ТЛУМАЧЕННЯ ПРАВА ЯК ТВОРЧИЙ ПРОЦЕС

Abstract

During the realization and interpretation of a legal rule, its off cial explanation, making a decision by a court, there is a “creative” approach, rethinking the text of the legal rule. At the same time, we must not ignore that the interpretative activity at the core has a number of means and rules defined by law, produced by legal doctrine, the derogation of which will cause question on the results of interpretation and their legal significance. In view of the foregoing, mentioned in this paper questions of the essence of interpretation are considered in the light of the presence of two of its aforementioned aspects - formal and creative. The author analyzes various approaches to defining the concept of interpretation that were provided by scholars over the past century and are traditional for domestic legal doctrine. The mentioned analysis concludes that the absence of a well-established defi nition of the concept of interpretation only emphasizes the scale and complexity of such a phenomenon - as an interpretation in law. It should be noted that the above defi nitions do not take into account the interpretation of a deals, which currently requires the attention of legal scholars and practitioners in view of the insufficiency and fragmentation of research in this field. Some provisions of the study are devoted to the research of the purposes of interpretation, the ratio of the objective and subjective parties in the process of interpretation, the features which characterize the process of interpretation, the place of interpretation in the mechanism of legal regulation. The author also paid attention to the methodic of clarifying the meaning of interpretation: static and dynamic one. Th e expediency and the possibility of applying a dynamic approach while the interpretation process is analyzed. Th e paper concludes that the relevant creative grounds take place while the law-interpretive activity, but they are significantly limited because of the natural rather than accidental nature of such activity.