scholarly journals Historical roots and current state of the “public - private law” issue in French legal doctrine

2021 ◽  
Vol 25 (3) ◽  
pp. 562-585
Author(s):  
Alexey P. Semitko
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Public Law ◽  
Social Market Economy ◽  
Private Law ◽  
Legal Doctrine ◽  
Public And Private ◽  
Law System ◽  
Private And Public ◽  
Social Market

The Soviet legal system did not know the division of law into private and public, because communist ideology did not recognize anything private. The end of communist experiment and transition to legal state, social market economy and respect for human rights naturally led to the need to revive private law and to further develop it; therefore in Russian jurisprudence the issue of dividing the law into private and public has become relevant. The subject is the French legal doctrine on this issue; the study is carried out on the unpublished in Russia sources. The historical roots of the basic division of law and its significance for the French legal system are in the focus. Despite the absence of rigid boundaries in this division, the theory describing it is based on the real legal reality of the Romano-Germanic family of legal systems. This theory is not abstract theorizing; it is useful for practice because it aims to maintain a balance between public law and private law regulation. The issue of basic division of law in the case law system is discussed. A comparative study of the issue in the Russian legal doctrine is conducted. The author comes to the conclusion that human rights are the common part that unites public and private law, and therefore their unity is inextricable: the abrogation of private law, as the experience of building communism in Russia showed, inevitably leads to the destruction of human rights, and then to the transformation of public law into a pseudo-legal system.

scholarly journals Private-Public Law Dichotomy: A Comparative Analysis of Ideas

2020 ◽  
Author(s):  
Alexey Semitko ◽  
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Legal System ◽  
Historical Analysis ◽  
Public Law ◽  
Social Market Economy ◽  
Private Law ◽  
Legal Doctrine ◽  
Legal Method ◽  
Social Market

The Soviet legal system did not assume any division of law into private and public constituents since communist ideology did not recognise anything private as such. The end of the communist experiment and Russia’s transition to democracy, a state governed by the rule of law, a social market economy and respect for human rights logically led to the need to revive private law and its further development, and therefore the idea of dividing law into private law and public law became relevant in legal doctrine. The article contains a brief comparative analysis of Russian and French legal theories in terms of the concerned problem. The methods used are comparative law, legal hermeneutics, the formal legal method and certain elements of cultural and historical analysis. Despite the conventionality of the public-private law dichotomy, its theory is based upon the actual legal reality of the Romano-German family of legal systems; this theory is not just an abstract theorisation, but is feasible. Unlike the French theory, Russian jurisprudence applies an approach suggested by S.S. Alexeev, who points to the conceptual rather than classification-based nature of the dichotomy in the first place, stressing that private law expresses the most important essence of law as a whole and the new trend in its develop ment is to include human rights. Based on this analysis, it is concluded that human rights are the common part that unites public and private law, and therefore their unity is inseparable: prejudice to human rights, as the experience of building communism in Russia (and in other communist countries) showed, inevitably leads first to the destruction of private law, and then to the transformation of public law into a pseudo-legal system.

scholarly journals Interpretation in modern legal literature on the functioning of private and public law

2021 ◽  
pp. 258-263
Author(s):  
N. V. Teremtsova
Keyword(s):  
General Theory ◽  
Legal System ◽  
Public Law ◽  
Fundamental Rights ◽  
Traditional Theory ◽  
Private Law ◽  
Public And Private ◽  
Stage Of Development ◽  
Private And Public ◽  
Theory Of Law

The article is concerned with problem of interpretation the public and private law. At the beginning of the article the author describes the imperfection of approaches to differentiation.The article examines the topical issue of general theory of law, which contains a delicate phenomenon that has existed for a long time, but during all this time has not developed a common understanding of its basic parameters, and therefore remain controversial theoretical foundations for construction and operation. Its existence raises a number of very important questions about properties for the legal community. At the moment it is not possible to assert the presence of the same understanding of the essence of separation of the right to private and public. Different scientific schools actually offer his vision within the Ukrainian legal system and traditional doctrine. It would be wise to mention here at the present stage of development of legal matter, it is necessary to make some adjustments to the traditional theory of law, as well as some provisions of the law regarding the division of law into private and public. In brief each new field studied by scientists is a legal phenomenon, but when applying general theoretical conclusions to it, it is necessary to take into account the specifics of the object under study in terms of the general theory of law. To conclude a pattern that allows to establish two objectively independent branches of law, linking them to the manifestations of public and private foundations, and to represent the spread of rights to private and public, as it is not just a classification, but conceptual, concerning the most fundamental rights of each place and role in human life, its defined values, continues in the theory of law today. Keywords: public law, private law, legal system, legal science, branches of law. References

The changing face of private law: doctrinal categories and the regulatory state

Legal Studies ◽  
1982 ◽  
Vol 2 (3) ◽  
pp. 257-268 ◽  
Author(s):  
N. E. Simmonds
Keyword(s):  
Legal System ◽  
Public Law ◽  
Private Law ◽  
Regulatory State ◽  
Public And Private ◽  
University Curricula

