CIVIL LAW AS A BRANCH OF LAW
1.1. Division of law into public and private
1.2. Correlation of private and civil law
1.3. Importance of the Roman law for formation of civil law of Ukraine
1.4. Notion of civil law of Ukraine as a branch of law
1.5. Subject of civil law
1.6. Method of civil law
1.7. Principles of civil law
1.8. Functions of civil law
1.9. System of civil law in Ukraine
1.10. Separation of civil law from other branches of law
1.1. Division of law into public and private
Since the Roman times, division of right into public law (jus publicum) and private law (jus privatum) is generally accepted. For the first time, such division was proposed by Ulpian in the Digests of Justinian. According to him, private law was intended for regulation and protection of the sphere of person’s private interests based on the principles of legal equality which is provided by inviolability of their private property, freedom of agreement, legal protection of their rights and interests of others. Public law, in its turn, was directed to regulation of the sphere of state and public interests through a range of imperative (mandatory) rules of conduct.
But over time, in connection with a significant complication of social relations, such classifying feature as the sphere of protected interests was not enough. That is why along with this criterion, the manner and nature of impact of law on relationships were also taken into consideration. I.e. when relationships are directed to secure state and public interests and subordination (vertical subordination), organizational-administrative and enforcement principles are inherent for them, they have public law nature. Instead, social relations, which not only directed to secure private interests and arise between legally equal entities, but also those which are formed at their initiative and on the basis of purview in choice of behavior, i.e. through coordination, have private law nature.
Starting to study civil law, first of all, we need to determine correlation of this branch with such categories as "private law” and "public law”, since it affects choice of models, according to which the fields of national legislation are formed, codes are created, their content, character of relationships is determined, etc.
The traditional private law is characterized by the "private law - public law” dichotomy.
This approach is completely logical. But here we should consider undesirability of simplifications in establishing differences between private and public law. Most often such simplifications are linked to identification of law and legislation. As a result, we can often find expressions the essence of which boils down to the fact that as each law is a public phenomenon, private law exists only within the framework of public law.
However, we cannot identify the categories "law” and "act”. The notion "law” is wider. It covers all obligatory norms that exist in society (including those based on the prescriptions of natural law, corporate norms, etc.) and cannot be reduced only to a set of regulations issued by the authorities. That is why one or other branch of law does not automatically become a public law from settlement of relations by legislative acts.
We should also take into consideration that while determining private and public law, we cannot be limited by quoting of Ulpian’s words: "... public law is what concerns provisions of the Roman state, private – what concerns benefit of individuals”. This mechanical citing distorts Ulpian’s position, who did not write about distribution of the Roman law into fields, but that study of the Roman law is divided into two parts: public and private law (D.18.104.22.168). Therefore, he gave the definition of these parts in a simplified form, based primarily on educational purposes.
Taking into consideration the above mentioned about peculiarities of interpretation of the notion of private law, we can conclude that the characteristic features of private law are:
1) recognition of priority of interests of a private individual as to interests of the state and other social and public formations;
2) recognition of "sovereignty of a private individual”, i.e. non-subordination to other persons in private relations;
3) lack of power relations between subjects of private law: they are private individuals, none of which acts on behalf of the state or its bodies (not a figurant of the state);
4) legal equality of participants of private relations before the law (but not necessarily before each other);
5) initiative of the parties in establishing relationships;
6) free choice of subjects of civil law in choosing rules of conduct, not expressly prohibited by law;
7) providing of benefits to ordinary proceeding of protecting the interests of private individuals in court;
8) implementation of "rights, freedoms” of personality based on the norms of natural law through appropriate legal institutions.
Taking into consideration the above mentioned, private law can be defined as a set of ideas, principles, rules and regulations that determine the status and protect the interests of private individuals who are not figurants of the state and not in relations of power - subordination to each other.
