PROVISION OF PASSENGER RIGHTS: PROBLEM OF COLLISION OF CIVIL AND CONSUMER LEGISLATION
Journal Title: Вісник Запорізького національного університету. Юридичні науки - Year 2018, Vol 2, Issue
Abstract
The article is devoted to the urgent issues of ensuring the rights of the passenger under the passenger transportation agreement. This aspect, for the most part, is overlooked both in positive law and among scholars. Traditionally, a passenger transportation agreement is perceived as a separate contractual design, as a set of terms of the contract. Consequences of non-fulfillment or improper performance of the passenger transportation agreement are perceived, as a rule, through the prism of civil liability. This approach is verified, however, Art. 611 of the Civil Code of Ukraine among the legal consequences of violation of the obligation does not indicate civil liability. Although, among other things, it provides for the payment of a penalty, compensation and non-pecuniary damage. However, in Chapter 64 of the Civil Code of Ukraine, which regulates the legal relations of transportation, there are only rules blanket nature, which refer to the norms of transport law, which, in turn (with the exception of air passenger transport), does not contain provisions on the consequences of violation of the contract by the carrier (in including conditions for his liability). However, a careful analysis of the current legislation suggests that neither the Central Committee of Ukraine nor the special transport legislation contains provisions that would ensure the rights of the passenger (of course, in addition to the sphere of air transportation of passengers) on modern approaches to natural law. Therefore, the main regulatory role is given to the sphere of consumer legislation, which gives rise, sometimes, to the conflicts of transport and consumer legislation. In the legislation of Ukraine there is a difficult situation. In the absence of provisions regarding the carrier’s liability in transport law, it is necessary to apply the provisions of consumer law. However, it also often fails to ensure the realization of the rights and interests of the passenger. Thus, in case of delayed delivery of a passenger to a destination, consumer law provides an opportunity only to compensate for moral (non-property) damage and then subject to legal proof of its availability. The author concludes that the modern approach, which is used in the EU legislation in the investigated sphere, proceeds from the necessity of settling legal relations on the basis of specialization in transport types of transport legislation (as part of civil), where the main means of securing passenger rights is the possibility of applying "compensatory measures". At the same time, consumer law carries out an "auxiliary" role in the part not covered by transport legislation. In Ukraine, this approach is, at the present time, applied in the legislation that regulates the legal relationship with the carriage of passengers by air. It has proved its efficiency and capacity as far as possible, taking into account the interests of the carrier, ensuring the rights and interests of the passenger. Therefore, it should apply also to the transport of passengers by other means of transport.
Authors and Affiliations
Г. В. Самойленко
Keywords
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