CLASSIFICATION OF LEGAL BORROWINGS (LEGAL TRANSPLANTATION) IN COMMERCIAL LAW OF UKRAINE
Journal Title: Юридичний бюлетень - Year 2018, Vol 7, Issue 1
Abstract
Adaptation of legislation to the needs of a market economy and international organizations is inevitably linked with the adoption of certain legal material from neighboring states and the states with a developed market economy. The article is devoted to the research of classification criteria for the division of legal borrowings (legal transplantation) into types. On the basis of the criteria given by the author, the system of legal borrowings in Commercial Law of Ukraine is analyzed. The author proposes to divide legal borrowings, depending on their dynamics, into planned legal borrowings and random planned legal borrowings. Depending on the volume, it is proposed to divide borrowings into: 1) legal norm; 2) legal institution; 3) legal idea. Borrowing are also divided by the nature of the will of the legislator on: 1) borrowings due to the international obligations assumed by Ukraine (for example, due to the signing of the Association Agreement with the EU); 2) borrowings on its own initiative. Borrowing of legal institutes is much more complicated and multidimensional phenomenon (than borrowing of the legal norm), while it requires the adaptation of a particular legal institution to the peculiarities of the structure of the Ukrainian legal system and the traditions of national law enforcement. On the example of borrowings of the indirect claim the ineffectiveness of simple systemless transplantation of legal norms is explained. The derivative claim was implemented without forecasting possible abuses of it, peculiarities of its realization by legal entities. Therefore, it is still not used in the judicial practice of resolving of corporate disputes in Ukraine. The author emphasizes that legal borrowings are especially spread in Commercial Law of Ukraine in comparison with other branches of national legal system. It is due to the fact that the Commercial Law of Ukraine regulates the legal relationship between subjects of different jurisdictions, and this puts before the mentioned branch of law the requirement of certain unification in approaches to the regulation of economic (commercial) legal relationships.
Authors and Affiliations
Олександр Романович Ковалишин
Keywords
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