Recently, lawyers (in particular, specialists in the field of administrative law) emphasize that when characterizing public law, it is not enough to specify only what concerns interests of the state in general, but one should also note that the following is inherent to public law:
1) official recognition of predominance of public (social) interests over interests of certain individuals;
2) presence of relations of power between its subjects - subordination;
3) clear definition of boundaries of possible behavior of subjects of public law by legislation acts adopted by relevant government authorities;
4) use of such method of legal influence as a direct "commitment”, when participants of specific legal relations are suggested to act in a certain way;
5) use of prohibitions on certain actions as a means of formation of behavior of subjects of public law;
6) use of such incentive, first of all, as state coercion to ensure proper conduct by a subject of public legal relations;
7) acting of public law as prerequisites for public order and results of its implementation;
8) one of participants of public relations is necessarily the state or the person which represents it (figurant of the state).
Taking into consideration the above, public law is a set of legal rules and institutions that make up the functional-structural system, which regulates relations with the state (its figurants) and between subjects that are in relations of power and subordination to each other to ensure public order and protecting of interests of citizens (O.I. Kharitonova).
Public law together with private law creates a general system of law that is a part of civilization (culture).
1.2. Correlation of private and civil law
The basis of private law is civil law that most fully absorbed all its features and is the foundation of all private law of Ukraine. Further, we shall review it in terms of four main directions:
1) as a field of law,
2) as a branch of legislation,
3) as a science, and
4) as a subject.
But despite importance of civil law, we should recognize that in one way or another, signs of private law regulation are characteristic also to other branches of law, which in their totality form Ukrainian private law. Family law, international private law and partly land law, environmental law and labor law must be referred to these areas of law. Today significant discussions arise regarding the place and role of economic law in the system of private law of Ukraine. However, economic law is not only a remnant of the legal system of Ukraine, which tried to synthetically combine organically inconsistent and contradictory private law and public-legal principles, but also a significant obstacle towards development of civil society and market economy. Indeed, in Ukraine there were no preconditions for introduction of dualism (duality) in the system of private law, and such artificial splitting and internal competition can negatively reflect on the unity and uniformity of application of private law norms when applying legal rules.
1.3. Importance of the Roman law for formation of the civil law of Ukraine
Modern jurisprudence has its lineage back to ancient Rome, since the Roman law was formed and became an important factor for development of ancient culture, while being its essential part. Although legal norms governing civil relationships existed in more ancient civilizations and development of the Roman law was influenced by ancient Greek, ancient Egyptian, Jewish law, from which significant number of ideas, principles, specific legal rules were taken, but only in the Rome ancient civilization, law become a relatively independent phenomenon, has gained importance of phenomenon that can be studied now, abstracting from the concrete historical conditions, culture, state in which it was formed.
Roman lawyers were first to create a special clear terminology, the same that is used almost by the entire world now, developed legal categories and notions, founded and developed a methodology of legal thinking, led to thinness of expression of these concepts. Finally, Roman lawyers were inspired in their search for those ancient ideals of justice, which are the same, as they meet eternal expectations of the human spirit and are now coming back into legal circulation as determinative frameworks of the modern legal system of Ukraine.
Touching on the importance of the Roman private law for modern civil law of Ukraine, we should emphasize civilization, historical and legal importance of the Roman law.
Civilization importance of the Roman law is that being an important part of the European civilization, it became in fact, as vividly described by some culture experts (V. Skurativsky), one of cornerstones of the so-called "European house”.
With time, many maxims of Roman lawyers not only did not lose their legal meaning, but also became "winged expressions”, transformed into legal (and not just legal) presumptions (provisions that do not require proof). For example, pater est quem nuptiae demonstr?nt - the one who is married to the child’s mother is considered to be the child’s father. The following aphorisms gained the same value: dominus sentii periculum - the risk of accidental death (things) is always born by the owner; prior tempore - potior jure - first in time - stronger by right; est in mora - delay (performance) entails the risk of accidental death (things); nemo debet bis puniri pr? uno delicto - nobody can be punished twice for the same offense. These and many other famous aphorisms of the Roman lawyers entered the treasury of the world legal culture and became an acquisition of modern jurisprudence.
The historical value of Roman law for Europe, including Ukraine, is caused by the fact that over time it influenced formation and development of all European law systems in classical and Greek and Roman (Byzantine) variants.
