THE IMPORTANCE OF JUDICIAL DISCRETION IN THE APPLICATION OF ANALOGY IN COMMERCIAL PROCEEDINGS

Abstract

The article is devoted to the study of the problems of applying analogy of law in the activities of commercial court judges. Particular attention is paid to the analysis of subjective components of judicial discretion and their impact on decision-making. The author notes that despite the discussions among scholars, the phenomenon of analogy of law is becoming widespread both in the application of substantive and procedural law. The attention of researchers to this phenomenon is not accidental. Justice is virtually impossible without judicial discretion. Judicial discretion is an important component of procedural freedom and independence of a judge. However, such discretion is not unlimited; the provisions of law, law and the judge’s awareness and the tasks of economic proceedings determine its limits. The purpose of the study is to investigate the correlation between the categories of judicial discretion and analogy of law, their dialectical relationship and conditionality, and also the acceptability of application of analogy of law in economic proceedings. Methods. With the help of the methods of scientific cognition (analysis and synthesis, structural-logical and comparative legal methods), the author aims at investigating the validity and expediency of the use of analogy by judges when forming a court decision in an economic case and at determining the correlation between the categories of judicial discretion and analogy in economic proceedings. Results. Social relations, in particular in the field of business, are constantly evolving and improving, resulting in the formation of new norms and relations in which economic legal personality, risk and responsibility of business entities are implemented. It is quite natural that in such circumstances the legislator cannot always offer a legalized way to regulate social relations. The application of civil and commercial substantive law by analogy has recently become widespread in court practice. It is interesting that judges rarely refer to the provisions of Article 8 of the Civil Code of Ukraine or Article 4 of the Commercial Code of Ukraine, parts 10 and 11 of Article 11 of the Economic Code of Ukraine; they mostly refer to the law enforcement rules or positions of higher courts when applying analogy. However, only a court and only a judge has sufficient powers and procedural guarantees to ensure the proper application of the law by analogy. Conclusions. The author believes that the application of analogy of law and the use of judicial discretion are intended to resolve the problems of uncertainty in economic legal relations, creating conditions for an adequate response of the court to the changing conditions of economic activity. In the author’s opinion, the application of legal norms by analogy is a real guarantee of ensuring the effectiveness of the justice system, which is based on public trust and respect, and is ensured by the principles of independence, impartiality, impartiality of justice, adherence to ethical standards, equality, competence and diligence of judges.