RECODIFICATION OF CIVIL LEGISLATION OF UKRAINE

CONCEPT OF UPDATING THE CIVIL CODE OF UKRAINE

Kyiv ● 2020
 INTRODUCTION

In recent years, scholars and practitioners have increasingly discussed the idea
of systematic (rather than fragmentary) renewal of the Civil Code of Ukraine. On
numerous scientific events and publications was emphasized that for the start of the
process of recoding civil (private) law now exist necessary economic, political and
legal preconditions.

The authors of the Concept of Renewal of the Civil Code of Ukraine (Conception)
believe that the implementation of recodification follows from the logic of further
transformation of society, especially from the building of a real and efficient market
economy as an integral part of civil society and european orientation of all
components. Among the legal factors and prerequisites for starting the relevant
work, the authors see the following:
1. significant development of market legislation in the country;
2. presence of norms-models of international acts;
3. modern experience of recodification of civil codes of France and Germany -
"bastions" of private law;
4. legislative example of the new EU members - former countries of the
"socialist camp";
5. required potential of domestic private law science (see Annex 1).

Given the need for further private law reforms, the Government of Ukraine adopted
relevant acts on updating (recodification) the civil legislation of Ukraine and
established an appropriate Working Group. The members of the Working Group at
their plenary sessions in 2019-2020 developed and agreed on the content of this
Conception.

The developers of the Conception assume that all books of the current Civil Code
need systemic changes and significant structural innovations. The authors propose
to carry out significant structural innovations, taking into account the structure of
the Civil Code drafts of 1996-2001, which included the Books "Family Law" and
"Private International Law". The content of the Conception was formed taking into
account the unconditional liquidation of the Commercial Code of Ukraine. The
abolition of this anti-market act is a prerequisite for further recodification work. The
Conception consists of two parts: in the first – prescribed main directions of updating
(recodification) of legal arrays, which are currently presented in six books of the
current Civil Code of Ukraine, the Family Code of Ukraine [2], codification of PrIL;
in the second - analytical materials relating to these codifications. Analytical
materials are an integral part of the Conception, as they were used as a basis
for identification of diractions for updating legislation. Analytical materials contain
conclusions of research on
i.factors and preconditions for the systematic renewal of the Civil Code of Ukraine;
ii. main results of the codification of civil legislation of 2004 and PrIL of 2005;
(iii) review and assessment of changes to the Civil Code after 2004 and the Law on
PRIL after 2005;
(iv) application practice of private law by courts;
(v) the effect of unification acts, the acquis and foreign legislation in the field of
private law;
(vi) expected results of the upgrade (see Annexes).
The first part of the Conception, which is devoted to the main areas of renewal
(recodification) of the Civil Code of Ukraine, consists of proposals for improving t
various in scope and meaning legal arrays and structures. Numbered proposals
should not be considered as numerus clausus. The project included only those areas
of modernization that were discussed at meetings of the Working Group, members
of which rely on constructive initiatives of the legal community.

[2] The main directions of recodification of family law norms will be presented after
the discussion of the Conception at the stage of its finalization.
 1. GENERAL PROVISIONS
(FIRST BOOK OF THE CIVIL CODE)

Systematic updating of normative array of the First Book is proposed to carry out in
the following areas:

§ 1.1. Recognition of the Commercial Code of Ukraine as invalid. Systematic

updating of the First Book, as well as the Civil Code of Ukraine as a whole, is
possible only after cancellation of the Commercial Code of Ukraine. The latter does
not meet the parameters of acts that governing business relations, which are
primarily legally private by their nature. Analysis of the content of two codes,
lengthy scientific discussions, relevant case law shows the existence of such
systemic flaws in the Commercial Code, which not only significantly block
economic development of Ukraine and reforms in accordance with the Association
agreement, but pose a real threat to strategic aspirations of the country.

Section I. Basic Provisions (chapters 1–3)

§ 1.2. Clarification of areas in which private law relations are governed by civil
lagislation. It is considered expedient to point out additional (except those which are
mentioned, for example, in Article 9 of the Civil Code of Ukraine) spheres of social
reality - entrepreneurship, corporate or information spheres, etc., in which private
law relations are formed by their nature and which are governed by civil lagislation.

§ 1.3. Clarification of provisions on the list of general principles of civil legislation

(Article 3 of the Civil Code of Ukraine). In this most important article for the whole
system of private law, it should be directly noted that the list of basic principles,
firstly, is not closed, and secondly, principles cover not only the law but also the
functioning of the entire private law system or its defining parts. This approach will
significantly increase the legal tools for judicial practice. Some principles of Art. 3
of the Civil Code of Ukraine can be clarified. For example, the principle of freedom
of contract is more precisely formulated as the principle of freedom of transaction.
Already in the process of norm-setting it will be necessary to determine the location
of such important principles for modern civil society: freedom of intellectual
(creative) activity; freedom of information and information exchange; conscious
responsible human interaction with autonomous robots and artificial intelligence;
inadmissibility of interference in private life of an individual due to development of
new technologies and to develop it in separate books of the Civil Code (for example,
inadmissibility of arbitrary interference in human genome; inadmissibility of
arbitrary interference in human body and its embryo, in sphere of human
reproduction; moreover - inadmissibility of arbitrary interference in sphere of
personal information, personal data, etc.).

§ 1.4. Сorrelation of acts governing private law relations (Article 9 of the Civil
Code of Ukraine). The abolition of the Commercial Code necessitates changes to
Art. 9 of the Civil Code of Ukraine, which determines procedure and priorities in
application of the Civil Code to settlement of private law relations in fields of
environmental protection, labor, family, entrepreneurship, etc.

§ 1.5. Defining the limits of the exercise of subjective civil rights. Taking into
account current practice of applying provisions of civil law, editorial board should
clarify the approaches to determining the limits of the exercise of subjective civil
rights, in particular norms of Art. 13 of the Civil Code of Ukraine on the
inadmissibility of abuse of rights.

§ 1.6. Clarification of approaches to the protection of subjective civil rights. The

wording of Chapter 3 "Protection of Civil Rights and Interests" should be clarified,
in particular certain provisions of Art. 16 of the Civil Code of Ukraine, which
establishes general approaches to the protection of civil rights and interests by the
court. Taking into account changes that were made to the Civil Procedural Code and
the Commercial Procedural Code of Ukraine in the context of judicial reform in late
2017, provisions of this article should be clarified in terms of possibility of applying
remedies which are not directly provided by law or contract. At the same time, such
changes should not simply repeat the relevant provisions of the Civil Procedural
Code and the Commercial Procedural Code of Ukraine, but take into account the
latest trends in private law to ensure the right of adequate and effective ways of
protection violated subjective rights, as required by Art. 13 of the ECHR and the
practice of its application by the ECtHR.
According to requirements of judicial practice, the Civil Code of Ukraine should be
supplemented with new ways of protection of personal rights for information,
personal data and confidential information about the individual, in the field of
individual health protection rights, reproductive rights and rights to preserve their
genetic identity.

§ 1.7. General principles of compensation for moral damage. Regardless the

location of future multifunctional provisions on compensation for property and non-
property damage, special attention should be paid to objectification of general
principles of compensation for moral damage, in particular the definition of persons
and grounds for compensation for moral damage in the context of necessity to avoid
situations while committing an illegal act, the person will have the obligation to
compensate for damges several persons (the victim, family members of the victim,
his close relatives, etc.).

Section II. Persons (chapters 4-11)

§ 1.8. Determination of an exhaustive list of organizational forms of legal entities

in the Civil Code. The Civil Code of Ukraine as a fundamental act of private law,
which regulates, among other things, general provisions on legal entities, should
define an exhaustive list of their organizational forms and at the same time aband
the archaic structures of legal entities (especially enterprises).
For legal entities that are registered in organizational forms which are not provided
for by the Civil Code, must be given a time to bring their organizational form in line
with the provisions of the Civil Code within the period to be established by law.

§ 1.9. Objectification of general provisions on all forms of legal entities in the Civil
Code. It is proposed to return to the Civil Code the general provisions on limited
liability companies and to indicate separately the existence of special regulation in
the Law of Ukraine "On Limited and Additional Liability Companies". The Civil
Code must contain basic provisions (for example, on corporate rights, on corporate
agreement, on responsibility of management the company to its members, etc.) for
all forms of legal entities provided by it. With this aim, it is worth to critically review
the provisions of the current Law of Ukraine "On Business Associations" and
incorporate its provisions, which have not lost their relevance, to the text of the Civil
Code, and cancel the Law itself.

§ 1.10. Clarification of the content of subdivision on participation of the state, the

Autonomous Republic of Crimea and territorial communities in civil relations.
First of all, it is necessary to proceed from the fact that these participants in civil
relations are legal entities under public law. This will follow from the revised text
of Art. 2 "Participants in civil relations". Taking into account that legal entities under
public law are far from being limited to such types as the state, the ARC and
territorial communities, this section of the Code will deal with general provisions on
legal entities under public law. In this section there is a place for indicatation of
certain features of participation of the state, the ARC and territorial communities in
civil relations. Given that the latter are equal (horizontal) participants in civil
relations, there is no need to preserve the vast majority of provisions of current
chapters of the Civil Code of Ukraine on legal forms of their participation in civil
relations, as well as peculiarities of their responsibility for their obligations.

Section III. Objects of civil rights (chapters 12-15)

§ 1.11. Things and property. Regarding the solution of questions on legal nature of
things, their division and the place of relevant provisions in the system of private
law, see § 3.28–3.30.
§ 1.12. Expanding the list of objects of civil rights. It is proposed to expand the
provisions of the Civil Code on objects of civil rights, preventing the development
of civil turnover and the appearance of unknown at the time of the creation of the
Civil Code objects in it. First of all, we are talking about the following objects:
information products, information resources, information systems, etc.; objects of
rights that are created and located in the Internet; cryptocurrency; personal data,
personal information; autonomous works, artificial intelligence, digital content, etc.

It is also advisable to expand the list of objects of civil rights, including corporate
rights, which in practice have long been a viable object of civil turnover, as well as
objects of personal non-property rights, which, embodied in an objectified form,
have acquired signs of turnover ability and are used in commercial activities (see §
2.7). It is also worth to consider the feasibility of including to the list of objects of
civil rights a number of objects, the appearance of which is resulting from the
development of medicine (in particular, biological material).

§ 1.13. Addition of new articles to Chapter 15. This structural subdivision is

proposed to be supplemented with a separate article "Trade Secret" (see § 4.4), as
well as with articles on general provisions concerning the above-mentioned
objects, in particular, it concerns information as an intangible asset - an object of
civil rights, which will allow to establish an important and up to time of the
development of society additions to a number of articles of all Books of the Civil
Code.

§ 1.14. Improving the civil law regime of certain objects of civil rights. The
peculiarities of the legal regime of certain objects of civil rights are subject to
improvement. It is, in particular, going about the enterprise as a single property
complex; animals and other living organisms.

Section IV.Transactions. Representation (сhapters 16-17)

§ 1.15. Transfer of norms on the concept, types of contract to the First Book. In
order to optimally and more logically structure the normative material regarding the
construction of contract, it is proposed to transfer the rules on the concept of contract
and its types, as well as the form of contract to Chapter 16 of the Civil Code, also
providing the provision on invalidity of contracts in it. (see § 5.28, 5.32). Such a
proposal is justified primarily by the content of this chapter, as it essentially refers
to the contract as a transaction, as a legal fact, and not as an obligation. Such a
transfer will look quite organic, as the majority of transactions (with a few
exceptions such as empowerment and testament) is covered by the concept of the
contract.

§ 1.16. Rethinking approaches to the form of transaction. The provisions of the

updated Civil Code of Ukraine on transactions should ensure the full functioning of
relations in the field of e-commerce, smart contracts, web banking and take into
account current trends in digital economy. Under such conditions, it is reasonable to
review general approaches to the form of transaction, in particular to determine the
range of transactions to be made in writing, electronically (taking into account its
specifics and the role of EDS) and orally (taking into account technical advances in
data transmission).

§ 1.17. Revision of construction and content of § 2 "Legal consequences of non-

compliance of the law by the parties while committing transaction " of Chapter
16. The construction of this paragraph is not built through the legal structures with
which the law connects the invalidity of transaction or the possibility to cancel it but
through consequences of cancelation of transaction which generates discussions and
problems in practice. Therefore, such a construction is not justified and legally
correct.

§ 1.18. Disclosure of the invalidity of transaction due to provisions on the

invalidity of contract. Given that issues of invalidity most often relate to the
contract, it is proposed to resolve them through the provisions on the invalidity of
contracts, with the proviso that such provisions apply to other transactions taking
into account the requirements of reasonableness.

§ 1.19. Transformation of approach to the institute of invalidity of contract

(transaction). Positively assessing the experience of a number of foreign civil law
codifications, it is advisable to distinguish the grounds for invalidity of the
transaction into two groups:

1. non-compliance with requirements that ensure compliance with the rule of law
(mandatory rules);

2. non-compliance with requirements conserning the subject composition and

free will (the principle of autonomous will).

Obviously, these provisions must accompany the general rule of legality of

transaction, enshrined in Art. 204 of the Civil Code of Ukraine, and make certain
exceptions from it.

§ 1.20. Refusal of civil confiscation. Systematic revision of fundamental approaches

to the institute of civil liability must provide the exclusion from the Civil Code of
the institute of civil confiscation. Currently Art. 228 of the Civil Code actually
"revived" Art. 49 of the Civil Code of the USSR of 1963, from which the developers
of the Civil Code fundamentally abandoned, replacing the mechanism of civil
confiscation with the use of restitution with possible recovery of damages and
compensation for moral damage (Article 216 of the Civil Code of Ukraine).

§ 1.21. Restitution or unjust enrichment? The question of determining

consequences of the invalidity of transaction - whether to leave the model of
restitution, as provided by the current Civil Code of Ukraine, or more appropriate to
provide for the provisions of paragraph 1 part 3 of Art. 1212 of the Civil Code on
unjust enrichment requires an independent analysis and further scientific
substantiation. (see § 5.41).

§ 1.22. Clarification of certain provisions of chapter 17 "Representation". The

norms which prescribe consequences of commitment of legally significant actions
by the representative with excess of powers, and also without corresponding powers
are subject to clarification.
 Section V. Terms and conditions.
Limitation period (сhapters 18-19)

§ 1.23. Improving the concept of statute of limitations. Certain provisions of the

Civil Code regarding the statute of limitations are subject to adjustment. First of all,
this applies to Art. 257 of the Civil Code, which erroneously defines the statute of
limitations as the period within which a person may apply to the court to protect civil
rights or interests.

§ 1.24. Requirements "not subject" to the statute of limitations. The list of claims
to which the statute of limitations does not apply (Article 267 of the Civil Code of
Ukraine) is subject to revision.

§ 1.25. Extension of the statute of limitations. It is promising to determine longer

statutes of limitations for especially valuable for the whole society objects of natural
environment - valuable lands, natural monuments, natural parks, lands of water and
forest fund, etc.
 2. PERSONAL NON-PROPERTY RIGHTS (SECOND BOOK OF CIVIL
CODE)

Civil Code Second Book normative array renewal is proposed to update in the
following areas:

§ 2.1. Second Book title change. The current version of the Civil Code with regard
to personal non-property rights’ subjects includes not only individuals, but also legal
entities and the state, so it is necessary to change its name to "Personal Non-Property
Rights" with the corresponding expansion of the subject of regulation of the Second
Book. At the same time, it is proposed to adjust the title of Chapter 20 "General
Provisions on Personal Non-Property Rights" and Chapter 22 "Personal Non-
Property Rights Ensuring the Social Existence of an Individual and Personal Non-
Property Rights of a Legal Entity and the State".
§ 2.2. Concretization of personal non-property rights of a legal entity. In national
civil law, a legal entity is enshrined with some personal non-property rights (right to
business reputation, right to information), however they need more detailed
regulation. Intangible assets such as names and locations are also reflected in the
Civil Code of Ukraine, although without reference to them as personal non-property
rights.

§ 2.3. A separate provision of the Second Book is proposed to be devoted to the

interconnection of personal non-property rights of an individual and a legal entity,
of what it’s the founder, the participant, in cases where the activities of one are
associated with another, and vice versa (i.e. the possibility of a legal entity to appeal
to the court in case of the violations of non-property rights of such entity, including
after its death). It is expedient to regulate the peculiarities of exercising personal
non-property rights not only by legal entities of private law, but also by legal entities
of public law, which, subject to the concept of state participation in civil relations
through legal entities, also include the State of Ukraine, the Autonomous Republic
of Crimea and territorial communities. (ref.§ 1.10).

§ 2.4. Objectification of general provisions on personal non-property rights. At the

level of general provisions on personal non-property rights, it is proposed to provide
provisions on the principles (basic principles) of regulation of personal non-property
relations (institutional principles) or the universal principle of personal non-property
rights, according to which the individual, including his natural rights, are protected.
Everyone is obliged to respect the free choice of an individual to live as he wishes
(following the example of Article 81 of the Civil Code of the Czech Republic); to
clarify the peculiarities of the implementation of personal non-property rights and
their guarantees (in particular regarding the age limits of personal non-property
rights implementation, namely the exercise of certain powers by minors and
incapacitated persons, the possibility of exercising certain powers by a
representative, as well as strengthening guarantees for personal non-property rights
implementation); to systematize special methods of protection of personal non-
property rights, having established the mechanism of ensuring proportionality of
their application, in cases when it leads to restriction of other rights, such as the right
to information, the right to freedom of speech, etc.

§ 2.5. "Consolidation" of personal non-property rights. It seems reasonable while

maintaining a pluralistic approach to the personal non-property rights system to have
their "consolidation" (the right to physical inviolability, the right to individuality,
the right to privacy). From the legal technique point of view, it is expedient to do it
by dividing the chapters into appropriate paragraphs. The above will eliminate gaps
and certain conflicts, as well as deprive the Civil Code of Ukraine of articles that
have not received recognition of law enforcement practice.

Thus, considering personal non-property rights that ensure the physiological

(natural) existence of an individual, it is advisable to identify the following personal
non-property rights that ensure the physiological (natural) existence of an individual:
the right to life; the right to health; reproductive rights; the right to freedom (freedom
of natural existence); the right to personal inviolability; the right to personal security;
the right to personal dignity. It is seen that some of the normatively regulated
personal non-property rights of individuals, which are enshrined in Chapter 21 of
the Civil Code of Ukraine, are either included in the content of the above rights, or
act as guarantees of their exercise or protection.

Personal non-property rights that ensure the social existence of an individual can be
divided into the right to a person's name and related means of personification
(individualization), the right to individuality, etc.; the right to honor and the right to
reputation; the right to freedom of movement, the right to free choice of residence,
the right to freedom of literary, artistic, scientific and technical creativity, the right
to choose the kind of occupation; the right to personal information; the right to
privacy of an individual from external interference by a social group.

The provisions on each of these personal non-property rights need to be detailed,

taking into account the developments of national doctrine, judicial practice, as well
as the experience of legislative regulation of the personal non-property rights of
other countries.

§ 2.6. Revision of special legislation. Particular attention should be paid when

updating the Second Book of the Civil Code to the compliance of other laws with
the new version of the the Civil Code by simultaneously making appropriate changes
and amendments, as well as ensuring consistency in the parallel development of
other codified acts that regulate to some extent personal non-property relations
(these are the Labor Code of Ukraine, the Medical Code of Ukraine, the Code of
Ukraine on Electronic Communications, etc.).

§ 2.7. Objectification of contractual relations with regard to current personal non-

property objects. It is necessary to ensure the normative regulation of contractual
relations arising from personal non-property objects, which, having received an
objectified form, have acquired signs of turnover. This guarantees the right of an
individual to use such objects for commercial purposes and to allow others to use
them.

Taking into account the achievements of the national doctrine of personal non-
property rights, it is necessary to enshrine in private law the possibility of
commercial use of features that individualize the individual, which in this context
should be interpreted broadly and cover not only images, names, in all the meaning
of these terms, but also voice and other individual features under the condition of
their unambiguous association with the natural person-carrier and the commercial
value of their use.

§ 2.8. Prohibition of eugenics, birth of genetically identical people, gene

transformation, except for the treatment of genetic diseases (following the example
of Article 164 of the French Civil Code).

§ 2.9. Legalization of euthanasia and assisted suicide is possible. It is proposed to

reconsider the possibility of legalizing passive euthanasia and assisted suicide,
taking into account the practice of the European Court of Human Rights [1] with the
parallel introduction of appropriate amendments to the Criminal Code of Ukraine.

§ 2.10. Objectification of reproductive rights of an individual. It is proposed to

consolidate at the level of the Civil Code of Ukraine the reproductive rights of
individuals as a system of separate personal non-property rights, aimed at the
reproductive function of individuals and include: the right to reproductive choice;
the right to reproductive health; the right to information on reproductive rights; the
right to secrecy in the exercise and protection of reproductive rights. A special law
on assisted reproductive technologies to determine the conditions, the procedure for
their use (for example, Articles 31119, 31120 French Civil Code).

§ 2.11. Determining the order of research of genetic characteristics of an

individual. It is proposed to establish the procedure for research of genetic
characteristics only with written revocable consent for the purpose specified by law,
such as: medical purpose and research, identification by genetic imprints only in
cases and in the manner prescribed by law (for example, Articles 1610–1613 French
Civil Code).

§ 2.12. Determining the civil consequences of gender reassignment. It is

reasonable to determine the civil consequences of gender reassignment (grounds for
termination of marriage, etc.) (following the example of Article 29 of the Civil Code
of the Czech Republic). In addition, it is proposed to clearly establish at what age,
under what circumstances and (or) conditions a person has the right to change sex.
________________________________________
[5] See., example.: Pretty v. The United Kingdom, No 2346/02, 29.04.2002; Haas v.
Switzerland, No 31322/07, 20.01.2011, Lambert and Others v. France, No 46043/14,
05.06.2014 та інші.

§ 2.13. Ensuring civil protection of the right to personal data and strengthening
the right to privacy. It is proposed to ensure civil protection of the right to personal
data, defining its content and place in the personal non-property rights system, while
presenting the Law of Ukraine "On Personal Data Protection", in order to bring it
into line with the EU General Data Protection Regulation, in particular to strengthen
the conditions for obtaining consent, which must be explicit and clearly different
from other statements; expand the content and list of rights of the personal data
subject (the right to access personal data with free provision of their copies in
electronic form; the right to portability (mobility) of personal data - the right to
demand the transfer of personal data to another owner).

It is justified to strengthen the right to privacy, in particular by introducing the right

to be forgotten, according to which a person has the opportunity to request, under
certain conditions, the removal of their personal data from public access, which may
become available through search engines.

§ 2.14. Objectification of a person's "digital rights". During the revision of the

normative array of the Second Book of the Civil Code, it is proposed to develop
provisions on the "digital rights" of the individual as a kind of personal non-property
rights, which create an opportunity to realize interests in the field of digitalization.

§ 2.15. Concretization of features of implementation and protection of personal

non-property rights of persons with special legal modes. Need clearer regulation of
the peculiarities of the implementation and protection of personal non-property
rights, which are endowed with persons who have special legal statuses (legal
modes), in particular: public individual, patient, family member, creator of
intellectual property, digital (electronic) person etc.

§ 2.16. Objectification of the presumption of innocence. It is expedient to

consolidate the presumption of innocence at the level of the Civil Code and establish
civil means of protection (including cessation of violations and compensation for
non-pecuniary damage) for disseminating information that violates the presumption
of innocence (for example, Article 91 of the French Civil Code).
 3. PROPERTY RIGHTS
(TRIRD BOOK OF THE CIVIL CODE)

§ 3.1. Changing the title and structure of Book Three. It is proposed to return to
the usual name of the system of norms on property rights in the world codifications,
including in the drafts of the Civil Code of Ukraine of 1996-2001, namely -
"Property Law". Compared with the current Civil Code, its projects differed
qualitatively in structural terms: they had separate structural units devoted to the
general provisions on property rights and possession.
Taking into account the experience of domestic and foreign codifications and
increasing the range of "property" issues, the legal array of this book should be
divided into the following sections with the following titles: Section I "General
Provisions of Property Law", Section II "Possession", Section III "Property", Section
IV "Other Property Rights". Proposals for filling the content of new structural units
and legal structures will be given after the presentation of possible ways to update
the two existing Chapters of the current Civil Code.

Section I. Property Rights (Chapters 23-29)

§ 3.2. The concept of property rights. It is proposed to provide in the Civil Code of
Ukraine the concept of property rights as the most complete domination over a thing
(property) within the limits provided by law. Everyone is obliged to refrain from
violating the property rights of others.

§ 3.3. Content of property rights. The content of the right of ownership is that the
owner has the right at his discretion to take any action against his property, but these
actions should not contradict the law and other legal acts, as well as violate the rights
and legally protected interests of others. It is proposed to supplement the Civil Code
of Ukraine with the following provisions on the content of property rights:

"The owner is allowed to do with the thing everything that is not forbidden. In cases
specified by law, the owner may perform only actions that are permitted by law. "

§ 3.4. Social function of property. It is proposed to provide in the Civil Code of

Ukraine provisions on the social function of property:

"Property obliges and the owner is obliged, in exercising his right, to act with due
regard to the general interests and individual interests.

The owner must not exercise his right of ownership beyond the limits provided for
all owners of such property by this or that law, in order to protect the interests and
security of the state, nature, environment and human health.

If the owner of the property is subject to restrictions in order to protect the interests
and security of the state, nature, environment or human health, which require him,
but not other owners of such property, to suffer greater damage, he is entitled to
compensation under the rules of forcible seizure of property (expropriation) ".

§ 3.5. Restrictions on property rights. It is proposed to supplement the Civil Code

of Ukraine with provisions on restriction of property rights in the context of their
material effect:

"Property rights may be restricted by law. No person may be deprived of property

rights unless required to do so by the public interest established by law or by law,
with compensation which may not be less than fair compensation.

The owner may, for purposes not prohibited, restrict or encumber his right.

If, as a result of the transaction, the owner prohibits the alienation or encumbrance
of immovable property, such prohibition shall apply to third parties if it is registered
in the state register of immovable property and their encumbrances.

Restriction of the right of ownership of movable property in order to secure the claim
is valid for third parties, if it is registered in the relevant state register or if the third
party knew or could have known about it.

§ 3.6. The principle of a single immovable thing. According to the principle of a

single immovable property, a land plot is the only immovable property, the
ownership of which extends to the essential components of this property, which are
closely connected with the land. When discussing the advantages and disadvantages
of this approach, it should be borne in mind that it should also be extended to
"apartment" and non-residential property, which are closely related to each other.

Section II. Property rights to another's property (Chapters 30-34)

Possession
§ 3.7. The nature of possession. The concept and place of possession in the system
of national law largely depends on the understanding of the legal nature of this
institution, in particular as a factual situation that gives rise to legal consequences,
or the type of property law. The civil codes of most countries do not directly relate
possession to the factual situation or to the law, its interpretation is the task of legal
science. If you support the idea that possession is a real right, possession should be
reflected in the section "Limited Property Rights", which will present such property
rights as: easement, usufruct, emphyteusis, superficies, pledge, mortgage, and other
limited property rights.

It deserves to support the recognition of possession of the actual state, which

generates legal consequences, and therefore possession does not belong to the
category of property rights.
Recognition of possession of the actual state, which generates legal consequences,
determines the place of this institution in the system of property law and the
architecture of the Trird Book of the Civil Code. In this case, the possession should
be given a separate section, which will follow the section "General Provisions" and
precede the sections on property rights.

§ 3.8. The structure of the section "Possession". It is proposed to divide the

material of the section into two chapters: "General Provisions" and "Consequences
of Possession", which will contain provisions on acquisition, implementation and
types of possession, transformation of ownership, bona fide possession,
presumptions of continuous possession and ownership, protection of possession,
consequences of possession and termination.

§ 3.9. Content of possession. It deserves support for the introduction in the Civil
Code of Ukraine of provisions on possession as direct or indirect maintenance of a
thing, combined with the intention to treat it as one's own and to rule over it as the
owner or subject of a limited property right.
The retention of a thing not for itself is a retention (detentio), which is not protected
by law under the rules of possession. Possession is direct if the actual possession of
the thing is carried out by the owner as his own or through his authorized person.
Possession is indirect if it is actually exercised through a holder of a limited property
right. This approach corresponds to the trend of spreading the concept of direct and
indirect ownership in European countries (Germany, Austria, Moldova, etc.).

§ 3.10. Legal consequences of possession. Possession is a factual situation that gives

rise to four legal consequences: presumption of ownership; acquisition of ownership
of the fruits of the thing, if the owner is bona fide; protection of possession by means
of property claims; acquisition of possession due to the acquisition prescription.

It is proposed to provide in the Civil Code of Ukraine special means (possessory)

protection of possession, which include the following:
(1) self-defense;
(2) claims for damages;
(3) return of possession;
(4) termination of the possession violation; protection of better ownership through
lawsuits:
(5) on the return of possession and
(6) on termination of the violation.

Other property rights

§ 3.11. New types of limited real rights. In addition to the types of rights to another's
property mentioned in Book Three of the current Code - easement, emphyteusis and
superficies, the provisions of which deserve clarification, it is proposed to provide
such types of limited real rights as: usufruct, real estate encumbrances, preemptive
right to purchase land, real right of expectation .

With regard to such types of limited property rights as pledge, mortgage, retention
(see § 5.15).

