scholarly journals PRIVATE AND PUBLIC IN LAW: FROM THE TRADITIONS OF WESTERN JURISPRUDENCE TO THE SEARCH OF CONCEPTUAL FOUNDATIONS OF LAW

2018 ◽  
Vol 6 (3) ◽  
pp. 1-5
Author(s):  
Анна Чувальникова ◽  
Anna Chuval'nikova
Keyword(s):  
Practical Importance ◽  
Legal Regulation ◽  
Public Law ◽  
Private Law ◽  
Legal Knowledge ◽  
Theoretical Significance ◽  
Private And Public ◽  
Conceptual Problems ◽  
Definition Of ◽  
Conceptual Foundations

The article analyzes the existing in western jurisprudence approach to the allocation of private and public law, its theoretical significance for the formation of a system of legal knowledge and practical importance for solving problems of state legal regulation. It is concluded that the distinction between private and public law is one of the conceptual problems for the understanding of law, the solution of which requires the definition of qualitative specificity of private law.

scholarly journals Evaluation Concepts in Russian Codifications of Civil Law

Lex Russica ◽  
2019 ◽  
pp. 37-50
Author(s):  
V. G. Golubtsov
Keyword(s):  
Essential Feature ◽  
Civil Law ◽  
Legal Regulation ◽  
Public Law ◽  
Civil Code ◽  
Property Law ◽  
Private Law ◽  
Private And Public ◽  
The Impact ◽  
Basic Evaluation

Based on general legal and civilistic experience in the study of evaluative concepts, the author investigates the general and the specific in their civil law nature. As the result of the study, the author draws the conclusion that the existence of evaluative concepts forms a distinctive essential feature of civil law as private law. It is noted, however, that the doctrine, law-maker and law-enforcer need basic guidelines that will allow to define objective criteria for nominating concepts as evaluative, as well as for determining the boundaries of their systematic interpretation. Also, the author concludes that the impact of evaluation concepts on legal regulation in private and public law is different. In civil law, depending on the localization in the text of the Civil Code, it is possible to distinguish two groups of evaluation concepts. The first group includes the basic evaluation concepts that allow us to see the goals, meaning and specifics of civil law regulation. The second group, in the author’s opinion, includes peripheral evaluation concepts that are utilized by property law and separate contractual constructions and the presence of which allows to avoid unnecessary causality and, at the same time, makes it possible to bring legal regulation closer to real relations.

scholarly journals On the question of the criteria for the classification of labor regimes

2020 ◽  
pp. 214-218
Author(s):  
Lyudmila Vakaryuk ◽  
Igor Babin
Keyword(s):  
Social Relations ◽  
Practical Importance ◽  
Labor Law ◽  
Legal Regulation ◽  
Private Law ◽  
Labour Law ◽  
The Social ◽  
Legal Regimes ◽  
Private And Public

The article analyzes the basic approaches to the classification of legal regimes proposed by the representatives of the general theoryof law and other branch sciences, proposes the criteria for the separation of the labour-law regime. It is emphasized that the classificationof legal regimes in labor law is of great scientific and practical importance, and the classification of labour-law regimes can beconsidered as one way of knowing the development of labor law as a branch.The labor-law regime, like other sectoral regimes, is a legal category, so it is logical that it will be classified from a legal perspective.Regimes characterized by an impact on the homogeneous sphere of social relations in the labor field are classified accordingto the legal means, thus forming a multilevel division, which is associated with the transition from generic objects to species, which,uniting in a single system, form a single branch regime that characterizes the specifics of labor law as an branch. Since labor law as abranch of law is a combination of private and public elements, this feature is also reflected in the classification of types of labor-lawregime. Therefore, depending on the criterion of interest being satisfied, the whole array of legal regimes in the field of hired labor canbe divided into such types as legal regimes in private law and legal regimes in public law.Depending on the functions of labor law, it is advisable to distinguish the social-legal regime, which, in combination with allother types of legal regimes, in particular, with the private-law and public-law regime, covers all institutions of labor law, provides differentiationof legal regulation of labor relations, the principle of equality, the principle of freedom of work, non-discrimination, etc. Itis concluded that the most complete socio-legal nature and legal content of legal regimes in labor law reveals precisely the social-legalregime, which is divided into restrictive and stimulating.

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

scholarly journals MINING AND BUSINESS ACTIVITIES: IN SEARCH OF THE BALANCE

2019 ◽  
pp. 73-82 ◽  
Author(s):  
I. V. Ershova ◽  
E. V. Trofimova
Keyword(s):  
Legal Regulation ◽  
Digital Economy ◽  
State Regulation ◽  
Entrepreneurial Activity ◽  
Advantages And Disadvantages ◽  
Layer Cake ◽  
Blockchain Technology ◽  
Private And Public ◽  
The Republic ◽  
Definition Of

The article reveals the content and outlines approaches to the definition of the legal nature of mining. Attention is drawn to the necessity of legal regulation of this activity, which is predetermined by the Federal Program «Digital Economy of the Russian Federation» — a project that provides for normative regulation of the digital environment. In order to support the mission to eliminate digital illiteracy, which is also envisaged in the National Program, the author elucidates the etymology and meaning of the term «mining» and considers various doctrinal interpretations of this concept. The paper presents such analogies of the blochchain technology as the public ledger, DNA, and a layer-cake for a better understanding of the blockchain technology that is associated with mining. Material-technical and organizational foundations of mining are revealed. The author demonstrates advantages and disadvantages of solo mining, pool mining, and cloud mining. The results of comparative monitoring of the attitude to the recognition of cryptocurrency as a means of payment are presented. Attention is drawn to the liberal legal regulation of blockchain technology and mining under the laws of the Republic of Belarus. The paper determines the stages of a law-making process aimed at legal support of mining in Russia. Based on the results of comparison of concepts of entrepreneurial activity and mining, it is concluded that mining represents one of new types of entrepreneurship brought to life due to the needs of digital economy. The author suggests thatmining participants be recognized as self-employed persons. It is noted that the entrepreneurial nature of mining arises questions concerning measures of its state regulation which is difficult within the framework of the existing paradigm, but should be built on the basis of a balance between private and public interests.

