| Abstract [eng] |
The paper analyzes the role of the court. The aim of the paper is to separate the concept of legal interpretation from the creation of law and to examine the place of the court in the perspective of these concepts. The discretion of an active court is revealed through the principle of separation of powers embodied in Article 5 and Article 109 of the Constitution of the Republic of Lithuania, which provides for the duties of the judiciary. The main functions of the court, according to the Constitution of the Republic of Lithuania, are the execution of justice and obeying the law. The aforementioned judicial functions must work together, thus protecting the principle of separation of powers. There is no consensus in the scientific literature regarding the court's ability to create legal norms. Making court decisions is more understood as an active and creative interpretation of the law, this is the position taken by the national legal doctrine. Legislation, in the narrow sense, is associated with the discretion of the legislature. Courts must actively interpret the law, due to the following reasons: difficult cases, loopholes in the law, ambiguity of language, imperfection of the legislator and limitations of the legal text. It is the duty of the court to interpret the content of the legal norm using legal interpretation methods. In the absence of a legal norm or the possibility to interpret the law based on the methods of legal interpretation and other normative law, the court must go beyond the limits of positive law and resolve the dispute by taking a creative interpretation of the law, using legal principles, values, and morals. Due to their uncertainty and subjectivity, these elements of law can raise the risk of legal interpretation becoming akin to law-making. The selection of judges and the instance court system are the main two regulators that ensure the judge's discretion as an interpreter of the law. The Judge's assessment model that has emerged allows for a more objective assessment of the personal competences and perceptions of applicants for the position of judge, thereby trying to avoid excessive activity of judges in the future. The instance system of courts removes the errors of court decisions that have already appeared and forms a unified system of interpretation of legal norms. |