§ 3.12. Usufruct. The essence of the institution of usufruct is that its subject
(usufructuary) gets the opportunity to use the encumbered thing and extract from it
the fruits and income, provided that its integrity and safety. The usufruct arises on
the basis of the law, under the contract or as a result of the acquisitive prescription,
is established concerning any non-consumable things, movable and immovable,
which are in civil turnover. The thing, which is given in usufruct, can be used in both
business and non-business activities.

§ 3.13. Real encumbrances on real estate. It is worth noting the introduction in the
Central Committee of Ukraine of provisions on real encumbrances on real estate as
a limited real right. A real estate encumbrance is a real right to another's land plot or
other immovable property with the authority to receive lifelong or long-term
periodic payments secured by the possibility of compulsory satisfaction of claims at
the expense of the land plot or other immovable property. By its nature, the real
encumbrance of real estate is an annuity that is paid from real estate and qualifies as
income of material origin.

In European countries, encumbrances are applied in the case of sale of land or

enterprise on the basis of rent, security of the elderly, retention of property in a
condominium (joint ownership), regulation of neighborly relations, exercise of
easements, in building relations. Encumbrances of purchase and sale, residential,
industrial, etc. became widespread.

§ 3.14. Transfer of certain rules on rent and lifetime maintenance to the Third
Book. Provided in domestic law (Chapter 56 "Rent", Articles 731-743; Chapter 57
"Lifetime maintenance (care)", Articles 744-758) rent and lifetime maintenance
(care) do not apply to real rights and regulated by the provisions of the Civil Code
of Ukraine on obligations. In this regard, the idea that the rules on rent and lifetime
maintenance (care) for real estate, provided for in Chapters 56-57 of the Civil Code
of Ukraine, should be transferred to the relevant section of Book Three.

§ 3.15. Real right of preferential purchase of land. It is proposed to provide in the

Civil Code the real right of preferential purchase of land in the list of limited real
rights with all the features inherent in this institution of law.

The right of pre-emption does not belong to property rights provided for in domestic
legislation (Article 362 of the Civil Code of Ukraine, Article 130 of the Civil Code
of Ukraine, Article 9 of the Law of Ukraine “On Land Lease”).
The institution of property law of preferential purchase is necessary and important
in the countries of Romano-Germanic law. Under the influence of the pandetic
doctrine, the preemptive right of purchase in the legislation of continental Europe
has acquired a dual character: in the case of sale of movables - mandatory, and in
the case of sale of real estate (land) - property regime.

§ 3.16. Real right of expectation. The limited real right of expectation is the right of
the person who owns the thing for the purpose of the subsequent acquisition of the
property right on it, in case of performance by the owner of the conditions specified
in the contract or in the law. Domestic case law uses the concept of the subject of
the right to expect to receive a real right to real estate in the future. The right of
expectation is a property right that is an integral part of property as an object of civil
rights. This property right is a limited real right, according to which the owner of
this right is endowed with certain, but not all rights of the property owner, and
certifies the right of its owner to acquire ownership of real estate or other real right
to the property in the future.

§ 3.17. Good neighborliness. It is proposed to provide in the Central Committee of

Ukraine provisions on good neighborliness, which are reflected in the civil codes of
continental Europe (Germany, Switzerland, etc.). Neighborhood regulations
stipulate that the owner of the land plot has no right to prohibit emissions of gases,
vapors, odors, smoke, soot, heat, noise, vibration and similar effects coming from
another land plot, if they do not affect or have a negligible effect on its use. land. At
the same time, as a general rule, the impact is considered insignificant if the limits
and target indicators of impacts established and assessed in accordance with these
provisions, approved by acts of legislation and normatively established procedures,
are not exceeded.

Criteria for the acceptability of a negative impact should be determined by special

rules on good neighborliness and rules relating to damages. In this connection,
special rules on good neighborliness should be set out in Book Three, "Real Right",
and in Book Five, "Obligatory Law", the rules concerning damages (see § 5.42).

§ 3.18. Renunciation of the right of economic management and the right of

operative management and their replacement by market constructions. With the
abolition of the Civil Code, national legislation will be deprived of the right of
economic management and operational management, which are relics of the socialist
past, artificially created for the needs of the state economy limited property rights,
which have no analogues in developed legal systems and do not correspond to
property law.

The endowment of property of unitary state and communal enterprises on the right
of economic management and the right of operative management is a way of
exercising the right of ownership, first of all, for public legal entities, and is in no
way a legal form of economically necessary participation of one person in the
property of another. the main prerequisite for the existence of the category of real
rights to another's property.

Inherent in the rights of economic management and operational management of their

establishment on the basis of an administrative act of a public authority and the right
of the owner (state, Autonomous Republic of Crimea, territorial community) to seize
property and terminate these legal titles at their discretion do not correspond to
traditional notions of real rights.

Quasi-real rights of the Soviet era cannot be used in a market economy, when the
state and other legal entities under public law act in civil relations on an equal footing
with other participants, when "privileged" forms of ownership are eliminated, and
so on. In the interests of economic growth, "Soviet" structures should be replaced by
market instruments in the form of organizational and legal forms of joint-stock and
other companies, various types of contracts, private-law constructions of real rights.

§ 3.19. Securing real rights. The Civil Code of Ukraine recognizes as binding rights
collateral, mortgage and retention, which by their nature are property rights. Almost
all countries of continental Europe recognize collateral and mortgages as real
security rights. In the countries of the German legal family, the right of retention is
recognized as a real right (Germany, Austria, Switzerland, etc.), and in the countries
of the Roman type of law - a law of obligations (for example, in Moldova).

Most countries of continental Europe recognize the institution of security fiduciary

(Germany, France, etc.) as a real security right.

Securing property rights, which include collateral, mortgage, retention and security
fiduciary (security fiduciary fund) can even be allocated to a separate unit (see §
5.15).

New sections and constructions

The new sections and constructions here include the fiduciary fund and the general
provisions of property law. Although not all the ideas of the following new sections
and constructions have been unequivocally approved at the plenary meetings of the
Working Group, for the purpose of their public discussion, they are presented in the
Concept.

Fiduciary fund

§ 3.20. Legal nature of the fiduciary fund. The concept and place of the fiduciary
fund in the civil law system largely depends on the understanding of the legal nature
of this legal structure, in particular as target property (ie defined purpose) transferred
to the trust property of the manager, or as management of someone else's property.
If we support the idea that a fiduciary fund has a fiduciary effect only in the case of
establishing trust ownership of the fund's property, and therefore the management of
someone else's property does not have the [necessary] fiduciary character, the
fiduciary fund should be reflected in the section "Property", among other property
rights. and management of another's property - in the section "Restricted real rights",
which will present the limited property rights.

If we consider the institution of the fiduciary fund more broadly, as one that covers
the main fiduciary legal titles on property - the right of trust property and the right
to manage someone else's property, then this approach, Part 2 of Art. 316 of the Civil
Code and Chapter 70 of the Civil Code "Property Management" are subject to
exclusion, and the provisions on the fiduciary fund need to be included in a separate
section.

§ 3.21. The structure of the legal array of the fiduciary fund. The fiduciary fund
will be regulated by the provisions of separate chapters on the general provisions
and types of fiduciary fund, fiduciary property, the establishment of a fiduciary fund,
the conditions of the fiduciary fund, the powers of the manager, remedies in case of
default, replacement of fiduciaries, termination and change. persons and other issues
related to the fiduciary fund.

The specifics of the fiduciary fund as security for the obligation will be regulated by
the provisions of the section "Securing real rights".

§ 3.22. The concept and grounds of the fiduciary fund. The fiduciary fund is
created on the basis of a contract (paid or unpaid), a will or a law. In cases where it
is provided by law, it may also be created by a court decision. The fiduciary fund
has a term character.

According to the established fiduciary fund, one or more founders transfer their
property to the manager (managers), who separate it from their own property for
management in favor of one or more beneficiaries, and in their absence - for a
specific socially useful purpose.

A fiduciary fund can be created as a trust property fund or a fund for the management
of someone else's property. The manager of the trust property fund is the trust owner
of the fund's property.

The owner of the fund of management of another's property is the founder or

beneficiary of the fund, the manager manages the fund on the right of management
of another's property, which is a limited real right.

§ 3.23. Rights and responsibilities of the manager. Acceptance of property in the

fiduciary fund imposes on the manager the obligation to manage the fiduciary fund;
and the acceptance of the fiduciary fund is sufficient for the beneficiary to have its
rights.

The manager is obliged to manage the fiduciary fund in the interests of the
beneficiary or to achieve a certain goal.

All transactions carried out with the property of the fiduciary fund are the subject of
independent registration with the manager.

The manager owns, uses, disposes of the property of the fiduciary fund in the
interests of the beneficiary or a certain socially useful purpose.

§ 3.24. Rights and obligations of the beneficiary. The beneficiary has the right to
demand either the provision of income due to him, or the payment of the value of
fruits and income, or the property of the fiduciary fund in accordance with the
transaction on the establishment of the fiduciary fund or the law. The beneficiary
has the right to demand the fulfillment of the manager's obligations concerning the
beneficiary's right to income, fruits and property of the fund, to challenge any actions
taken by the manager to the detriment of the fiduciary fund or the rights of the
beneficiary, and to sue instead of the manager. if he without sufficient grounds
refuses to file a lawsuit, does not file it or anything prevents him from filing it.

The manager and the beneficiary are jointly and severally liable for actions
committed to the detriment of the rights of creditors of the founder or to the
detriment of the property of the fiduciary fund.

General provisions of real rights

§ 3.25. Contents of the new chapter I of the third book. Section I "General
provisions of real rights" contains the concepts, principles and types of real rights.

It is proposed to provide in the Central Committee the concept of property law:

"Real right is the domination of a person over a thing that acts against everyone,
unless otherwise provided by law."

Real rights are characterized by the principles of absoluteness, adherence,

determination by law of the list and content of property rights (numerous clausus),
preference (seniority), publicity.

Real rights are designed to "strengthen" (strengthen) the subjective right to a thing,
reflect the essence of property appropriation, contribute to the stability and
sustainable development of property relations. Publicity (publicity) inherent to real
rights determines the task of the national legal order to identify, recognize and
legally protect rights that are real in nature.
§ 3.26. Revision of the list of real rights provided by law. A broad understanding of
real rights objectively determines the tendency to expand their list and, if necessary,
to introduce new property rights, leaving the principle of numerus clausus in force.

§ 3.27. Classification of real rights. Real rights are divided into right to property
and limited real rights.

§ 3.28. The legal nature of things. The concept and place of things in the civil law
system largely depends on the understanding of the legal nature of this object of law,
in particular as an object of real right or an object of civil law, the legal effects of
which also take place outside real rights. The civil codes of European countries deal
with this issue in different ways - modern acts of civil codification refer to the system
of real rights as a separate section or part of the section "General Provisions", some
civil codes have rules on things in the chapter "Objects of civil rights".

In the new section I of the third book it is possible to provide features of a legal
mode of separate kinds of things.

§ 3.29. The place of provisions on things in the system of real rights. Recognition
of a thing as an object of real rights determines the place of this object of law in the
system of real rights and the architecture of the Book of the Third Civil Code of
Ukraine. The section "Things" contains provisions on the concept of property and
things, their properties and components, civil turnover and division of things.

§ 3.30. Separation of things. The division of things provided for by the current CC
should be clarified or supplemented with provisions on the concept and components
of real estate, condominium unit, extension of land ownership, movable cultural
property, real estate that has been transformed due to dishonest actions of the
purchaser, etc.

§ 3.31. Unfair acquisition of a newly created real estate object. It is proposed to

provide in the Central Committee of Ukraine provisions on the consequences of
unfair acquisition of a newly created real estate of the following content:

"An object of immovable property created as a result of a formal division, binding

to an already existing immovable property using its functional elements, in other
cases of dishonest actions of the purchaser, is not considered a newly created object."

This approach will make it possible to improve the protection of property rights to
immovable property that has been taken out of the owner's possession against his
will, as it will provide for the need to conduct a legal assessment and take into
account the good faith acquisition of property by the acquirer.
 4. INTELLECTUAL PROPERTY RIGHT
(BOOK FOUR OF THE CC)

The main areas of improving the provisions of Book Four are justified by the need:
1. to amend the Civil Code of Ukraine and special legislation aimed at
implementation of the Association Agreement, adaptation of Ukrainian
legislation to EU legislation;
2. to take into account the national practice of legislation use in the field of
intellectual property;
3. to harmonize the provisions of Book Four with each other and other provisions
of the Civil Code of Ukraine;
4. to take into account the relevant experience of foreign countries, in particular the
EU member states.

§ 4.1. Implementation of the provisions of the Association Agreement and

adaptation of Ukrainian legislation to EU legislation. The condition for effective
implementation of the Association Agreement, adaptation of legislation is the
establishment and taking into account a set of rules of EU law, decisions of the Court
of Justice and the laws of EU member states that ensure the functioning of relevant
institutions of intellectual property rights. During the implementation of the
Association Agreement, it is essential to introduce the same EU legal regime for the
protection and enforcement of intellectual property rights within the deep and
comprehensive free trade area between Ukraine and the EU, as well as the
association's goal of supporting Ukraine's efforts to complete the transition to a true
market economy. , including by gradually adapting its legislation to the EU acquis
(Article 1 of the Association Agreement).
§ 4.2. Improvement of certain provisions of the Civil Code of Ukraine and the
elimination of terminological differences. This applies to the following issues:
(1) determining the ways of using the published work (Part 1 of Article 441, Part 1
of Article 442);
(2) limitation by the author of the use of works after his death (Part 4 of Article 442);
(3) harmonization of the definition of the composition of intellectual property rights
(Articles 424 and Articles 440, 452, 464, 474, 487, 490, 495, etc.);
(4) harmonization of the provisions of § 6 "Pledge" of Chapter 49 of the Civil Code
of Ukraine on the subject of pledge under Part 3 of Art. 424 "Property rights of
intellectual property";
(5) harmonization of Part 2 of Art. 430 and Part 3 of Art. 1112 of the Civil Code of
Ukraine regarding intellectual property rights to an object created by order;
(6) clarification of the provisions of Art. 432 on the protection of intellectual
property rights by a court in accordance with Directive 2004/48 / EC;
(7) clarification of terminology in relation to broadcasting organizations (Part 3 of
Article 451, Article 455, Part 3 of Article 456);
(8) harmonization of Parts 4 and 6 of Article 488 of the Civil Code on the validity
of intellectual property rights to plant varieties and animal breeds;
(9) harmonization of terminology regarding the term of validity of intellectual
property rights (Articles 447, 466, 467, 476, 468, 477, 497, 488, 498) and regarding
the provisions on the legal consequences of termination of intellectual property
rights;
(10) harmonization of provisions on the transfer of intellectual property rights to a
commercial name to another person only together with the entire property complex
of the person to whom these rights belong, or its relevant part (Part 2 of Article 490
of the Civil Code and the provisions of Article 191 of the Civil Code "Enterprise as
single property complex ");
(11) definition of a license as a unilateral transaction and not as a contract (Article
1107) stating that the person to whom the license has been granted is obliged to
comply with the conditions under which it was issued (Article 1108);
(12) the impossibility of concluding an agreement on the transfer of exclusive
intellectual property rights, the subject of which is the rights that at the time of the
agreement have not yet arisen (Article 1113);
(13) clarification of the subject of the commercial concession agreement in Article
1116; coordination of Parts 2 and 3 of Article 1122 of the Civil Code "Special
conditions of the commercial concession agreement" regarding the nullity of the
terms of the agreement;
(14) clarification of the provisions of Article 1072 "Priority of debiting funds from
the account" for payments under the copyright agreement, etc .;
(15) taking into account when determining losses in Article 22 of the Civil Code,
except for losses in the form of destruction or damage to property - other property
losses, etc.
§ 4.3. Improvement of institutions for protection of rights to personal names and
commercial (brand) names. It is proposed to clarify that the commercial (brand)
name is additional to the name of the person, and can be used alone or as part of the
name of the legal entity. In order to prevent misleading subjects about the activities
of a person who later registers and uses a similar (similar) name or its elements, the
relevant legal institution also needs to be improved.

§ 4.4. Harmonization of legal regimes for protection of trade secrets and know-
how to EU legislation. According to Directive (EU) 2016/943 on the protection of
undisclosed know-how and business information (trade secrets) against their
unauthorized acquisition, use and disclosure, there are two types of objects in trade
secrets: creative - know-how and non-creative - business information. In this regard,
it is proposed:
(1) to supplement Chapter 15 of the Civil Code of Ukraine with a separate Article
"Trade Secret" (see § 1.13);
(2) to replace Chapter 46 of the Civil Code "Intellectual Property Rights to Trade
Secrets" by Chapter "Intellectual Property Rights to Know-How";
(3) to provide that the specifics of the protection of trade secret rights are determined
by law.
§ 4.5. Strengthening the protection of rights to utility models and industrial
designs. The legislation of Ukraine on the protection of utility model rights needs to
be improved in line with modern legal and judicial practice of the leading EU
member states, which in the interests of industrial development and investment
provide a high level of protection of rights to inventions and prevent abuse of utility
model rights. including through the exclusion from legal protection of a utility model
or the definition of a utility model as a form of protection of rights to an invention
with the presence of a criterion of inventive step. Another approach is to consider a
utility model as a separate object, but with an inventive step criterion (equating the
inventive step criterion to an inventive step) or only as a three-dimensional object.

§ 4.6. Clarification of the form of transactions concerning the disposal of

intellectual property rights and the procedure for concluding a public license
agreement. Due to the widespread use of open access licenses in foreign countries,
it is proposed in Chapter 75 of the Civil Code of Ukraine to provide for the
possibility of concluding transactions on the disposal of intellectual property rights
in electronic form, as well as rules on public licensing agreement. Such rules are
contained in the draft Law of Ukraine "On Copyright and Related Rights" of March
10, 2020 (Ministry of Economy of Ukraine).

§ 4.7. Specifying the content of intellectual property rights. As part of the update
of special legislation on the protection of inventions, utility models, industrial
designs is to make changes to the content of intellectual property rights, as well as
harmonization of special legislation and the Central Committee of Ukraine.
 5. OBLIGATORY LAW
(BOOK FIVE OF THE CC)

Section I. General Provisions on Liabilities

(Chapters 47-51)

The definition of obligation. Parties of the obligation (Chapter 47)

The legal array of the Chapter 47 of the Civil Code of Ukraine contains the rules of
the following blocks of questions: the definition of obligation, the grounds for its
occurrence, the parties of the obligation (Articles 509-511); replacement of the
creditor and the debtor in the obligation (Articles 512-523); currency of the
obligation and inadmissibility of unilateral refusal to commitments (Articles 524-
525).
§ 5.1. Removing the imbalance of legal provisions regarding the definition of
obligation and replacement of the parties of the obligation. In Chapter 47 of the
Civil Code of Ukraine, the imbalance in the number of legal provisions devoted to
each block of issues is obvious. Such "asymmetry" is proposed to be eliminated by
allocation from the given legal area of new chapters, supplementing them with new
rules and moving Articles 524–525 to other arrays of norms. Chapter 47 of the Civil
Code of Ukraine proposes to concentrate the rules on the concepts, types and
principles of the obligation, and the new (selected) chapters will be devoted to the
grounds for occurrence of the obligation and the replacement of the parties of the
obligation.
§ 5.2. Supplementing amended Chapter 47 of the Civil Code of Ukraine with
additional provisions on the definition, types and principles of the obligation. In
this context, it is advisable to refer to the DCFR, in particular to Articles III.-1: 104
"Co-operation" and III.-1: 105 "Non-discrimination". The first article foresee the
obligation of the debtor and the creditor to cooperate in cases and in volume when
this can reasonably be expected in relation to the realization of the debtor's
obligation, and the second article discloses context of the prohibition of
discrimination in the obligatory relationship. In the development of the provisions
of Article 510 of the Civil Code, it would be appropriate to provide a definition of
solidary, partial and joint rights and obligations under the example of Art. III.-4: 202
DCFR, leaving the details of their implementation in the chapter on fulfillment of
obligations (see § 5.10).
In the draft of the Civil Code of Ukraine, the article on the inadmissibility of
unilateral refusal of obligations (current Article 525) characterized one of the
principles of fulfillment of obligations. If the principle of "pacta sunt servanda" will
be placed not in the array of rules on performance of the obligation, but in Chapter
47 as a general principle of the obligatory law, then Article 525 of the Civil Code of
Ukraine "Inadmissibility of unilateral refusal of obligations" should be in this
chapter.
§ 5.3. Astrent. It is advisable to supplement the Civil Code of Ukraine with
provisions on court penalties (astrent), according to which the court may, at the
request of the plaintiff, oblige the defendant to pay the plaintiff an amount of money
if the defendant does not comply with the court decision. Astrent means the award
of an amount of money as a way to ensure the execution of a judicial act, namely the
astrent is a penalty or penalty for improper execution of a court decision. The court
has the right to use the astrent if a claim for the fulfillment of the obligation in kind
is filed. A court penalty or astrent may not be charged on monetary claims.
§ 5.4. Improving the rules for replacing the creditor in the obligation. Yes, Article
514 of the Civil Code of Ukraine "The amount of rights transferred to the new
creditor in the obligation" should be supplemented with provisions on the possibility
of assignment of rights that arise in the future - so-called "immature rights"
(according to the model of factoring agreement). At the same time, it is possible to
fix at the level of law the inadmissibility of assignment of uncertain rights of claim.
It is necessary to approach critically the restrictions on assignment of the right of
claim established by the article 515 of the Civil Code of Ukraine. It is considered
admissible to allow the assignment of any property rights, except in cases where
such assignment will negatively affect the other party to the obligation. It is
reasonable to provide the rule that in such cases the debtor has the right to agree to
such a replacement of the creditor and thus eliminate the effect of this restriction. In
addition, restrictions on the assignment of certain rights of claim related to the
identity of the creditor can be directly outlined in law.
§ 5.5. Differentiation of agreements on assignment of the right of claim and
factoring agreement. Independent practical value will have the legal differentiation
between agreements on assignment of claims and factoring agreements, as modern
judicial practice does not always correctly qualify these legal models, which leads
to litigation and invalidation of agreements on assignment of claims.

§ 5.6. Comprehensive replacement of the party in synalagmatic obligations. Since

in practice it is often the replacement of a party to an obligation (rather than the
assignment of the right of claim in its purest form), and also, given that most
obligations are synallagmatic (bilaterally binding), the relevant chapter should
provide certain provisions that would regulate the specifics of "comprehensive"
replacement of the party in such synalagmatic obligations.
§ 5.7. Concretization of constructions of debt transfer and debtor replacement.
Today, the majority provisions on the replacement of persons in the obligation are
devoted to the replacement of the creditor. In this case, the issue of debt transfer and
debtor replacement is worth paying extra attention. In Article 520 of the Civil Code
of Ukraine, it is reasonable to fix provisions on general requirements for the consent
of the creditor to replace the debtor in the obligation (for example, Article III.-5: 203
DCFR). It is justified to consolidate and meaningfully disclose certain models of
replacement of the debtor in the obligation (complete replacement of the debtor,
incomplete replacement of the debtor and joining a new solidary debtor) such as
Article III.-5: 202 DCFR "Types of debtor replacement or entry of new debtors".
§ 5.8. Transfer of Article 524 of the Civil Code of Ukraine "Currency of
obligation" to another set of rules. It is logical to combine these provisions with
Article 533 of the Civil Code "Currency of monetary obligation", thus taking them
outside of Chapter 47 of the Civil Code of Ukraine.

Fulfillment of obligations (Chapter 48 of the Civil Code of Ukraine)

Mostly dispositive rules on the fulfillment of obligations are contained both in the
General Provisions on Obligations and on the Contract (Chapters I – II of Book
Five), and in other parts of the Civil Code of Ukraine and numerous acts of civil law.
Chapter 48 of the Civil Code of Ukraine concentrates the most general norms of this
legal institution. Guided by universal and regional unification documents
(UNIDROIT, PECL, DCFR Principles), developments in doctrine, modern
legislative and judicial practice, updating the relevant normative array of Chapter 48
of the Civil Code of Ukraine is proposed in the following main areas:
(1) structural improvement of regulatory material and improvement of its
delimitation and interaction with other chapters of the General Provisions on
Obligations and on the contract;
(2) clarification of existing compliance rules and inclusion of new ones in
accordance with the provisions of the UNIDROIT, PECL and DCFR Principles;
(3) providing special implementing rules for the business environment.

§ 5.9. Structural improvement of Chapter 48 of the Civil Code of Ukraine on the

fulfillment of obligations. Though the legal array of this chapter is not divided into
paragraphs, it clearly defines the following groups of rules: principles and general
conditions (modalities) of implementation; features of fulfillment of monetary
obligations, features of fulfillment of counter and alternative obligations, features of
fulfillment of obligations with a plurality of persons, confirmation of fulfillment of
obligations.
Foreign rule-making experience shows that each of these groups of norms has
recently been aimed at adjustment and increase. For example, all of these unification
documents, along with the chapters on enforcement, have included separate chapters
on obligations with multiple debtors and creditors. DCFR has the largest number of
articles on the plurality of persons - 19.
Clarifying and supplementing in the process of recoding the normative array of
Chapter 48 of the Civil Code of Ukraine, it is quite logical to group the relevant
rules at least into two paragraphs:
§ 1. Principles and general modalities of fulfillment of the obligation;
§ 2. Peculiarities of fulfillment of certain classification types of obligations.

The first paragraph would include principles of fulfilment, rules on general

conditions of fulfilment (subjects, methods, place, deadline), possibly rules on
confirmation of fulfilment, and so on. Currently, such a legal array is incompletely
contained in Articles. 526–532 and Article 545 of the Civil Code of Ukraine.
The second paragraph would include special rules on the fulfillment of certain types
of obligations (some of these rules are now presented in Articles 533-544 of the Civil
Code of Ukraine).

§ 5.10. Improving the demarcation and interaction of normative material between

chapters. The direction of updating, which is to improve the delimitation and
interaction of normative material between the chapters of the general provisions on
obligations and the contract, is related to the structural improvement of Chapter 48
of the Civil Code of Ukraine. Since Chapter 48 of the Civil Code of Ukraine provides
for special rules for the fulfillment of certain types of obligations, it is reasonable to
place in the preceding chapter (working title - "Concepts, types and principles of
obligations'' - see §§ 5.1, 5.2), give the terms and definitions of alternative, optional,
counter, plural, monetary, testamentary, in-kind and other types of obligations. On
the other hand, given the fact that the rules of fulfillment in the UNIDROIT
Principles are supplemented by a section on complications (hardship), it is arise the
issue on the appropriateness to provide in Chapter 48 of the Civil Code of Ukraine
similar articles, instead of provisions under Article 652 of the Civil Code of Ukraine
on the change or termination of the contract in relation with a significant change of
circumstances (change of circumstances - this is the terminology used for this
institution and in special articles PECL and DCFR).
§ 5.11. Improving the provisions of Chapter 48 of the Civil Code of Ukraine on
the fulfillment of obligations, taking into account the provisions of unification
documents. If we compare the general requirements for fulfillment of obligations
established in the Civil Code of Ukraine (conditions or modalities of fulfillment in
relation to subjects, methods, term and place) with the relevant provisions of the
UNIDROIT, PECL and DCFR Principles, we find some differences. For example,
in the Ukrainian codification, the place of fulfillment of an obligation is not related
to the place of usual residence of the party, and the issue of early fulfillment of the
obligation, as a general rule, is resolved in a different manner. Therefore, the general
conditions for fulfilling the obligation in the CC should be harmonized with the
relevant provisions (mostly identical) of the UNIDROIT, PECL and DCFR
Principles. The potential of the general rules on fulfillment of the obligation of the
first paragraph of Chapter 48 of the Civil Code of Ukraine will be significantly
strengthened by the introduction of a number of novelties, in particular, rules on
costs and compliance with formalities related to fulfillment; rules on the distribution
of fulfillment other than payment for a monetary obligation; or other rules that are
not there, given the soft law and the latest codifications of EU countries.

§ 5.12. Update and introduction of new special rules for certain classes of
obligations. The above method of updating the regulatory material on the general
principles and conditions of fulfillment of obligations extends to the update and
introduction of new special rules for certain classes of obligations - monetary,
counter, alternative, optional (currently absent), etc. Due to the large number of rules
for the fulfillment of obligations with a plurality of persons, law-making efforts in
this area are evolving into a separate direction of recoding.
§ 5.13. Special rules of fulfillment for the business environment. As the Civil Code
applies to legal relations in the business sphere, Chapter 48 provides for the
strengthening of the business (and where necessary - "consumer") connotation of
certain articles and the formation of new special rules for the fulfillment of
obligations in relations between entrepreneurs. For example, the Civil Code
establishes the presumption of partial obligations with a plurality of persons.
However, given the increased level of responsibility of entrepreneurs, the question
arises as to whether it should be replaced by the presumption of joint and several
obligations. In the business sphere, it is expedient, for example, to give the parties
to the contract the opportunity to stipulate the right to waive the obligation by paying
a certain amount of money to the other party to the obligation, etc.