After fall of the Roman Empire in 476, the Roman law continued to exist and even develop in the eastern part - the Eastern Roman Empire (Byzantine Empire). With its fall, the era of oblivion started for the Roman law. It seemed to have disappeared for a long time. It was not studied, a few records were lost. It seemed that the final death and loss were inevitable. However, the Roman law continued to live in the minds of the Romans conquered by barbarians and their descendants. It rules are gradually applied to regulate relations between the Roman population, and then studied.
The phenomenon of reception of the Roman law, which can be defined as its revival, perception of the spirit, core principles, regulations and separate regulations on the new stage of development of civilizations, began this way.
Since reception of the Roman private law is the notion which cannot be measured at once, it can occur in various forms and types.
In particular, reception is available in the following forms:
1) study of the Roman law at educational institutions as a juridical comprehensive discipline to form world outlook of future lawyers;
2) study of the Roman law as a heritage of culture;
3) research, analysis and comment on the Roman law sources;
4) direct application of rules and provisions of the Roman law;
5) use of norms of the Roman law as models for developing of normative acts (especially in codifications);
6) use of the Roman private law methods of developing of normative acts or practices in their implementation (application);
7) perception and use of the principles, ideas and categories of the Roman law.
Reception varies not only by form, but it may be of different types: direct and indirect (derived).
Cases of direct reception take place when a new civilization is matured enough to understand achievements of past culture, since extinction of which not too much time have passed for ideas, legal monuments, etc to be lost. Reception of the Roman law in Byzantium can be an example.
Often ideas of the Roman law, its certain provisions and legal decisions are received indirectly, for example, by borrowing ideas from the legal system of any country, which have already received the Roman law (proxy, derivative reception). An example may be borrowing by many countries of the Code of Napoleon or the German Civil Code, which in their turn are an indirect result of indirect reception – reception of the Roman law in Byzantium in the VI-X cent. was an indirect chain.
Reception can be not only obvious but latent (hidden). This occurs, of course, in cases where borrowing of certain ideas or key decisions of the Roman law takes place in the process of lawmaking, but a fundamentally different deviation, rejection of "old” law, is declared here. We meet with this kind of reception, for example, while codifying civil law in the Soviet state, other countries, where socialist legal system existed or exists.
The Roman private law was received most widely. Such legal categories as "agreement”, "commitment”, "delict”, "contract”, "mortgage” and others are initiated by the Roman private law and treated (with relatively minor modifications) in almost all countries unambiguously. It should be mentioned that their essence (as of many other traditional institutions of modern law) can be easier considered and understood, when we trace development of these concepts from their origins.
In particular, it also influenced development of Ukrainian law and continues to influence the concept of law in Ukraine today.
Legal significance of the Roman law is that the conceptual and categorical apparatus, terminology of modern law are based on the ideas, principles and definitions developed by the classical Roman jurisprudence.
1.4. Notion of civil law of Ukraine as a branch of law
Civil law is a manifestation of private law at the level of national legal systems, acting here as a branch of national law.
The term "civil law” is used in scientific and academic literature and in legal practice in several senses:
1) a special kind of subjective right;
2) a branch of national law;
3) a system of legislation;
4) a part of science of law;
5) a subject.
Understanding of civil law as subjective law belonging to a particular private individual, and as a branch of law, that is a manifestation of private law at the level of national legal system is defining between them.
Civil law as the law that belongs to the subject of civil relations is a possibility of its determined behavior based on the norms of natural and positive law, protection of which is guaranteed by the state.
The characteristic features of civil law in this interpretation are that it:
1) belongs to the person who is a member of civil relations;
2) can be based both on legislative provisions and on the agreement of the parties, on customs, standards of morality, etc.;
3) is ensured by legal protection through public legal means (court, notary public, government agencies, etc.) regardless of the grounds of origin.
In the meaning of a branch of national law, civil lawcan be defined as a set of concepts, ideas and legal norms which set the status of a private individual and ensure protection of his interests on the principles of optionality, legal equality and initiatives of parties.
The characteristic features of civil law as a branch of national law is that it:
1) is a manifestation of private law at the national level;
2) is a set of concepts and legal ideas, principles embodied in acts of legislation and other norms;
3) serves to the purposes of ensuring of realization of subjective civil rights to their owners.
The main role in determination of civil law as a branch of law is played by its subject, method, functions andprinciples.
