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THE INSTITUTE OF DISSENTING OPINION OF THE JUDGE IN CIVIL PROCEDURE AND ITS ROLE IN ENSURING UNITY OF JUDICIAL PRACTICE

FOREIGN CIVIL PROCEDURE


A.I. POPOV

A.I. POPOV,
Candidate of Legal Sciences, Assistant of the Department of Civil Procedure
of the Yaroslav Mudryi National Law University (Ukraine)

DOI: 10.24031/2226-0781-2019-9-4-153-174

The article is devoted to the functioning of the institution of the dissenting opinion of a judge in
civil proceedings. The doctrinal approaches to the disclosure of the legal nature of a dissenting
opinion, the existing models of dissent opinions in the global practice of justice, as well as the
evolution of the legal regulation of this institution in the civil procedural legislation of Ukraine
are analyzed. Taking into account the specifics of the functions of the Supreme Court as the
highest judicial body, and based on an analysis of the practice of considering civil cases in
cassation, the issues of the influence of the dissent opinions of the Supreme Court judges on
the law enforcement practice and ensuring the unity of judicial practice are examined. In
particular, the author expressed the view that the presence of a dissenting opinion attached
to the decision of the Supreme Court creates grounds for judges of other courts to depart from
the legal position set forth in such ruling and to apply a different law enforcement approach
proposed by the judge (judges) in the dissenting opinion. In addition, as a possible way of
influencing dissent opinions on the unity of judicial practice, it is seen that, along with the
existing “dissenting opinion” model, the “concurring opinion” model at which the judge who
decides to express it does not dispute the result consideration of the case (resolution), but at
the same time offers alternative approaches to law enforcement and the motivation of the
court decision.

Keywords: dissenting opinion; unity of judicial practice; principle of legal certainty;
Supreme Court; legal positions of the Supreme Court.

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Information about the author

Popov A.I. (Kharkov, Ukraine) – Candidate of Legal Sciences, Assistant of the
Department of Civil Procedure of the Yaroslav Mudryi National Law University
(77 Pushkinskaya St., Kharkov, 61024, Ukraine; e-mail: alexpopov.kh@gmail.com).

Recommended citation

Popov A.I. The Institute of Dissenting Opinion of the Judge in Civil Procedure and Its
Role in Ensuring Unity of Judicial Practice. Herald of Civil Procedure, 2019, vol. 9, no. 4,
p. 153–174. (In Russian). https://doi.org/10.24031/2226-0781-2019-9-4-153-174

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