Ensuring the fulfillment of obligations (Chapter 49)

§ 5.14. Supplement to the general provisions on securing the obligation. The
concept of securing the obligation is absent in the current Civil Code of Ukraine. It
can be defined as an additional right of the creditor to protect his property interest in
case of delay (improper performance) of the debtor, which encourages the debtor to
behave properly. The security right consists in imposing additional encumbrances
on the debtor in case of non-performance or improper performance, reservation of
the debtor's property, due to which performance can be achieved, attracting third
parties along with the debtor and applied to the open list of collateral obligations
arising on on the basis of law or transaction. Chapter 49 of the Civil Code of Ukraine
is entitled "Ensuring the fulfillment of obligations." It is suggested that this chapter
be called "Securing Obligations". The term "ensuring the fulfillment of the
obligation" is conditional, because certain measures, which are called by law as not
related to the fulfillment of the main obligation, but are designed to protect the
property interest of the creditor in case of delay (improperness) . Therefore, it is
correct to use the term "Securing obligation".

§ 5.15. The place of ways to secure the obligation in the Civil Code of Ukraine. In
the Civil Code of Ukraine, the provisions on securing the obligation are provided in
the chapter, which contains the methods of securing the obligation; these rules are
contained in one book on obligations. The place of the methods of securing the
obligation in the Civil Code of Ukraine depends on the recognition of the division
of collateral obligations into material and obligatory. The place of mortgage, pledge,
retention and security of trust property in the Civil Code of Ukraine depends on the
decision on the legal nature of these methods of securing the obligation. If we
proceed from the recognition of the dual nature of collateral, mortgages, retention,
taking into account the diversity of their objects, the main place of these security
rights in the Civil Code of Ukraine should be defined in the chapter "Securing
obligations", and in the section on property rights as limited property rights. In this
case, the agreements on the establishment of collateral, mortgage, retention are
governed by binding law, and the right of pledge, mortgage, retention as an
encumbrance - the rules of property law (see § 3.19).
§ 5.16. Reducing the size of the penalty. According to Part 3 of Art. 551 of the Civil
Code of Ukraine, the amount of the penalty may be reduced by a court decision, if
it significantly exceeds the amount of damages, and in the presence of other
circumstances that are significant. The current legislation of Ukraine does not
contain a list of exceptional cases (circumstances that are significant), in the
presence of which the court may reduce the penalty. The norm of Art. 551 of the
Civil Code of Ukraine to reduce the penalty should be supplemented by rules
according to which the court has the right to reduce the amount of the penalty only
in the presence of a statement of the debtor; reduction of the penalty payable by the
entrepreneur on the basis of the contract is allowed in exceptional cases if it is proved
that the collection of the penalty in the amount specified in the contract may cause
the creditor to receive unjustified benefits.

§ 5.17. Guarantee. It is advisable to provide for the possibility of concluding a

guarantee agreement to secure both monetary and non-monetary obligations, the
emergence of a guarantee not only on the basis of the contract, but also by law in the
event of certain circumstances, the recognition of co-guarantors as debtors in
securing the principal obligation.
In order to maximize the protection of the creditor's interests, the Civil Code of
Ukraine should provide that in cases where the obligation secured by the guarantee
was changed without the consent of the guarantor, which caused increased liability
or other negative consequences for the guarantor, such obligation is not terminated,
but the guarantor is responsible according to the previous conditions; the guarantee
agreement may provide for the prior consent of the guarantor in the event of a change
in the obligation to be liable to the creditor on changed terms and within the limits
established in such agreement; the guarantee is not terminated in connection with
the death of the debtor, the reorganization of the legal entity-debtor.

§ 5.18. Supplement to the rules on pledge. The Civil Code of Ukraine (Part 3 of
Article 591) provides for the right of the pledgee to retain the subject of the pledge,
but the procedure for leaving the pledge with the pledgee is not regulated, nor is the
moment of ownership of the pledgee. It is advisable to close this gap by introducing
such rules in this article.
It is expedient to consider the issue of adopting a norm of the Civil Code of Ukraine
aimed at protecting the rights of third parties who are bona fide purchasers of
pledged property (did not know and could not know that the property is pledged). If
the good faith is proved, then the pledge must be considered terminated, and the
pledgee has the right to demand early performance of the main obligation secured
by the pledge, or replacement of the collateral.
A separate issue is to bring all current legislation governing the relationship of
pledge in line with the Civil Code of Ukraine.

§ 5.19. Independent guarantee. It is expedient to provide in Chapter 49 of the Civil

Code of Ukraine an independent guarantee, according to which the guarantor
undertakes to pay the beneficiary a certain amount of money in accordance with the
terms of the obligation provided by the guarantor, regardless of the validity of the
obligation. The guarantor's obligation to the beneficiary in the relationship between
them under this guarantee does not depend neither on the principal obligation for
which the independent guarantee is issued, nor on any other obligations, even if the
guarantee refers to them.
Independent guarantees can be issued not only by banks, other credit institutions,
but also by other business organizations. Unlike the period of preparation and
adoption of the Civil Code of Ukraine in 2003, when the reference to special entities-
guarantors was justified, now such a restriction unjustifiably narrows the scope of
use of this security tool.

§ 5.20. Security payment. It is expedient to supplement the Civil Code of Ukraine

with such a new way of securing the obligation as a security payment, according to
which the monetary obligation, including damages or penalties for breach of
contract, by agreement of the parties may be secured by one of the parties paying
the other side a certain amount of money (security payment). This payment can also
be used to secure future liabilities. Unlike other methods of security, this security
tool gives the creditor the opportunity to reimburse damages, receive a penalty in
the event of circumstances under the contract without going to court.

Termination of obligation (Chapter 50)

§ 5.21. Taking into account the relevant provisions of unification acts. In the
context of the recoding of Chapter 50, it is advisable to take into account the
experience of the DCFR (the rules of Section 5 of Book III "Termination"), in
particular Art. III.-3: 502 "Termination due to significant non-compliance", Art. III.-
3: 503 "Termination after notification with the establishment of an additional
deadline", Art. III.-3: 504 "Termination of non-compliance," Art. III.-3: 505
"Termination with proper certification in execution", Art. III.-3: 506 "The scope of
the right to terminate", Art. III.-3: 507 "Notice of termination", Art. III.-3: 508 "Loss
of the right to terminate".

Legal consequences of breach of obligation (Chapter 51)

It is proposed to update the regulatory array of Chapter 51 in the following main
directions:
1) revision of the regulatory approach to the relationship between the concepts of
"legal consequences of breach of obligation" and "liability";
2) specification of the legal consequences of breach of obligation, taking into
account the provisions of unification documents;
3) review of the grounds on which the debtor's failure to fulfill the obligation is
justified;
4) waiver of the structure of the penalty provided for in Part 1 of Art. 624 of the Civil
Code of Ukraine;
5) review of established approaches to the payment of interest for non-performance
of obligations;
6) objectification of the institution of pre-contractual liability.

§ 5.22. Revision of the regulatory approach to the relationship between the

concepts of "legal consequences of breach of obligation" and "liability". It is
proposed to exclude from the title of Chapter 51 of the Civil Code of Ukraine the
phrase "liability for breach of obligation." Thus, it is proposed to use the category
"legal consequences of non-performance of the obligation" in cases of breach of a
contractual obligation. At the same time, the category of "liability" is proposed to be
used in cases of illegal damage.

§ 5.23. Specification of legal consequences of non-fulfillment of obligations,

taking into account the provisions of unification documents. Relevant is the
implementation of the provisions of Chapter 3 of Book III of the DCFR - "Remedies
for non-performance", which provides for the possibility of the creditor to use any
of the means of protection provided in it, if the obligation is not fulfilled by debtor
and default has no excuse (Article III.-3: 101 DCFR).
Of considerable interest in the context of the recoding of Chapter 51 of the Civil
Code of Ukraine are the approaches enshrined in the following articles of the DCFR:
ст. ІІІ.-3:102 «Cumulation of remedies», Art. ІІІ.-3:106 "Notification of non-
compliance"; Art. III.-3: 107 "Failure to notify the defect"; Art. ІІІ.-3: 108
"Entrepreneur who cannot fulfill a consumer's order received by means of remote
communications". It is expedient to consider the possibility of implementing a
number of other norms of Book III of the DCFR in Chapter 51 of the Civil Code of
Ukraine. It is, in particular, about Art. III.-3: 202 "Elimination of deficiencies by the
debtor: general provisions", III.-3: 203 "Cases when the creditor is not obliged to
give the debtor the opportunity to correct deficiencies", Art. III.-3: 204
"Consequences of giving the debtor the opportunity to eliminate deficiencies", Art.
III.-3: 301 "Enforcement of monetary obligations", Art. III.-3: 302 "Enforcement of
non-monetary obligations", Art. III.-3: 303 "Preservation of the right to
compensation".
DCFR's experience should also be used when reviewing established approaches to
calculating the amount of damages caused by default. These are the provisions of
Section 7 "Losses and Interest" of Book III of the DCFR. It is expedient to
implement a foreseeability clause in the Civil Code of Ukraine. Thus, in accordance
with Art. III.-3: 703 of DCFR the debtor under an obligation arising from a contract
or other transaction is liable only for the damage that he foresaw or could reasonably
have foreseen, at the time of the obligation, as a probable result of its non-
performance, except cases where the obligation was breached intentionally, as well
as due to negligence or gross negligence of the debtor. The use of structures
objectified in Art. III.-3: 710 "Interest on commercial contracts"; III.-3: 711
"Unscrupulous interest conditions" of DCFR.
§ 5.24. Review of the grounds on which the debtor's failure to fulfill the obligation
is justified. It is proposed to forego the use of terms and categories specific to certain
legal systems, and use new categories, such as "impediment beyond control". Of
considerable interest in this context are the provisions of unification acts: a party's
failure to fulfill an obligation is justified if it proves that such failure was caused by
an obstacle beyond its control and that it was unreasonable to expect it to take this
obstacle into account when concluding the contract or avoiding or overcoming this
obstacle or its consequences. This basic rule is supplemented by clarifying
provisions that the justification of non-performance of the obligation is valid only in
the presence of force majeure, provided timely notification of the other party of their
occurrence, etc. (see, Article III.-3: 104 "Excuse due to an impediment ” of DCFR).

§ 5.25. Waiver of the structure of the penalty provided for in Part 1 of Art. 624 of
the Civil Code of Ukraine. During the recoding of Chapter 51 of the Civil Code of
Ukraine, it is proposed to forego the structure of the penalty provided for in Part 1
of Art. 624 of the Civl Code of Ukraine, having replaced it with a credit penalty.

§ 5.26. Review established approaches to default interest payments. Provisions of

Art. III.-3: 708 DCFR "Interest for late payment" is of considerable interest in the
context of the revision of Art. 625 of the Civil Code of Ukraine, which concerns the
payment of interest for breach of monetary obligations. The DCFR provides that in
the event of late payment, whether justified or unjustified, the creditor is entitled to
demand interest on that amount from the due date until payment at the preferential
rate of short-term loans provided by commercial banks to borrowers in the currency
used as a means of payment at the place where it is to be made. In this case, the
creditor may recover other damages. In Art. III.-3: 709 DCFR refers to the
capitalization of interest (in particular, it is assumed that interest payable to the
creditor is added to the outstanding principal amount of the debt every 12 months).

§ 5.27. Objectification of the institution of pre-contractual liability. Ensuring the

stability of civil turnover, liberalization of business conditions and the need to
strengthen the protection of the rights and interests of the weak side of the legal
relationship require the implementation of the norms that would provide for the
liability of unscrupulous participants at the stage of entering into contractual
relations in the Civil Code of Ukraine. We are talking about the responsibility for
unscrupulous negotiations, ensuring the possibility of jurisdictional protection of
memoranda, protocols of intent, and so on. By its legal nature, pre-contractual
liability should be defined as liability for abuse of rights. In this context, it is
necessary to note the dualistic nature of pre-contractual liability: such a measure of
pre-contractual liability as compensation for loss of opportunity can be equated with
lost profits (see § 5.38).

In this context, it is appropriate to borrow the experience of DCFR (the rules of

Section 3 of Chapter 3 of Book II DCFR - Article II.-3: 301 and Article II.-3: 302.
It is, in particular, to define pre-contractual liability as liability for bad faith and (
or) dishonest negotiation.

Also in the context of the above, the experience of reforming the institution of civil
liability in France is of considerable interest. The current version of the FCC does
not release the negotiator from liability for damages caused to other participants by
their guilty actions at any stage of the negotiations. At the same time para. 2 st. 1112
of the FCC stipulates that compensation for damages caused at the stage of
negotiations may not be aimed at compensating for non-receipt of income expected
as a result of an unconcluded contract (such liability is non-contractual, unless the
parties to the negotiations have concluded an agreement governing their relationship
during negotiations).

Section ІІ. General provisions of the contract (Chapters 52–53)

§ 5.28. Structural and substantive reformatting. It is proposed to update the draft
law, taking into account the positive solution of the issue of distinguishing general
provisions on the contract as one of the most important and common transactions
and supplementing these provisions with Chapter 16 of Book One (see §§ 1.15,
5.32). Within the structural part of Book Five, it is proposed to focus not only on the
contract, but also on all (at least most) grounds for the emergence of obligations,
paying attention to the general provisions and features of these legal facts (see §§
5.29, 5.30). . This approach is broadly in line with the DCFR approaches: the
provisions on obligations ("Obligations and related rights": Book III) are separated
from the provisions concerning the grounds for obligations ("Treaties and other legal
acts"): Book II; "Actions in another's interest": Book V, "Unjust enrichment": Book
VII, "Non-contractual liability for damage caused to another person": Book VI).

§ 5.29. New Chapter "Grounds for Obligation". The new chapter (new chapters)
will include the relevant rules on contracts; causing harm to a person and property;
unilateral lawful actions (public promise of remuneration; actions in the property
interests of another person without his instructions; saving the health and life of an
individual, property of an individual or legal entity); endangering the life, health,
property of an individual or property of a legal entity; acquisition, preservation of
property without a sufficient legal basis; other grounds for non-contractual
obligations (See §§ 5.1, 5.38).
5.30. The structure of the new chapter "Grounds for Obligation". In this structural
part of the Civil Code, the regulatory material can be set out in two paragraphs: the
first - the contract as a basis for the obligation, the second - other grounds for the
obligation.
Thus, in the paragraph on the contract, it is advisable to keep the provisions on the
binding nature of the contract, the freedom of the contract, and the provisions on the
peculiarities of its conclusion should be significantly modernized based on DCFR
recommendations (Article II-3: 105 "Use of information technologies"; Section 2 of
Chapter 4 of Book II "Offer and Acceptance" and others); as well as the provisions
of Part 1, Part 2 of Section 2 "Conclusion of the contract" of PECL.
In the paragraph on other grounds for liability, it is advisable to regulate the general
provisions on the harm to the person and property; unilateral lawful actions (public
promise of remuneration; actions in the property interests of another person without
his instructions; saving the health and life of an individual, property of a natural or
legal person); creating a threat to life, health, property of an individual or property
of a legal entity; acquisition, preservation of property without a sufficient legal basis.
It is advisable to expand the list of grounds for non-contractual obligations (See §
5.38).
§ 5.31. Pre-contractual relations. Particular attention should be paid to the need to
significantly expand the scope of regulatory regulation of pre-contractual relations.
Thus, it is considered expedient to take into account the provisions of the DCFR,
which regulate in sufficient detail the information rights and obligations of the
participants in the pre-contractual process (in particular Articles II-3: 101, II-3: 103,
II-3: 104 II.-3: 106, II.-3: 107, II.-3: 108, II.-3: 109); as well as provisions on the
negotiation procedure itself: observance of the principle of good faith during
negotiations, observance of the principle of confidentiality, as well as establishment
of liability for breach of the terms of negotiations (similar rules are also set out in
Part 3 of Section 2 of Book II of PECL) (See § 5.27).
§ 5.32. Transfer of norms on the concept, types, form of the contract to the Book
One. In order to optimally and more logically structure the regulatory material in
relation to the construction of the contract, it is proposed to transfer the rules on the
concept of the contract and its types, as well as the form of the contract contained in
Art. 626, 633, 634, 635, 639, to Chapter 16 of the Book One “Transactions”,
extending the content of this Chapter also by the provisions on invalidity of contracts
as the most common transactions in practice, which will take into account the
recommendations of DCFR (Chapter 7 “Grunds for Invalidity” of the Book II) and
PECL,, in particular section 4 "Validity" (See § 1.15, 5.28).

Section ІІІ. Certain types of obligations

Subsection 1. Contractual obligations (Chapters 54–77)

§ 5.33. Extension of a contractual freedom principle. Current trends in contractual

regulation of private law relations are reflected in increasing the role of the contract
as the main regulator of private law relations and shifting the emphasis from
regulatory to individual regulation by expanding the boundaries of legal regulation
by transferring the initiative to ensure certain aspects of its implementation.

§ 5.34. Comprehensive review of the rules of certain types of contractual

obligations. Permanent complication of economic turnover and differentiation of
contractual obligations into commercial and consumer ones, the emergence of new
(unnamed) contractual structures, complex (mixed) and atypical contractual
relationships necessitates a comprehensive revision of Subsection 1 of Section III of
the Fifth Book of Civil Code of Ukraine.
§ 5.35. New contractual structures. The implementation of new contractual
structures into national legislation, which are currently absent in the Civil Code but
have proved themselves well in the civil codes of other states, is considered justified.
It is necessary to pay attention to the contract for the provision of tourist services,
which was included in the German Civil Code. We can state the expediency of
including in the Civil Code of Ukraine such contractual structures as forfeiting,
franchising, currency dealing, contracts for the provision of medical services,
gambling (betting) contracts, compensation contracts, framework agreements, etc.
Also relevant are the issues of implementation of special provisions on brokerage
agreements, lease of usufruct, agreement on case management, promise to fulfill
obligations, agreement on debt recognition to the Civil Code of Ukraine. The main
criterion for the inclusion of such agreements, obviously, should be considered their
prevalence in the civil law of the EU countries, given the need to harmonize the
legislation of Ukraine with the rules of European private law.

§ 5.36. Exclusion of certain contractual structures. At the same time, it is expedient

to consider the need to exclude from the Civil Code of Ukraine some institutions of
contract law, which have remained since the functioning of the administrative and
command economy. These are the institutions of the contract for the supply and
contracting of agricultural products.
In general, one of the main sources to be followed when reforming the rules of this
Subsection can be considered the rules contained in Book IV "Treaties, rights and
obligations arising from them" of DCFR.

Subsection 2. Non-contractual obligations (Chapters 78–83)

§ 5.37. Cautions about the use of general provisions on obligations. The general
provisions on obligations are set out in Art. 509-625 of the Civil Code of Ukraine.
At the same time, a significant part of these norms (for example, norms on securing
obligations) do not apply to the regulation of non-contractual obligations. In order
to solve this problem, it is proposed to make a reservation in Art. 509 of the Civil
Code of Ukraine on the possibility of applying the provisions of Section I of Book
Five to the regulation of non-contractual obligations, unless otherwise provided by
the Civil Code of Ukraine, contract, law or otherwise follows from the substance of
the obligation.

§ 5.38. Non-contractual obligation system. An important and one of the priority

tasks of recoding non-contractual obligations is to define their system in the Civil
Code of Ukraine. In this context, it is necessary to study the legal nature and content
of certain types of non-contractual obligations that are not regulated by the Civil
Code of Ukraine, but exist in foreign law and sources of soft law. These include non-
contractual obligations such as the use of another's property for the benefit of others,
the promise of damage compensation, unfair competition, the issuance of a warrant
or bearer security, culpa in contrahendo (see § 5.27), and so on.
§ 5.39. Thorough revision of the provisions of § 1 of Chapter 82 of the Civil Code
of Ukraine "General provisions on damage compensation". Given the decisive
role of Chapter 82 of the Civil Code of Ukraine in the array of rules on the regulation
of non-contractual obligations, it is necessary to radically revise the general
provisions on damage compensation. First of all, it is a question of the need to take
into account the "request position" of national courts. It is expedient to specify at the
level of separate articles of § 1 of Chapter 82 of the Civil Code of Ukraine the general
conditions of tortious liability: definition of damage (damage to be reimbursed;
damage that is not reimbursable; preventive costs; evidence of damage); a number
of issues related to the definition of causation; a number of issues related to the
definition of the basic principles of responsibility. When formulating norms on guilt
as a condition of tortious liability, it is necessary to objectify the provision on
generally accepted norms of conduct (required standard of conduct). It is advisable
to objectify the circumstances that exempt from tort liability, taking into account the
provisions of Section IV PETL (Defences).

§ 5.40. Replacement of a number of blanket rules of Subsection 2 of Section III

of the Book Five of the Civil Code of Ukraine by real regulatory instruments.
There are a number of blanket rules governing non-contractual obligations. This
presupposes the absence of real mechanisms of compensation in many situations (for
example, Part 3 of Article 1166 - damage caused by injury, other damage to health
or death of an individual due to force majeure, is reimbursed in cases prescribed by
law; Part 4 of Art. 1166 - damage caused by lawful acts is reimbursed in cases
established by this Code and other law, Part 2 of Article 1176 - the right to
compensation for damage caused to an individual by illegal actions of the body
carrying out operational and investigative activities, pre-trial investigation,
prosecution or Part 7 of Article 1176 - the procedure for compensation for damage
caused by illegal decisions, actions or omissions of the body carrying out operational
and investigative activities, pre-trial investigation, pre-trial investigation body,
prosecutor's office or court shall be established by law; Article 2 1177 - the damage
caused to the victim as a result of a criminal offense is compensated to him at the
expense of the State Budget of Ukraine in the cases and in the manner prescribed by
law; Art. 1189 - features of compensation of nuclear damage are established by the
law; para. 1 Part 2 Art. 1205 - in case of liquidation of the legal entity the payments
due to the victim or the persons defined by Art. 1200 of this Code, must be
capitalized for payment to the victim or these persons in the manner prescribed by
law or other regulations; Part 2 of Art. 1207 - the conditions and procedure for
compensation by the state for damage caused by injury, other damage to health or
death shall be established by law; Part 3 of Art. 1209 - the grounds for compensation
for damage caused by defects in goods that are movable property, including those
that are part of other movable or immovable property, including electricity, are
established by law).
§ 5.41. Revision of unjust enrichment obligations. Fifteen years of experience in
the application of the Civil Code of Ukraine by national courts shows that there is a
problem in regulating relations related to the acquisition and preservation of property
without a sufficient legal basis. A number of questions arise in connection with the
interpretation of Art. 1212 of the Civil Code of Ukraine (what is meant by the phrase
"at the expense of another person? What is the basis for the acquisition of property
is considered "sufficient"?). Problems with the application of the provisions of
Chapter 83 of the Civil Code of Ukraine also arise in the context of determining the
legal consequences of the invalidity of a transaction (see § 1.21). In view of the
above, it is advisable to take into account the experience of DCFR. Thus, Art. II.-
7:303 "Consequences of nullity or challenge of the contract" provides that the
question of whether either party has the right to demand monetary compensation or
return transferred or provided on the basis of the contract or part of the contract,
which is null and void, is resolved in accordance with the rules on unjust enrichment.
At the same time, the consequences of nullity or disputability relating to the right of
ownership of property transferred on the basis of a null and void or disputed contract
or part thereof are governed by the rules on the transfer of property. In this case, the
provisions of this article of the DCFR apply subject to the right of the court to change
the contract or its consequences.

§ 5.42. System of special torts. It is expedient to revise the system of special torts
provided for in Chapter 82 of the Civil Code of Ukraine. It is necessary to
supplement the current Civil Code of Ukraine with provisions on the following:
(1) compensation for damage caused by malicious software;
(2) compensation for damage caused by viruses and other biological organisms;
(3) compensation for damage caused by robotics and artificial intelligence;
(4) compensation for damage caused to minors who were under the supervision of
an educational institution;
(5) compensation for damage caused by the destruction of a building or structure
that was in poor technical condition;
(6) compensation for damage caused by information or advice;
(7) compensation for damage caused by violation of the rules of good
neighborliness;
(8) compensation for damage to the environment;
(9) compensation for damage caused by abuse of rights.

§ 5.43. The need to objectify class actions in the Civil Code of Ukraine. The
institute of class actions is a developed tool for the protection of rights and interests
in European law, the implementation and harmonization of which is given
considerable attention at the level of EU law (European Commission
Recommendations 2013/396 / EC of 11 June 2013 on common principles and
mechanisms for class actions on infringements and class actions on compensation
related to infringement of legal rights; Green Paper on compensation of damages
caused by infringements of EU antitrust law, White Paper on compensation of
damages caused by infringements of EU antitrust law, Green Paper on class actions
of consumers; Report of the European Commission on a consistent European
approach to class actions). In this context, the question is the objectification of the
institution of class action in substantive law.

§ 5.44. Features of compensation for damage caused to health during the

performance of the contract. Quite popular trend of modern tort law in the world is
a provision under which compensation for damage caused to health (compensation
of personal injuries) should be based on tort liability, even if the damage was caused
by a contract. It is seen that the relevant rule should be objectified in the Civil Code
of Ukraine based on the results of recoding.

§ 5.45. Other areas of recoding non-contractual obligations. In the process of

recoding the non-contractual sphere, other issues directly related to the issue of non-
contractual obligations are subject to radical review: features of responsibility in the
field of corporate relations; method of calculating the amount of non-pecuniary
damage; problems related to the amount, size and procedure for compensation for
damage caused in the field of criminal proceedings; the possibility of compensation
for damages incurred in the event of the circumstances specified in the contract;
basic approaches to determining the guilt of a legal entity, etc.

§ 5.46. Revision of regulatory corpus of other parts of the Civil Code of Ukraine.
The recoding of non-contractual obligations should not result in a revision of the
norms of Subsection 2 of Section III of Book Five of the Civil Code of Ukraine. The
issue of non-contractual obligations should be considered in conjunction with related
issues: first of all, with approaches to reforming the institution of civil liability. It is
expedient to revise approaches to the formulation of a number of articles in all the
books of the Civil Code. Thus, in the Book One conceptual rethinking is needed with
regard to the Art. 13 "Limits of exercising civil rights"; Art. 16 "Protection of civil
rights and interests by the court"; Art. 21 "Recognition of a legal act of a body of
state power, a body of power of the Autonomous Republic of Crimea or a body of
local self-government as illegal"; Art. 22 "Compensation for damages and other
methods of compensation for property damage"; Art. 23 "Compensation for non-
pecuniary damage"; Chapter 11 "Responsibility for the obligations of the state, the
Autonomous Republic of Crimea, territorial communities"; approaches to
determining the legal consequences of the invalidity of the transaction (Article 216).
In the Book Two revision is to be made with regard to Art. 275 "Protection of
personal non-property rights", Art. 276 "Restoration of the violated personal non-
property right", Art. 277 "Refutation of unreliable information", Art. 278
"Prohibition of Dissemination of Information Violating Personal Intangible Rights",
Art. 279 "Legal consequences of non-execution of a court decision on protection of
personal non-property right", Art. 280 "The right of an individual whose personal
non-property right has been violated to compensation for damage." In Book Three,
the provisions of Chapter 29 "Protection of Property Rights" are subject to revision.
In the Book Four, revision is needed for Art. 431 "Consequences of infringement of
intellectual property rights", Art. 432 "Protection of intellectual property rights by
the court". In the Book Five, revision is needed for a number of articles in Chapter
51 “Legal Consequences of a Breach of Obligation. Liability for breach of obligation
"; a number of articles of Chapter 53 "Conclusion, amendment and termination of
the contract" (first of all, Article 649 "Resolution of pre-contractual disputes" and
Article 653 "Legal consequences of change or termination of the contract").

§ 5.47. Revision of acts of special legislation. In the process of recoding the Civil
Code, a number of acts of special legislation should be revised. In the context of
recoding non-contractual obligations, the Law of Ukraine “On the Procedure for
Compensation for Damage Caused to a Citizen by Illegal Actions of Investigative
Bodies, Pre-trial Investigation Bodies, Prosecutor's Office and Court” of December
1, 1994 and the Law of Ukraine “On responsibility for late fulfillment of monetary
obligations "of November 22, 1996 should be radically revised.
 6. INHERITANCE LAW
(BOOK SIX OF THE CIVIL CODE)

§ 6.1. Subjective composition of inheritance legal relations. Based on the principle

of justice, it is advisable to legislate the possibility of inheritance by the children of
the testator, conceived after his death with the use of assisted reproductive
technologies. However, in order to prevent possible abuse, as well as to ensure the
stability of property turnover, it is necessary to establish certain conditions under
which a child conceived after the opening of the inheritance may be recognized as
heir, including the will of the testator and the period during which conception can
take place.

§ 6.2. Improving the provisions on the conditional will. The current version of Art.
1242 of the Civil Code of Ukraine contains a reservation that the condition specified
in the will must exist at the time of the opening of the inheritance. However, such a
legal provision significantly restricts the freedom of wills and does not fully meet
the interests of the heirs. In this regard, it is proposed to establish that the condition
specified in the will must occur within the period established for the acceptance of
the inheritance.

§ 6.3. Consequences of non-fulfillment of the condition by the testamentary heir,

who has the right to inherit by law. The problem of non-fulfillment of the condition
by the testamentary heir, who has the right to inherit by law, also needs to be solved.
According to the current legal model, in the absence of a condition at the time of the
opening of the inheritance, the heir of the will, in respect of which such a condition
was established, may accept the inheritance as an heir at law. Therefore, the heir has
the legal opportunity not to fulfill the condition of the will and not to lose the right
to inherit, which, obviously, does not correspond to the concept of implementation
of such a will..

§ 6.4. Testamentary disposition regarding pets. It is expedient to establish at the

legislative level a testamentary disposition concerning the keeping and care of pets
belonging to the testator. Such an innovation is fully consistent with the freedom of
the will and significantly expands the dispositive principles of inheritance law.
Chapter 85 of the Civil Code of Ukraine does not define the proposed type of
testamentary disposition, which in practice is an obstacle to its implementation.

