On the issue of methodological improvement of national civil legislation based on the principles of DCFR

ПРОБЛЕМА ПЕРЕКЛАДУ DCFR УКР. МОВОЮ: ПИТАННЯ СУМІСНОСТІ ТА АДАПТАЦІЇ ПОНЯТЬ І ТЕРМІНІВ

СЕКЦІЯ 3

Kharytonov E. O.,

Doctor of Legal Sciences, Professor, Corresponding Member

of the National Academy of Legal Sciences of Ukraine,

Head of Civil Law Chair National University “Odessa Law Academy”

Sukha Y. S.,

Ph.D., Assistant of Civil Law ChairNational University “ Odessa Law Academy”

Heiko M.O.,

Senior Teacher of Uman National University of Horticulture

The annual InternetConference “Civilreadingsinmemoryof I. Shereshevsky” we decided to devote to the consideration of one of the largest modern academic project of codification of private law on the territory of the European space – Draft Common Frame of Reference (DCFR). This project is considered to be ambitious both in a figurative and in the literal sense of the word. It is confirmed by the history of its creation, which today continues to be written.

The first edition of DCFR was published in 2009 [1], and the second one – the full edition – was released a little later [2]. The point, as we believe, in the idea of DCFR is the rejection of direct (positive) regulation of relations in the sphere of private law. Therefore, it is not the Civil Code of Europe.DCFR as a project of extremely large scale, is a collection of thoughts from various systematic issues of private law, a material, that is often outlined by various terminological languages based on definitions “acquis communautaire”.Herewith, important is the fact that the result of the working group has a long, eloquent title: Principles, Definitions and Model Rules of European Private Law, where "Principles"is put in the first place, and the rest of the text is the definition of concepts and examples of legal decisions concerning the regulation of relations in the sphere of private law. Furthermore, the provisions reflected in the Project, provide the idea of ​​the principles and their logic in a concentrated form, expressing the spirit of modern European private law.However, there is a reason to conclude that it is about improvement of the concept of private law in accordance with the modern vision of nature of the rights and interests of the individual, civil society and its values.

Thus, it is not about creating legislative act. The aim of the study was a comparative legal research. And this is confirmed by the authors of DCFR - C. von Bar, E. Clive and P. Varul who say, that DCFR is to promote the study and understanding of private law in the countries - members of European Union. In particular, it is intended to show how similar to each other the national private law systemsare, which can be regarded as a regional manifestation of European heritage. The task of the DCFR is to prove clearly the existence of European Private Law, referring to the relatively small number of cases in which various laws and orders give different answers to common questions. Thus, DCFR is regarded as that one, which can provide a new background for ideas of European private law, and, thereby, to increase understanding and help to brainstorm issues of private law in Europe [3, pp. 17-18].

With this concept in the DCFR’s triad "Principles, Definitions and Model Rules of EU private law ", "principles of EU private law" naturally occupy a prominent place.

Evaluating this category from the perspective of the problems of our study, we noted some differences in understanding domestic civil doctrine and use of the term "principles" in the text of the DCFR. The principles of law are often determined as starting ideas of existence of law, expressing the most important regularities and foundations of this type of state and law. They are single-order with the essence of law and constitute its main features.Differences in the definition of the content and range of the principles of private law and provisins of civil legislation, give grounds for conclusion that the national law recognizes nonidentical concepts of "principles of private law", "principles of civil law" and "provisions of civil legislation." The principles of civil law are based on the principles of private law, but do not coincide with them completely, as in civil law, unlike to private law, there are not only discretionary but mandatory elements (public contracts, non-contractual obligations, inheritance, etc.). However, it is possible to distinguish it as was done in the Civil Code of Ukraine by the "principles (general provisions) of civil legislation". The last one is partly overlapped with the principles of civil law, and partly not.

Unlike domestic legal theorists and experts in civil law, the authors of DCFR focus not on the definition of the principles of law, on setting their range, etc., but start with warnings about the possibility of a different use of the term “principles”. However, the term "principles" can describe those rules which are of general legal nature, such as freedom of contract or good faith. From this point of view the DCFR’s model rules also include principles [3, pp. 19, 21].

Attention should be also paid to the distinction in the DCFR the underlying principles andthe overriding principles, as through such differentiation it is focused on the main directions of development of private law concept. As follows from the DCFR’s text and comments of its authors, underlying are those principles that serve to ensure the most common goals of the DCFR. As these proposed principles of freedom, security, justice and efficiency (assuming that they also cover the principles of contractual loyalty, cooperation, etc.). The definition of overriding principles is not given in the DCFR. Perhaps because it is about the term-concept, which is already a definition, and it serves as a characteristic for these principles. (To the point, the favorite technique of Roman jurists is to give specific list instead of abstract definitions).The category of overriding principles of a high political nature includes protection of human rights, promotion of solidarity and social responsibility, preservation of cultural and linguistic diversity, protection and promotion of welfare and development of the internal market [3, p. 21].

Evaluating the overall direction and content of the Draft Common Frame of Reference (DCFR) - Principles, Definitions and Model Rules of European Private Law, in particular the Principles, we can conclude that the crisis of the modern concept of private law, which detractors hope on, exists only in their imagination, and the mentioned concept, based on the fundamental values ​​of European civilization in the twenty first century, is updated and further developed in accordance with the calls of Time.

Sources:

1. Principles, Definitions and Model Rules of European Private Law Draft Common Frame of Reference (DCFR). Sellier. European Law Publishers, Outline Edition, 2009. – 644 p. // http://ec.europa.eu/justice/policies/civil/docs/dcfr_outline_edition_en.pdf

2. Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of reference (DCFR). Full Edition. Prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group) / Ed. by Christian von Bar and Eric Clive. Vol. I - VI. Munich, 2009. – 4795 p. // http://ec.europa.eu/justice/contract/files/european-private-law_en.pdf

3. Кристиан фон Бар, Эрик Клив, ПаулВарул. Предисловие к российскому изданию //Модельные правила европейского частного права / Пер. с англ.; Науч. ред. Н.Ю. Рассказова. – М.: Статут, 2013. – 989 с.

Sukha Yulia,

Ph.D., Assistant of Civil Law Chair

National University "Odessa Law Academy"

Дата добавления: 2015-05-23