The dissertation is a comprehensive scientific research of the theoretical foundations and procedure of the application of the norms of the Constitution by the courts as norms of direct action, based on the existing practice of the courts of administrative, commercial and civil jurisdictions, and the development of conclusions, practical proposals and specific recommendations on this basis for the effective judicial protection of the rights of private individuals.
The dissertation consists of three sections, divided into nine subsections, in which the research begins with the clarification of the theoretical foundations of the application of the norms of the Constitution of Ukraine as norms of direct action by the courts of administrative, commercial and civil jurisdictions, through the definition and formation of the grounds and prerequisites of the application of the norms of the Constitution as norms of direct action by the same courts and ends with the formation of authors’ approaches of optimizing the procedure for the application by courts of administrative, commercial and civil jurisdictions of the studied norms as norms of direct action.
The object of the study is the administrative procedural, commercial procedural and civil procedural legal relations, within which the norms of the Constitution of Ukraine are applied as norms of direct action. The subject of the study is the application of the norms of the Constitution of Ukraine as norms of direct action (based on the practice of courts of administrative, commercial and civil jurisdictions) by the courts of Ukraine.
The theoretical and methodological basis of the research is a system of philosophical, general scientific and special methods reached to obtain objective, reliable results, in particular: ontological, axiological, integrative, systemic, hermeneutic, prognostic, comparative, formally logical, dogmatic, empirical and pragmatic. The empirical basis of the study was made up of the results of studying more than 300 judgments, where the courts solved the problem of the application of the norms of the Constitution as norms of direct action, as well as the judgments of the Supreme Court of Ukraine and the ECHR.
In the first chapter «Theoretical principles of the application of the norms of the Constitution of Ukraine as norms of direct action by courts of administrative, commercial and civil jurisdictions» the state of scientific development of the problem of the application of the norms of the Constitution of Ukraine as norms of direct action by courts and the choice of research methodology is highlighted; the essence and forms of direct action and direct application of the norms of the Constitution of Ukraine by courts of various jurisdictions are revealed; the experience of countries in the continental and common legal systems regarding the grounds and procedure of applying the norms of the Constitution by general courts is clarified and illustrated.
The second section «Grounds and prerequisites of the application of the norms of the Constitution of Ukraine as norms of direct action by courts of administrative, commercial and civil jurisdiction» consists of three subsections, where, in particular, the need of the application of the norms of the Constitution of Ukraine during the implementation of judicial proceedings by courts of civil and commercial jurisdiction is disclosed; the approaches of administrative courts in the application of the norm of the Constitution of Ukraine as norms of direct action are highlighted, the specifics of the application of the norms of the Constitution of Ukraine by the courts in conjunction with the judgments of the European Court of Human Rights are clarified.
Section 3 «Optimization of the procedure of the application by courts of administrative, commercial and civil jurisdiction of the norms of the Constitution of Ukraine as norms of direct action» has a complex structure and is divided into three subsections, the first of which contains three points in its turn. The section reveals the peculiarities of the court’s procedural actions regarding the selection of a norm of the Constitution of Ukraine or another norm of law, according to which the court resolves the case, procedural actions of the courts in proceedings in exceptional circumstances after the Constitutional Court of Ukraine recognized the law as unconstitutional, and modeled the author’s prospects for optimizing the proper legal procedure in the application of the norms of the Constitution of Ukraine as norms of direct action by courts of different jurisdictions.