§ 6.5. Term of inheritance management. The current version of Art. 1285 of the
Civil Code of Ukraine indicates an insufficiently effective mechanism of inheritance
management, as the relevant actions are taken before the appearance of heirs or
before they accept the inheritance. The improvement of the normative regulation of
inheritance management relations should be carried out as part of the term of the
relevant agreement, which should not be limited to the moment of appearance of the
heirs or their acceptance of the inheritance. Inheritance management should last at
least until the heirs register the rights to it.
§ 6.6. Mandatory inheritance management. The law should provide for cases where
inheritance management is mandatory. It is primarily about inheriting a share in the
authorized capital of companies. This is probably the most common situation today
when it is necessary to manage inheritance. The share in the authorized capital of
companies requires management at all times, even when the period between the
opening of the inheritance and its acceptance by the heirs is insignificant.

§ 6.7. Monetary funds management. As a general rule set out by Part 2 of Art. 1030
of the Civil Code of Ukraine, the subject of the management agreement can not be
monetary funds, except when the right to manage such funds is directly established
by law. This makes it impossible for the manager to take action under the inheritance
management agreement at the expense of the funds that are part of it, and
significantly reduces the efficiency of management. It should be noted that the
question of the possibility of cash management is debatable in civil doctrine, having
both supporters and opponents. In the Civil Code of Ukraine, it is considered
reasonable to objectify the right of the manager to manage the funds that are part of
the inheritance. This is explained primarily by the long period established by law for
the acceptance of the inheritance and its registration by the heirs, which makes it
impossible to withdraw (transfer) funds for at least six months from the time of
opening the inheritance
According to Part 3 of Art. 1298 of the Civil Code of Ukraine, before the expiration
of the term for acceptance of the inheritance, the notary may issue the heir
permission to receive part of the deposit of the testator in the bank (financial
institution), if it is caused by circumstances that are significant. But this rule does
not solve the problem of inheritance of large sums of money placed in bank accounts,
because their receipt, firstly, is possible only with the permission of a notary,
secondly, not in full, but in a certain proportion and, thirdly, only in the presence of
significant circumstances. In addition, the notary may not issue the heir permission
to receive part of the money in the bank on the basis of agreements on the provision
of individual bank safe guarded by the bank (Article 970 of the Civil Code of
Ukraine) and individual bank safe not guarded by the bank (Article 971 of the Civil
Code of Ukraine).

§ 6.8. The right to choose the person who will manage the inheritance. The
question of the expediency of concluding a contract for inheritance management, as
well as the choice of the manager under this contract is decided by: heirs, executor
of the will, notary, local government. At the same time, the heirs appear before the
notary not immediately after the opening of the inheritance, in some cases it is
required to search for them and notify the death of the testator, in connection with
which the objects of hereditary succession that require immediate maintenance and
care, can be significantly impaired. In addition, disputes often arise between the
heirs, which greatly complicates both the choice of manager and the conclusion of a
contract with him. In turn, the notary is not personally interested in the management
of the inheritance, and cases of appointment of the executor of the will occur in
notarial practice rarely. These circumstances significantly reduce the effectiveness
of such, at first glance, an effective legal instrument as a contract for inheritance
management, is the cause of a small number of these contracts and further actualize
the problem of the legal fate of inheritance within the time limit for its adoption.
That is why the testator at the legislative level should be given the right to choose
the person who will manage the inheritance after the opening of the inheritance by a
corresponding reservation in the will. This innovation will help increase the
effectiveness of the inheritance management mechanism and prevent possible
disputes between heirs.

§ 6.9. Inheritance of intellectual property rights. The practice of inheritance of

intellectual property rights indicates the presence of a number of issues that
complicate the registration of inheritance and the implementation of intellectual
property rights by heirs.
this applies to the following:
(1) uncertainty of the procedure for obtaining a certificate when inheriting the rights
and obligations associated with obtaining a security document for an object of
intellectual property rights, and the examination of the application for a security
document;
(2) inheritance of intellectual property rights to a certain object of intellectual
property rights (trademark, invention, work, etc.) by persons entitled to a mandatory
share in the inheritance, given the indivisibility of intellectual property rights;
(3) registration of inheritance on intellectual property rights to a work, taking into
account the optional and voluntary registration of copyright and taking into account
the presumption of authorship (Article 11 of the Law "On Copyright and Related
Rights", Article 15 of the Berne Convention for the Protection of Literary and
Artistic Works);
(4) inheritance of personal non-property rights in general for the creators of
intellectual property.
At present, this issue is settled for the authors of works (Article 29 of the Law of
Ukraine "On Copyright and Related Rights"), etc.
It should be noted that in the special laws on the protection of industrial property
rights there is no single approach to the provisions on the inheritance of intellectual
property rights with certain provisions in the Law "On Copyright and Related
Rights" (Articles 7, 27, 29 , 36, 44) and the Central Committee (Articles 439, 448).
In this regard, it is proposed to provide a separate article in Book Six of the Civil
Code on the inheritance of intellectual property rights to address issues identified
during the application of the law.

§ 6.10. Update of legal regulation of hereditary relations in system unity with

update of other books of the Civil Code of Ukraine. When regulating inheritance
relations, the provisions of other books of the Civil Code of Ukraine are significantly
indicated, namely: provisions regarding the exercise of civil rights, fulfillment of
civil duties, restrictions on the creation of inheritance rights; legal regulation of civil
capacity and capacity of an individual; objects of civil relations, transactions,
representatives, claim information; in respect of personal non-property rights of
individuals - property rights and other property rights; in connection with the rights
of another.

§ 6.11. Other directions of recodification of the Sixth Book of the Civil Code of
Ukraine. In the process of recodification of inheritance law, other issues directly
related to the issue of regulation of inheritance relations are subject to radical
rethinking, in particular:

(1) clarification of the rules on the basic concepts - inheritance, the composition of
the inheritance (which rights are and which are not part of the inheritance), the time
of the opening of the inheritance; features of inheritance of certain types of rights
and obligations, certain objects of civil rights;

(2) expanding the possibility of applying customs, in particular local customs,

customs of national minorities, etc., in the regulation of hereditary relations;

(3) further development of the legal regulation of inheritance by will, taking into
account the freedom of expression of the testator and the protection of the rights of
persons entitled to a mandatory share in the inheritance;

(4) improvement of norms concerning certain types of wills (spouse's will, secret
will, etc.);

(5) clarification of the rules concerning inheritance by law (change of priority,

change of share size, inheritance of certain categories of heirs, including persons
who lived with the testator's family and persons who were dependent on the testator,
etc.);

(6) improving the legal regulation of removal from the right to inherit;

(7) exercise of inheritance rights (acceptance of inheritance and refusal to accept

inheritance) - calculation of terms for acceptance of inheritance;

(8) hereditary contract - the realization of the freedom of contract when concluding
a hereditary contract.
 7. FAMILY LAW

In the modern system of legislation, along with the Civil Code of Ukraine, there is
also the Family Code of Ukraine, most of the provisions of which were once
unreasonably separated from the draft Civil Code of Ukraine. In recodification
of civil law, it is proposed to return to the world-accepted view of the place in civil
codification of private law in the field of family and marriage.

Given the history of law and legal logic, this normative array is an important part of
private law and is organically intertwined with all the structures and sections of civil
codes - inheritance law, property rights, obligations, capacity, guardianship and
custody, and so on. Two "global" codifications - FCC and NCU, have extended this
approach to most countries. It should be taken into account that the latest original
codifications of the XX-XXI centuries. (Argentina, Brazil, Georgia, Estonia,
Quebec, the Netherlands, Romania, Hungary, the Czech Republic, etc.) also
included family law in their structures.And this is not surprising, because what could
be more civil than family law? These countries take into account common sense, the
concept of private (civil) law, the need to introduce common principles of civil
society. According to the developers of modern codes, modern family law cannot be
considered separately from civil law, even in terms of legal techniques - so
organically issues of family law are woven into the outline of all civil law. Thus, the
inclusion of family law in the updated Civil Code of Ukraine is considered by the
Working Group as an important step towards the harmonization of Ukrainian
doctrine and legislation with the jus commune.

The main directions of updating family law as part of the Civil Code of Ukraine are
planned to be implemented in the process of discussing the Concept.
 8. INTERNATIONAL PRIVATE LAW (IPL)

The Law on IPL was designed according to the patterns of the most advanced
codifications of conflict law of Western countries and international organizations at
that time. Despite the deep modernization of conflict of law in Ukraine in 2005, the
national "conflict" theory and rule-making practice is not yet fully consistent with
the doctrinal and legislative achievements of the IPL of European countries.

Recodification of IPL in Ukraine should consist in legislative expansion and

deepening of basic ideas of international and foreign national modern codifications
of IPL, elements of which were once laid in the foundation of the Law on IPL,
namely:

(1) strengthening the private law principles of conflict law (in particular, expanding
its dispositiveness, increasing the regulatory capacity of conflict rules);

(2) giving conflict rules greater flexibility while maintaining their certainty,
including through the principle of the closest link and the protective (corrective)
clause based on the closest link;

(3) "materialization" of the choice of law;

(4) clarification of the one-vector (unilateral) approach to resolving the conflict

issue;

(5) a separate area of updating the Ukrainian codification of the IPL should be the
reformatting of the text of the Law on IPL into the final book of the modified Civil
Code of Ukraine.

I. Strengthening the private law principles of conflict regulation

At the beginning of private law codification works in the 1990s, the

domestic system of conflict rules and the "conflict" concept did not correspond to
both the world experience and the general process of revival of private law in
Ukraine. The first task of scientists-developers was to strengthen the private law
potential of conflict law, because its rules, like any rules of private law, are aimed at
regulating private law relations, albeit with an international color.

§ 8.1. Development of dispositiveness. The strengthening of the private law charge

of conflict of laws is primarily associated with the development of its
dispositiveness. In IPL, dispositiveness is manifested, first of all, in such a legal
institution as "autonomy of will" (lex voluntatis).

In the Ukrainian codification, in contrast to all previous domestic experience, a

qualitatively new leap in this direction has been made. The main provisions on the
lex voluntatis are concentrated in a special article of the Law (Article 5), and its
scope is significantly expanded.

§ 8.2. During the expected update of the codification of the IPL, the lex voluntatis
institute needs further improvement, both in terms of general rules and in terms of
its special manifestations in certain types of legal relations (contractual, non-
contractual, labor, etc.).

Thus, the current practice of international commercial arbitration and even national
courts is increasingly recognizing the right of the parties to an international contract
to choose the rules of the lex mercatoria to regulate the relationship. Today, the
recently adopted (2015) Hague Conference on Private International Law (Principles
on the Choice of Law in International Commercial Treaties) focuses on improving
the lex voluntatis institution in many aspects, including the application of non-
national law. The legislative improvement of the institution of "autonomy of will"
in Ukraine is also aimed at the provisions of EU Regulations, in particular "Rome I"
and "Rome II".

§ 8.3. Strengthening the regulatory function of conflict rules. In the modern

European legal tradition, the private law nature of conflict law is revealed by
strengthening the regulatory function of conflict rules. The halo of technicality and
simple reference function has long been removed from the latter.

German scientist L. Raape noted that conflict-of-law rules, as well as substantive

rules, "appeal" not only to the judge, but also to the parties who want to know the
rules of conduct or prospects of the process. In paragraph 4 of Art. 1598 (1551) of
the draft Civil Code, prepared for the third reading in the Verkhovna Rada of
Ukraine, the developers for the first time in the world practice of legislation proposed
the following: Unfortunately, this provision is not included in the current Law on
IPL.

In the Western and Ukrainian codifications of the IPL, the regulatory function of
conflict rules is most fully revealed in giving the latter more flexibility. This quality
is achieved through many techniques, among which the modern institute of the
closest connection is dominant.

ІІ. Increasing the flexibility of conflict rules through the introduction of the
principle and binding of the closest connection and the protective (corrective)
reservation based on it

Apart from the choice of law by the parties themselves ("autonomy of will"), modern
European systems of conflict of laws are built on the general principle of the closest
connection of law with legal relations combined with a large number of formalized
conflict rules, which embody the general principle. This approach has solved many
legal problems, including achieving a reasonable balance between legal certainty
and flexibility of conflict-of-law rules.

The experience of post-World War II codifications has shown that the best tools for
balancing the certainty and flexibility of conflict-of-law rules are "soft" bindings and
escape clauses. The invention of the closest connection of modern content (together
with the corrective reservation based on it) breathed new life into today's IPL: the
choice of law began to depend not on the location of a single contact, but on the
assessment of many circumstances of a particular case.

When designing the book of the Civil Code of Ukraine on IPL in the 1990s, the task
of the developers was not just to create a new system of conflict rules, but also to
overcome their rigidity (inflexibility). The latter had to be given such qualities that
would make them more adaptable to the circumstances, the nuances of a particular
case, some unusual situations. In the aspect of balancing "certainty - flexibility" there
was also the question of the level of judicial discretion in the application of conflict
rules. There were no better tools in the world to solve all these problems than "closest
connection" and "escape clauses".

The closest connection [1] for the Ukrainian codification, as well as for modern
codifications of the countries of the world, became the best way to replace "rigid",
unilateral collision bindings with open, multilateral and flexible ones.

The developers of the Ukrainian codification also took into account the fact that the
closest connection in modern codifications has become multifunctional. He began
to play not only the role of a binding link for a particular area of legal relations, in
some codifications he was given the meaning of the main conflict principle, on the
basis of which all the conflict rules of the normative act were built. It has also been
widely used in other contexts, in particular to close gaps in the array of conflict rules
and so on.

The closest connection, as a conflict of interest, is presented in the Law on IPL (eg,
Part 2 of Article 32, Part 4 of Article 44, Part 1 of Article 60, Article 66). An
extremely important step in building the system of conflict of laws of Ukraine was
to provide the category of the closest connection of the function of filling the gaps
in conflict regulation (Part 2 of Article 4).

Even an extremely extensive system of formalized conflict rules does not protect
against the possibility of distorting the principle of the closest connection in the case
of the application of the conflict rule in certain "non-standard" factual circumstances.
To overcome this situation, it was necessary to take another step towards meeting
the flexibility of conflict regulation. Using human experience in this matter,
Ukrainian developers have turned to the mechanism of protective corrective
warnings (escape clauses), which allows courts in the right situations to deviate from
the conflict rules proposed by the legislator (Part 3 of Article 4 of the Law on IPL).
§ 8.4. Consolidation of the closest connection as a principle. The developers of the
draft Book of the Eighth Civil Code of Ukraine, the provisions of which were later
"migrated" to the Law on IPL, using the principle, bindings and other aspects of the
closest connection, actually rewrote the Ukrainian conflict of laws. However,
improving the tools for balancing legal certainty and flexibility of conflict-of-law
rules remains an important way to update the codification of the IPL. Thus, the
category of the closest connection should be clarified by a provision similar to that
given in Art. 1 of the Austrian IPL Act. Its essence is that certain conflict rules should
be considered as a manifestation of the principle of the closest connection.

§ 8.5. Disclosure of the content of the closest connection. Another point of

improvement in the category of the closest connection is related to the need to
provide courts with certain legal guidelines for identifying in a wide range of
relations of legal relations with several countries the one, norm-forming, closest
connection. That is, it is about revealing the content of the closest connection.

Today, the European doctrine and jurisprudence is dominated by a territorial

approach to this issue, according to which the closest connection is seen in the degree
of intensity of territorial contacts of legal relations with a particular country.
However, in modern conditions it is better to prefer not so much a "geographical" as
a substantive (mixed) approach to the content of the closest connection. European
science is increasingly inclined to take into account when determining the closest
connection not only geographical contacts (conflict justice), but also factors that are
in the plane of substantive law and material outcome (material justice). This
approach, according to his supporters, allows to make the conflict array even more
flexible, and to "arm" the court with all the possibilities in determining the right that
the legislator has when modeling a particular binding.

§ 8.6. Consideration of material factors to determine the closest relationship.

Based on the above, the updated conflict of laws legislation of Ukraine can try to
offer the courts to determine the closest connection (as a binding, principle or
protective reservation) to take into account, along with territorial, also material
factors. The recruitment of the latter will depend on the desire to extend this
approach to all or part of the legal relationship with a foreign element (say, only to
contractual obligations as in Venezuelan law).

III. Materialization of conflict of laws

An important trend in the development of modern conflict of laws is its

materialization. We speak of materialization not only when material factors are used
to determine the closest connection, but also when the legislator or the court takes
into account the substantive regulation and the substantive legal result in
determining the applicable law.
The essence of the new European approach is to move away from the neutral,
"indifferent" attitude of the conflict rule to the outcome of the conflict problem. The
conflict rule is no longer equated to the station train schedule, which only informs
about the time and track of arrival or departure of trains. The social "filling" of such
norms takes place through taking into account the interests of the subjects of
relations, already embodied by the legislator in the substantive legal regulation.

Depending on the public or private substantive interests to be taken into account in

conflict regulation, the materialization of conflict law can be divided into two types.
The first type of materialization takes into account the overriding interest of a
particular institution of private law or group of persons (for example, protection of
a weak party in an employment or consumer contract; victims' choice of law
applicable to tort; choice of more favorable right for the child, etc.). The second type
of materialization takes into account the overriding public interest.

§ 8.7. Wider use of multiple conflict bindings to materialize conflict of law. The
main instrument of materialization of the first type everywhere in Western
codifications is the plurality of conflicting bindings - that is, bindings that
complement each other or compete in determining the applicable law. In the
Ukrainian codification, this instrument of materialization is represented by
alternative, subsidiary, cumulative and other types of binding (eg, Part 3 of Article
24, Part 1 of Article 31, Part 2 of Article 45, Article 66 of the Law on IPL). In order
to improve the Ukrainian codification, the line for wider use of the plurality of
conflict bindings should be continued. In some cases, this can be done by expanding
the list of alternative bindings for recognizing the validity / invalidity of acts. In
others, to provide increased protection to new entities, such as employees in
employment contracts.

§ 8.8. Public interest in the second type of materialization. The main tool for the
materialization of conflict of law of the second type is the institution of mandatory
rules (mandatory rules), which the doctrine refers to the modern one-vector approach
to conflict resolution.

IV One-vector approach in the codification of IPL

One-vector (unilateral) approach to resolving the conflict issue, in contrast to multi-

vector (multilateral), does not require a system of conflict rules. It is characterized
by the fact that the choice of law is based on the analysis of the action in space and
in relation to the material norms themselves, and not on the analysis of private law
relations. It would seem that this technique was forgotten along with the medieval
theory of statutes. However, it proved to be in demand now, during the development
of national and global economies, which is characterized by significant state
intervention in economic processes through the legislative establishment of various
prohibitions and other mandatory rules that traditionally relate to public law.
Due to the importance of mandatory rules for the protection of the public interest,
states have always sought to apply them, regardless of the foreign law determined
on the basis of conflicting rules. In the post-war acts of the IPL rules began to appear
on the following differently named norms: "imperative norms", "supra-imperative
norms", "norms of direct action", etc. However, the widely recognized doctrinal
position was that the institution of imperative norms began to be attributed to a new
way of influencing the relationship of the IPL, which complements the substantive
and conflictual methods.

The developers of the Ukrainian codification adopted the above-mentioned scientific

position and reflected it in Art. 14 of the Law on IPL, which deals with the
application of mandatory rules of both Ukrainian law and, in certain circumstances,
the law of third countries.

§ 8.9. The practice of doctrinal interpretation and judicial application of the

institute of imperative norms in Ukraine testifies to the need to make certain
adjustments to it. First, it is worth changing the name of these rules. In the doctrine
and codifications of the IPLmany countries, the rules referred to in Art. 14 of the
Law, commonly referred to as "over-imperative". This name accurately conveys the
nature of such rules and makes it impossible to mix them with the mandatory rules
of private internal law. Secondly, practice shows that the inclusion of certain rules
in the category of supra-imperative is a rather difficult task for both scholars and
judges. In the text of Art. 14 of the Law on IPL, there are no at least some guidelines
for this. In addition, such rules include both private and public law rules.

_______________________________________________________
[1] The Law on {PL uses different terms: "closer connection" (Article 4), "close
connection with the relevant legal relationship" (Article 14), "the closest connection"
(Article 32).. Therefore, it is worth thinking about terminological improvement.

§ 8.10. Public law content of mandatory rules. It is proposed to include only norms
of public law content in the category of supra-imperative norms. Practice shows that
supra-imperative norms are mostly associated with the realization of public state
interests. If we decide that the one-vector approach to supra-imperative norms
includes only those that have a public law character, we can agree with their
approximate list, which is proposed by Western doctrine, in particular by the Swiss
lawyer Mark Blessing.

§ 8.11. Tools for updating all sections of the current IPrL codification. The
above-mentioned global directions of conflict law development will become the
"keys" to update all sections of the current codification of the IPrL and transfer them
to the final book of the CC of Ukraine. Such an update involves increasing the scope
of regulation and complexity of legal techniques, detailing legal regulations,
replacing a number of outdated and ineffective rules with more modernized
regulations, taking into account significant changes in legal relations and the need
to regulate new legal institutions.

V. Moving the codification of IPrL to the CC of Ukraine

From 1996 to 2001, the Verkhovna Rada of Ukraine discussed the draft of the new
CC of Ukraine consisting of eight books, one of which was devoted to the
codification of the IPrL.
Later, after the second reading of the draft CC in the Verkhovna Rada of Ukraine,
various anti-market forces inflicted many blows on its form and content. Without
dwelling on the details of this legislative tragedy, let us just note that as a result of
these attacks, the effectiveness of the current Central Committee of Ukraine was
significantly reduced compared to the draft. Particularly severe consequences
occurred due to the adoption of antagonistic private law of the BC of Ukraine, which
in fact "blocked" the validity of the CC of Ukraine in private law relations in the
field of business. The second heavy blow was aimed at the structure: two books
("Family Law" and "Private International Law") were "detached" from the
codification, thus violating the logic and ergonomics of the legal system, which led
to significant losses in law enforcement, legal training, etc.

§ 8.12. Today, in connection with the recoding of private law, the question of
the optimal structure of the CC of Ukraine arises again, in particular in terms
of addition of the book on private international law. As you know, at one time
the developers of the draft CC of Ukraine based on the study of world practice and
analysis of the history of law in Ukraine decided to conduct a broad codification and
amendment of the Ukrainian IPrL, placing it as a separate book in the Civil Code.
In fact, it was a question of creating a special law on IPrL within the framework of
the new CC of Ukraine. In accordance with the above parameters, the Book Eight of
the draft entitled "Private International Law" was developed.
Conclusions on the form and structure of the codification of IPrL, which were
reached by the developers a quarter of a century later, are confirmed by current
legislative practice of states [1]. Even the latest codifications of IPrL of the last two
decades of the XXI century also testify to the widespread use of civil codes as its
"shelter." Thus, the civil codes of Argentina (2014), Vietnam (2015), Lithuania
(2000), Moldova (2002), Mongolia (2002), the Netherlands (2011), Romania
(2011), Tajikistan (2005) and other countries contain developed arrays of conflict
law. Sometimes these books (parts, sections), in addition to conflict law, cover the
rules of international procedural law. The emergence of separate laws on IPrL in
some countries is explained by tradition (Albania, Poland, Turkey, Czech Republic,
Hungary, the countries of the former Yugoslavia, Japan) or the lack of civil codes or
the process of their modernization.
When updating the civil legislation, it is considered reasonable to return to the
original structure of the draft CC of Ukraine, in particular to add to the current code
a book on private international law. The modernized provisions of the Law on IPrL
will be "transferred" to this book. The remarks of some jurists about the alleged
unusualness of the inclusion in the Civil Code of procedural norms or conflict law
rules on relations that are not its subject (for example, "labor") are considered
unfounded. This is confirmed by the experience of foreign countries (Argentina,
Quebec, Peru).
 ANNEXES

1. FACTORS AND PREREQUISITES OF

UPDATE OF THE CC OF UKRAINE

The foundations of the concept and content of the draft CC of Ukraine were
created in 1992-1996. Since then, for a quarter of a century, much has changed in
Ukraine and the world in economic, political and legal terms.
The issue of recoding the CC of Ukraine would not seem so relevant today if at the
turn of the century the joint efforts of hundreds of experts from European countries
did not find the most optimal and globally applicable legal norms (solutions) for
many areas of private law.
Such norms-decisions are embodied in numerous international documents on the
unification of private law. Based on them, the latest modernization (and at the same
time harmonization) of national civil codes and private law doctrines has begun in
European countries.
Thus, it should be recognized that the global (especially European) trend towards
unification and harmonization of private law regulation is an important factor in the
modern recoding of civil codes in many countries.
The recoding of the CC of Ukraine according to the modern "European scenario"
requires the logic of further transformation of society, in particular the formation of
a true and efficient market economy as an integral part of civil society and European
integration of all components of society.
Over the next decade, we should expect significant homogeneity of the national
market economic system with the European one. Therefore, if we start the process
of recoding the CC of Ukraine now, then in 10-15 years more developed domestic
market relations will have better civil law regulation, in addition, the most
harmonized with that in force in the EU. In general, Ukraine's European integration
orientation is today the most significant factor of reforms in all spheres of society.
We can even say that the main direction of recoding the CC of Ukraine is the further
"Europeanization" of the code.
The main factors and prerequisites for the recoding of civil law in Ukraine are:
(1) the state of international unification of private law;
(2) modern reforms of EU civil law based on the principles and norms of
international acts;
(3) the ability of private law doctrine in Ukraine to provide scientific support for the
recodification process.

1. International documents on the unification of private law. Models of optimal

regulation for many areas of private law relations are now offered by numerous EU
directives and regulations, other acts, including such landmark international
documents as: Principles of international commercial contracts UNIDROIT (ed.
2016); Principles of European contract law; Principles, definitions and model rules
of European private law, General Coordinate System Project 2009 (DCFR); 1980
United Nations Convention on Contracts for the International Sale of Goods (CISG).
This far from complete list of acts shows that enormous steps have been taken
towards the creation of a broad globally uniform private law.
These documents have the same unification goals, principles, formulation of
numerous rules, and previously adopted in time, the tool served as a kind of
"springboard" for the next. At the same time, acts differ in many parameters, in
particular in legal force, in the geography of application, in the range of legal issues
included in them, and so on.
The above international acts are increasingly used in business and judicial practice.
They are recognized as instruments that fully meet the needs of modern property
circulation both between the counterparties of one country and between the parties
of different countries. Moreover, they were not influenced by the political interests
of any country. Equally important, these international acts are generally the result of
the work of professors and legal practitioners in many countries and a synthesis of
best practices from different legal systems. Given the current state (quality and
quantity) of unification of substantive rules of private law, we can conclude that the
"maturation" of the international model of reform as a factor of recodification. It is
seen that the above-mentioned international unification documents should become
the most important source for Ukrainian specialists in the process of recoding the
CC of Ukraine.

2. Reforms of civil legislation of the EU countries on the basis of principles and

norms of international acts. An important factor for the recoding of the CC of
Ukraine is the latest reform of private law in the EU, including the development and
adoption of new civil codes and laws, modernization of "old" civil codifications
taking into account European and universal international documents.
Germany was the first country to recognize and implement international acts in the
unification of private law, where the law of obligations was reformed in the early
2000s.
As a result of the recent reform of contract law and the general provisions on
obligations in France, the part of the Napoleonic Code that has always seemed "the
inviolable basalt foundation of French civil law" has been harmonized with
"common European private law." The Ordinance adopted by the Government of this
country on February 10, 2016 № 2016-131 "On the reform of contract law, the
general regime of obligations and their proof" was included by the French
Parliament in the French Civil Code and entered into force on October 1, 2016.
France is currently actively discussing the reform of civil liability, both contractual
and non-contractual.
The new EU members (former satellite countries or republics of the USSR: Poland,
the Czech Republic, Hungary, Romania, Slovakia, Bulgaria, Slovenia, Latvia,
Lithuania, Estonia) did not usually have new civil codes or laws before joining the
Union. Most of these countries have only adjusted the "old" civil legislation to the
new economic conditions. However, with the accession to the EU, many "new
countries" are adopting new civil codes, in particular, in Romania (2009, entered
into force on October 1, 2011), the Czech Republic (2012, entered into force on
January 1, 2014). Hungary (2009, entered into force in 2013). Poland and Slovakia
are already on the verge of new codifications. International documents on the
unification of substantive private law have had a significant impact on the new
Hungarian, Czech and Romanian civil codes.
The newly developed Draft of the Reform of the CC of Latvia is based on the
provisions of the Lando Principles and other "unification" international acts. The
concept of codification and drafts of the future CC of Slovakia are formed on the
same positions.
An important characteristic of the modern development of law in Central and Eastern
Europe is the resolute rejection of the "dualism" of private law. Thus, simultaneously
with the entry into force of the new CC of the Czech Republic, its Commercial Code
of 1991 ceased to operate. Together with the Czech Republic, Hungary, Poland,
Romania and other countries renounced trade codes. If in the 1900s trade codes had
half of the 20 countries in the region, now their number has halved.
During the process of recoding the CC of Ukraine, the legislative experience of
France, Germany, and new EU members will be extremely useful.

