REGULATION MECHANISM OF PRIVATE LEGAL CONTRACTING RELATIONS IN CIVIL LAW.

Author:Hryniak, Andrii
Position:Report - Abstract
 
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INTRODUCTION

The dichotomy of law division on public and private, enlarging the number of the subjects of legal regulation, complication of legal regulation structure are those reasons, which cause a necessity to raise efficiency of legal regulation functioning in Ukraine. Hence, the scientific discussion on scientific improvement of legal regulation mechanism still continues within the framework of modern doctrine of Civil Law of Ukraine, namely in the works of Hryniak, Dikovska, Kalaur, Kostruba, Kuznetsova, Kozlovska, Otradnova, Pohribnyi, Fedorchenko, Yarotskyi.

The mechanism of legal regulation is understood as a range of legal tools, methods and forms with help of which contracting relations in Ukraine are adjusted, their ideal pattern set in the regulatory rules is embodied, and the contract itself fulfills the function of legal fact related with establishing of contracting relations for certain parties, their rights and obligations.

There is an opinion proved stating that the mechanism of legal regulation of civil law contracting obligations is not only formal and artificial phenomenon or exclusively scientific-theoretical framework, but its existence shows real practical processes, such as house making, repair, manufacture of a thing, etc. Thereby, the mechanism of legal regulation of relationships pertaining to contracting obligations may be conceived not only as a combination of legal rules, but also of other social regulators amongst which are the following: customs of trade, traditions, rules of morality and so on, which adjust contracting relations.

Specificity of Legal Regulation

Interpretation of the law at methodological level shall be perceived not as statics set in accordance with some concepts of rules system, but as a dynamics which presumes usage of legal tools for solving of tasks set before people (Puginsky, 1991). Dynamics in its general understanding influences the elements of legal rules structure and legal facts, because it changes or specifies the grounds for establishing of relationships under the law of obligations. In its turn, the law action may be observed as a coordinated legal mechanism and the elements of legal system which complicate or unable efficient regulation of public relations might be improved accordingly (Kolesnikov et al., 2018).

The present time, by dictating new approaches to public relations, forces to rethinking of the established views on the mechanism of legal regulation of public relations. Still, the dichotomy of law division on public and private, enlarging of the subjects of legal regulation, complication of legal regulation structure are those reasons which cause a necessity to raise efficiency of legal regulation.

Legal regulation is one of the fundamental categories of legal reality, because just by means of regulation of certain phenomena the essence and social importance of the law is revealed. Consequently, the problematic of legal regulation was constantly among the interests of lawyers-scientists. Hence, at doctrinal level there is an evident thesis stating that efficiency of legal regulation of public relations is better reached not by the means of administrative enforcement, but with help of economic indicators applied via legal constructions elaborated within private law (Molodyko, 2007).

The research on the category of legal regulation as one of the main categories of legal reality and the basis of the "mechanism" in general requires the ascertainment of their conceptual framework. It is known that the basis of legal regulation mechanism is the "regulation" itself, which originates from the Latin word "regulo"-"rule" which means ordering, adjusting, and aligning something in compliance with something (Busel, 2004). Then, while analyzing doctrinal notions on legal regulation as scientific structure it worth to take into consideration a legal definition. For instance, in the part 1 of the Article 1 of the Civil Code of Ukraine (hereinafter-CC of Ukraine) it is determined that civil legislation regulates a range of public relations which are called civil relations, meanwhile the Commercial Code of Ukraine (hereinafter-CmC of Ukraine) provides for normative legal regulation of commercial relations. Considering abovementioned it is worth to admit that a legislator while defining the purpose of the adopted regulations emphasizes that such acts are destined for regulation of certain phenomena however he does not specify the content of this notion.

