THE EVASION OF LAW INSTITUTE IN PRIVATE INTERNATIONAL LAW: OVERVIEW OF THE PERSPECTIVE

The article analyzes some theoretical and practical problems of the place of the institution of law evasion in private international law. Particular attention is paid to the analysis of evasion of law institute from the standpoint of its relation with the requirements for committing transaction, grounds and consequences of transaction invalidity. Various approaches to definition of the concept of evasion of law, its features and the role it plays in the mechanism of regulation of private legal relations complicated by a foreign element are considered. Despite sufficient scientific work on the study of law evasion, in particular as a type of abuse of law, in private international law, science, unfortunately, has not developed general approaches to the place and importance of law evasion in the system of grounds for non-application of foreign law. In the context of active development and dissemination of private law relations, which are the subject of private international law, it is important to analyze the legal institution of law evasion in relation to the categories of “autonomy of will” and “choice of law”. The relevance of the study, which was revealed in the article, due to the fact that in combination with freedom of movement, freedom of reason, contractual freedom and autonomy of will inherent in civil relations in general and regulated by private international law in particular, the requirement of mandatory and strict subordination of such relations uniform law (for example, citizenship or place of residence) looks like an anachronism nowadays. Thus, it is emphasized that the task of law evasion is to ensure the stability of private international law in the interaction of national legal systems, eliminating “disturbing” influences on the subsystem through agreements and other actions that reflect private interests to the detriment of the individual, society and state. The article provides for criticism of current definition of evasion of law, embodied in the Law of Ukraine «On Private International Law», from the standpoint of traditional concept of evasion of law and outlines suggestions for its improvement.

Evasion of Law in Private International Law

The article is devoted to the definition of the conditions under which it is possible to apply the rules on evasion of law in civil relations complicated by a foreign element. It is possible to recognize evasion of law only by identification of characteristic features of this legal phenomenon in private international law. The author substantiates the idea that the dispute about the validity of imposing a ban on evasion of law in private international law doesn’t have political and legal importance: should not deny the theory of evasion of law, but to define the conditions under which it is possible to apply the norms of evasion of law. The problem is how to make the norms of evasion of law an effective means of suppression to disservice of an indefinite number of people, the protection of public policy. When imposing a ban on the evasion of law the most important is the question of the pending consequences when and where the acts of evasion of law will be revealed. The article deals with the question of identification the legal consequences of qualification of actions as done through evasion of law. Besides, the article attends to the response to “evasion of law” in the national legal systems.

Evasion of Law and Mandatory Rules in Private International Law

It has often been asserted that English private international law has no doctrine of evasion of the law. It is true that English law has never developed a general doctrine, like the French one of fraude a la hi, to deal with cases of evasion. Nonetheless, evasion of the law has been recognised as a problem in at least some areas of private international law, and an increasing number of specific anti-evasion measures have been introduced in response to this. The English approach towards evasion is a pragmatic one rather than being based on any broad underlying theory. In particular, the fundamental questions have not been addressed of what is wrong with evasion of the law and how it can be dealt with most effectively. The purpose of this article is to examine the present law on evasion, determine what is wrong with evasion of the law and put forward proposals for a principled approach to deal with the problem.