3. Private law doctrine in Ukraine and recoding. A necessary precondition for the
creation of the concept and normative text of the draft recoding of the CC of Ukraine
and some "adjacent" laws is the ability of the domestic doctrine of civil (private) law
to "lead" and scientifically ensure the reform process.
Today in the world the role of private law doctrine in rule-making activity is higher
than ever.
Today, Ukrainian civil law science and codification do not have the form of "terra
incognita" on the legal map of the world. It is also worth noting that since the entry
into force of the CC of Ukraine (January 1, 2004) the country conducted numerous
scientific studies on a wide range of private law. It is also important that doctoral
dissertations have been completed on the subject of all books of the CC of Ukraine,
some conclusions of which are sketches for the future concept of recodification. A
new young generation of civilians came to legal science and practice, whose works
proved their readiness for a decisive rapprochement of the national doctrine with the
Western European science of civil law. Therefore, despite the inconsistency of
certain parameters of our and "European" doctrines of civil law, it is still seen that
domestic science can ensure the process of recoding the CC of Ukraine.
Thus, to begin the process of recoding the CC of Ukraine, there are now the
necessary factors and prerequisites, including: the existence of models of
international acts; experience in recoding the civil codes of France and Germany -
"bastions" of private law; the legislative example of the new EU members - the
former countries of the socialist camp; the necessary potential of domestic private
law science [2].
 2. MAIN RESULTS OF THE CODIFICATION OF THE CIVIL
LEGISLATION OF 2004 AND THE IPrL OF 2005

The first book "General Provisions" created a stable basis for civil law regulation
of personal non-property and property relations in all spheres of civil democratic
society.
Definition in Art. 1 of the CC of Ukraine of the range of relations that are the subject
of civil law regulation was of fundamental importance both for understanding civil
law as private law and for the purpose of proper application of all its fundamental
principles and norms. An important result of the codification was the provision that
civil law and other sources of civil law regulate two groups of relations - personal
non-property and property (in this order), which acquired the traditional name -
"civil relations". This approach was a step forward, because before that private law
was intended to regulate property relations, and later - also some non-property
relations. At the same time, according to the developers of the code, it is not
necessary to ask the question - which of the relations - property or personal non-
property, are the main, which of these groups plays a priority role in the development
of civil society. Meanwhile, it is clear that such a personal inalienable right as the
right to life is fundamental for the exercise of all, without exception, of the rights
enshrined in the CC of Ukraine.

A recognized achievement of the current CC of Ukraine is the provision that civil

law covers all civil relations, regardless of the field in which they arose and exist,
and the rules of the CC of Ukraine and all tools of civil law are used during decades
of independence of Ukraine to regulate civil relations in virtually all areas, including
business, corporate, information relations, etc. This does not preclude the regulation
of relations in these areas and the rules of special legislation. Time has confirmed
the validity of the legislator's approach in this regard on the regulation of civil status,
guardianship and custody, land and housing relations in their private law, on
property rights to land and housing, their circulation, etc. Thus, all relations, which
by their nature are private, in accordance with the CC are now governed by civil
(private) law. Confirmation of this are the rules of Art. 4, 9 of the CC of Ukraine.

At the same time, as a result of the codification carried out in 2004, the subject of
legal regulation of the CC of Ukraine underwent significant changes compared to
the original draft of the CC due to the simultaneous adoption of the BC of Ukraine.
Arguments, which have been repeatedly presented by the developers of the CC of
Ukraine, have been confirmed in practice, in particular:
(1) The Constitution of Ukraine enshrined as the economic basis of Ukraine a market
economy, equality of all subjects of property rights, equal conditions for their
functioning and legal protection, so there were no grounds for separate regulation of
these relations by two codes;
(2) there are no objective conditions for separate regulation of private relations in
the economic sphere by separate CC, and commercial codes in force in some
countries are codes of private law and are a logical continuation of the CC in force,
while the tendency to create a single CC is valid;
(3) time has confirmed negative forecasts for the emergence of a number of legal,
technical and practical complications as a result of the adoption of two codes - the
CC of Ukraine and the BC of Ukraine, as property relations in business proved
impossible to apply general provisions of the CC on transactions (agreements),
obligations, compensation for damages for breach of obligations, etc .;
(4) difficulties also arose in the process of attracting foreign investments into the
economy of Ukraine, which are regulated by civil law under the legislation of all
countries. At the same time, both during the preparation of the draft CC of Ukraine
and in modern conditions, all of the above is not aimed at denying the importance of
public law that promotes state regulation of the economy (taxes, state registration,
etc.), and state support for entrepreneurship was and remains an important
prerequisite for adequate systematization of relevant norms.

It is extremely important to enshrine in Art. 1 of the CC of Ukraine constitutive

features of civil relations: they are based on the legal equality of participants, their
free will and property independence, and their character is natural, independent even
of the will of the legislator. The legislator only needs to accept and recognize their
natural character and establish adequate regulation.
The new rules on civil relations participants introduced in the current CC of Ukraine
are also important positive results of codification. It is a question of introduction and
definition of concepts of the physical and legal person, in particular with such
novelty, as concept of the legal person of public law.
At the same time, despite the significant achievements of the current CC of Ukraine,
it is impossible to ignore certain "losses" of codification: the current Art. 83 of the
CC of Ukraine (in contrast to its draft) established an open list of organizational and
legal forms of a legal entity. Therefore, this important category, designed to
streamline the systematization of legal entities and serve as an important identifier,
has significantly reduced the effectiveness of its influence on the process of
streamlining the subjective composition of civil relations. The current CC of Ukraine
for the first time enshrined in a special section rules on objects of civil rights,
providing among them not only traditional for civil law objects: things, money,
works, results of creative activity, but also significantly expanding their range
through securities, services, a single complex of the enterprise, as well as intangible
objects - information and personal intangible assets.
The norms on transactions, representation, and statute of limitations have been
largely amended.
It should be noted in particular that the positive consequence of the 2003 codification
is the affirmation in the Book of the First of the Fundamental Principles of Civil
Law, which serve as a powerful foundation for the entire code. These principles
enshrined in Art. 3 of the CC of Ukraine, a common thread running through the
entire legal matter of the Code, fill its rules with ideas of natural law, respect for
human as the highest social value, preventing arbitrary state intervention in the
private sphere of the individual.
The CC of Ukraine, recognizing the BIR as an integral part of the subject of civil
law, devoted the Second Book to the BIR of the individual, highlighting the General
Provisions, as well as separate chapters on BIR, ensuring the natural existence of the
individual, and BIR, ensuring the social existence of the individual.
At the same time, a significant array of norms governing BIR is contained in other
books of the CC of Ukraine [3], as well as in other acts of civil legislation [4].
[1] An interesting "arithmetic" about the form of conflict codifications is given by
the well-known American collisionist Simeon Simeonides in a recently published
work. The scientist studied 94 known codifications of IPrL (along with four
completed drafts at that time) over a 50-year period (1962–2012) in 86 countries in
Africa, Asia, Europe and America. The results were as follows: in 13 of the 86
countries, there was a fragmentary codification of conflict rules in acts of narrow
scope (for example, in the laws on the entry into force of regulations, family codes,
etc.); 4 countries (Belgium, Bulgaria, Tunisia and Turkey) called their autonomous
codifications codes, and 27 countries - mostly laws on IPrL; most countries (42) -
included the codification of IPrL in civil codes.
[2] For more details see: Dovgert A.S. Recodification of the Civil Code of Ukraine:
the main factors and prerequisites for the start. Law of Ukraine. 2019. № 1. S. 27–
41; Harmonization of private law legislation of Ukraine with the legislation of the
EU countries. Materials of IX International Civil Law Forum, Kharkiv, April 11–
12, 2019. Kyiv: Znannia, 2019. 761 p.
[3] For example: among the general principles of civil law is fixed "inadmissibility
of arbitrary interference in the sphere of personal life" (paragraph 1, part 1 of Article
3 of the CC of Ukraine); the place of BIR in the amount of civil capacity (Article 26
of the CC of Ukraine) and civil capability (Article 31 of the CC of Ukraine) of a
natural person and legal entity (Article 94 of the CC of Ukraine) is determined;
personal property is recognized as a separate object of civil rights (Article 201 of the
CC of Ukraine); BIR of intellectual property (Articles 418, 421, 423, 425, 429, 430,
438, 442 of the CC of Ukraine), etc.
[4] Eg: Family Code of Ukraine of January 10, 2002 № 2947-III; Laws of Ukraine
“On Private International Law” of June 23, 2005 № 2709-IV, “On Information” of
October 2, 1992 № 2657-XII, “On Personal Data Protection” of June 1, 2010 №
2297-VI , "On access to public information" of 13.01.2011 № 2939-VI,
Fundamentals of the legislation of Ukraine on health care of 19.11.1992 № 2801-
XII and many others.

The achievement of the new Civil Code of Ukraine was not only a clear position on
the regulation and protection of personal non-property relations but also a significant
change in the role and importance of these relations in the structure of the subject of
civil law. Thus, positive regulation of the personal non-property relations was
introduced, which had previously not been implemented at all, or had been taken out
of the scope of civil law material, although in its content it should relate to civil law.
Formation in the Civil Code the separate Book devoted to personal non-property
rights of the individual became the branch embodiment of the proclamation of Art.
3 of the Constitution of Ukraine.
The advantage of the current Civil Code was the separation of general provisions on
the personal non-property rights of an individual and the consolidation at their level
of the concept, types, content, guarantees of implementation, and methods of
protection of the personal non-property rights. The second book today is a
harmonious component of the structure of the Code, which codifies the norms of
private law, an integral system of norms, which are composed according to uniform
principles and are based on a single method of regulating public relations;
determines the general provisions that are common to all norms of a certain kind;
allocates individual institutions according to differentiated approaches,
consolidating them in the appropriate order. The second book deals with the norms
that regulate personal non-property relations based on equality, provisionality, and
inadmissibility of interference in the sphere of the personal life of an individual;
judicial protection of any violation of civil law; justice, good faith, reasonableness,
etc., and thus have a close connection with the First Book.

Following the logic of the lawmaker, personal non-property rights are not only
placed among other traditional civil rights but also precede them, is recognized today
by almost all civilians, and is based on the belief that the social significance of
personal non-property rights is much higher than existing rights in the material
sphere of society. because they are, first of all, constitutional rights, the spiritual
basis of society, and are a prerequisite for ensuring freedom of property, freedom of
contract, freedom of enterprise, etc. Also, the priority of the systematic placement
of personal non-property rights has led to a revision at the current level of the very
concept of civil relations and civil law.

In addition, during its operation, the Second Book has become a system-forming
core for other pieces of legislation that contain civil law and regulate the personal
non-property relations, regardless of whether they are purely civil or comprehensive.

The developers of the Civil Code of Ukraine embodied in it the provisions of the
pluralistic conception by enshrining general consolidated provisions of personal
non-property rights and a wide catalog of specific personal non-property rights of
individuals, which carried out their positive regulation. At the same time, the
legislator includes in a separate group those personal non-property rights of
individuals that are initially enshrined in the Constitution of Ukraine and derive from
the relevant constitutional rights (Article 270 of the Civil Code of Ukraine). And the
list of personal non-property rights established in the legislation is considered
inexhaustible. The Civil Code of Ukraine adopted the classification of personal non-
property rights, which is based on the classification criterion of the goal to which the
corresponding personal non-property rights are in the focus, and made the second
division of personal non-property rights in the Book of an individual into those that
ensure natural existence (Chapter 21) and those that ensure social existence (Chapter
22). The Second Book of the Civil Code of Ukraine consists of 47 articles (Articles
269-315) regulating the personal non-property rights of individuals, combined into
three chapters, namely: Chapter 20 - "General provisions on personal non-property
rights of individuals", Chapter 21 - "Personal non-property rights that ensure the
natural existence of an individual "and Chapter 22 -" Personal non-property rights
that ensure the social existence of an individual." Thus, the Civil Code of Ukraine
currently contains a significant set of rules governing personal non-property
relations and ensures the systematic presentation of legal material on personal non-
property rights.

An important achievement of the current Civil Code of Ukraine is the systematic

regulation of jus in re (real rights) and increasing their role as a component of the
subject of civil law. A relatively large number of real rights were introduced by law,
which had previously been represented mainly by jus in re propria (right to
property). The formation of a separate Book on real rights in the Civil Code of
Ukraine contributed to the restoration of classical civilized notions of real rights.
This is the embodiment and concretization at the legislative level of civil codification
of the Constitution of Ukraine, which defined the range of objects and subjects of
property (Art. 13, 41, 142, 143), equality of all subjects of property rights (Article
13), guarantees of property rights and obligations of owners (Articles 13, 41) and
established that the legal regime of ownership should be determined exclusively
laws of Ukraine (paragraph 7, part 1 of Article 92).

The advantage of the current Civil Code was the separation of general provisions on
real rights and the consolidation of the concept, types, content, and methods of
protection of real rights.

Since its operation, The Third Book serves as a basic provision for other pieces of
legislation governing property relations in the private sphere.

The developers of the Civil Code of Ukraine embodied the provisions on real rights
as a subjective right of direct ownership over a thing (property) by enshrining
universal (general) provisions on real rights and a relatively wide list of specific real
rights in the form of right to property and three types of real rights to another
individual property - easement, emphyteusis and superficies.

In a separate section, the lawmaker refers to the right to property, which is initially
enshrined in the Constitution of Ukraine and derives from the relevant constitutional
rights (Articles 13, 41 of the Constitution, Articles 316-394 of the Civil Code of
Ukraine). Thus in the sense of Art. 22 of the Constitution of Ukraine, the list of real
rights enshrined in this Constitution is not exhaustive. The Civil Code of Ukraine
adopted the classification of real rights, which is based on the classification criterion
of the relevant real rights, and divided real rights on right to property (Chapters 23-
29) and real rights on other people's property (Chapters 30-34) in the Book Three.
The norms that enshrine the right to property are combined in seven chapters on the
general provisions on the right to property (Chapter 23), the acquisition of the right
to property (Chapter 24), the termination of the right to property (Chapter 25), the
right of collective ownership (Chapter 26), the property right to land (land plot)
(Chapter 27). The rules governing the real rights on someone else's property are
contained in five chapters on the general provisions on real rights on someone else's
property (Chapter 30), the right to possess someone else's property (Chapter 31), the
right to use someone else's property (easement) (Chapter 32), the right to use
someone else's land for agricultural purposes (emphyteusis) (Chapter 33) and the
right to use someone else's land for construction (superficies) (Chapter 34).

The current Civil Code of Ukraine contains a significant set of legal provisions that
enshrine the real rights and provides a relatively systematic legal regulation of the
real rights.

The Fourth Book is an integral system of norms that are formed according to joint
principles and are based on a single method of regulating social relations.

Book Fourth "Intellectual Property Law" and Chapter 75 "Disposition of Intellectual

Property Rights" of the Civil Code of Ukraine became an important stage in the
further development of Ukrainian legislation in the field of creative activity:

(1) the general provisions on IP Rights and the general principles of regulation of
intellectual property relations for various IP Rights objects were determined from
the common theoretical and methodological positions;

(2) the consolidation of an array of laws and regulations in Book Four of the Civil
Code fully defined both the role and importance of intellectual property relations in
national law and emphasized the private law nature of intellectual property relations,
determined their impact on the development of civil society, placing the creator at
the center of regulation of such relations;

(3) a single approach was introduced for all IP Rights objects to determine the
content of intellectual property rights, special methods of protection of rights
common to all IP Rights objects were defined; unified approaches on concluding
agreements on IP Rights disposition; unified approaches to the status of a title of
protection certifying the acquisition of property rights; previous user rights, etc. In
the conditions of differences of special laws provisions concerning the maintenance
of property rights of intellectual property, ways of protection, etc. the adoption of
the Code was a factor in the harmonization of the relevant provisions in special
legislation.

The Fifth Book "The Law of Obligations" is the largest comprises 735 articles,
which are part of 37 chapters. The first of the three sections contains general
provisions on obligations relating to both contractual and non-contractual
obligations, the second deals with general provisions on contract, and the third sets
out the rules for individual obligations.
The provisions of the Book Five of the Civil Code are based on the fact that the
subjects of relations related to trade, independently determine the content of
contractual relations, based on their interests. The rules of contract law are mostly
dispositive, while non-contractual obligations are governed by mandatory rules.

A significant role in the regulation of contractual obligations belongs to the

agreement, the business customs, the requirements that are usually set. This is how
the norms of the Civil Code of Ukraine form the general approaches to the general
conditions of fulfillment of obligations. Particular attention is paid to compliance
with the condition of good faith, reasonableness, fairness in the fulfillment of
obligations. Book Five regulates the role of the contract as a universal and most
effective legal form of mediation of commodity-money and other property relations.

In a market economy, the state's influence on property relations in the private sphere
is significantly narrowed, accompanied by the deepening of the principle of freedom
of contract, which ensures freedom of choice of the counterparty, determination of
contract terms by agreement of the parties, application of sanctions only at their
discretion.

Book Fifth singles out obligations arising from unilateral lawful acts (public promise
of remuneration, acts in the property interests of another person without his or her
authority; saving the health and life of an individual, property of an individual or
legal entity).

Among the protective obligations, the new one is the institution of obligations
arising from the creation of a threat to life, health, property of an individual, or
property of a legal entity. Several rules supplement the conditions for liability in
obligations arising from the infliction of damage.

The Sixth Book "Inheritance Law" regulates one of the instruments of civil law,
which serves a noble purpose - the humanization of social relations, with the help of
special instruments, inheritance law norms encourage participants in civil relations
to care, material assistance to those who are helpless due to illness or injury.

The current Civil Code is characterized by numerous rules aimed at improving the
legal regime of relations in the field of inheritance, which include the following:
(1) a significant increase in the level of provisionality in the regulation of hereditary
relations;
(2) the introduction of new types of wills (marital will, conditional will, secret will);
(3) increasing the number of successors to significantly expand the circle of heirs at
law (the basis for the formation of the circle of heirs is not only the use of kinship
up to the sixth degree but also marriage, family, adoption, maintenance). This
significantly minimizes the recognition of the inheritance as deceased and ensures
the transfer of rights to the inherited property to an individual as a more effective
owner;
(4) change in the position of the state as a participant in inheritance relations
(possibility to be an heir only by last will);
(5) some improvement of the legal regulation of the right to a mandatory share in
the inheritance;
(6) introduction of an inheritance contract and expansion of the application of
contractual regulation of inheritance relations in general, etc.

Highly appreciating the indisputable achievements of the current Civil Code of

Ukraine, which laid the legal foundations for the functioning of civil society in
Ukraine, one cannot ignore the negative consequences of the 2003-2004 codification
process. In addition to the simultaneous adoption of the Civil Code together with the
Commercial Code, which cannot be described in other words as a rudimentary
remnant of the Soviet totalitarian system, such losses of the Civil Code include the
removal of two extremely important structural parts:

Family Law (Book Six of the draft) and PrIL (Book Eight of the draft).

Such "resection" of the normative array of the Civil Code of Ukraine, of course, had
a negative impact on the systemic regulation of private relations in society, ensuring
the unity and full scale of the entire process of streamlining the private sphere.

In the Law of Ukraine "On Private International Law" of June 23, 2005, for the
first time in the history of the legislation of our country, a broad codification of
national conflict law was embodied, together with the provisions of the international
civil process. In many respects, the Ukrainian codification of the PrIL has become
one of the largest in the world. Ukrainian codification experience has initiated the
worldwide interest of scientists and legislators. Many scientific works were
published abroad, in which the achievements of Ukrainian scientists were analyzed.

Increased international attention to the Ukrainian document is largely due to the fact
that the Law on PrIL was constructed based on modern approaches to European legal
doctrine, codifications of PrIL in Western countries (Austria, Italy, Canada
(Quebec), Germany, Switzerland, etc.), international treaties, that unify conflict
rules. The latter include the Rome Convention on the Law Applicable to Contractual
Obligations of 1980 (Rome Convention), the Hague Convention on the Law
Applicable to International Sale of Goods of 1986 (The Hague Convention of 1986),
and the Hague Conventions on Marriage, families, inheritance, etc.

The PrIL Law turned over all the conflict theory and legislative practices that existed
before in Ukraine and the former USSR. Unlike previous legislation, it established
not just a more complete conflict-of-law regulation of international private law
relations. The PrIL Law translated the entire system of conflict of law into the course
of new widely recognized approaches and principles in the world, in particular, such
as broad autonomy of will for the parties to legal relations; application to legal
relations of the law of the country that has the closest connection with them;
introduction of significant judicial discretion in the choice of applicable law;
accurate and full application of the law; full consideration of the interests of an
individual concerning his personal and family status, etc.
 3. REVIEW AND EVALUATION OF CHANGES
TO THE CIVIL CODE AFTER 2004 AND
LAW ON PrIL AFTER 2005

During the operational period of the Civil Code of Ukraine, numerous changes were
made to it. The nature and reasonableness of these changes were different: in some
cases, they were conditioned by the objective needs of the development of social
relations and contributed to the improvement of the process of their legal regulation.
At the same time, some of them were openly lobbied by certain political and business
groups and did not improve the quality of legal regulation.

Under such conditions, the analysis of the changes made to the Civil Code is
objectively necessary and relevant, given the general objectives of recodification of
civil law.

The first book of the Civil Code of Ukraine as a whole remained consistent: no
changes were made to Chapters 1 and 2 during the entire period of the Civil Code’s
operation, which should be considered positive, given that these chapters entrench
the most important provisions concerning civil relations in general and the vision of
developers of the Civil Code of Ukraine, ranging from the definition of civil relations
to the grounds for the emergence of civil rights and obligations, as well as the
exercise of civil rights and responsibilities.

A few changes and additions have been made to Chapter 3.

Thus, para. 20 part 2 of Art. 16 of the Civil Code of Ukraine, in particular with the
words "or by a court in cases specified by law"; Part 4 of Art. 22 was set out in a
new wording: “At the request of the injured party, and in accordance with the
circumstances of the case, property damage may be reimbursed in another way, in
particular, property damage may be reimbursed in kind (transfer of things of the
same kind and the same quality, repair of the damaged thing, etc.) unless otherwise
provided by law"; was set out in the new version of paragraph 4 of part 2 of Art. 23
as to what constitutes moral damage: “… in the humiliation of the honor and dignity
of an individual, as well as the business reputation of an individual or legal person”;
was set out in the new version of para. 1 part 3 of Art. 23: "Unless otherwise provided
by law, non-pecuniary damage is reimbursed in cash, other property, or otherwise."
Section II "Persons", in particular, subsection I "Individuals" were amended to Art.
29, 32, 36, 38, 42, 44, 46, 49 of the Civil Code of Ukraine, the section is
supplemented by Art. 481 on the legal consequences of the inability of an individual
to fulfill their property obligations and repay debts, and Art. 50 in Chapter 5
"Individual Entrepreneur" was excluded. The main list of these changes has not
changed the basic approaches to understanding the individual. The same can be said
about some changes to the articles of Chapter 6 "Guardianship and custody".
Significant changes affected subsection 2 "Legal entity" of section II of the Civil
Code of Ukraine. The changes took place both at the level of general provisions on
the legal entity and at the level of certain types of legal entities, which requires a
separate and quite detailed analysis, the solution of several theoretical issues, which
will be discussed below.

At the same time, the norms of subsection 3 “Participation of the state, the
Autonomous Republic of Crimea, territorial communities in the civil relations” have
undergone minimal changes (in particular, the norm of Article 169 of the Civil Code
of Ukraine).

In Section III of the Civil Code of Ukraine "Objects of Civil Rights" first of all, a
reference is made in part 1 of Art. 177 of the Civil Code on the official interpretation
of its provisions in the Decision of the Constitutional Court of Ukraine of December
10, 2009 [1], while important changes related to Art. 182 "State registration of real
estate rights", Art. 190-191 of the Civil Code of Ukraine, almost all the rules of
Chapter 14 "Financial securities", the definition of information as an intangible asset
(Article 200). Changes to a number of articles in Section IV “Laws. Representation
"and section V" Terms and conditions. Statute of limitations ", because they were
introduced over the years and unsystematically, which in some way distorted the
original approaches of lawmakers to their understanding. This applies to changes
made to Art. 205, 209, 228, 234 (Chapter 16 "Laws"), Art. 245, 246 (Chapter 17
"Representation"), Art. 258, 268 (Chapter 19 "Limitation of action").

The Book of the Second "Personal Intangible Rights of Individuals" has also not
undergone significant changes. Minor changes in the text concerned:

1. Personal non-property relations, which consist of information [2]. The

presumption of integrity was excluded from the Civil Code of Ukraine, according to
which negative information disseminated about a person is considered unreliable
until proven otherwise. The regulation of dissemination of information obtained
from official sources has been clarified;

2. Personal non-property relations in the field of medical care [3]. Excluded

provisions for sterilization of an incapacitated individual in the presence of medical
and social indications can be carried out only with the consent of his guardian. In
the area of reproductive rights: the period during which an abortion can be performed
has been shortened. The right of an adult woman and a man to use medical programs
of assisted reproductive technologies is enshrined. Regulated the possibility of
minors to be donors of hematopoietic stem cells;

3. Right to a name. The procedure for exercising the right to change one's name has
been improved. The procedure for using the name in literary and other works, as
well as the name of a natural person who is detained, suspected, or accused of
committing a criminal offense, or a person who has committed an administrative
offense;

4. In 2019, the Civil Code of Ukraine introduced amendments aimed at state

protection of whistleblowers [4], by establishing the limited liability of
whistleblowers for property and (or) moral damage caused to personal non-property
rights as a result of informing the whistleblower of inaccurate information about
possible corruption or corruption-related offenses, other violations of the Law of
Ukraine "On Prevention of Corruption".

We can state that some of these changes have caused a scholarly discussion. Despite
the exclusion from the text of the Civil Code of Ukraine of the presumption of "good
faith", the judicial practice in cases of protection of honor, dignity, and business
reputation is based on the fact that the burden of proving that the information
disseminated is accurate rests with the defendant [5].

