Дія у часі судових правоположень
Action in time of judicial legal provision

Summary/Abstract: The given study is dedicated to the temporal effect of general judicial legalprovisions. Although some amount of research (provided by T. Anakina, Y.Barabash, B. Malyshev, A. Myroshnychenko, S. Shevchuk, V. Tykhyi, Y. Todyka)has been devoted to this issue, relatively little attention has been attached to it by theUkrainian science.Thus the major task of this research is to provide the further investigation ofaction in time of judicial legal provisions, including the analysis and generalization offoreign experience in this field.This paper focuses on legal provisions that are general rules contained in diversejudicial acts and that are recognized as the law or as the law interpretation andspecification standards (also it focuses on the judicial provisions which invalidate thelegislation rules).Different views on the nature of judicial legal provisions determine to someextent the temporal characteristics of their operation. So when legal provisions areperceived purely as interpretation of law, their temporal scope is often regarded asbeing the same as the scope of the relevant rules of law. The approaches may vary incases where legal provisions are seen as the result of law detailing and law making.The author has scrutinized different approaches, existing in various legalsystems. Traditionally, a precedent is considered to have a retroactive effect incommon law countries. However, it is often given a prospective effect. Besides, aprecedent can combine the both effects in a certain way. The author analyzes2approaches to resolving these issues in the US (where prospectivity is actively used),the UK (where retroactivity is mainly applicable) and other common law systems. Incivil law systems retroactivity of judgments is often limited.This paper describes the grounds for these approaches including some principlesof law like legal certainty (and its component - res judicata) and protection oflegitimate expectations. Temporal effect of judicial acts is the result of searching thefair balance between stability of law and need to adjust it according to the changingsocial conditions. Solving of this dilemma often leads to establishing of differentrestrictions on retroactive effect of legal provisions. It often takes into account theinterests of the initiators of the trial that led to changes in the case law. Judgmentusually has the retroactive effect on them.The author draws parallels in the views on operation of legal provisions thatexist in civil and common law systems. Defending a certain direction of theirtemporal effect is associated with a corresponding view on their nature. Retroactiveand prospective approaches in common law doctrine are respectively associated withthe declaratory and law-making theories of precedent. The continental doctrineimplies such correlation with the views on legal provisions as the results of theinterpretation which only detects initial meaning of legal rules, or as the result of lawdetailingor even law-making activity.

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