Civil law regulating an extremely vital part of public relations, has a rich and long history of the origin and functioning since its origins originate from the foundation of Roman law, which is considered to be 449 BC. BC, when it was passed the first laws of Rome as the Laws XII tablyts1 .
Can not learn civil law, not finding him primarily of general principles. The legal doctrine formulated the doctrine of the existence and functioning of law within the relevant legal system , consisting in each state with certain characteristics. For many decades, the legal system of Ukraine due to known historical events formed within the legal system of the Russian Empire and the Soviet Union. Only in the last ten years in an independent and democratic Ukraine started actively creating a new field , which must conform to generally accepted international standards , built on the primacy of universal democratic values, the inviolability of private property. However, the formation of an independent legal system of Ukraine, legal science is influenced by centuries of experience of world civilization and good practices rulemaking and jurisprudence of the Soviet period .
In the definition of law in general and civil law in particular must be aware that the term «law » is used in many senses — social, philosophical, domestic, law . However, its importance in legal jurisprudence may be multidimensional. Yes, and almost universally significant is the division of the right to objective and subjective. In jurisprudence concerning the definitions of objective and subjective rights expressed many different opinions, the basis of construction entrusted usually a legal rule. Accordingly, in summary form legal science objective law is defined as a kind of » set» , «system» established by the state mandatory law (rules of conduct) , the implementation of which is provided by the state- coercive means. Close to the above definition are the views of the classics of Marxism -Leninism , which saw law as the will of the ruling class , as expressed in the law. Thus , in their view, the law has a class character. The primacy of class character just right in many ways and has led to the substitution of revolutionary law of justice , ignoring the private interests of others. Modern Ukraine is deprived of the right to such excesses and built on the principles of civil society , which equally protected as public interests and private . It is clear that under civil law in an objective sense, should be understood not a simple set of rules and logical and orderly system of content creation and placement rules aimed at resolving civil relations.
In contrast to the objective law, subjective right is an appropriate measure of the behavior of relations , the established and authorized to varying legal standards. That is, in this case, refers to a specific right indie vidualizovanoho subject. Therefore it is always a subjective right is due to objective law , the effect of which creates a subjective right to legal participants while protecting it in case of infringement by others.
All existing legal provisions in the country as a whole constitute an appropriate legal system , the design of which is based in a certain order and with certain principles , gained legal science . One of the key provisions of the legal theory at the present stage concludes on the division of the entire legal system of Ukraine , as well as in foreign countries with highly developed market economies, public and private law. In turn, public and private right of regulating a homogeneous or relatively homogeneous category of public relations is divided into appropriate subsystems , which are called » area of the law .»
Publicly fields of law , in particular , are considered constitutional , administrative , criminal, finance , private — civil, labor . The list of independent branches of law is not exhaustive and definitive. Within a single system of law of the state formed integral with respect to other subsystems , such as: land law, environmental law , natural resources law, family law , housing law , commercial law , tax law . However, such is not subsystem formation implicitly recognized independent branch of law , their place in the law often changes depending on the value of these subsystems at a given stage of development, the degree of legislative regulation of relations within the sphere of influence of the respective subsystems.
An important reason for the division of the right branch serves as the subject of legal regulation of social relations that are mixed , while some groups have common features. The presence of the appropriate category of objective relations in common gives rise to the formation of the legal field. This process can affect and subjective factors , including the degree of development of science , as representatives of a particular scientific field seeking to prove the existence of a set of legal rules that are the subject of research in the form of an independent branch of law. Thus, the » leading » the branch of law in the legal literature recognizes land rights . Independently branch of law many members of family jurisprudence consider family law. However, in recent years , especially during the development and adoption of new civil and family law Ukraine , quite actively shaped the concept of family law as a sub-sector civil. This concept has sufficient legal basis , which reinforced the inclusion of family law rules to the draft Civil Code of Ukraine . However , even that was taken after an independent Ukraine E K , it is hard to deny the facts » family » relationship between the civil and family law , which is actually a » treaty » on the civil law as a » parent» field of law. Today there is a tendency to justify recognition of the right branch of business law , although part of the Lawyers believes this item premature. There are also cases of liquidation of the legal field. Thus, in the transition of Ukraine to the principles of market economy was a liquidation of collective farms, and then disappeared reason being the collective rights.
So, for the recognition of the branch of law in many jurisdictions subsystems science is not consensus . Having difficulty in solving this problem, set the stage for the emergence of so-called complex areas of law. Thus, even in the Soviet period in legal science has spread the idea of the possibility of near main exam ( traditional ) fields of law ( civil , administrative, civil ), procedural areas of law ( civil procedure , criminal procedure ) and the specialized fields of law ( labor, land , financial ) of so-called complex areas of law that have features of secondary structures in the legal system ( banking , tax , housing law , etc.) , are specialized to regulate certain relations on the basis of existing sectoral legal systems and can not have its independent method of regulation. Obviously, the purpose of the formation of secondary legal subsystems are making rational and more effective in the legal regulation of heterogeneous social relations that occur in a particular sphere of production or other activities . Such a complex industry , some authors consider commercial law, which, in their opinion, based on the norms of civil, administrative, financial and other sectors prava1 . This view certainly has a right to exist, but given the fact that any self- avowed area of law sometimes contain provisions that regulate not inherent social relations. In other circumstances could come to a conclusion about the absence of independent legal system in general areas of law. Therefore, it seems quite reasonable position on the recognition of secondary comprehensive legal subsystems that regulate a diverse category of social relations in a special activity and complex (mixed) subsectors rights or integrated intersectoral law. So there is quite vulnerable position of those scholars executives who recognize the business law independent branch of law .