[1] The decision of the Constitutional Court of Ukraine in the case on the
constitutional appeal of the private enterprise "Autoservice" regarding the official
interpretation of the provisions of Art. 177, 760, part 2 of Art. 777 of the Civil Code
of Ukraine (case of the lessee's privileged right to acquire military property). Official
Gazette of Ukraine. 2009. № 98 (28.12.2009). P. 28. Art. 3397.
[2] See: Laws of Ukraine "On Amendments to the Civil Code of Ukraine on the
Right to Information" dated 22.12.2005 № 3261-IV, "On Amendments to Certain
Legislative Acts of Ukraine in Connection with the Adoption of the Law of Ukraine"
On Information” and the Law of Ukraine “On Access to Public Information” of
March 27, 2014, № 1170-VII.
[3] See: Laws of Ukraine "On Amendments to Certain Legislative Acts of Ukraine
on Clinical Trials of Medicinal Products" of 12.05.2011 № 3323-VI, "On
Amendments to Certain Legislative Acts of Ukraine on the Provision of Psychiatric
Care" of 14.11.2017 № 2205-VIII, "On amendments to Article 281 of the Civil Code
of Ukraine" dated 02.11.2004 № 2135-IV, "On amendments to some legislative acts
of Ukraine on the use of transplantation of anatomical materials to humans" dated
28.02. 2019 № 2694-VIII, “On Amendments to Article 290 of the Civil Code of
Ukraine” dated 31.05.2011 № 3436-VI, “On Amendments to the Family and Civil
Codes of Ukraine” dated 22.12.2006 № 524- В.
[4] On Amendments to the Law of Ukraine “On Prevention of Corruption”
Concerning Detectors of Corruption: Law of Ukraine of October 17, 2019, № 198-
IX. Information of the Verkhovna Rada of Ukraine, 2019, № 50, Art. 356.
[5] Resolution of the Supreme Court in the composition of the panel of judges of the
First Judicial Chamber of the Civil Court of Cassation dated 14.02.2018 in case №
522/14156/14-ts. Unified state register of court decisions. URL:
https://reyestr.court.gov.ua/Review/72269115
Enshrined in Book Three of the Civil Code of Ukraine (CCU), the property law (PL)
system has undergone no substantial changes.
The texts of certain articles have been altered in what relates to administration of
state-owned property[1]; rightfulness of acquisition of title[2]; acquisition of title on
the property, alienated by a person with no rights to it, by a good-faith acquirer[3];
acquisition of title on newly established property and assets under construction[4];
the moment of acquisition of title on real estate by agreement[5]; acquisition of title
on the single property complex of a state-owned (municipal) enterprise in case of
privatization of state-owned and municipal property[6]; unwarranted construction[7];
property rights to a land plot in case of acquiring title on a dwelling house, building
or facility located on it[8]; an apartment as the object of ownership[9]; the act of
notarizing an annuity agreement and an agreement on transfer of real property
guaranteed by real property payments (CCU Article 732); elimination of part 2 CCU
Article 745 on state registration of a perpetual maintenance (custody) agreement,
which transfers real estate to the acquirer[10].
Substantial changes, related to the altering of the PL system, deal with trust
ownership rights. The institute of trust estate has been incorporated into the CCU
(Part 2 of Article 316) as a special property type right that is created as a result of a
law or an administration of property agreement[11]. The phrase “administration of
property” has been deleted from Part 2 of Article 316. At the same time, having not
defined the general provisions of trust estate right and having limited its regulation
in the CCU by the blanket rule of Part 2 of Article 316, the lawmaker has chosen the
method of legislative regulation of certain types of trust estate in special laws,
regulating construction financing funds, real estate operation funds[12] and
consolidated mortgage debt[13], which made it harder to form a unified
implementation practise of trust estate clauses.
Moreover, the institute of trust estate has been incorporated into civil law as a
method of guaranteeing the security of a loan provided by agreement or credit
contract through adding one more paragraph to Chapter 49[14]. The mentioned valid
title has been acknowledged as a type of freehold interest in real property, according
to which a trust owner does not have the right to singlehandedly alienate such
property, except for levying of execution on it as well as its redemption for public
need according to rules established by law. Nowadays, this legal structure has not
been used in practice yet, mainly because of lack of special norms for taxation of
such property relations. Incorporation into the CCU of security trust ownership has
drawn several criticisms from members of academia and legal practitioners
concerning legitimacy of this legal institute.
Several changes have been made to Book Four “Intellectual property rights,”
including:
(1) Article 432 “Protection of intellectual property rights in court” by Law dated
31.05.2007 No. 1111-V;
(2) Articles 420, 502 of Chapter 40 regarding clarifications of the provisions on
topographies of semiconductor products and geographical indications in accordance
with Articles 204-207, 224-227 of the Association Agreement, Directive 87/54/EEC
of 16/12/1986 and Regulation (EU) 1151/2021 of 21/11/2021 (Laws dated
20.09.2019 No. 123-IX [15] and of 19.09.2019 No. 111-IX [16].
(3) Article 460 concerning changing a utility model (Law dated 21.07.2020 No. 816-
IX [17];

(4) Articles 461, 462, 465 concerning specifying criteria of patentability, duration of
property rights on an industrial design, pursuant to Articles 212-218 of the
Association Agreement, Directive 98/71/EC dated 18.10.1998, as well as concerning
corroborating by certificate the acquisition of intellectual property rights to a trade
mark; Article 496 concerning the date of entry into force of intellectual property
rights to a trade mark (Law dated 21.07.2020 No. 815-IX [18]).
Changes that have been made to Book Five “Liability Law” have, in general, had no
substantial influence; they were caused by the active dynamics of global and
European liability law. Part of the changes have been made for specifying reasons.
In this context, in 2017 Article 509 of the CCU was amended. In 2009 Article 520
was amended as well: the rule of changing one debtor to another in a debt obligation
upon consent of the lender only has been supplemented with the specifying phrase
“unless otherwise stipulated by law.” A likewise amendment has been incorporated
into Part 1 of Article 534 of the CCU, which envisages order of priority in repayment
of debt incurred by monetary obligation.
In 2010 provisions of Part 1 of Article 537 of the CCU concerning fulfillment of
obligations by placing a debt on deposit of a notary were supplemented by the phrase
[on deposit] “of a notary’s office.”
In 2012 Article 537 was supplemented with Part 3, which now has in itself a special
specifying provision on the procedure of placing a debt on deposit of a notary
(notary’s office) of “uncertified debt securities.”
In general, almost all other changes made to Book Five since 2003 are of a clarifying
nature or the nature of relevant amendments, caused by certain changes in other
normative acts of Ukraine or some minor shortcomings of the legislator that were
not identified in a timely manner.
The most significant changes to Book Five have been made under the influence of
trends related to European integration processes. First of all, this is the supplement
of Articles 5971-59713 (§ 8 of Chapter 49) to the CCU, which was included in the
CCU in 2019, as well as the provisions currently contained in § 2 of Chapter 72
“Escrow Account” (Articles 10761-10768), which was included in the CCU in 2017.
In addition, into Book Five of the CCU at different times for the same reasons have
been incorporated 6 new articles concerning sale and purchase contracts as well as
credit agreements, in particular: Article 6581 “Obtaining the right to unilateral
termination of the sale and purchase contract,” Article 6811 “Legal consequences of
a recall of goods from the buyer,” Article 8101 “Rent-to-own residential lease,”
Article 10561 “Interest on the loan agreement,” Article 10571 “Legal consequences
of the invalidity of the loan agreement,” Article 10751 “Amendments to a bank
account agreement, property rights to which are an encumbrance.”
Since the CCU’s entry into force, fragmentary changes have been made to
Subsection 2 of Chapter III of Book Five, dedicated to regulation of non-contractual
obligations, which did not conceptually affect the ideology of regulating non-
contractual obligations under the 2003 CCU original version. In addition, changes
have been made only to Chapter 82 “Compensation of damages.” Thus, 9 articles of
Chapter 82 have been changed. Also Chapter 82 has been supplemented by Article
12111.
Since the CCU's entry into force, several changes have been made to its Book Six
“Inheritance Law.”
Article 1221 was supplemented with Part 3, in accordance with the Law of
12.02.2015 No. 189-VIII [19] on clarifying the place of opening of an inheritance.
Article 1241 has been amended to clarify the persons entitled to a mandatory share
in the inheritance (Law dated 03.11.2004 No. 2146-IV [20]).
In 2008, the CCU was supplemented with Article 12321 “Inheritance of rights and
obligations under a rent to redemption agreement,” which provides that the heirs get
all the rights and obligations under a rent to redemption agreement, which previously
belonged to the testator, and also contains provisions on the waiver of the heirs from
rent to redemption and termination of this agreement at the initiative of the heirs
(Law dated 25.12.2008 No. 800-VI [21]).
Article 1247 has been supplemented by Part 4, which stipulates that wills certified
by persons referred to in Part 3 of this Article are subject to state registration in the
Inheritance Register, in the manner approved by the Cabinet of Ministers of Ukraine
(Law of 21.09.2010 No. 2527-VI [22]). Amendments have also been made to Article
1304 "Form of an inheritance agreement" - added provisions on its state registration
in the Inheritance Register.
Editorial changes have been made to Articles 1251-1252 on certification of wills by
an official of a local self-government body, other officials and public officers (Laws
dated 14.04.2009 No. 1254-VI [23], dated 06.07.2010 No. 2435-VI [24], dated
02.10.2018 No. 2581-VIII [25]).
Part 7 of Article 1254 has undergone changes regarding state registration in the
Hereditary Register of information on revocation of a will and making amendments
to it (Law of 21.09.2010 No. 2527-VI [26]).
In 2010 and 2014, clarifications were made to Article 1269 on filing an application
for acceptance of the inheritance by an heir who wishes to accept the inheritance,
but who at the time of the opening of the inheritance did not live permanently with
the testator (Laws dated 06.07.2010 No. 2435-VI [27], dated 20.10.2014 No. 1709-
VII [28]). In addition, editorial amendments were made to Articles 1272-1273 on
the consequences of missing the deadline for acceptance of an inheritance and the
right to refuse to accept the inheritance.
Significant changes have been made to Article 1277 on improving the legal
regulation of the escheat of an unclaimed inheritance and to Article 1283 on the
protection of hereditary property (Law dated 20.09.2016 No.1533-VIII [29]). This
law also provides for changes to Article 1285 — heritage management.
In 2018 Article 1281, on placing by a creditor of the testator of claims on the heirs,
was changed, as was Article 1282, which concerns the obligation of the heirs to
satisfy claims of creditors (Law dated 03.07.2018 No. 2478-VIII [30]). There were
also some changes in Article 1297, which regulates the obligation of the heir to apply
for a certificate of inheritance.
Analysis of the changes made to Book Six allows us to draw the following
conclusions:
(1) most of them have been of an editorial, and legal and technical nature;
(2) part of the changes have been related to changes in names of state bodies and
institutions, titles of officials and public officers, and with the launching of the
Inheritance Register;
(3) only part of the amendments have been aimed at substantial changes in legal
regulation of inheritance relations;
(4) lack of a systematic approach to improving legal regulation of inheritance
relations.
Despite the high overall assessment, it was immediately obvious that the Law "On
Private International Law" (Law on PIL) contained inaccuracies and shortcomings,
a lot of which happened due to the "inattention" of the legislator during the
transformation of provisions of Book Eight "Private International Law" from the
draft CCU into an stand-alone law. The range of the shortcomings varied widely:
from incorrect section titles to the loss of completeness of regulation in the field of
international civil proceedings (the latter found itself "torn" between three legislative
acts — the Law on PIL, the Civil Procedure Code of Ukraine and Code of
Commercial Procedure of Ukraine).
The first attempt to improve the new Ukrainian codification of private international
law was the adoption on January 21, 2010, of the Law of Ukraine “On Amendments
to Certain Legislative Acts of Ukraine Concerning the Settlement of Private
International Law Issues” (“Law on Changes”). This act proposes ten amendments
to the codification, eight of which are related only to editorial clarifications of the
titles of two chapters (VI and VII) and the rendering of some articles (Articles 1, 12,
77, 79, 80 of the Law on PIL).
In addition to editorial clarifications, the Law on PIL introduced two significant
changes of a rather debatable nature (the first change — in addition to foreign
element in the subject matter, fact of residence of a citizen of Ukraine abroad was
added; the second change removed international customs from the sources of
conflict of laws).
The Law on Changes provided for the amendment not only of the Law on PIL, but
also of other acts of conflict of laws and procedural law (in particular, the Labor
Code (Article 8), the Commercial Code (parts 2-5 of Article 382)). Most changes
were included by the Law on Changes in the Civil Procedural Code (CPC) and the
Code of Commercial Procedure (CCP) because — and it is not surprising — the
basic act on private international law failed to conduct a comprehensive codification
of the rules of international civil procedure. The legislator kept to the previous tactic
of "balancing" between the three acts in this area. These procedural codes have been
supplemented by the same detailed provisions on court orders. It is clear that it would
have been more appropriate to include such a large number of rules on court orders
only in the Law on PIL, as it has been done with the institutions on immunity from
legal process (the Law on Changes eliminates relevant articles from the CPC and
CCP) and judicial jurisdiction over cases with a foreign element. The CPC and the
CCP have as duplitating provisions on procedural rights and obligations of foreign
persons, although this institution is fully represented in the Law on PIL. At the same
time, such an institution of international civil procedure as recognition and
enforcement of foreign court decisions has remained entirely within the CPC.
Meanwhile, the Law on Changes introduced a very significant novelty in this
institution: foreign court decisions are recognized and enforced in Ukraine on the
basis of presumption of reciprocity (previously required interstate contractual
reciprocity). Further changes in the institution of recognition and enforcement of
foreign court decisions occurred as a result of the adoption in 2017 of a new version
of the CPC. It should be noted that after 2010, the chapters of the Law on PIL,
dedicated to international civil procedure, have also received minor additions
reflecting the development of legislation in the field of bankruptcy, public-private
partnership, and countermeasures to the aggressor state.
As for other corrections to the Law on PIL after 2010, minor clarifications of the
texts have taken place in Article 31 (deed form) and Article 50 (the right applicable
to compensation for damage caused by defects in goods, works/services).
Assessing in general the changes and additions to conflict of laws over the last fifteen
years, the following should be noted:
1) in the Law on PIL, some terminological clarifications excluded, no significant
improvements have occurred;
2) harmonizing provisions of other acts of conflict of laws with provisions of the
Law on PIL has remained an urgent task for the legislator;
3) as a result of the international civil process reform, the duplication of its
provisions in various acts has been significantly reduced due to the “neutralization”
of the CCP in this area of legal regulation.
Nevertheless, it has so far been impossible to concentrate provisions of the
international civil process in one document — the Law on PIL.
__________________________________________________________________
_________
[1] On Administration of State-Owned Objects : Law of Ukraine dated 21.09.2006
No. 185-V. Vidomosti Verkovnoy Rady Ukrayiny. 2006. No. 46. Page 45.
[2] On Amendments to Certain Legislative Acts of Ukraine Concerning
Confiscation of Illegal Assets of Persons Authorized to Perform State or Local Self-
Government Functions, and Punishment for Acquisition of Such Assets : Law of
Ukraine dated 31.10.2019 No. 263-IX. Vidomosti Verkovnoy Rady Ukrayiny. 2020.
No. 2. Page 5.
[3] On Securing Claims of Creditors and Registration of Encumbrances : Law of
Ukraine dated 18.11.2003 No. 1255-IV. Vidomosti Verkovnoy Rady Ukrayiny. 2004.
No. 11. Page 140.
[4] Refer to: Laws of Ukraine “On Amendments to Certain Legislative Acts of
Ukraine” dated 15.12.2005 № 3201-IV, “On Amendments to the Law of Ukraine
‘On State Registration of Real Property Rights and Their Restrictions’ and Other
Legislative Acts of Ukraine” dated 11.02.2010 № 1878-VI, “On Privatization of
State and Communal Property” dated 18.01.2018 No. 2269-VIII.
[5] On Amending the Law Of Ukraine “On State Registration of Ownership Rights
to Real Estate and Their Restrictions” and Other Legislative Acts of Ukraine : Law
of Ukraine dated 11.02.2010 No. 1878-VI. Vidomosti Verkovnoy Rady Ukrayiny.
2010. No. 18. Page 41.
[6] On Privatization of State and Municipal Property : Law of Ukraine dated
18.01.2018 No. 2269-VIII. Vidomosti Verkovnoy Rady Ukrayiny. 2018. No. 12.
Page 68.
[7] On Amending Certain Legislative Acts of Ukraine Concerning Strengthening of
Responsibility and Improvement of State Regulation in the Field of Urban Planning
: Law of Ukraine dated 22.12.2011 No. 4220-VI. Vidomosti Verkovnoy Rady
Ukrayiny. 2012. No. 29. Page 345.
[8] Refer to: On Amending Certain Legislative Acts of Ukraine Concerning
Simplification of the Rules on Acquisition of Land Title : Law of Ukraine dated
05.11.2009 No. 1702-VI. Vedomosti Verkovnoy Rady Ukrayiny. 2010. No. 5. Ст.
40; On privatization of state and municipal property : Law of Ukraine dated
18.01.2018 № 2269-VIII. Vidomosti Verkovnoy Rady Ukrayiny. 2018. No. 12. Page
68.
[9] On Special Aspects of Realization of Property Right in Collective Housing : Law
of Ukraine dated 14.05.2015 No. 417-VIII. Vidomosti Verkovnoy Rady Ukrayiny.
2015. No. 29. Page 262.
[10] On Amending The Law Of Ukraine “About State Registration of Property
Rights to Real Estate and Their Restrictions” and Other Legislative Acts of Ukraine
: Law of Ukraine dated 11.02.2010 No. 1878-VI. Vidomosti Verkovnoy Rady
Ukrayiny. 2010. No. 18. Page 141.
[11] Refer to: On Amending Certain Legislative Acts of Ukraine Concerning
Stimulation of Investment Activity in Ukraine : Law of Ukraine dated 20.09.2019
No. 132-IX. Vidomosti Verkovnoy Rady Ukrayiny. 2019. No. 46. Ст. 299; On
Amending Several Legislative Acts of Ukraine : Law of Ukraine dated 19.06.2003
No. 980-IV. Vidomosti Verkovnoy Rady Ukrayiny 2004. No. 2. Page 6.
[12] On Financial and Credit Mechanisms and Property Management in Housing
Construction and Real Estate Transactions : Law of Ukraine dated 19.06.2003 No.
978-IV. Vidomosti Verkovnoy Rady Ukrayiny. 2003. No. 52. Page 377.
[13] On Mortgage Lending, Operations With Consolidated Mortgage Debt and
Mortgage Certificates : Law of Ukraine dated 19.06.2003 No. 979-IV. Vidomosti
Verkovnoy Rady Ukrayiny. 2004. No. 1. Page 1. The law was repealed by the Law
of Ukraine dated 12.09.2019 No. 79-IX “On Amendments to Some Legislative Acts
of Ukraine to Improve the Functions of State Regulation of Financial Services
Markets” (Vidomosti Verkovnoy Rady Ukrayiny, 2019, No. 44. Page 277).
[14] On Amending Certain Legislative Acts of Ukraine Concerning Stimulation of
Investment Activity in Ukraine : Law of Ukraine dated 20.09.2019 No. 132-IX.
Vidomosti Verkovnoy Rady Ukrayiny. 2019. No. 46. Page 299.
[15] On Amending Certain Legislative Acts of Ukraine Concerning Improvement of
Legal Protection of Geographical Indications : Law of Ukraine dated 20.09.2019
No. 123-IX. Vidomosti Verkovnoy Rady Ukrayiny. 2019. No. 45. Page 290.
[16] On Amending Certain Legislative Acts of Ukraine Concerning Improvement of
Protection of the Rights to Arrangement of Semiconductor Products : Law of
Ukraine dated 19.09.2019 No. 111-IX. Vidomosti Verkovnoy Rady Ukrayiny. 2019.
No. 42. Page 236.
[17] On Amending Certain Legislative Acts of Ukraine Concerning the Reform of
Patent Legislation : Law of Ukraine dated 21.07.2020 No. 816-ІХ. Ofitsyinyi Visnyk
Ukrayiny. 2020. No. 67 (28.08.2020). Page 268. Article 2149.
[18] On Amending Certain Legislative Acts of Ukraine Concerning Strengthening
Safeguarding and Protection of Rights to Trademarks and Industrial Designs and
Combating Patent Abuse : Law of Ukraine dated 21.07.2020 No. 815-ІX. Ofitsyinyi
Visnyk Ukrayiny. 2020. No. 67 (28.08.2020). Page 248. Article 2148.
[19] On Amending Certain Legislative Acts of Ukraine Concerning Enforcement of
Right to Inheritance : Law of Ukraine dated 12.02.2015 No. 189-VIII. Vidomosti
Verkovnoy Rady Ukrayiny. 2015. No. 16. Page 112.
[20] On Amending Article 1241 of the Civil Code of Ukraine : Law of Ukraine dated
03.11.2004 No. 2146-IV. Vidomosti Verkovnoy Rady Ukrayiny. 2005. No. 2. Page
39.
[21] On Preventing the Impact of the Global Financial Crisis on the Development of
the Construction Industry and Housing Construction : Law of Ukraine dated
25.12.2008 No. 800-VI. Vidomosti Verkovnoy Rady Ukrayiny. 2009. No. 19. Page
257.
[22] On Amending Certain Legislative Acts of Ukraine In Connection With
Ratification of the Convention on the Establishment of a Scheme of Registration of
Wills : Law of Ukraine dated 21.09.2010 No. 2527-VI. Vidomosti Verkovnoy Rady
Ukrayiny. 2011. No. 5. Page 29.
[23] On Amending and Repealing Certain Legislative Acts of Ukraine Concerning
the Activities of the State Penitentiary Service of Ukraine : Law of Ukraine dated
14.04.2009 No. 1254-VI. Vidomosti Verkovnoy Rady Ukrayiny. 2009. No. 36-37.
Page 511.
[24] On Amending Certain Legislative Acts of Ukraine : Law of Ukraine dated
06.07.2010 р. No. 2435-VI. Vidomosti Verkovnoy Rady Ukrayiny. 2010. No. 46.
Page 539.
[25] On Amending Certain Legislative Acts of Ukraine Concerning the Use of the
Term “Person With Disability” and Its Derivatives : Law of Ukraine dated
02.10.2018 No. 2581-VIII. Vidomosti Verkovnoy Rady Ukrayiny. 2018. No. 46.
Page 371.
[26] On Amending Certain Legislative Acts of Ukraine in Connection With
Ratification of the Convention on the Establishment of a Scheme of Registration of
Wills : Law of Ukraine dated 21.09.2010 No. 2527-VI. Vidomosti Verkovnoy Rady
Ukrayiny. 2011. No. 5. Page 29.
[27] On Amending Certain Legislative Acts of Ukraine : Law of Ukraine dated
06.07.2010 No. 2435-VI. Vidomosti Verkovnoy Rady Ukrayiny. 2010. No. 46. Page
539.
[28] On Amending Certain Legislative Acts of Ukraine Concerning Certain
Inheritance Issues : Law of Ukraine dated 20.10.2014 No. 1709-VII. Vidomosti
Verkovnoy Rady Ukrayiny. 2015. № 1. Page 2.
[29] On Amending Certain Legislative Acts of Ukraine Concerning the Legal Fate
of Land Plots Belonging to Deceased Owners : Law of Ukraine dated 20.09.2016
No. 1533-VIII. Vidomosti Verkovnoy Rady Ukrayiny. 2016. No. 44. Page 747.
[30] On Amending Certain Legislative Acts of Ukraine Concerning the
Reintroducing of Crediting : Law of Ukraine dated 03.07.2018 No. 2478-VIII.
Vidomosti Verkovnoy Rady Ukrayiny. 2018. No. 46. Page 368.
 4. PRACTICE OF APPLICATION
OF PRIVATE LAW RULES BY COURTS

Law enforcement is an extremely important factor that serves as a criterion for the
effectiveness of legal norms. The Civil Code of Ukraine provides quite wide
opportunities for judicial discretion in the process of their application. This is
primarily due to the presence of a significant array of valuation concepts in the legal
array of the Civil Code, which makes it possible in the trial process to determine
their content taking into account the facts.

In addition, case law allows identifying gaps in individual articles, inaccuracies,

ambiguities in wording and so on. In view of this, the decisions of the Supreme Court
(Civil Court of Cassation and Commercial Court of Cassation of the Supreme Court,
the Grand Chamber of the Supreme Court), which contain legal positions on the
interpretation and application of the CC, as well as current decisions of the Plenum
of the Supreme Court, adopted before 2010 an important source to be used in the
recodification process.

A special place in this area is occupied by the decisions of the ECtHR, which by art.
17 of the Law of Ukraine "On the implementation of decisions and application of
the case-law of the European Court of Human Rights" are binding on the courts of
Ukraine, together with the ECHR, they constitute the jurisprudence of the ECtHR,
which in the part concerning the regulation of private relations must be taken into
account when updating the Civil Code of Ukraine.

For the First Book of the Civil Code of Ukraine, the position of courts on the
application of fundamental principles of civil law, general approaches to the exercise
of subjective civil rights and their protection, prevention of abuse of rights, etc. is
decisive.

First of all, national courts apply the principle of fairness, good faith and
reasonableness quite widely (Article 3 of the Civil Code of Ukraine).

In particular, substantiating the inadmissibility of increase (surcharge) of amounts

payable, the Supreme Court found it illegal and contrary to the general principles of
civil law, established by Art. 3 of the Civil Code of Ukraine - fairness, good faith
and reasonableness, given the established circumstances of the case and the conduct
of the parties [1].

In another case, the Supreme Court applied Art. 3 of the Civil Code of Ukraine even
more broadly and noted that non-performance or improper performance by the
debtor of its monetary obligation can not be left unanswered and apply a measure of
responsibility, as it would be contrary to the general principles of civil law, such as
fairness, good faith and reasonableness [2].
Noteworthy is the position set out in the resolution of the Supreme Court of May 15,
2019, which deals with the relationship between the categories of justice, good faith,
reasonableness, on the one hand, and the exercise of subjective civil rights and their
abuse - on the other.

The court act states that one of the fundamental principles of civil law is fairness,
good faith and reasonableness (paragraph 6 of Part 1 of Article 3 of the Civil Code
of Ukraine). That is, the actions of the parties to a civil relationship must meet a
certain standard of conduct, characterized by honesty, openness and respect for the
interests of the other party to the contract or the relevant legal relationship.

The principle of justice, good faith and reasonableness is a manifestation of the

categories of justice, good faith and reasonableness as the essence of law in general.
The principle of good faith is one of the means of deterring the parties from abusing
their rights. The main purpose of this principle is to give judges more opportunities
to find out the full facts of the case and, finally, to establish the objective truth. In
general, the essence of the principle of fairness, good faith and reasonableness is that
the texts of laws, transactions and their application by the subjects of civil law must
be appropriate, fair and comply with generally accepted rules of circulation and law.

According to Art. 13 of the Civil Code of Ukraine, defining the limits of the exercise
of civil rights, the law establishes that a person exercises his civil rights freely, at his
own discretion; in exercising his rights, a person is obliged to refrain from actions
that could violate the rights of others, harm the environment or cultural heritage;
actions of a person committed with intent to harm another person, as well as abuse
of rights in other forms are not allowed.

Civil law is based on the free exercise of civil rights, as well as the good faith of the
parties to civil relations in the exercise of civil rights and responsibilities. Thus, a
person cannot benefit from dishonest behavior [3].

The close connection between the principle of freedom of contract enshrined in Art.
3 and 627 of the Civil Code of Ukraine, and the presumption of dispositive civil law,
which as a general rule is enshrined in Part 3 of Art. 6 of the Central Committee of
Ukraine.

Thus, in the judicial practice of the Supreme Court, precisely because of this
connection, the ability of the parties to freely determine the terms of the contract and
deviate from the provisions of civil law is justified [4]. Of particular interest is the
fact that such a purely civilized approach is applied by the courts to the so-called
"economic contracts" [5].
In addition to the above, when updating the provisions of the Book of the First
Central Committee of Ukraine, it is advisable to use the practice of the ECtHR on
the application of the provisions of the ECHR.

Thus, according to the position of the ECtHR, in many cases the ECHR is a "living
instrument" and therefore must be perceived and interpreted in the context of
modern, dynamically changing conditions.

Analysis of case law, including the case law of the ECtHR [6], suggests that the
enshrinement in the First Book of the basic principles of civil law is extremely
popular today and allows effective use in practice of civil law principles as a
mechanism to ensure proper protection of civil rights. number in the absence of
relevant legal norms, or vice versa - in the presence of conflicting regulation of
disputed legal relations.

In the context of the application by the courts of the norms of the Second Book of
Civil Code of Ukraine, first of all it should be noted the significant influence of the
decisions of the Constitutional Court of Ukraine on the development of civil law
regulation of personal non-property relations.

Suffice it to mention the constitutional interpretation of the term "information about

the personal and family life of a person", which is any information and / or data on
non-property and property relations, circumstances, events, relationships, etc.,
related to the person and his family , except for the information provided by law,
concerning the exercise by a person holding a position related to the performance of
functions of the state or local self-government bodies, official or service powers.
Such personal information is confidential [7]. As well as the decisions of the
Constitutional Court of Ukraine on the recognition of certain provisions of para. 1
item 40 of Section VI "Final and Transitional Provisions" of the Budget Code of
Ukraine on the right of the Ministry of Finance of Ukraine to receive information
containing personal data [8].

An important step in the development of private law regulation of personal non-

property relations was the development of case law on the protection of personal
non-property rights. The vast majority of cases concern the protection of dignity,
honor and business reputation. Thus, back in 2009, the Plenum of the Supreme Court
of Ukraine adopted a Resolution "On judicial practice in cases of protection of the
dignity and honor of individuals, as well as the business reputation of individuals
and legal entities" [9]. This practice continues its development in the decisions of
the Supreme Court [10]. In practice, the Armed Forces have also received norms on
other personal non-property rights, in particular: the right to proper, safe and healthy
working conditions (cases on compensation for damage caused by working
conditions due to violation of such personal non-property rights as the right to life,
the right to health care [11]); the right to personal inviolability (a case of lawful
refusal to admit a child to kindergarten without the conclusion of a medical advisory
commission in the absence of vaccinations for a child [12]); the right to individuality
(case on the procedure for consideration of the application for establishing the fact
of birth and nationality [13]), etc.

Based on the analysis of the case law of the ECtHR, based on the doctrines of
positive responsibilities of the state and the horizontal effect of human rights, we
can identify the following aspects of personal non-property relations, which are
covered by the ECHR:

1. The right to life, which includes the following issues: the beginning of life [14];
euthanasia and assisted suicide [15]; protection of the life of certain categories of
persons from suicide [16];

2. The right to health, which includes the following issues: the patient's consent to a
medical examination and treatment [17]; provision of emergency medical care [18];
the refusal of treatment and involuntary treatment [19] (including persons suffering
from mental illness [20]);

3. Reproductive rights, which includes the following issues: prenatal diagnosis [21];
artificial abortion [22]; the right to give birth at home [23]; artificial insemination
[24]; the rights of a child born as a result of the use of assisted reproductive
technologies [25]; application of sterilization methods [26];

4. The right to eliminate the danger to life and health, which includes the following
issues: protection from the danger caused by environmental or man-made disasters
[27]; accident protection [28];

5. The right to a safe environment for life and health, which includes the following
issues: emissions of harmful substances from industrial facilities [29]; the right to
information on environmental risks or accidents [30]; noise pollution [31];

6. The right to liberty and security of person, which includes the following issues:
loss of liberty due to the fault of individuals [32]; prohibition of corporal punishment
of children [33]; legal recognition of gender identity [34];

7. The right to a name, which includes the following issues: registration and change
of name or its components [35]; determination of a person's surname after marriage
[36];

8. Respect for the deceased, covering the following issues: time and place of burial
[37]; removal of the organs of the deceased [38];

9. The right to the inviolability of business reputation, covering the following issues:
protection of the reputation of public figures [39]; the balance between the right to
reputation and the right to freedom of speech [40]; protection of property aspects of
business reputation - goodwill [41];

10. The right to individuality, covering the following issues: the right to establish
one's origin [42]; religious identity [43]; manifestation of individuality through
appearance [44]; national identity [45];

11. The right to privacy and its secrecy, covering the following issues: protection of
personal data [46]; selection and storage of cellular material, as well as the definition
and preservation of DNA profiles [47]; access to personal information [48]; secrecy
of health information [49];

12. The right to family life and its secrecy, covering the following issues: actual
living with one family [50]; same-sex couples [51]; mutual communication between
mother or father and child [52]; adoption [53]; foster families [54]; family life
between siblings, grandparents and grandchildren [55];

13. The right to information, covering the following issues: freedom to receive and
transmit information [56]; freedom of the media [57]; freedom of artistic creativity
[58]; freedom of scientific activity [59]; access to the Internet [60]; access to public
information [61];

14. The right to secrecy of correspondence, covering the following issues: letters of
private and professional nature [62]; postal parcels [63]; telephone conversations
[64]; electronic messages (e-mail) [65]; use of the Internet [66]; data stored on
computer servers [67], including hard drives [68] and floppy disks [69]; telexy [70];
pager messages [71]; private radio broadcasting [72].