scholarly journals Ensuring Guarantees of the Rights of the Individual and the Inalienability of his Legal Status in the System of Legal Regulation

2021 ◽  
Vol 1 ◽  
pp. 21-29
Author(s):  
Alexander Vladimirovich Konovalov ◽  
Keyword(s):  
Rule Of Law ◽  
Legal Status ◽  
Legal Regulation ◽  
Public Law ◽  
Synergistic Action ◽  
The Rule Of Law ◽  
The Core ◽  
Private And Public ◽  
The Individual ◽  
Different Levels

The article is devoted to the analysis of the general principle of law — ensuring guarantees of individual rights and the inalienability of his legal status. According to the author, they are provided by the synergistic action of private and public law regulation. The article convincingly shows that private and public law is a single system of values with different levels of generalization of terms and different methodology. At the same time, it is the private legal mechanisms that are the basis, the core of the rule of law.

Improperly Collected Taxes: The Border Between Private and Public Law

2010 ◽  
Vol 23 (1) ◽  
pp. 125-161
Author(s):  
Sagi Peari
Keyword(s):  
Public Law ◽  
Legal Philosophy ◽  
Current Status ◽  
Private Law ◽  
Alternative Framework ◽  
Private And Public ◽  
Constitutional Right ◽  
Normative Rule

In recent years, Professor Birks’ doctrine of constitutional right to restitution has become a new normative rule with respect to the issue of restitution of improperly collected taxes. Nevertheless, the new doctrine has puzzled academic scholars. Profound questions regarding the conceptual “private law-public law” location of Professor Birks’ doctrine and the current status of traditional law doctrines have arisen.This study challenges Professor Birks’ doctrine and demonstrates that despite its universal adoption, the doctrine was based on weak premises. Furthermore, based on Professor Weinrib’s legal philosophy, this study develops an alternative framework to analyze the issue of improperly collected taxes. The study shows that the “private-public” puzzle and the doctrines traditional to improperly collected taxes may be coherently explained within this legal philosophy.

scholarly journals Contemporary European Normative Tendencies Regarding the Essence and Typology of Insurance Contracts

2019 ◽  
Vol 40 (2) ◽  
pp. 131-148
Author(s):  
Mariusz Fras
Keyword(s):  
Public Law ◽  
Insurance Contract ◽  
Private Law ◽  
Legal Systems ◽  
Insurance Law ◽  
Insurance Supervision ◽  
Insurance Contracts ◽  
Definition Of

Abstract In the light of different approaches to the question of regulating economic insurance law in specific legal systems, formulation of a model definition of the insurance contract, although necessary for further investigations, is merely theoretical. Specific lawmakers approach the question of specification of the content of the insurance contract at the statutory level with varying degree of consequence. Insurance relationships are a heterogeneous category, and attempts to develop uniform systematics with the use of comparative legal methods are still hindered by differences between individual legal systems. There is a lack of consistence between the distinctions adopted in private law systems and solutions characteristic of public law, which exert much influence on the market of insurance services as a part of insurance supervision.

Making the Multiple:

2019 ◽  
Vol 118 (4) ◽  
pp. 839-855
Author(s):  
Michele Spanò
Keyword(s):  
Legal Theory ◽  
Social Relation ◽  
Logical Form ◽  
Public Law ◽  
Private Law ◽  
The Social ◽  
Private And Public ◽  
The Commons ◽  
Subjective Rights ◽  
Do So

The essay argues for the compatibility between private law and the commons. In order to do so, it proposes an archeology of modern private law, which traces both the emergence of what will be called “modern topology” and the historical transformation of civil law into what we still know as private law. Private law is considered to be a product of modern legal theory which is radically tied with public law. The two are meant to have the very same logical form—individuality—which was the premise for the social relation of capital to be established. The pivot of this legal maneuver—which ended up with the exclusion of the commons from the realm of both private and public law—was the theory of subjective rights. To dismantle this construction, the essay proposes a critique of subjective rights as well as a trans-subjective approach to private law.

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.

Public/Private

2020 ◽  
pp. 466-480
Author(s):  
Jean-Bernard Auby
Keyword(s):  
Essential Feature ◽  
Common Law ◽  
Public Domain ◽  
Public Law ◽  
Roman Law ◽  
Private Sphere ◽  
Private Law ◽  
The Public ◽  
Private And Public ◽  
The Relationship

This chapter examines the distinction between public law and private law. It stresses the importance of being aware of this difference between the public/private and public law/private law dichotomies. The public–private divide is universal even if, from one society to another, it can be conceived differently in certain ways. All human communities have an idea about the relationship between the private sphere and the public domain. By contrast, the distinction between public law and private law is not universal. It may be ignored, rejected, or confined to a very limited sphere of operation as, traditionally, in common law systems. Conversely, the public law/private law distinction may be understood as an essential feature of the juridical world, as was the approach of Roman law, inherited by the continental legal systems.

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