1.5. Subject of civil law
Property relations; personal non-property relations associated with property ones; and other personal non-property relations were recognized as the subject of civil rights in the Soviet civil law. In particular, this approach was reflected in article 1 of CC of UkrSSR, 1963.
In this regard, in due time, in Soviet civil law literature, definition of the concept of property relations and establishing of the criteria for assigning them to areas of civil law in Soviet literature were paid much attention. Some authors (A.A. Pushkin) named commodity-money nature of property relations, others (Y.S. Chervony) named property independence of subjects and the fact that the last act "independent owners of goods” as such criterion.
With adoption of the Civil Code of Ukraine in 2003, foundation for such disputes is liquidated as the Article 1 of the Civil Code refers to the subject of civil regulation only those of property relations that are based on legal equality, free will, property independence of their participants. Thus, not the subject but the method and principles of legal regulation become the main criterion for establishing branch belonging of relationships. Legal equality and free expression of participants of relations regulated by it are typical for the civil method.
By its nature, property relations are characterized by the following features:
1) they are economic, i.e. they have money-commodity character;
2) they arise and exist between the participants who possess proprietary independence and legal equality;
3) they provide satisfying of mostly material needs and interests.
The most common criterion of property relations in civil law can be divided into:
1) property relations at to belonging of property (relations of statics), such as relations of ownership, possession, use;
2) property relations as to fixing of the process of property transition (relations of dynamics), for example, relations under contractual obligations, commitments as to injury, etc.;
3) property relations on management of a corporation (corporate relations), for example, relations for management of private property by members of corporations (JSC, LLC, etc.);
4) property relations as to creation and use of intellectual property (exclusive relations), for example, relations on use of works of literature, science and art, inventions, utility models and industrial designs, etc.
Non-property relations also take a significant part in the subject of civil regulation. These legal relations as a subject of civil law are quite "young” since they are first officially recognized in that rank only in the CC of Ukraine. Features of non-personal relationships are the following:
1) they are closely related to personality of their participants;
2) they are non-property, that is their content cannot be determined in money or other property equivalent;
3) they arise and exist between legally equal participants;
4) they provide satisfaction of mainly internal (spiritual) needs and interests.
1.6. Method of civil regulation of social relations
Method of civil regulation is a set of specific means of effect on participants in civil relations that are characterized by legal equality of parties, as well as provision to the latest an opportunity of solution of these relations at their discretion with the exceptions established by civil legislation.
As absence of categorical orders to participants of civil relations to act in a certain way (an exception is civilian security relationships - obligation to compensate a damage, to return the property obtained without grounds, etc.) is typical for the method of civil regulation in most cases, the latter is given an opportunity to select the type of behavior and independently regulate their relations.
This method is called dispositive method, unlike imperative method – characteristic for administrative law (public law in general).
Civil method of regulation of civil relations is a complex category, which has the following features:
1) legal equality of participants, their autonomy and independence, which means that participants of relevant legal relations have legally equal opportunities to acquire and exercise civil rights and create and perform civil duties, and they are not in any legal dependence between each other (authoritative subordination);
2) optionality in choice of behavior of members of civil relations, this means that parties can act initiatively, freely, in their own discretion, based on their own interests and purposes;
3) judicial dispute settlement, which means that they are able to settle any disagreement between members of civil relationships in court;
4) property-compensational nature of measures of enforcement effect on the offender, which means that the participant of legal relations that is not performing his duties violates the rights of other participants of civil relations or creates barrier as to their proper implementation, use of means of protection, not beneficial in terms of property for the offender, which are mainly of property character, which is directed to restoring of the violated right, legally protected interest or welfare of the victim party.
Thus, the method is a defining category, meaning that even if relations are proprietary by their content, but based on administrative or other authoritative subordination of one party to the other, for example, financial, tax, budget, etc, they are not related to the subject of civil regulation (Article 1 (2) of the CC of Ukraine).
Describing the civil method of legal regulation, however, we cannot ignore possibility of existence of imperative element in it (in liabilities arising from injury, imperative order is an order for compensation of such damage, grounds, conditions and procedure of their recovery).
