Discretion and imperative in civil legal regulation of social relationship: manifestation and relationship
Journal Title: Правова позиція - Year 2018, Vol 2, Issue
Abstract
The article is devoted to consideration domestic regulatory and scientific approaches to determination correlation between discretion and imperative in civil legal regulation of public relations. The author determines that according to expanded scientific view civil legal regulation has to be based on usage of discrete method that provides legal equality of participants of civil legal relationships, legal freedom of civil law subjects in establishment legal models of behavior and determination effects of their violation. Despite of that by adhering to the persons interests discrete method need to look to impetrative elements in order to ensure civil rights and legal interests of participants of civil legal relationships. This allows setting borders of civil legal freedom in view of civil rights and legal interests of other persons. In addition, embodiment discretion of civil legal norms in legislative provisions streamlines process of rule-making as lawmaker can follow general concept creating norms that have discrete character or to depart from such concept by providing imperative norm. Thus embodiment discretion of civil legal norms in legislative provisions provides unified focus of civil legal regulation and contributes to enchase of effectiveness of right realization and law enforcement practices. The author drew attention to the fact that it`s feared by some scientist that presumption of discretion of civil legal norms bears the risk for legislator to miss many life situations in which some legislative provisions can be either discrete or imperative. But on the other hand only presumption of discretion of civil legal norms meets the main idea of civil law as private law that characterized by generally-permissive approach to regulation of social relationships. Moreover, implementation of respective presumption is necessary and inevitable step towards increasing effectiveness of processes of regulation social relationships by civil law provisions as well as right realization and law enforcement practices. In domestic legal reality the determination of nature of civil legal norm faces the necessity to have knowledge how to differentiate discrete and imperative legal elements in legislative provisions. Despite the fact that current legislation of Ukraine provides presumption of discretion of civil legal norms part 3 of article 6 of Civil Code of Ukraine states that parties to the contract cannot depart from legislative provisions if such provisions don’t allowed this or if compulsory of such provisions is seen from its content or from character of relationships between related persons That’s why presumption of discretion of civil legal norms does not exempt participants of legal civil relationships from necessity of determination nature of appropriate legal norm.
Authors and Affiliations
В. В. Васильєв
Keywords
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