THE CONCEPTUAL APPROACH TO THE ISSUE OF WIDENING JUDICIAL DISCRETION IN KAZAKHSTAN IN THE ASPECT OF CORRELATION WITH THE JUDICIAL PRECEDENT

Abstract

In this article the authors examine the question of possible implementation of a judicial precedent into the national legal system through the prism of the concept of judicial discretion developed in Kazakhstan and the significance of the judicial precedent in English law.

The authors carried out the analysis through a sequential examination of:

- judicial discretion and its types under the laws of Kazakhstan;

- the concept of judicial precedent in English law, as well as the types of precedent;

- the use of precedent outside of English law.

Taking into account the existing legal traditions, legislative regulation, the authors identified and analyzed such types of judicial discretion as: the application of the analogy of legislative act and the analogy of law; legal qualification of legislatively formalized evaluative concepts; concretization of subjective rights and obligations; judicial rulemaking.

Particular attention is paid to the topical aspects of judicial rulemaking, especially, the practice of development and adopting the normative resolutions of the Supreme Court of the Republic of Kazakhstan.

Also, the bases for the recognition of judicial decisions as precedents and the grounds for refusing to follow the precedent are considered.

It should be emphasized that, in order to determine a section of research, restricting to a certain sphere of social relations, special attention is paid to the condition and prospects of civil disputes resolution. The choice of this approach also is explained by the impermissibility of applying the criminal law by analogy.

By analyzing the current legislation, as well as foreign experience, the authors come to the conclusion about the possibility of expansion of the limits of judicial discretion within the legal institutions existing in Kazakhstan without adoption of a judicial precedent.

The obtained results of the research can be used in lawmaking process when forming approaches to expansion of the limits of judicial discretion.