History of Codification in Private Law in Ukraine: Experience, Problems and Prospects

Abstract

One of the initial methodological imperatives for studying private law in Ukraine is the understanding of law as a phenomenon inherent in Western European culture (civilisation), later adopted by countries belonging to other civilisations. The classical model of private law is recognised as Roman private law of the ‘classical era’, interpreted through the prism of future modernisations of worldview and legal concepts. In comparing private law within the Western and Eastern European legal traditions, the author observes that private law is an organically inherent phenomenon in Western Europe, while in Eastern Europe, it is largely considered civil law. Various factors—political history, worldview, economic development, culture, outlook and legal system—have been shaped by both Western and Eastern influences, with the author concluding that Ukraine represents a ‘frontier civilisation’, a zone of intense interaction between different cultures. This, in turn, has influenced the formation of private law.

Old Ukrainian law developed in two stages. The first codified act was the Russkaya Pravda. An analysis of its provisions related to real and obligation law reveals similarities to Roman law. It can be concluded that the private law tradition in medieval Ukraine specifically reflected the competition between Eastern and Western European legal traditions with the predominance of the former based on the customary law of Kievan Rus, while the latter gained dominance when the Statutes of the Grand Duchy of Lithuania was being created.

Since the late nineteenth century, most of Ukraine was governed by the laws of the Russian Empire, except territories under the rule of Austria–Hungary, Poland, Romania and others, where the legislation of the respective states—reflecting the Western tradition of law—remained in force. Therefore, the Ukrainian legal tradition was shaped by Western influence. The author observes that the ‘Great European Codifications’ affected Ukrainian law differently at various stages of its modern and contemporary history, noting that the Austrian codification exerted the greatest practical and doctrinal impact on the development and codification of civil law in western Ukraine. As for areas under Russian rule, the nature of law was determined by Russian jurisprudence’s reliance on the doctrine of German law and the German experience in codifying civil law. The Soviet period was characterised by the predominance of public law norms, by which the authorities sought to neutralise the perceived threat of ‘private law excesses’ in civil law regulation. Simultaneously, while regulating relations in a society that fundamentally denied the existence of private law, many of its provisions reflected the influence of bourgeois private law, mainly the German Civil Code Bürgerliches Gesetzbuch (BGB)—and through it—Roman private law.

The private law of independent Ukraine is characterised by a gradual return to humanistic values: legal support for individual sovereignty, guarantees of personal rights, equalisation of the legal status of the individual and the state, and assurance of the freedom to exercise one's rights. The Civil Code of Ukraine of 2003 can be considered an act of universal application, regulating all property and non-property relations that are within the scope of private law, and are not governed by special legislation. The process of Ukraine's integration with the EU has necessitated the adaptation of domestic civil legislation to the European concept of private law, a process that is unfolding through ongoing recodification.