A special place in the legal system takes the procedural law whose purpose is to implement the rules of mother -tial law ( civil, land , criminal , etc.). It is intended to provide a functioning physical areas of law. However, this does not preclude the recognition of civil procedural law , criminal procedure law independent branch of law , as they quite uniform rules governing the relations arising in the event of an appeal of the person ( physical and legal ) to court.
Regarding the place of civil law in the legal system in science discrepancies arise. It clearly recognizes base — vnoyu independent branch of law which has its own subject and method of regulation. This, however , does not mean that the civil law as a branch of the legal system of Ukraine is devoid of problems. They exist , but the definition of related primarily regulated by civil law relations , content regulation method , the ratio of the civil rights of other sectoral and interdisciplinary systems ( subsystems ).
Particularly relevant in the independent Ukraine is the problem of the private nature of the civil law. The division of the whole legal system for public and private law is largely arbitrary, since in many cases the process of interaction between different standards of individual systems . Despite the fact that the rules of constitutional law are public law , the Constitution of Ukraine lays the foundation for all areas of law and other subsystems, including for civil rights because it acts as a » social service » to all the people derzhavy4 . For example , the new Constitution of Ukraine in eight articles contain provisions regarding the rights of citizens, legal persons, state, local communities. Under these rules are reflected in the development of norms and property rights in the new Civil Code of Ukraine. In constitutional law, other public subsystems typical of the majority of imperative norms. For the rules of civil law is characterized as a private dispositive , focus on the interests of the individual and others. However, these features of constitutional law enabled the individual authors assert that it is not a public law and implements the rules of natural law at the national level, is the basis of all national law , including civil.
According to EA and Kharitonov NA Saniahmetovoyi , private law can be defined as a set of rules and regulations relating to the definition of the status and protection of the interests of individuals who are not persons involved in the state, not in relations of power and subordination to each other, equal and free to set itself the rights and duties in the relationship arising from their initiative. This definition is largely reflects the objective characteristics of private law. The authors sought to develop justifiably famous quote Roman lawyer Ulpian that » public law is that it applies to the situation of the Roman state , private — which concerns the good of individuals .» However, in this case the description given by the authors is not exhaustive , since the content of private law is too complex and not always uniform . May be ambiguous to interpret the term » person involved in the state,» because under it can be understood as state and municipal entities, both public interests are protected by private law entities along with those individuals. In addition , the authors made a certain inconsistency , considering private law as a set of rules and regulations and otherwise rightly claim that right — a broader category than the law that covers the entire set of mandatory rules. In this regard, the question may arise : what is the difference between the authors see rules and regulations.
Of course, any definition of private law may have a vulnerable side. Therefore, the main challenge in addressing public and private law should be to identify the most important legal features that serve as the basis for their separation . On the basis of the jurisprudence of this distinction assigned a category of interest. It is the case of public interest, the legal status of the state, its agencies , the regulation of relations in the public interest , it is the sphere of public law, but when it comes to interest some individuals, property relations between them, their legal status in conn this regard , it is the sphere of private law. Of course , the category of interest here is crucial , but not the only one. In addition, the public interest as a legal category should be understood in this case in the narrow sense , as the need for regulation of property relations between individuals are also driven by the public interest , the function of the State to ensure the protection of the rights and interests of citizens, legal persons. Obviously , it is equally important to address this problem may be the principles underlying public and private law , the means used by the relevant area of law or another subsystem in violation of the rights and interests of the individual .
Implementing the ideas of private law in the legislation of each country is different. First they were over- borrowed from Roman private law.
Establishment of private law in the developed European countries contributed to the rapid development of the capitalist economy nkovoyi — ri . Under these conditions, there is an urgent need to limit government interference in economic relations, ensure the integrity and the inviolability of private property, to balance the general social and private interests. The Union PCP these ideas have not received proper development or in jurisprudence or in the legal system. This is understandable , because the communist ideology is usually assumed complete subordination of personal interests of the public . It was only after the collapse of the Union of PCP in the legal systems of former Soviet republics , including Ukraine, have begun to be approved principles of private law in their respective spheres. In civil law , these principles have found their most vivid expression.
The main reason for the recognition of private civil law is to serve the law, which is a form of expression rights. According to A. Dovgert , the CC should be a code of private law which, in particular , covers all private- field governs all , without exception, economic and moral relationships that are based on legal equality , free will , property independence of their members, is the principal act in the whole system of civil law. However, this assessment of the Central Committee of Ukraine shall not be understood too strictly , because there are a lot of regulations that have elements of public record , including the rules governing relations with public relations and consumer law on notarization and state registration. Therefore, the true meaning of civil law, its legal nature and place in the Ukrainian law to be considered by identifying its subject matter and methods of legal regulation of social relations characteristic of civil law, not limited to concentrating on his private law character.
In tsivilisticheskoy science are other definition of civil law , which focuses on various features of the subject and the method of civil regulation. This is understandable , because the civil law governing the extremely wide range of civil legal relations. Despite this variety of civil legal content of their brilliance, civil law taken together form a coherent organizational system of civil law , based on the relevant laws of the creation of a legal body and logically interrelated civil law .
Civil law , like any other independent branch of law has its own organizational and technical structure of the that binds all legal rules in a certain order , arrangement for appropriate legal grounds. This structural association law creates a formalized system of civil law, which promotes effective learning and the application of these rules. As you know, today in the rulemaking widely practiced adoption of comprehensive legislation , which contain provisions different areas of law. In such cases it is essential , first , to establish sectoral affiliation of a norm, and secondly — to find its place in the relevant area of law.
The major components of the structural elements of civil law is most definitely legal norms. However, they can not exist alone, in isolation, without relationships.
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