15. The right to an image, covering the following issues: the right of a person to
control the use of his image [73]; video surveillance in public places [74];

16. The right to inviolability of the home, covering the following issues: ignition or
damage to property [75]; eviction [76]; changes in the terms of the lease agreement
[77]; the inability of those displaced by a military conflict to return to their homes;

17. The right to freedom of association and peaceful assembly, covering the
following issues: freedom of peaceful assembly [79]; freedom of association [80].

It should also be noted the importance of the decisions of the CCU for the regulation
of property rights and in general the provisions of the Third Book of the Civil Code
of Ukraine.

Based on the provisions of the Constitution of Ukraine, the CCU formulated several
legal positions on the property law, in particular on the legal regime of ownership,
comparison of the Constitution and sectoral laws on property rights, the content of
property rights, constitutional and legal limits of property rights, mortgages as a
specific type of real estate, the preemptive right of the lessee to acquire state,
including military property [81].

The practice of courts of general jurisdiction is important in the development of

property rights. The vast majority of cases concern the protection of property rights.

Thus, the Plenums of the Supreme Court of Ukraine and the Supreme Court of
Ukraine adopted resolutions “On Judicial Practice in Cases Concerning Claims for
Protection of Private Property Rights” of December 22, 1995, № 20 [82], “On
Judicial Practice in Cases for Protection of Property Rights and Other Real Rights”
of February 7, 2014, № 5 [83] and “On the practice of application of legislation by
courts in resolving disputes arising from credit relations” of March 30, 2012, № 5
[84]. The letter of the Supreme Court of Ukraine dated February 1, 2015 "Analysis
of judicial practice of application by courts of the legislation regulating the mortgage
as a pledge of real estate" is devoted to the issue of mortgage case law [85].

This practice continues its development in the decisions of the Supreme Court [86],
in the practice of which the norms were applied to all RPs, in particular: property
rights [87], trust property [88], property rights to other people's property [89], right
of expectation [90 ], mortgage and pledge [91], preemptive right to purchase real
estate [92], retention of property [93].

Based on the analysis of the case-law of the ECtHR, based on the doctrines of
positive obligations of the state and property rights as a determining convention of
human rights, the following aspects of property rights, which are covered by the
ECHR:

1. The right to protection of property, covering the following issues: establishing a

meaningful purpose and legality of interference with property rights [94],
proportionality (balance) of interference with property rights [95], property and
legitimate expectations [96], expropriation and nationalization [97 ];

2. The right to limited property rights, covering the following issues: easement [98],
mortgage [99].

Analysis of the case-law of the application of the provisions of the Fourth Book
"Intellectual Property Law" and special laws in the field of intellectual property
revealed several significant problems:

(1) on conflicts between the provisions of special laws and the Central Committee
in connection with the failure to bring special legislation in line with the Central
Committee of Ukraine in 2003-2018;
(2) on the issuance of security documents without conducting a qualification
examination of utility models and industrial designs. The shortcomings of the
legislation have led to the development of patent trolling, the use of this to stop goods
at the customs border with the requirements of payment of remuneration; as well as
to circumvent inventions through the patenting of utility models;

(3) on the activities of collective management organizations;

(4) it is difficult to protect the rights to the name of a legal entity with the full
compliance of the legislation with the modern practice of European countries; needs
to improve the comparison of institutions for the protection of the rights to the name
and the commercial (brand) name and several other problems of law enforcement
practice.

[1] Resolution of the Supreme Court in the composition of the panel of judges of the
Chamber for consideration of cases concerning land relations and property rights of
the Commercial Court of Cassation of March 26, 2018, in case № 904/11673/16.
Unified state register of court decisions. URL:
https://reyestr.court.gov.ua/Review/72972335.

[2] Resolution of the Supreme Court in the composition of the panel of judges of the
Commercial Court of Cassation dated 06.11.2018 in case № 910/9947/15. Unified
state register of court decisions. URL:
https://reyestr.court.gov.ua/Review/77916284.

[3] Resolution of the Supreme Court in the composition of the panel of judges of the
Commercial Court of Cassation dated 15.05.2019 in case № 917/803/18. Unified
state register of court decisions. URL:
https://reyestr.court.gov.ua/Review/81844300.

[4] Separate opinion of the judge of the Grand Chamber of the Supreme Court OM
Sytnik dated 15.01.2020 in the case № 322/1178/17. Unified state register of court
decisions. URL: https://reyestr.court.gov.ua/Review/87888402; Resolution of the
Supreme Court in the composition of the panel of judges of the Commercial Court
of Cassation dated 05.03.2019 in case № 904/547/18. Unified state register of court
decisions. URL: https://reyestr.court.gov.ua/Review/80308639.

[5] Resolution of the Supreme Court in the composition of the panel of judges of the
Commercial Court of Cassation dated 13.06.2019 in case № 922/2529/18. Unified
state register of court decisions. URL:
https://reyestr.court.gov.ua/Review/82426040.
[6] In this context, attention should be paid to the cases: Vo v. France, 08.07.2004
and Evans v. The United Kingdom, 10.04.2007 in resolving the issue of the
emergence of the right to life, the legal fact of the birth of a person, an individual as
a subject of civil rights, etc .; conclusions drawn by the ECtHR in Ünal Tekeli v.
Turkey, 16.11.2004, Garnaga v. Ukraine, 16.05.2013, Losonsci Rose et Rose c.
Suisse, 09.11.2010, can be used to form a position on the individualization of the
individual; the notion of information as an object of civil rights became the subject
of consideration of the ECtHR in cases Z v. Finland, 25.02.1997, Leander v. Sweden,
March 26, 1987, Gaskin v. Sweden, no. The United Kingdom, 07.07.1989, Rotaru
v. Romania, 04.05.2000, Odievre v. Romania France, February 13, 2003

[7] The decision of the Constitutional Court of Ukraine of 20.01.2012 № 2-d / 2012
in the case of the constitutional petition of Zhashkiv District Council of Cherkasy
region on the official interpretation of the provisions of parts one, two of Article 32,
parts two and three of Article 34 of the Constitution of Ukraine. Official Journal of
Ukraine. 2012. № 9 (10.02.2012). P. 106. Art. 332.

[8] Judgment of the Constitutional Court of Ukraine of 11.10.2018 № 7-r / 2018 in

the case of the constitutional petition of the Commissioner of the Verkhovna Rada
of Ukraine for Human Rights on the constitutionality of certain provisions of the
first paragraph of paragraph 40 of Section VI "Final and transitional provisions "of
the Budget Code of Ukraine. Official Journal of Ukraine. 2018. № 90 (23.11.2018).
P. 100. St. 2992

[9] On judicial practice in cases of protection of dignity and honour of a natural

person, as well as the business reputation of a natural and legal person: Resolution
of the Plenum of the Supreme Court of Ukraine of 27.02.2009 № 1. The Verkhovna
Rada of Ukraine. Legislation of Ukraine. URL:
https://zakon.rada.gov.ua/laws/show/v_001700-09.

[10] See: Review of the practice of the Civil Court of Cassation in the Supreme
Court in cases of protection of dignity, honour and business reputation / Edited by:
DD Luspenyk. Kyiv, 2019. Issue. 52.

[11] Resolution of the Supreme Court of March 7, 2018, in case № 161/19127/15-

ts. Unified state register of court decisions. URL:
http://www.reyestr.court.gov.ua/Review/73029805.

[12] Resolution of the Supreme Court of April 17, 2019, in case № 682/1692/17.
Unified state register of court decisions. URL:
https://www.reyestr.court.gov.ua/Review/81652333.

[13] Resolution of the Supreme Court of February 1, 2018, in case № 760/19921/16-

ts. Unified state register of court decisions. URL:
https://www.reyestr.court.gov.ua/Review/71952400.
[14] See, e.g.: Vo v. France, 08.07.2004; Evans v. The United Kingdom, 10.04.2007.
[15] See, e.g.: Pretty v. The United Kingdom, 29.04.2002; Haas v. Switzerland,
20.01.2011; Lambert and others v. France, 05.06.2015.
[16] See, e.g.: Renolde v. France, 16.10.2008; Keenan v. The United Kingdom,
03.04.2001; Mosendz v. Ukraine, 17.01.2013; Younger v. The United Kingdom,
07.01.2003; Fernandes De Oliveira v. Portugal, 31.01.2019.
[17] See, e.g.: Hoffmann v. Austria, 23.06.1993.
[18] See, e.g.: Nitecki v. Poland, 21.03.2002; Oyal v. Turkey, 23.03.2010.
[19] See, e.g.: Glass v. The United Kingdom, 09.03.2004.
[20] See, e.g.: Bensaid v. The United Kingdom, 06.02.2001; X v. Finland,
03.07.2012.
[21] See, e.g.: Draon v. France, 06.10.2005.
[22] See, e.g.: Tysiąc v. Poland, 20.03.2007; A, B AND C v. Ireland, 16.12.2010.
[23] See, e.g.: Ternovszky v. Hungary, 14.12.2010.
[24] See, e.g.: Evans v. The United Kingdom, 10.04.2007; S.H. and others v. Austria,
03.11.2011.
[25] See, e.g.: Mennesson c. France, 26.06.2014; Labassee c. France, 26.06.2014.
[26] See, e.g.: K.H. and others v. Slovakia, 28.04.2009.
[27] See, e.g.: Öneryildiz v. Turkey, 30.11.2004; Budayeva and others v. Russia,
20.03.2008; Kolyadenko and others v. Russia, 28.02.2012, Brincat and others v.
Malta, 24.07.2014.
[28] See, e.g.: Kalender c. Turquie, 15.12.2009; Banel v. Lithuania, 18.06.2013;
Cevrioğlu v. Turkey, 04.10.2016; Binnur Uzun et autres c. Turquie, 19.09.2017.
[29] See, e.g.: Giacomelli v. Italy, 02.11.2006.
[30] See, e.g.:: Tătar c. Roumanie, 27.01.2009.
[31] See, e.g.: Moreno Gómez v. Spain, 16.11.2004.
[32] See, e.g.: Riera Blume and others v. Spain, 14.10.1999.
[33] See, e.g.: Wetjen and others v. Germany, 22.03.2018.
[34] See, e.g.: Hämäläinen v. Finland, 16.07.2014.
[35] See, e.g.: Garnaga v. Ukraine, 16.05.2013.
[36] See, e.g.: Ünal Tekeli v. Turkey, 16.11.2004; Losonci Rose et Rose c. Suisse,
09.11.2010.
[37] See, e.g.: Hadri-Vionnet v. Switzerland, 14.02.2008.
[38] See, e.g.: Petrova v. Latvia, 24.06.2014.
[39] See, e.g.: Egill Einarsson v. Iceland, 07.11.2017.
[40] See, e.g.: Tamiz v. The United Kingdom, 19.09.2017.
[41] See, e.g.: Van Marle and Others v. The Netherlands, 26.06.1986.
[42] See, e.g.: Odievre v. France, 13.02.2003.
[43] See, e.g.: Folgerø and others v. Norway, 29.06.2007.
[44] See, e.g.: Biržietis v. Lithuania, 14.06.2016.
[45] See, e.g.: Ciubotaru v. Moldova, 27.04.2010.
[46] See, e.g.: Rotaru v. Romania, 04.05.2000.
[47] See, e.g.: S. and Marper v. The United Kingdom, 04.12.2008.
[48] See, e.g.: Odievre v. France, 13.02.2003.
[49] See, e.g.: Z v. Finland, 25.02.1997.
[50] See, e.g.: Johnston and others v. Ireland, 18.12.1986.
[51] See, e.g.: Vallianatos and others v. Greece, 07.11.2013.
[52] See, e.g.: Monory v. Romania and Hungary, 05.04.2005.
[53] See, e.g.: Pini and others v. Romania, 22.06.2004.
[54] See, e.g.: Moretti et Benedetti c. Italie, 27.04.2010.
[55] See, e.g.: Moustaquim v. Belgium, 18.02.1991; Marckx v. Belgium, 13.06.1979.
[56] See, e.g.: Ahmet Yildirim v. Turkey, 18.12.2012.
[57] See, e.g.: Lingens v. Austria, 08.07.1986; Times Newspapers Limited v. the
United Kingdom, 10.03.2009.
[58] See, e.g.: Müller and others v. Switzerland, 24.05.1988.
[59] See, e.g.: Sorguc v. Turkey, 23.06.2009.
[60] See, e.g.: Ahmet Yildirim v. Turkey, 18.12.2012.
[61] See, e.g.: Leander v. Sweden, 26.03.1987; Gaskin v. The United Kingdom,
07.07.1989.
[62] See, e.g.: Niemietz v. Germany, 16.12.1992.
[63] See, e.g.: X. v. the United Kingdom, 12.10.1978.
[64] See, e.g.: Margareta and Roger Andersson v. Sweden, 25.02.1992.
[65] See, e.g.: Bărbulescu v. Romania, 05.09.2017.
[66] See, e.g.: Copland v. The United Kingdom, 03.04.2007.
[67] See, e.g.: Wieser and Bicos Beteiligungen GMBH v. Austria, 16.10.2007.
[68] See, e.g.: Petri Sallinen and others v. Finland, 27.09.2005.
[69] See, e.g.: Iliya Stefanov v. Bulgaria, 22.05.2008.
[70] See, e.g.: Christie v. The United Kingdom, 27.06.1994.
[71] See, e.g.: Taylor-Sabori v. The United Kingdom, 22.10.2002.
[72] See, e.g.: X. and Y. v. Belgium, 13.05.1982.
[73] See, e.g.: Reklos and Davourlis v. Greece, 15.01.2009.
[74] See, e.g.: Peck v. The United Kingdom, 28.01.2003.
[75] See, e.g.: Khamidov v. Russia, 15.11.2007.
[76] See, e.g.: Orlic v. Croatia, 21.06.2011.
[77] See, e.g.: Berger-Krall and others v. Slovenia, 12.06.2014.
[78] See, e.g.: Sargsyan c. Azerbaïdjan, 16.06.2015.
[79] See, e.g.: Djavit An v. Turkey, 20.02.2003.
[80] See, e.g.: Gorzelik and Others v. Poland, 17.02.2004.
[81] See: Decision of the Constitutional Court of Ukraine in the case of the
constitutional appeal of citizen Hulyak Volodymyr Oleksandrovych regarding the
official interpretation of the provisions of paragraph 2 of Article 10 of the Law of
Ukraine “On Privatization of State Housing” of 09.11.2011 № 14-d / 2011, in case
on the constitutional petition of the President of Ukraine on compliance with the
Constitution of Ukraine (constitutionality) of the Resolution of the Cabinet of
Ministers of Ukraine "On approval of the Procedure for holding land auctions in
2008" (case on land auctions) dated 11.11.2008 № 25-d / 2008, in the case of
constitutional petition of 48 people's deputies of Ukraine on compliance of the
Constitution of Ukraine (constitutionality) with the provisions of Articles 1, 2, 4, 6
of the Law of Ukraine "On Transfer of Fine Art Collection of Joint-Stock Company
Gradobank to State Ownership", Resolution of the Verkhovna Rada of Ukraine "On
Recognition of Fine Art Collection" national heritage of Ukraine "dated 16.10.2008
№ 24-d / 2008, in the case under the constitution 51 of the People's Deputy of
Ukraine on the compliance of the Constitution of Ukraine (constitutionality) with
the provisions of Article 92, paragraph 6 of Section X “Transitional Provisions” of
the Land Code of Ukraine (case on permanent land use) dated 22.09.2005 № 5-d /
2005, in case on the constitutional appeal of Obolon Closed Joint-Stock Company
and citizen Vynnyk Viktor Volodymyrovych on official interpretation of the
provisions of part two of Article 8 of the Law of Ukraine “On Business
Associations”, item 1, paragraph 1, item 5 of Article 4 of the Law of Ukraine “On
Property” shareholders of CJSC) dated 11.05.2005
№ 4-d / 2005, in the case of the constitutional appeal of the Central Union of
Consumer Societies of Ukraine on the official interpretation of the provisions of
paragraph 1 of Article 9, paragraph 1 of Article 10 of the Law of Ukraine "On
Consumer Cooperation", part four of Article 37 of the Law of Ukraine "On
Cooperation" on the protection of property rights of consumer cooperatives) dated
11.11.2004 № 16-d / 2004, Decision of the Constitutional Court of Ukraine in the
case on the constitutional petition of 47 deputies of Ukraine on compliance with the
Constitution of Ukraine (constitutionality) of the Law of Ukraine “On moratorium
on enforcement property "(case on the moratorium on the forced sale of property)
dated 10.06.2003 № 11-d / 2003, in the case of the constitutional petition of the
Commissioner of the Verkhovna Rada of Ukraine for Human Rights on the
constitutionality of Articles 7, 8 of the Law of Ukraine "On state guarantees for the
restoration of savings of citizens of Ukraine", according to the constitutional appeal
of Vorobyov V. Yu., Loseva SV and others of their citizens on the official
interpretation of the provisions of Articles 22, 41, 64 of the Constitution of Ukraine
(case on savings of citizens) dated 10.10.2001 № 13-d / 2001, in the case of the
constitutional petition of the President of Ukraine on the constitutionality of the
provisions of part four Article 3, part two of Article 5, parts two and seven of Article
7 and part five of Article 29 of the Law of Ukraine "On Privatization of State
Property" (as amended by the Law of Ukraine "On Amendments to the Law of
Ukraine" On Privatization of State Enterprises "of 19 February 1997) (case on
privatization of state property) dated 01.07.1998 № 9-d / 1998, in the case on the
constitutional appeal of the private enterprise “ICIO” regarding the official
interpretation of the provisions of part one of Article 61 of the Family Code of
Ukraine dated 19.09.2012 . ex of Ukraine (case on the right to a mandatory share in
the inheritance of adult disabled children of the testator) from 11.02.2014 № 1-d /
2014.
[82] On Judicial Practice in Cases on Claims for Protection of Private Property
Rights: Resolution of the Plenum of the Supreme Court of Ukraine of December 22,
1995, 5 20. The Verkhovna Rada of Ukraine. Legislation of Ukraine. URL:
https://zakon.rada.gov.ua/laws/show/v0020700-95.
[83] On judicial practice in cases of protection of property rights and other property
rights: Resolution of the Plenum of the Supreme Specialized Court of Ukraine for
Civil and Criminal Cases of 07.02.2014 № 5. The Verkhovna Rada of Ukraine.
Legislation of Ukraine. URL: https://zakon.rada.gov.ua/laws/show/v0005740-14.
[84] On the practice of application of legislation by courts in resolving disputes
arising from credit relations: Resolution of the Plenum of the Supreme Specialized
Court of Ukraine for Civil and Criminal Cases of 30.03.2012 № 5. The Verkhovna
Rada of Ukraine. Legislation of Ukraine. URL:
https://zakon.rada.gov.ua/laws/show/v0005740-12.
[85] Analysis of judicial practice of application by courts of the legislation regulating
the mortgage as a pledge of real estate: Letter of the Supreme Court of Ukraine dated
01.02.2015. LEAGUE: LAW. URL: https://ips.ligazakon.net/document/vss00088.
[86] See: Review of the Practice of the Civil Court of Cassation in the Supreme
Court on Cases in Disputes Arising from Inheritance Relations. Supreme Court.
URL: https://supreme.court.gov.ua/userfiles/media/ogljad_KCS.pdf; Digest of the
case law of the Grand Chamber of the Supreme Court for the first half of 2020.
Supreme Court. URL:
https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/Daj
dzhest_VP_01_01_30_06_2020.pdf; Review of the case-law of the Civil Court of
Cassation of the Supreme Court Decisions submitted to the USSR in February 2020.
Supreme Court. URL:
https://supreme.court.gov.ua/userfiles/media/Oglyad_KCS_02_2020.pdf.
[87] Review of judicial practice of consideration by the Commercial Court of
Cassation within the Supreme Court of cases in disputes concerning the right of
ownership For the period from 01.01.2018 to 01.11.2018. Supreme Court. URL:
https://supreme.court.gov.ua/userfiles/media/Oglyd_vlasn.pdf.
[88] See: the decision of the Grand Chamber of the Supreme Court of 05.06.2019
№ 755/12638/15-ts, the decision of the Supreme Economic Court of Ukraine of
05.04.2017 in the case 42 / 339-10.
[89] Review of the practice of the Supreme Court in cases concerning the right to
use someone else's land: easement, emphyteusis, superficies. Supreme Court. URL:
https://supreme.court.gov.ua/userfiles/media/Oglyad_zemlya.pdf.
[90] See: Resolutions of the Supreme Court of Ukraine dated 18.02.2015 in the case
№ 6-244cc14, dated 24.06.2015 in the case № 6-318сс15, dated 02.12.2015 in the
case № 6-1502cc15, from 02.12.2015 in the case № 6-1732cc15, from 18.11.2015
in the case № 6-1858cc15, from 04.11.2015 in the case № 6-1920cc15, from
10.02.2016 in the case № 6-2250cc15 , dated 25.05.2016 in the case № 6-503cc16,
dated 30.03.2016 in the case № 6-3129cc15, dated 30.03.2016 in the case № 6-
265cc16, dated 23.03.2016 in the case № 6 -289cc16, dated 16.03.2016 in the case
№ 6-290cc16, dated 20.04.2016 in the case № 6-2994cc15.
[91] See: Resolution of the Grand Chamber of the Supreme Court of 18 September
2018 in case № 921/107/15-g / 16; Resolution of the Supreme Court of April 11,
2018, in case № 761/17280/16-ts; Resolution of the Supreme Court of November
14, 2018, in case № 910 / 2535/18.
[92] See: Resolutions of the Supreme Court of Ukraine dated 30.03.2016 in case №
6-107cc16, dated 10.10.2012 in case № 6-106cc12.
[93] See: Resolutions of the Supreme Commercial Court of Ukraine dated
06.10.2015 in case № 918/150/15, dated 10.01.2011 in case № 19/46 and dated
19.01.2011 in case № 3 / 115-09; the decision of the Commercial Court of the Volyn
region from 13.10.2011 in the case № 5004/1503/11, the decision of the
Dnipropetrovsk Commercial Court of Appeal from 10.05.2018 in the case №
904/7589/17.
[94] See, e.g.: Marckx v. Belgium, no. 6833/74, 13.06.1979; Zwierzyński v. Poland,
no. 34049/96, 19.06.2001.
[95] See, e.g.: Sporrong and Lönnroth v. Sweden, no. 7151/75; 7152/75, 23.09.1982;
Khristov v. Ukraine, no. 24465/04, 19 February 2009; Novoseletskiy v. Ukraine, no.
47148/99, 22 February 2005; Fedorenko v. Ukraine, no. 25921/02, 01.06.2006;
Kryvenkyy v. Ukraine, no. 43768/07, 16/02/2017; Rysovskyy v. Ukraine, no.
29979/04, 20/10/2011
[96] See, e.g.:, Broniowski v. Poland, no. 31443/96, 28 September 2005; Burdov v.
Russia, no. 59498/00, 7 May 2002; Jasiūnienė v. Lithuania, no. 41510/98, March 6,
2003; Voytenko v. Ukraine, no. 18966/02, 29.06.2004; Kopecký v. Slovakia, no.
44912/98, 28.09.2004.
[97] See, e.g.: Sporrong and Lönnroth v. Sweden, no. 7151/75; 7152/75, 23.09.1982;
Hentrich v. France, no. 13616/88, 22 September 1994; Brumărescu v. Romania, no.
28342/95, 28.10.1999; Dacia S.R.L. v. Moldova, no. 3052/04, 24.02.2009; James
and others v. The United Kingdom, no. 8793/79, 21.02.1986; Vasilescu v. Romania,
no 53/1997/837/1043, 22.05.1998; Beyeler v. Italy, no. 33202/96, 05.01.2000.
[98] See, e.g.: Ponomarenko v. Ukraine, no. 13156/02, 14.06.2007.
[99] See, e.g.: OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04,
20/09/2011; Stubbings and others v. The United Kingdom, no. 22083/93, 22095/93,
22.10.1996.
The analysis of the practice of national courts on the application of the rules of Book
Five "Obligatory Law" deserves particular attention.

It should be noted that court decisions (including those made by the superior courts)
are not always consistent, reasonable; there are divergences in the interpretation of
the same legal provisions, their uneven application in similar factual situations.

This, among others, is the evidence of the shortcomings of certain provisions of

contract law.

The existing problems in the application of such provisions in court decisions are
the basis for their deep understanding in order to ensure the maximum legal
certainty, clarity of wording, logical sequence of the legal array in updating the Book
of the Fifth Civil Code of Ukraine.

Based on the analysis of the practice of national courts, the issues of legal regulation
need to be thoroughly studied and corrected:

(1) replacement of the parties to the obligation (Articles 512-523 of the Civil Code
of Ukraine);
(2) fulfillment of obligations (Articles 526-545 of the Civil Code of Ukraine);
(3) securing the obligation, in particular: penalties (Article 549 of the Civil Code of
Ukraine); guarantees (Articles 554, 559 of the Civil Code of Ukraine); guarantees
(Articles 561, 564 of the Civil Code of Ukraine); detention (Articles 594, 595 of the
Civil Code of Ukraine).

(4) the legal consequences of breach of obligations (Articles 610-624 of the Civil
Code of Ukraine);
(5) monetary liabilities (Article 625 of the Civil Code of Ukraine).

The conclusion on the necessity to address the complexities is confirmed by the

existence of numerous court decisions (almost all instances, including the trial
chambers of Supreme Court), adopted in violation of legal provisions, also caused
by their defects.

The main problem of national courts related to the resolving of non-contractual

disputes is the lack of clear regulation of non-contractual obligations. Thus, the lack
of legal guidelines in determining the causality, the guilt of the offender, the lack of
an effective methodology for the amount of non-pecuniary damage calculation, the
lack of a clear answer to the relationship between contractual and non-contractual
(including tort) law and a number of other issues do not contribute to shaping a body
of jurisprudence. It is necessary to dwell on a significant number of blanket
provisions, which are not specified in special legislation. This is about the provisions
of Art. 1177 of the Civil Code of Ukraine, which is practically a dead norm, as the
law on the procedure for compensation for damage caused by a criminal offense is
absent.

The courts', state bodies' and institutions', local governments', notaries', and lawyers'
application practice for the provisions of Book Six of the Civil Code, has revealed
certain shortcomings in the regulation of certain types of inheritance relations, some
legal concepts and constructions.

At the time of updating the legal framework for inheritance relations, it is necessary
to take into account the experience of the Supreme Court in matters of inheritance,
regarding the term of the creditor's claim and the statute of limitations[1],
cancellation or invalidation of the will[2], drawing up a new will implies the
expiration of the previous will in whole or in part[3]; lifelong inheritable
possession[4]; inheritance of the land use rights[5]; circumstances to be established
for resolving disputes over the debts recovery at the creditor’s request to the heirs
of the debtor [6], etc.

The hereditary legislation’s application practice analysis highlights the need for its
modernization. Despite the conceptually new approach laid down in the Civil Code
of Ukraine, which declares broad legal freedom in the field of inheritance law, the
challenge is that the current legal model faces significant obstacles in terms of its
adaptation to the modern judicial and notarial practice for the inheritance law's
application. In this regard should be noted substantial violations of the principle of
freedom of will from the courts' side related to the widespread practice of
invalidating wills, which are certified by notaries outside their notarial district,
which in no way affects the formation of will and expression of the transaction's
side's will and also is no a violation of its form.

Furthermore, interpreting the will, in some cases, courts actually change the will of
the owner, thus substituting the will itself. It is also worth emphasizing the
ambiguous understanding by the courts of the testamentary condition and the
unjustified identification of such an order with a testamentary disclaimer when in
fact is ignored the imperative rule regarding the existence of the will's condition at
the time of opening the inheritance.

The difficulty in understanding certain categories of inheritance law leads to a

critical situation when notaries refuse to perform notarial acts, which, although
defined by law, are atypical (for example, attestation of a will with the obligation,
assigned to heirs, on the certain actions of a non-material nature or a conditional
will).

Some problems of legal regulation of hereditary relations were considered by the

Constitutional Court of Ukraine. It is worth mentioning the official interpretation of
the provisions of Part 1 of Art. 1241 of the Civil Code of Ukraine on the right of
adult disabled children of the testator to a mandatory share in the inheritance [7].

The problems of judicial practice in the field of private international law should
have been adequately reflected in a number of explanations and letters from higher
courts [8]. However, these documents at times are no more than repetition or not be
the best translation of the rules involved in the regulation of relations with a foreign
element of the legal acts. And in the descriptions of the cases listed there,
unfortunately, there is no analysis of law of conflicts to identify controversial
approaches to the interpretation of its rules, to identify gaps in regulation, legal
analogy, unequal application of certain rules of the private international law, and so
on.

