limits are defined. In addition, the issue of judicial lawmaking, which is a consequence of the practical implementation of judicial discretion, is studied. In particular, the concepts and types of judicial lawmaking in Ukraine (casual, precedent) are defined, the activity of the subjects of such lawmaking is analyzed. Based on the analysis of the nature of the origin of judicial lawmaking, practical mechanisms for its introduction into the legal system of Ukraine are proposed. Also, the author proposes to define the status of judicial lawmaking as subsidiary. Proposals for improving the constitutional and legal regulation of judicial discretion and judicial lawmaking as a result of the implementation of judicial discretion have been developed and substantiated. The influence of the rule of law on the administration of justice by courts in Ukraine has been studied through the prism of the discretionary powers of the court, which are exercised by the latter on the basis of the rule of law. In order to ensure the unity of judicial practice, it is proposed to provide an assessment of legal relations solely on their subject compliance with the law or the Constitution of Ukraine, as compliance with the rule of law is presumed. Among the main tasks that helped to achieve this goal, the author identifies the following: to clarify the essential understanding of the content of discretion; analyze the preconditions, principles and types of judicial discretion; to characterize judicial discretion as a component of the functional element of the independence of the judiciary in Ukraine; to study the features of judicial lawmaking in Ukraine, its types and impact on the legal settlement.
