ЕПОХАЛЬНІ ВИКЛИКИ У ЧАСИ СТАНОВЛЕННЯ ТА РОЗВИТКУ ЦИВІЛЬНОГО ЗАКОНОДАВСТВА УКРАЇНИ (ІСТОРИКО-ПРАВОВИЙ НАРИС)

Abstract

Norms of civil law in Ukraine, especially both in the first periods of its statehood and for a long time afterwards, were not, as in other nations of that time, combined into separate parts of legislative monuments, but were scattered with other norms of state administrative law, as well as natural and canon law. The reason for this phenomenon was the transfer of norms, and now also the functions of bodies of a publicstate nature to bodies with private-economic functions. Therefore, norms of civil law, especially during the Middle Ages, were found in normative legal acts of state authorities, both in particular in foreign policy documents (an example is the treaty with the Greeks) and in domestic policy documents. Examples are princely statutes, documents of church origin, as well as church statutes. The presence of civil law norms in the first monument of customary law of Kyivan Rus - "Ruska Pravda" - should be especially noted.

It is necessary to pay attention to the fact that the development of law occurs in parallel with the development of the state, the process of state formation is carried out, and all social phenomena affect the formation of the legal system, and in turn, social norms, in particular legal ones, affect the behavior of individuals in society. It should be noted that such a process is historical and natural. It is important that the fundamental principles of Roman civil law are a direct factor in the formation of civil law. An integral aspect of the formation of the foundations of civil law in Ukraine was the appearance of the general theoretical provisions of the Princely Age, the Polish-Lithuanian Principality, the Hetman State, the times of the rule of the Russian Empire, and the development of civil science in the Soviet period. In addition, in our opinion, we should not ignore the foreign, in particular, European, experience in the development of civil legislation, on which the science of civil law in Ukraine is oriented at the moment of its development.

One cannot ignore the development of civil science at the current stage of state formation. The milestone event of this stage was the adoption of the Civil Code of Ukraine in 2003, which marked a scientific leap in the development of civil law. What is special is that, on the basis of theoretical and practical justifications, there was a reorientation of the views of well-known civilian scientists on the experience of the development of the European model of civilian science. It should be noted that such scientists as N.E. Kuznetsova, O.V. Dzera, M.V. Maidannyk, V. Ya. Bondar, E. O. Kharitonov, N. O. Saniahmetova, I. V. Spasibo-Fateeva and others.

In addition to the peculiarities of the European direction of the development of civil law, such an aspect has been determined that determines the place of civil law as a science of private law, the purpose of which is the protection of private interests. In relations mediated by private law, the state and its bodies, as authorities, do not participate. It is no coincidence that Part 2 of Article 1 of the Civil Code of Ukraine stipulates that civil legislation does not apply to property relations based on administrative or other authority subordination of one party to another, as well as to tax and budgetary relations, unless otherwise established by law. Civil law, as private law, is rightly basic in society and leading in the legal system.

During different eras of the development of society, several theories of the formation of civil law and its influence on social relations were determined. In particular, the Roman jurist Ulpian, researching the theory of interest, determined that public law is that which concerns the status of the state, and private law is that which relates to the interest of individuals. The German lawyer A.Ton, establishing the theory of the method of legal regulation, emphasized that public law is the sphere of authority and subordination, and private law is the sphere of freedom and private initiative. Professor D.V. Kavelin, defining the theory of the subject of legal regulation, emphasized that the subject of civil law is exclusively property relations, and the subject of public law is other relations. It should be noted that one cannot fully agree with this aspect, since personal non-property relations and personal non-property relations that are related to property are classified as a subject of private law.

The process of research, development and formation of civil studies did not ignore the emergence of the theory of subjects, according to which the lawyer P. Voiron, defining the subjective composition of legal relations, noted that public law regulates the relations of a person with the state, private law - the relations of persons with each other. Such an approach, given the modern approach in the formation of civil science, is imperfect and one-sided, which emphasizes the long and complex process of civil law development in accordance with the development of social legal relations. Therefore, today the science of civil law clearly defines the legal status of each subject of legal relations.