Legal scholars over the last 25 years or so have experienced a growing sense of dissatisfaction with the traditional classifications that segment university curricula and legal textbooks. Contract and tort, for instance, are felt to be not so different after all. The intimate historical links between the tort of negligence and the action of assumpsit may be seen as reflecting the realitics more truly than the later doctrinal separation of voluntarily and involuntarily incurred obligations. The growing impact of public law on the exercise of privatc rights, and the interweaving of public and private law that runs through an evcn greater portion of the legal system, cause still more fundamental doubts.

scholarly journals METHODOLOGICAL APPROACHES TO THE PROBLEM OF THE INTERRELATION BETWEEN PRIVATE AND PUBLIC LAW IN SETTLEMENT RELATIONS

2021 ◽  
pp. 85-92
Author(s):  
L. Panova
Keyword(s):  
Social Justice ◽  
Financial Market ◽  
Legal System ◽  
Financial Services ◽  
Financial System ◽  
Public Law ◽  
Private Law ◽  
Theoretical Understanding ◽  
Legal Standards ◽  
Private And Public

The article is based on the existing law doctrine of division of law into private and public. The author analyses the influence of the doctrine on the relationships that arise in the financial services markets. The author takes into account the results of researches conducted by domestic and foreign scholars, which were carried out in the field of law and economics. The author uses general scientific and special methods as those that form the basis of the work. The research substantiates that objectively the doctrine dividing law into private and public does not exist. Doctrine is the product of a sociocultural interpretation of the researcher's thinking process. At the same time, the doctrine is naturally refers to the structure of the financial market. The author analyses the internal mechanism of circulation of cash flows and settlements in the global financial market. This analysis is the empirical basis for the research and subsequent theoretical understanding. The author proves that the concept of separation of rights into private and public law is not a universal concept that is inherent in all countries. The doctrine is fundamental only in the countries with Romano-Germanic legal system. The idea of dividing law into private and public was not reflected at the doctrine level in the countries with Anglo-Saxon legal system. The problem of the substitution of concepts was enrooted directly in the very doctrine of law, which existed in Soviet times. It was connected with the absence of the concept of "private law" in the Soviet legal thinking. The idea of social justice changes beyond recognition in the direction of public law. The author focuses on the issue of how to ensure the sustainable development of the financial system and its main institutions (structures) using the theoretical concept of dividing law into private and public. The author emphasizes the need to take into account the diversity of legal understanding of the financial market as a social phenomenon. The research methodology should be as appropriate as possible to the research object. The idea of social justice should act as a regulator of mutual relations between members of society. Practical activity in the financial markets in the modern world tends to converge. Public law assumes the fulfilment of a social function. Therefore, the author comes to the conclusion that law is a means of reaching a compromise between members of society, provided that individual freedom is preserved and there is no need to oppose private law to public law. The author proves that European political and legal standards are built on such postulates, particularly concerning the field of calculations. Keywords: financial system, financial services markets, settlement relations, the doctrine of separation of rights into private and public.

Preventive Duties under Private and Public Law scilicet spei permultum sed rei paulum

2020 ◽  
Vol 2 (103) ◽  
pp. 51-71
Author(s):  
Dariusz Fuchs
Keyword(s):  
Contract Law ◽  
Legal Aspects ◽  
Public Law ◽  
Civil Code ◽  
Insurance Contract ◽  
Private Law ◽  
Public And Private ◽  
Private And Public ◽  
European Insurance ◽  
The Relationship

The article aims at discussing preventive obligations incumbent on the insurer and other entities of the insurance relationship, in particular on the policyholder. The analysis takes into account comparative legal aspects, and therefore refers to the Principles of European Insurance Contract Law (PEICL). The author emphasizes the evolution of the provision of Article 826 of the Civil Code, which has changed his views on the scope of the preventive obligation under insurance contract. He points out the possible differences of interpretation as to the scope of the prevention as well as the issue of the insurer's reimbursement of costs due to its implementation by the policyholder. What is more, the relationship between public and private law standards has been presented, with a particular focus on Article 826 of the Civil Code. Finally, de lege ferenda conclusions have been presented.

scholarly journals The Covid-19 Pandemic and the Rights of the Individual in Terms of Private and Public Law

2020 ◽  
Vol 9 (2) ◽  
pp. 225-250
Author(s):  
Evgen Kharytonov ◽  
Olena Kharytonova ◽  
Denis Kolodin ◽  
Maxym Tkalych
Keyword(s):  
Human Rights ◽  
Optimal Algorithm ◽  
Public Law ◽  
The State ◽  
Private Law ◽  
Public Interests ◽  
Basic Principles ◽  
Private Rights ◽  
Private And Public ◽  
The Individual

The principles of adjusting the regulation of civil relations in the context of the Covid-19 pandemic are analyzed. The admissibility of restricting human rights in the context of the conflict of private and public interests are researched. Besides, the authors tried to determine the optimal algorithm of government actions aimed at preventing the spread of the epidemic. The main approach to the understanding of human rights in the article is based on Dworkin's concept of “rights as trumps”. A system of such categories as “a man”, “a private person”, “natural private rights”, “private law” and “national civil law” is analyzed. The conclusion is that the importance of the category of “natural” human rights is underestimated, which exacerbates the problem of ensuring human rights in a pandemic, when the state actively uses public law to cope with the crisis. As a result, there is a conflict of basic principles of private and public law: “everything is allowed except what is prohibited by law” vs. “only what is allowed by law is possible”. It is proposed to assume that the usual way of the legal existence of a person is that he/she acts as a participant in civil relations of a private type, even in a pandemic. Private relations, which arise during the quarantine period, are proposed to be regulated mainly by private law methods, limiting the influence of the state. This will allow us to reach a compromise of private and public interests, without restricting the rights of individuals voluntarily.