1.7. Principles of civil law
Principles of civil law are basic principles, the most general guidelines (principles) of civil law that have obligatory nature by virtue of their legal assignment. The meaning of civil law principles lies in the fact that they:
1) reflect essence of social orientation and major branch features of civil regulation, i.e. each further norm in its content must be penetrated by the principle of civil law;
2) are taken into account when concluding non-nominate contracts (Article 6 (1) of the Civil Code of Ukraine);
3) are taken into account when applying the analogy of law (Article 8 (2) of the Civil Code of Ukraine);
4) are taken into account when protecting the legally protected interest (Article 15 (2) of the Civil Code of Ukraine).
The following civil law principles are set in the Article 3 of the Civil Code of Ukraine:
1) inadmissibility of arbitrary interference in the sphere of private life of a person, i.e. no one has the right to interfere into personal and family life of an individual without his consent, unless explicitly stipulated by the Constitution of Ukraine. This principle stipulates conditions for protection of privacy of an individual from undue external interference to ensure his internal (spiritual) interests;
2) unacceptable deprivation of property rights, except as prescribed by the Constitution of Ukraine and the law, meaning that property right is inviolable in Ukraine. This principle provides a person with guarantee of economic independence and property separation from other participants of civil relations. However, in some cases directly prescribed by law, this principle may be subject to certain restrictions, when it is directly derived from the Constitution of Ukraine, such as depriving a person of property due to confiscation or forced alienation of private property for reasons of social necessity (Article 41 of the Constitution of Ukraine);
3) freedom of contract, this principle means that members of civil relations are free in possibility of entry into contractual relations and choice of the kind of contracts (both nominate and non-nominate), contractors and contractual terms, etc. In some, cases prescribed by law, this principle is subject to appropriate limitation, such as making previous or public contracts, etc. This principle provides a person with a possibility to initiatively enter into contractual relations at his own discretion, based on his own interests;
4) freedom of entrepreneurial activity that is not prohibited by law means that individuals are free to choose business. However, in some cases directly provided for by law, a person may be limited in his freedom of business, for example, under subject’s content (deputies, officers and employees of state and local governments) or nature of business (establishment of monopoly), etc.;
5) judicial protection of civil rights and interests, i.e. in case of violation of civil rights or interests, as well as in the case of creating obstacles as to their implementation, a person has the guaranteed opportunity to defend them in court. This person has the right to defend civil rights and interests both in courts of general jurisdiction and in specialized courts and arbitrations.
6) fairness, good conscience and reasonableness, this principle means that regulation and protection of civil relations should take place fairly, honestly and wisely.
1.8. Functions of civil regulation
The functions of civil law are main directions of its impact on civil relations in order to compile and implement the latter. Main functions of this branch of law traditionally include: regulatory, protective and educational functions.
Sometimes this list looks a little different: regulatory, protective and preventive functions. Here it is meant that civil law generally performs functions inherent to law, but does it with its characteristic features.
This approach is essentially correct; however, in terms of possibility of overall assessment of functions of civil law, it can result in inadequate ideas of them, because it does not give a complete picture of the functional mechanism of this branch.
For these reasons, when characterizing features of civil law, it is appropriate to specify separately those functions that have general nature and those that are specific to this area.
While using this approach, we should distinguish:
1) general legal functions that appear at the level of civil law;
2) specific civilistic functions.
General legal functions that appear at the civil level are the following:
- Information-directing function. The task of acquaintance of subjects of civil relations with the concept of rights of a human (individual), principles of determining of the position of a private individual, general trends of legal regulation in this area, etc. So, orientation of subjects of civil law for a certain type of behavior, awareness of their rights and obligations by them take place. In the event of failure to perform this function, members of civil relations almost lose the opportunity to feel themselves subjects of private law, and therefore cannot fully exercise their civil rights and obligations;
- Educational (cautionary-educational, preventive) function. This would involve development of respect for law in general, civil rights of other persons, law enforcement, etc. Failure to perform this function by civil law can lead to abrasion of boundaries between a right and "not right”, to violation of interests of other persons by subjects of civil relations, while exercising their civil rights;
- Regulatory function. It consists in arrangement of civil relations, providing of rights and obligations to participants of these relations, establishing of rules of behavior of subjects of civil law;
- Protective function. It performs tasks of protecting civil rights and interests from violations. This purpose is achieved by defining legal means of proper implementation of civil rights and obligations, establishment of measures of protection and responsibility for civil violations, etc.
