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

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.

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 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 Structural Approach to the Effects of Fundamental Rights on Legal Transactions in Private Law

2017 ◽  
Vol 13 (2) ◽  
pp. 281-304 ◽  
Author(s):  
Pavel Ondřejek
Keyword(s):  
Public Law ◽  
Fundamental Rights ◽  
Good Faith ◽  
Structural Approach ◽  
Private Law ◽  
Legal Systems ◽  
Legal Principles ◽  
Private And Public

Horizontal effect of fundamental rights – Legal principles – Dichotomy between private and public law – Systemic or anti-systemic elements in legal orders – Conflict between contractual autonomy and fundamental rights – Coherence in law – Balancing – Cases of permissibility of bank charges in the Czech and German legal systems – General clauses on good morals and good faith in private law

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.

Euro As Legal Tender (and Banknotes)

2020 ◽  
Author(s):  
Robert Freitag
Keyword(s):  
European Union ◽  
Euro Area ◽  
Public Law ◽  
Legal Certainty ◽  
Public And Private ◽  
Legal Tender ◽  
The Core ◽  
National Currencies ◽  
The Status ◽  
Private And Public

The provisions governing the euro as ‘European Single Currency’ are at the core of the Treaty on the Functioning of the European Union’s (TFEU) rules on the Economic Monetary Union (EMU). Since the euro has replaced the former national currencies of the participating Member States and is to substitute the national currencies of any future members of the euro area, it was mandatory to ascribe to the euro the status of exclusive ‘legal tender’ as per Article 128(1) TFEU. This status of the euro seems to be so evident as to be self-explanatory–but only at first glance since the concept of ‘legal tender’ and its implications in European Union (EU) and national private and public law are less clear. A satisfactory concept of legal tender is hard to define and hardly ever given on the EU level–resulting in a striking lack of legal certainty in a great variety of aspects of public and private 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.

Yelling ‘Fire’ in a Crowded Occupation: Cynical Fire Hazard Claims and the Technocratic Containment of Dissent

2019 ◽  
Vol 29 (4) ◽  
pp. 549-573
Author(s):  
Honor Brabazon
Keyword(s):  
Public Space ◽  
Social Relations ◽  
Public Interest ◽  
Fire Hazard ◽  
Research Literature ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
Private And Public ◽  
The Uk

While the privatisation of public space has been the subject of considerable research, literature exploring the shifting boundaries between public and private law, and the role of those shifts in the expansion of neo-liberal social relations, has been slower to develop. This article explores the use of fire safety regulations to evict political occupations in the context of these shifts. Two examples from the UK student occupation movement and two from the US Occupy movement demonstrate how discourses and logics of both private and public law are mobilised through fire hazard claims to create the potent image of a neutral containment of dissent on technical grounds in the public interest – an image that proves difficult to contest. However, the recourse to the public interest and to expert opinion that underpins fire hazard claims is inconsistent with principles governing the limited neo-liberal political sphere, which underscores the pragmatic and continually negotiated implementation of neo-liberal ideas. The article sheds light on the complexity of the extending reach of private law, on the resilience of the public sphere and on the significance of occupations as a battleground on which struggles over neo-liberal social relations and subjectivities play out.

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