Appealing to doctrinal definitions of legal regulation it has to be noted that legal regulation is an activity of subjects who guide and influence certain events by legal rules. Following this notion it should be emphasized that legal regulation is the adjusting of relations by law. Hence, for instance, the participants of legal relations, especially consumer and contractor are free to choose possibilities of law application. In case of realization of subjective civil law the subjects of contracting relations on the basis of principles of the freedom of contract, bona fide, reasonableness and fairness may act at their discretion after the contracting agreement is concluded.

Legal regulation shall be efficient, because efficiency of legal regulation as Otradnova stated, lays in factual implementation of legal rules, conformity of legal relations that consist of the pattern fixed in legal rules (Otradnova, 2014). According to Alekseev, legal and individual-legal acts of competent authorities and official's necessary for regulation of certain group of public relations, for proper implementation of rules disposition or sanction, are directly engaged in legal regulation. It stands to reason to assume that relativity is the content feature of law itself, and no one still object that to the same degree it is appropriate for all other methods of legal influence, including legal consciousness, legal culture, etc. (Alekseev, 1993). Further, Yarotskyi characterizes legal regulation in private legal area as regulatory effect on non-property and property relations of the integral system of legal tools that ensures ordering of factual behavior of its participants (Yarotskyi, 2006).

The abovementioned leads to the following conclusion: legal regulation of the contracting relations is a set of legal means of state authoritative effect with help of which certain actors (customer, contractor, general contractor, subcontractor and under subcontractor) influence legal relations obligations on works performance by provision of precise contract terms in order to fix, adjust, secure and protect relations between them.

Legal regulation as any other type of social activity is also considered through the range of elements, which make a structure of such activity. For instance, according to Pohribnyi, the components of legal regulation must include object of legal regulation, subject of legal regulation and activity on legal regulation itself in unity of objective (factual) expression and internal (subjective) features (Pohribnyi, 2009). In due time Fatkullin (Fatkullin, 1987) thought that legal regulation may be carried out by the means which differ from each other, namely normative and individual legal acts. In his opinion, the legal regulation passes across two areas of legal reality penetrating completely lawmaking and partially law enforcement. At this, individual legal regulation does not expend its enforcement, as it is wider, and may be applied also in lawmaking area. Hence, the author has considered a two stage construction which provides for two types of legal regulation-common and individual. The capacity for realization of individual regulation he has seen in complicated forms of enforcement among which are collisions and gaps in law. In her turn, Kashanina suggested to refer individual legal regulation to the local and decentralized ones, due to the fact that subjects of law elaborate for themselves "micro-rules" which might be relevant to the situation in general or to its fragments (Kashanina, 1991). She considers the individual regulation as an element of legal regulation system and determines such its features: primarily, it derives from the own decisions taking by law subject where his/her personal will, interests and needs are expressed; secondly, free (own) decision is embedded in the rule of behavior; thirdly, as the subject of law stays in direct or indirect connections with other subjects, his/her own opinion should not contradict to the law and violate lawful interests of other persons (Kashanina, 1992). Contrary to this, Krasnoyaruzhskiy has defined legal regulation as a type of lawful activity of the law subjects performed at the stage of legal rules implementation, aimed at ordering of public relations by specification of some participants' behavior. According to him, the individual legal regulation is one of the forms of legal regulation which concludes in affecting of public relations by non-normative legal tools. Specific legal relations, which legal content really requires individual regulation at the stage of their establishing and development, are subject to the mentioned form of legal regulation (Krasnoyaruzhskiy, 1993). The same views were supported by Cherepahin who has considered self-regulation as an expression of freedom of party's behavior in any public relations, but not as an implementation of positive legal rules which refers also to behavior of certain individuals and functioning of different law enforcement authorities (Cherepahin, 1984). Sharing his idea, we would emphasize that in the area of liability relations generally, and in contracting relations especially, individual legal regulation is the most important element of the regulatory system on obligations, because as was precisely admitted by Pohribnyi the self-regulation (individual regulation) of contractual relations is a particular subjective right of the participants of such relations, consequently it shall be...

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