Specific civilistic functions in the sphere of civil relations are as follows:
- Authorizing function. Civil law creates a regulatory framework, prerequisites for self-regulation in the sphere of private law, determines the principles of internal control by agreement of parties of civil relations.
This function is a specific civilistic function, because only in this sphere, participants of relations may identify the rules of behavior, actually create normative acts of local action, etc.
The conceptual framework of this function is the maxim known to the Roman private law "Everything that is not explicitly prohibited by law is permitted”, which was and is now opposed to the provision of public law "Only that is directly stated in the law is permitted”;
- Compensatory function. While exercising this function, possibility of resumption of the violated civil right and interest on the equivalent basis is ensured.
1.9. System of civil law of Ukraine
The system of civil law as a branch must include:
1) civil provisions that are specific rules of behavior. The peculiarity of such rule of behavior is that the vast majority of civil norms has permissive nature, i.e. gives persons a choice of options of behavior. This significantly affects the structure of a civil norm, as such its element as a sanction is either absent or is more universal than other branches of law;
2) civil institutions, i.e. a group of civil rules governing homogeneous social relations. Thus, property rights institution, institution of delictual liability, etc. should be considered civil institutions;
3) civil sub-branch, which is a set of institutions governing the homogeneous social relations, such as sub-branch of property law, contract law, etc.
The structure of civil law as a branch of law includes:
1) General part that contains civil norms extending the application on the whole range of civil relations and concern the sources of civil law, subjects, objects, contents and grounds of change and termination of civil relations, exercise of civil rights and their protection, etc.;
2) Special part that contains civil norms extending the application only on certain legal relations and concern regulation and protection of personal non-proprietary rights, proprietary and contractual right, intellectual property rights, inheritance rights, etc.
Existence of two main systems of organization (structure) of private law - institutional and pandect – was traditional for private (civil) law.
Institutional system of organization (structure of civil law) includes the following institutions: persons, things, and means of buying things.
Pandect system consists of the following parts: general provisions, property law, contractual law, family law, inheritance law.
Its advantages: singling out of general part, which allows avoiding repetitions when characterizing certain institutions, a clear division into sections (sub-branches), etc. And with it, unlike the institutional system, civil status of a person supposedly passes into the background here, which does not meet modern trends of development of civil law.
However, it should be taken into consideration that neither one nor another system exists in its pure form.
Although some civil codes are built by institutional (the Civil Code of France) or pandect system (the Civil Code of Germany), but the structure of civil law as a branch now looks more difficult.
In particular, it covers:
1. General provisions.
2. Legal status of a person.
3. Property rights (Rights to things).
4. Intellectual property rights.
5. Agreements (contractual obligations).
6. Non-contractual obligations.
7. Inheritance law.
8. Family Law. (In Ukraine, it is traditionally treated as a separate branch, but in fact it belongs to the sphere of civil law).
Speaking about the structure of civil law, it should be noted that differentiation of it into general and special parts is arguable.
This differentiation is impractical, because there is no universal "general part” in civil law. However, the "general part” consists as if of two levels: there are provisions common to the whole civil law and there is a general part of obligatory law. Moreover, the third level - general part of contractual law, general part of non-contractual obligations, general issues of inheritance law, etc - is possible. Therefore, it is always impossible to separate the "general part” as such.
In this regard, it is advisable to speak not about General and Special part, but about some sections of civil law. And first section of civil law covers its general provisions. The following sections are generally adequate to relevant sub-branches of civil law, moreover, each of them has its own "general” and "special” parts.
1.10. Separation of civil law from other branches of law
Civil and administrative law.Imperative method is used in administrative law.
Civil and labor law. Labor force is not recognized as an article of commerce, therefore labor law is separated into an independent branch.
Civil and ecological law. Land and other natural resources are in circulation of late years; therefore relations concerning them are a subject of civil law.
Civil and financial law. Money is not a measure of cost and performs an accumulation function within the framework of financial relations (Article 1 (2) of the Civil Code of Ukraine).
Civil and family law. Property relations between family members have personal nature, therefore it is a separate branch.