Security and Public Order in Polish Public Law

2017 ◽  
Vol 9 (1) ◽  
pp. 109-122
Author(s):  
Dariusz Brakoniecki
Keyword(s):  
Political Ideology ◽  
Public Law ◽  
Public Security ◽  
Public Order ◽  
Private Law ◽  
Law System ◽  
Private And Public ◽  
Scope Of Application ◽  
Substantive Law

In this paper the author discusses the position and role of security and public order in the Polish public law system. The division into public law and private law included is not the first. It is derived from the work of Ulpian, and was later included in the Digest of Justinian. Its further development, depending on the region, accepted political ideology and the philosophy of law, took on a different shape, determining the way of perceiving the law. It should be assumed that the concept of separation between public law and private law is the domain of substantive law, and its application is primarily found in scientific digressions. The considerations are of theoretical nature, pointing to the scope of application of the concept of security, which is wrongly equated with the concept of public order, in various legal acts ranging from acts in law and international law, through executive acts, to local law and internal ordinance regulations. These have recently shown a dramatic increase in the role of security and public order in the decision-makers and legislators conceptions. Despite the importance and demand for the good of public security and public order, which is at the same time one of the basic functions of public administration, the legislator has only presented this issue in a fragmented way, referring only to particular areas of law which, despite use by numerous judicators, still raise some doubts in respect of interpretation. In the area of the issue discussed, the author also points to the tendency of blurring the boundary between the sphere of public law and the sphere of private law, in particular by dislocating public service provision in the field of public security and order, to paid for services provided by private parties in this area. The result of this synthesis is a partial indication of the dangers resulting from differences in the constitutional guarantees of private and public law.

scholarly journals Сomplexity of structure of institute of bank responsibility

2016 ◽  
Vol 4 (3) ◽  
pp. 0-0
Author(s):  
Вера Степанова ◽  
Vera Stepanova
Keyword(s):  
Complex Structure ◽  
Public Law ◽  
Legal Responsibility ◽  
Private Law ◽  
Public And Private ◽  
Private And Public ◽  
The Subject ◽  
The Right ◽  
Criminal Legislation ◽  
Credit Institutions

The article is devoted to research of institute of bank responsibility as complex structure which enters both in public, and private law. Bank responsibility as an independent legal design acts as an object of research. Both ad banking laws, and the codified legal acts which also contain regulations on responsibility of credit institutions (banks) are in detail analyzed. Legal comparison of content of standards of ad banking laws and norms on responsibility of credit institutions in the codified legal acts on features of subject and object accessory is carried out, the special attention is paid to bank responsibility in its private-law aspect where not only the legal, but also natural person can be the subject. Examples of standards of the civil legislation which are also related to bank responsibility are given. From the conducted research it is possible to conclude that uniqueness of institute of bank responsibility is that it is on crossing of private and public law. Bank responsibility only partially (public part) is included into institute of financial and legal responsibility while private-law responsibility is regulated also by standards of the civil, administrative and criminal legislation. Article is executed with assistance of RGNF, the project No. 16-33-00017 "Complex interindustry institute of legal responsibility: concept, structure, interrelations and the place in system of the right".

A Private Law Court in A Public Law System

2018 ◽  
Vol 12 (1) ◽  
pp. 37-72 ◽  
Author(s):  
Jamal Greene
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Public Law ◽  
Private Law ◽  
Constitutional Democracy ◽  
Disparate Impact ◽  
Economic Rights ◽  
Law System ◽  
Social Facts ◽  
The U.S

Abstract The U.S. Supreme Court’s approach to human rights is a global outlier. In conceiving of rights adjudication in categorical terms rather than embracing proportionality analysis, the Court limits its ability to make the kinds of qualitative judgments about rights application required to adjudicate claims of disparate impact, social and economic rights, and horizontal effects, among others. This approach, derivative of a private-law model of dispute resolution, sits in tension with the rights claims typical of a pluralistic jurisdiction with a mature rights culture, in which litigants more often disagree, reasonably, about the scope of rights rather than deny that others have them at all. In order to overcome the mismatch between the nature of the rights claims the Court faces and its anachronistic technology of adjudication, it will need not only to adopt a form of proportionality analysis but it will also need to adjust the ways in which it receives and assesses empirical social facts and it will need to broaden its remedial toolkit to include, for example, suspensions of invalidity. While proportionality is far from perfect, its flaws are anticipated by the challenges of constitutional democracy itself under conditions of pluralism.

Sign in / Sign up

Export Citation Format

Share Document