That the tax and land codes evoke an incomparably greater interest in this country than the civil code, already submitted to parliament, seems to confirm yet again the sad fact that the question “How to survive?” is still more pressing than “How to live?” For it is the civil code that must regulate our rights and duties in everyday life.
Nonsensical as it may sound, we still live by the civil code of a nonexistent state. It still regulates the almost defunct social relations that perished together with the administrative command system. The new realities are to be enshrined in a new civil code the draft of which was passed by People’s Deputies in the second reading last June. Eyewitnesses claim that the people’s choices voted for this most important document without even becoming acquainted with it. We can see, to some extent, the lawmakers’ point: this fruit of juridical wisdom, conceived about six years ago, consists of eight books (general provisions, personal nonproprietary rights of natural persons, proprietary rights, rights to intellectual property; coercive, family, and inheritance law, and international private law), containing over 1650 articles. This is the subject of an interview with Yaroslava SHEVCHENKO, Doctor of Law, head of the civil and labor law department at the Koretsky Institute of State and Law under the Academy of Sciences of Ukraine, one of the 12 project authors, who courteously agreed to answer The Day’s questions.
“Ms. Shevchenko, what is the main goal of the project?”
“The civil code is first of all aimed at the free development of human personality in all walks of life: entrepreneurship, various obligations, inheritance, family law, etc. Incidentally, the latter (book six) has triggered much debate: our opponents insist that people are used to the existence of a separate family code. However, family relations are by far the most civil in essence, they are linked extremely tightly, like two particles of the same organism, with civil law regulation.”
“Judging by media debates, what seems more relevant is the juxtaposition of two documents, the civil and economic codes (CC and EC) drawn up by a group of Donetsk academics. According to experts, the process of their adoption by Verkhovna Rada will turn into a virtual war of ambitions between the authors, and the resulting deadlock could become a juridical Chornobyl. Why has this happened and what is the best way to reconcile the two codes?”
“It seems to me the code development plan was approved as long as eight years ago. Simultaneously, the plan was complemented with the commercial and later the economic code. But it is simply ridiculous to speak now about paterfamilias-type state-regulated commerce. For the latter envisages free, law-governed, and private-individuals-oriented relations. Unfortunately, the drafts were worked out autonomously and without coordinating the intentions, owing to which it became impossible to avoid duplication and contradictions between them.
“I believe the general part of the rival draft titled The Principal Foundations of the Public Economic Order should be withdrawn altogether, for it runs counter to the provisions of the Constitution of Ukraine (Articles 41, 42) on private law and entrepreneurship. The role of the state is clearly defined in Article 13 of the fundamental document, which sets out that the state should ensure protection of the rights of all proprietary and economic entities rather than regulate the economy (the dominant idea of the economic code proponents). It is also necessary to delineate the provisions on juridical persons in private and public law. It would be a good idea to refer the latter, where state regulation reigns supreme, to the economic code. In general, the EC will only make sense if duties and spheres of activity are disengaged and if it embraces such things as state order, antimonopoly and foreign economic activities, licensing, quota-setting, registration, and managerial sanctions...”
“And to what extent are accusations fair that the CC only recognizes private property?”
“The draft is not confined to one form of property. The point is there is some state-owned property now. Precisely some property. For state-run enterprises are in fact quasi-juridical persons characterized by the ownership of property on the basis of full economic or, in the case of institutions, operational management. This mechanism is very clumsy and ineffective for both the enterprise and the state because there is no real manager in this case. As to collective ownership, the draft does not envisage it at all, for, as practice shows, this is an invention and a myth. Only a juridical person who exercises the right to own, manage, and use can be the owner. A group of employees (a collective) is in reality stripped of this right. The CC draft is special in delimiting the ownership right of the state (to funds and property) and the ownership right of natural and juridical persons as factual owners. In fact both state- run and private enterprises are legislatively awarded equal rights and duties, as is the case in the developed countries.”
“It is common knowledge that civil codes faced different destinies in each country. For example, this code does not exist, as a separate item, in Swedish legislation, with social relations in each sphere of life being governed by specific laws. At the same time, the German civil law of 1896, in which German civil- relations experts combined, highly successfully, the previous traditions of civil-law institutions with the requirements of capitalist development, exerted a profound influence on the formation of civil law in many other states. I wonder which of the CC models is most suitable for Ukraine and to what extent the national code is a self-sufficient document.”
“Naturally, we took into account the civil experience of other countries, particularly Russia, the Netherlands, Germany, and France, paying special attention to what meets the interests of our statehood. It is impossible and unnecessary to adapt alien laws to our conditions. Account was also taken of the Ukrainian mentality. For instance, the German law does not contain a clause on joint ownership. Our foreign colleagues were surprised to learn that under this clause both spouses have the same right to the whole of their joint property, without any part of the latter being assigned to each of them. You can divide casseroles and frying-pans in this way, they said, but it is worth having buildings, enterprises, and other real estate assigned to a particular name.”
“The civil code is expected to guarantee a certain stability of legislation, because all future laws will be brought into line with it, and to regulate practically all spheres of public life. But will the level of our law-abidance allow us to take advantage of the civilized rights the code enshrines? How long do you think it will take our society to begin to live by the new rules?”
“We are going to face huge complications as early as we begin to coordinate the two codes. A compromise is needed in the interests of Ukrainian citizens for the sake of whom the codes will be adopted. The civil code will promote considerable revitalization of business and strengthen the protection of human rights. It will entail a large number of contracts. All legal relations and norms will be defined in detail. The code will have a powerful effect on human awareness and public life. Of course, it will be not so simple to put it on a new legal footing fast and painlessly, but there is no other way.”
OPINIONS
Oleksandr ISHCHENKO, unemployed:
“I don’t have the faintest idea of what a civil code is and, accordingly, do not understand why we need one. But if one has been passed, let it be so. What’s the difference if one more piece of paper comes up?”
Maryna BODNIA, schoolteacher:
“Our society really needs a civil code, but, before it is passed, one must explain to the people what is written there and what its purpose is. Only then can it be approved. But if the code is adopted the way it is done nowadays, individuals will fail to make full use of the rights it stipulates.”
Oleh DEMCHENKO, entrepreneur:
“All citizens of Western countries precisely live by the civil, not criminal or any other, code. For this reason I think the adoption of a new Civil Code in lieu of the old Soviet one is a step forward.”