Most of the texts of the above-mentioned documents remind judges, apart from
conflicting ones, of some procedural issues in cases with a foreign element. Special
civil "directives" [9] are also devoted to the international civil process, which is a
kind of clue to judges for the judgments in the very few cases, compared to their
total number. Their impact on improving judicial practice remains extremely low.
For example, they have not been able to overcome the domestic judicial
system’s "disease" , which is the unjustified application of public order to resolve
the issue of enforcement of foreign arbitral awards in Ukraine.
If we search in explanations, letters, generalizations, decisions of higher courts or in
individual court decisions for a real demand of life to improve the legislation on
private international law, the role of judicial practice in this issue is even smaller.
There are even cases when courts fill such legislation with regressive interpretations.
In this regard the section 9 of the Resolution of the Plenum of the Supreme Court of
Ukraine "On the practice of corporate disputes" of October 24, 2008. № 13 is
illustrative. According to this document, the higher court stated that relations
between Ukrainian and foreign shareholders of a company established in Ukraine
cannot be subordinated to international law, and the agreement on the choice of law
(if concluded) is void. Moreover, according to the Plenum opinion, the members of
the joint-stock company are deprived of the opportunity to submit corporate disputes
to international commercial arbitration courts, etc. In contrast to the similar
recommendations of the Supreme Economic Court of Ukraine "On the practice of
application of the law in the consideration of cases arising from corporate relations"
of December 28, 2007, section 9 or the entire resolution № 13 has not yet been
repealed.

In the context of the impact of the case law of the European Court of Human Rights
on the field of private international law, it should be noted that since the European
Court of Human Rights has started activities its addresses many cases, that
demonstrate the significant influence of the rights, enshrined in the European
Convention on Human Rights, on the private international law. According to
researchers, since the 1960s the number of such cases is approaching two hundred
[10], and most of them fall on the XXI Century. Mainly the provisions of the
European Convention on Human Rights affect the three areas of private international
law (jurisdiction, recognition, and enforcement of foreign judgments, conflict of
laws).

The human rights institution intervenes mainly through a country's control over its
internal provisions of the private international law. Such rules are reviewed and
evaluated for compliance with human rights in each European Convention on
Human Rights member state.

Thus, the adjustment of norms in the field of recognition and enforcement of foreign
judgments can be illustrated by the case of Wagner and J.W.M.L. v. Luxembourg,
no. 76240/01, ECHR 2007-VII. In this case, the European Court of Human Rights
ruled that the Luxembourg court's refusal to recognize an adoption judgment in Peru
violated the right to respect for family life (Article 8 of the European Convention on
Human Rights). The reason for the European Court of Human Rights case was that
a foreign judgment is not recognized in Luxembourg if this violates the national
conflict-of-law rules are violated. And the conflict rule for such a case established
that the conditions of adoption are determined by the lex patriae of the mother, who
in this case was a citizen of Luxembourg. The personal law of the mother (the law
of Luxembourg) did not allow full adoption of single people. On this basis, the
mother was denied recognition of the Peruvian decision. However, the European
Court of Human Rights did not agree with this, believing that a de facto family had
been established in Peru, and therefore the refusal to recognize the Peruvian decision
violates Art. 8 European Convention on Human Rights. Mary Green and Ajad
Farhat v. Malta (dec.), no. 38797/07, 6 July 2010; McDonald v. France (dec.), no.
18648/04, 29 April 2008; Négrépontis-Giannisis v. Greece, no. 56759/08, 3 May
2011 and others also, point to the need to adjust the domestic rules of the private
international law of the forum country when it comes to recognizing the status
acquired abroad and protected by the European Convention on Human Rights.

With regard to the effect of human rights on conflict of law, as an example, is the
revision of a number of "family" conflict rules in the 1980s in Germany, Italy, and
other countries. In those days, the courts or legislators of these countries rejected the
bindings to the national law of men in family relations, as reflecting a patriarchal
view of marriage and not meeting new values (non-discrimination, equality between
men and women).

Recently the French conflict-of-law rule had been thoroughly examined by

the European Court of Human Rights for compliance with the general principle of
equality and the right to family life in the case: Harroudj v. France, no. 43631/09, 4
October 2012. This case highlighted the need to evaluate each rule of the private
international law through the prism of the European Convention on Human Rights.
And this is its great significance.

If the constitutional or international control over the national provisions of the

private international law compliance with human rights is a relatively new
phenomenon, the assessment of foreign law and foreign court decision through the
category of public order relating to human rights is a classic and "old" instrument of
the private international law. Even in cases of "slavery", considered in the XVIII
century in England and France, the content of the public order applied in those cases
included, of course, the human rights aspect.

Today, the category of public order for European Convention on Human Rights
member states has acquired new facets. It is now becoming the responsibility of
states not to apply foreign law or not to recognize a foreign court decision that is
contrary to human rights. Moreover, the level of non-compliance is set directly in
the European Convention on Human Rights. In the case of Pellegrini v Italy App,
no. 30882/96, ECtHR 20 July 2000 The court ruled that a member state to the
European Convention on Human Rights violates the guarantee of fair justice (art. 6)
if its courts recognize a foreign judgment rendered in a non-European Convention
on Human Rights country whose trial did not meet all the requirements Art. 6
European Convention on Human Rights.

Based on the above, the provisions of Ukrainian law on the private international law
should be "human rights tested" and, if necessary, to some extent adapted to ensure
fulfillment of Ukraine’s international obligations under the European Convention
on Human Rights and other human rights instruments.
5. HARMONIZATION ACTS, ACQUIS AND FOREIGN LEGISLATION

The private law renewal process in modern conditions is becoming global, especially
in european countries. It is characterized by the harmonization of the legal regime
of private sphere regulation by advisory acts creating, which are aimed to form
common (general) approaches for the most actual challenging issues resolving.

The optimal regulation models for many areas of private law relations are now
offered by numerous EU Directives and Regulations, other extremely respective
international acts, such as the UNIDROIT Principles, the Lando Principles, DCFR,
CISG. As this is by no means an exhaustive list shows, the world’s civil society has
made enormous measures in this direction.

These documents have the same harmonization goals, principles, wording of

numerous rules, are characterized by the principle of consistency.

According to DCFR developers Christian von Barr, Eric Cleve, and Paul Varul,
DCFR as a predominantly scientific text reflects the development of civil thought in
Europe as well as around the world. The developed text provides a good example
for the legislation improvement in the field of private law, regardless of whether the
state is an EU member or not. DCFR is important for states that are developing new
civil law codifications or improving existing codes. To create the DCFR, an in-depth
analysis of private law acts of different European countries was conducted.…
Harmonization of private law promotes the economy’s integration and people-to-
people contacts. DCFR as a model law seeks to prompt the modernization of civil
law of certain states. Regardless of whether the state is a member of the EU, and
taking into account a certain commonality of principles and models, in improving
national laws, DCFR should lead to wider harmonization of private law, which, in
turn, promotes the more successful interaction between legal entities and citizens
both, in commercial and other areas [11].

It hardly needs to further substantiate the feasibility and necessity of taking into
account the fundamental ideas enshrined in the above international documents when
updating the Civil Code of Ukraine.

It should be noted that civil law modernization process, based on the conceptual
provisions of DCFR, UNIDROIT Principles, Lando Principles, covered most
European countries with developed civil law codifications (Germany, France, Czech
Republic, Poland, Romania, the Baltic States, etc.).

It is important to point out that, back in 2002, during a speech at the UNIDROIT
Congress in Rome Worldwide Harmonization of Private Law and Regional
Economic Integration, Professor Ole Lando claimed that due to different approaches
in different legal systems to the concept of the European Civil Code, the work in his
group ( known as the Lando Commission) is concentrated in the direction of
developing a general doctrine of civil law [12].

Account should also be taken of the fact that the post-Soviet countries, which worked
on the preparation of new civil codes, were not considered as participants of the
mentioned process, and therefore did not intend to simultaneously reach the level of
private law structures of the western model. Therefore, the advancement of the
legislation of Ukraine to the level of European codifications has been taking place
gradually and quite carefully over fifteen years, while preserving the established
national traditions in law-making.

Within the process of the First Book of the Civil Code of Ukraine update, the
following provisions should be taken into account:

1. The UNIDROIT principles, in particular:

Chapter 3 "Validity" in the part of recognizing transactions (agreements) invalid;

Chapter 4 "Interpretation" in the part of clarifying the content of the categories

"reasonableness", "interpretation of the transaction (agreement)";

2. DCFRs, in particular: DCFRs define the basic and major principles of freedom,
security, justice and efficiency. They can be considered as important starting points
both during the update of the First Book and the Civil Code of Ukraine as a whole.

In this context, the requirements of Articles I.-1: 103 "Good faith and the best
business practice" and I.-1: 104 "Reasonableness".

The provisions on the written form and signature, which are contained in Art. I.-1:
106, I.-1: 107; as well as the provisions on the calculation of terms (Articles I.-1:
110) of Book I "General Provisions" can also be useful within the process of the
First Book update.

Taking into account Ukraine’s obligations under the Association agreement as well
as the tendency for europeanization of private law, it is necessary both during the
update of the Second Book of the Civil Code of Ukraine update and the civil law as
a whole, to pay attention to the acquis, including:

(1) Acquis related to the right to information [13];

(2) Acquis related to the right to privacy [14];

(3) Acquis related to to reproductive rights [15];

(4) Acquis related to the personal non-property rights related to family relationships
[16];

(5) Acquis related to the right to health [17].

The worthwhileness to take into account the provisions of the acquis is relevant also
within the process of recodification of the Third Book of the Civil Code of Ukraine.
The usage of the following acquis is justified:
(1) Acquis related to the right to residential immovable property [18];

2) Acquis related to the right to cultural objects [19];

(3) Acquis related to the late payments and titular financial assurance [20];

(4) Acquis related to the "cyberproperty" / virtual property [21].

The case law of the European Court of Justice plays an important role for the
understanding the property law within the framework of EU law, in particular, on
the following issues:

1) negative harmonization of property law norms of EU member states [22];

(2) protection of property rights as a fundamental EU right [23];

3) free movement of goods [24];

(4) free movement of persons (institutions) and capital [25].

__________________________________________________________________
________

[1] Resolution of the Grand Chamber of the Supreme Court of April 17, 2018 in case
№ 522/407/15-ц. Unified state register of court decisions. URL :
https://reyestr.court.gov.ua/Review/73469649.

[2] Resolution of the Supreme Court of 28.11.2018 in case № 2-1201 / 2005. Unified
state register of court decisions. URL :
https://reyestr.court.gov.ua/Review/78298716.

[3] Resolution of the Supreme Court of June 26, 2019 in case № 369/3186/17.
Unified state register of court decisions. URL :
https://reyestr.court.gov.ua/Review/82797694.
[4] Resolution of the Grand Chamber of the Supreme Court of 20 November 2019
in case № 368/54/17. Unified state register of court decisions. URL :
https://reyestr.court.gov.ua/Review/86105173.

[5] Resolution of the Supreme Court of April 3, 2019 in case № 525/1385/16-ц.

Unified state register of court decisions. URL :
https://reyestr.court.gov.ua/Review/81286465.

[6] Resolution of the Supreme Court of 20.02.2019 in case № 755/7730/16-ц.

Unified state register of court decisions. URL :
https://reyestr.court.gov.ua/Review/80005728.

[7] Decision of the Constitutional Court of Ukraine of 11.02.2014 № 1-рп / 2014 in

the case of the constitutional appeal of the citizen Zaporozhtsev Oleksandr
Semenovych on the official interpretation of the provisions of part one of Article
1241 of the Civil Code of Ukraine adult incapacitated children of the testator).
Bulletin of the Constitutional Court of Ukraine. 2014. № 2. S. 15.
[8] Clarification of the Supreme Economic Court of Ukraine "On some issues of the
practice of consideration of cases with the participation of foreign enterprises and
organizations" dated 03.05.2002 № 04-5 / 608; Letters of the Supreme Commercial
Court of Ukraine "On generalization of judicial practice of resolving certain
categories of disputes by commercial courts with the participation of non-residents"
from 01.01.2009 and the High Specialized Court of Ukraine for Civil and Criminal
Cases "On the practice of civil cases with a foreign element" from 16.05 .2013 №
24-754 / 0 / 4-13.
[9] Resolution of the Plenum of the Supreme Court of Ukraine № 12 “On the
Practice of Consideration by Courts of Requests for Recognition and Enforcement
of Decisions of Foreign Courts and Arbitrations, as well as Revocation of Decisions
Adopted by International Commercial Arbitration in Ukraine” was adopted on
December 24, 1999. Generalization of the Supreme Specialized Court of Ukraine
for Civil and Criminal Rights "On the practice of court proceedings to challenge the
decisions of the International Commercial Arbitration Court of Ukraine at the
Chamber of Commerce and Industry of Ukraine and the recognition and
enforcement of international and foreign arbitrations" of September 1, 2015.
[10] Kiestra L. R. The impact of the ECHR on private international law: An analysis
of Strasbourg and selected national case law (PhD Thesis). 2013: Amsterdam Center
for International Law (ACIL). 382 p.
[11] Model rules of European private law. Preface to the Russian edition. M.: Statut,
2013.S. 47.
[12] Harmonization of private law. Legal practice. 2002. No. 48 (258). URL:
https://pravo.ua/articles/garmonizacija-chastnogo-prava.

[13] In particular, Directive (EU) 2019/1937 of the European Parliament and of the
Council of 23 October 2019 on the protection of persons who report breaches of
Union law; Directive (EU) 2016/800 of the European Parliament and of the Council
of 11 May 2016 on procedural safeguards for children who are suspects or accused
persons in criminal proceedings; Directive 2003/4/EC of the European Parliament
and of the Council of 28 January 2003 on public access to environmental information
and repealing Council Directive 90/313/EEC.
[14] In particular, Directive (EU) 2016/681 of the European Parliament and of the
Council of 27 April 2016 on the use of passenger name record (PNR) data for the
prevention, detection, investigation and prosecution of terrorist offences and serious
crime; Directive (EU) 2016/680 of the European Parliament and of the Council of
27 April 2016 on the protection of natural persons with regard to the processing of
personal data by competent authorities for the purposes of the prevention,
investigation, detection or prosecution of criminal offences or the execution of
criminal penalties, and on the free movement of such data, and repealing Council
Framework Decision 2008/977/JHA; Directive 2002/58/EC of the European
Parliament and of the Council of 12 July 2002 concerning the processing of personal
data and the protection of privacy in the electronic communications sector (Directive
on privacy and electronic communications).
[15] In particular, Directive 98/79/EC of the European Parliament and of the Council
of 27 October 1998 on in vitro diagnostic medical devices; Commission Directive
2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the
European Parliament and of the Council as regards certain technical requirements
for the donation, procurement and testing of human tissues and cells (Text with EEA
relevance).
[16] In particular, Council Regulation (EU) 2019/1111 of 25 June 2019 on
jurisdiction, the recognition and enforcement of decisions in matrimonial matters
and the matters of parental responsibility, and on international child abduction;
Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced
cooperation in the area of jurisdiction, applicable law and the recognition and
enforcement of decisions in matters of the property consequences of registered
partnerships; Council Regulation (EU) 2016/1103 of 24 June 2016 implementing
enhanced cooperation in the area of jurisdiction, applicable law and the recognition
and enforcement of decisions in matters of matrimonial property regimes; Council
Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced
cooperation in the area of the law applicable to divorce and legal separation; Council
Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law,
recognition and enforcement of decisions and cooperation in matters relating to
maintenance obligations; Council Regulation (EC) No 2201/2003 of 27 November
2003 concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility, repealing Regulation
(EC) No 1347/2000; Regulation (EU) 2019/1157 of the European Parliament and of
the Council of 20 June 2019 on strengthening the security of identity cards of Union
citizens and of residence documents issued to Union citizens and their family
members exercising their right of free movement.
[17] In particular, Regulation (EU) 2017/746 of the European Parliament and of the
Council of 5 April 2017 on in vitro diagnostic medical devices and repealing
Directive 98/79/EC and Commission Decision 2010/227/EU; Regulation (EU) No
536/2014 of the European Parliament and of the Council of 16 April 2014 on clinical
trials on medicinal products for human use, and repealing Directive 2001/20/EC;
Directive 2010/45/EU of the European Parliament and of the Council of 7 July 2010
on standards of quality and safety of human organs intended for transplantation;
Directive 2004/23/EC of the European Parliament and of the Council of 31 March
2004 on setting standards of quality and safety for the donation, procurement,
testing, processing, preservation, storage and distribution of human tissues and cells;
Directive 2002/98/EC of the European Parliament and of the Council of 27 January
2003 setting standards of quality and safety for the collection, testing, processing,
storage and distribution of human blood and blood components and amending
Directive 2001/83/EC etc.
[18] In particular, Directive 2014/17/EU of the European Parliament and of the
Council of 4 February 2014 on credit agreements for consumers relating to
residential immovable property and amending Directives 2008/48/EC and
2013/36/EU and Regulation (EU) No 1093/2010.
[19] In particular, Council Directive 93/7/EEC of 15 March 1993 on the return of
cultural objects unlawfully removed from the territory of a Member State, Directive
96/100/EC of the European Parliament and of the Council of 17 February 1997
amending the Annex to Directive 93/7/EEC on the return of cultural objects
unlawfully removed from the territory of a Member State, Directive 2001/38/EC of
the European Parliament and of the Council of 5 June 2001 amending Council
Directive 93/7/EEC on the return of cultural objects unlawfully removed from the
territory of a Member State, Directive 2014/60/EU of the European Parliament and
of the Council of 15 May 2014 on the return of cultural objects unlawfully removed
from the territory of a Member State and amending Regulation (EU) No 1024/2012.
[20] In particular, Directive 2011/7/EU of the European Parliament and of the
Council of 16 February 2011 on combating late payment in commercial transactions,
Directive 2000/35/EC of the European Parliament and of the Council of 29 June
2000 on combating late payment in commercial transactions, Directive 2002/47/EC
of the European Parliament and of the Council of 6 June 2002 on financial collateral
arrangements.
[21] In particular, Directive (EU) 2019/770 of the European Parliament and of the
Council of 20 May 2019 on certain aspects concerning contracts for the supply of
digital content and digital services, Regulation (EU) 2016/679 of the European
Parliament and of the Council of 27 April 2016 on the protection of natural persons
with regard to the processing of personal data and on the free movement of such
data, and repealing Directive 95/46/EC (General Data Protection Regulation) etc.
[22] See, e.g .: Elisabeth Schulte and Wolfgang Schulte v Deutsche Bausparkasse
Badenia AG (Case C-350/03, 25.10.2005), Gerda Möllendorf and Christiane
Möllendorf-Niehuus (Case C-117/06, 11.10.2007), Commission of the European
Communities v Federal Republic of Germany (Case C-503/04, 18.07.2007), Federal
Republic of Germany v European Parliament and Council of the European Union
(Case C-376/98, 05.10.2000).
[23] See, e.g .: J. Nold, Kohlen und Baustoffgroßhandlung v Commission of the
European Communities (Case 4-73, 14.05.1974), Liselotte Hauer v Land Rheinland-
Pfalz (Case 44/79, 13.12.1979).
[24] See, e.g .: H. Krantz GmbH & Co. v Ontvanger der Directe Belastingen and
Netherlands State (Case C-69/88, 07.03.1990).
[25] See, e.g .: Manfred Trummer and Peter Mayer (Case C-222/97, 16.03.1999).
Further development of the provisions of the Fourth Book of the Civil Code of
Ukraine should take into account the obligations of Ukraine arising from the
Association Agreement, as well as take into account EU legislation in this area (in
terms of clarifying, supplementing or amending certain provisions of the Civil Code
of Ukraine). Mentioned relates to the provisions of the Association Agreement and
EU law on:

(1) the validity of intellectual property rights to works and objects of related rights
[1];
(2) rental rights, loan rights [2];
(3) payment of remuneration to authors, performers; opportunities to revise license
agreements and agreements on the transfer of exclusive intellectual property rights
with authors and performers in order to pay these entities due remuneration [3];

(4) intellectual property rights to a computer program, a database created within the
performance of an employment contract [4];

(5) resale right [5];

(6) the legal regime for the use of orphan works and works that are out of the
commercial use [6];
(7) protection of rights to inventions in the field of biotechnology [7];
(8) supplementary protection certificate for medicinal products and plant protection
products [8];
(9) protection of industrial design rights, in particular, clarification of patentability
criteria, protection of rights to unregistered industrial designs [9];

(10) protection of trademark rights, in particular with regard to new types of

trademarks [10];

(11) protection of the rights to the arrangement of semiconductor products [11];

(12) protection of rights to geographical indications, traditional guaranteed dishes,
special quality names [12];

(13) protection of plant variety rights, in particular, the term of property rights [13];
(14) protection of the rights to know-how and business information [14];

(15) intellectual property rights protection issues, in particular, determination of

damages caused as a result of intellectual property rights violation; provision as an
alternative to the payment of a lump sum as at least the amount of the royalty if the
infringer has applied for a permit (Article 240 of the Association Agreement, Article
13 of Directive 2004/48 / EC [15]), etc.

__________________________________________________________________
_________
[1] Directive 2006/116/EC of the European Parliament and of the Council of 12
December 2006 on the term of protection of copyright and certain related rights
(codified version); Directive 2011/77/EU of the European Parliament and of the
Council of 27 September 2011 amending Directive 2006/116/EC on the term of
protection of copyright and certain related rights.
[2] Directive 2006/115/EC of the European Parliament and of the Council of 12
December 2006 on rental right and lending right and on certain rights related to
copyright in the field of intellectual property (codified version).
[3] Directive (EU) 2019/790 of the European Parliament and of the Council of 17
April 2019 on copyright and related rights in the Digital Single Market and
amending Directives 96/9/EC and 2001/29/EC.
[4] Directive 2009/24/EC of the European Parliament and the Council of 23 April
2009 on the legal protection of computer programs (сodified version); Directive
96/9/EC of the European Parliament and of the Council of 11 March 1996 on the
legal protection of databases.
[5] Directive 2001/84/EC of the European Parliament and of the Council of 27
September 2001 on the resale right for the benefit of the author of an original work
of art.
[6] Directive 2012/28/EU of the European Parliament and of the Council of 25
October 2012 on certain permitted uses of orphan works. Directive (EU) 2019/790.
[7] Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998
on the legal protection of biotechnological inventions.
[8] Regulation (EC) 469/2009 of the European Parliament and of the Council of 6
May 2009 concerning the supplementary protection certificate for medicinal
products (сodified version); Regulation (EС) 1901/2006 of 12 December 2006 on
medicinal products for pediatric use and amending Regulation (EEC) № 1768/92,
Directive 2001/20/EC, Directive 2001/83/EC and Regulation (EC) № 726/2004;
Regulation (EC) 1610/96 of the European Parliament and of the Council of 23 July
1996 concerning the creation of a supplementary protection certificate for plant
protection products.
[9] Directive 98/71/EC of the European Parliament and of the Council of 13 October
1998 on the legal protection of designs; Council Regulation (EC) 6/2002 of 12
December 2001 on Community designs.
[10] Directive (EU) 2015/2436 of the European Parliament and of the Council of 16
December 2015 to approximate the laws of the Member States relating to trade
marks. Regulation (EU) 2017/1001 of the European Parliament and of the Council
of 14 June 2017 on the European Union trade mark (codification).
[11] Council Directive 87/54/EEC of 16 December 1986 on the legal protection of
topographies of semiconductor products.
[12] Regulation (EU) 1151/2012 of the European Parliament and of the Council of
21 November 2012 on quality schemes for agricultural products and foodstuffs.
[13] Council Regulation (EC) 2100/94 of 27 July 1994 on Community plant variety
rights.
[14] Directive (EU) 2016/943 of the European Parliament and of the Council of 8
June 2016 on the protection of undisclosed know-how and business information
(trade secrets) against their unlawful acquisition, use and disclosure.
[15] Directive 2004/48/EC of the European Parliament and of the Council of 29
April 2004 on the enforcement of intellectual property rights.
It should be noted that in 2004–2018 the requirements of the Partnership and
Cooperation Agreement between Ukraine and the European Communities and their
Member States of June 14, 1994 and the Law of Ukraine “On the National Program
for Approximation of Ukrainian Legislation to European Union Legislation” of 18
March 2004 on the adaptation of Ukrainian legislation in the field of intellectual
property in accordance with EU legislation. This Law determined the terms of
adaptation of legislation (including in the field of intellectual property). At the same
time, the relevant draft legislative acts were not submitted to the Verkhovna Rada of
Ukraine within the set deadlines (2004–2007).
This has led to a significant gap between the legislation in the field of intellectual
property in Ukraine from the current practice of EU member states.
The second stage of legislative adaptation began with the signing of the Association
Agreement in 2014. However, only in 2019–2020 by the laws of September 20, 2019
№ 123 – IX, of September 19, 2019 № 111 – IX, July 21, 2020 № 815 – IX, July
21, 2020 № 816 – IX [1] separate amendments were made to the Central Committee
of Ukraine to take into account the requirements of the Association Agreement and
EU industrial property law. However, the process of adapting national legislation is
not complete in terms of the need to amend copyright and related rights, trade
secrets, taking into account the provisions of Directive 2015/2436 on the
approximation of trademark law and other EU acts.
It should also be noted that taking into account the requirements of the Law of
Ukraine "On the National Program for Adaptation of Ukrainian Legislation to
European Union Legislation", as well as to introduce the same EU legal regime on
IPR protection and protection within the Free Trade Association Agreement,
Legislation should take into account the decisions of the Court of Justice on the
interpretation of EU acts, without which (in particular, regarding the protection of
industrial designs, biotechnological inventions, supplementary protection
certificate) it is not possible to effectively apply Ukrainian legislation adapted to EU
acts.
The normative array of the Book of the Fifth Central Committee of Ukraine at the
stage of renewal should be focused primarily on the ideas laid down in the
fundamental acts of harmonization of European private law, in particular the DCFR,
as well as the Lando Principles. Thus, Book II of the DCFR covers the definition of
the contract, the provisions on the autonomy of will at the time of the contract, the
form of the contract, the stages of its conclusion, the issue of invalidity, including
the grounds for invalidity, regulates pre-contractual obligations, interpretation of
contracts.
Fundamental to the recoding of the CC is to resolve the question of the place of
provisions devoted to the regulation of the contract, first of all, which provisions
should be transferred to Book One (Chapter 16), expanding its content by the
provisions of the contract as a legal fact, given that contracts are the largest segment
in the total volume of transactions. It is no coincidence that in DCFR, Book II deals
with treaties and other legal acts (ie legal facts), and Book III deals with obligations
and related rights.
Analyzing the main ideas of Book III of the DCFR, it can be noted that considerable
attention is paid to various types of obligations (conditional, limited in time), and
the peculiarities of their implementation, methods of termination, as well as
conditions and methods of protection in case of default.
In the process of updating the regulatory framework for non-contractual obligations,
the use of the provisions contained in PETL is promising. Thus, it is proposed to
implement to § 1 of Chapter 82 of the Civil Code certain provisions devoted to the
determination of damages to be compensated (Protected interests, Article 2: 102);
damage that is not subject to compensation (Legitimacy of damage, art. 2: 103);
preventive costs (Preventive expences, art. 2: 104); proof of the task of damage
(Proof of damage, art. 2: 105). Promising is the objectification in the new version of
the Central Committee of direct causation and other conditions (Conditio sine qua
non, art. 3: 101; Concurrent causes, art. 3: 102; Alternative causes, art. 3: 103;
Potential causes, v. 3: 104; Uncertain partial causation, v. 3: 105; Uncertain causes
within the victim's sphere, v. 3: 106).
Promising, in terms of their possible implementation in the Central Committee of
Ukraine, are the provisions of Section III PETL - General grounds for liability for
damage (Bases of Liability), in particular the provisions of Art. 4: 102 "Required
standard of conduct" (Required standard of concduct).
The provisions of Section IV of the PETL - Defences are also quite progressive.
Promising in the context of their possible implementation are the provisions of
Chapter III of the Rome II Regulation regarding the objectification of the concept of
"culpa in contrahendo" (Article 12).
Of considerable interest are the provisions of Books V, VI and VII of the DCFR,
which are directly devoted to the peculiarities of non-contractual regulation.
In the context of the possible objectification of pre-contractual liability as liability
for unfair and (or) dishonest negotiations, it is advisable to borrow the experience
set out in Section III of Chapter 3 of Book II of the DCFR (Articles II-3: 301, II-3:
302).
Given the interconnectedness of non-contractual obligations with a number of
general rules that are part of the institutions of protection and liability (including
contractual liability), some provisions of the Lando Principles must be taken into
account in preparing a draft of appropriate amendments to the CC. Thus, special
attention should be paid to the provisions of Chapter 8 "Non-Performance and
Remedies in General", Articles 8: 101-8: 109 and Chapter 9 "Certain Remedies for
Non-Performance". »(Particular Remedies for Non-Performance, pp. 9: 101–9:
510).
Noteworthy are the provisions of Art. 7.1.7 UNIDROIT Principles on Force Majeure
and Section 4 of Chapter 7 “Losses” (Articles 7.4.1–7.4.13).
Undoubtedly important are both the process of updating the Central Committee and
its results in countries with "classical" civil codifications - France and Germany. The
achievements of the reform of the provisions of the law of obligations in Germany,
as well as the reform of the provisions of tort, which is still ongoing in France, should
be analyzed and taken into account in the process of recoding the Central Committee
of Ukraine.
Work to improve the regulatory framework of the Book of the Sixth Central
Committee should be based on the study of the experience of foreign countries,
especially EU countries in this area; having regard to international legal instruments
on succession, such as the Council of Europe Convention (Basel Convention) on the
introduction of a system of registration of wills of 16 May 1971, Regulation
650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and
enforcement of judgments , adoption and execution of notarial deeds on inheritance,
as well as the creation of a European certificate of inheritance ("Rome IV"), etc.
In the process of recoding requires considerable attention to the development of
national legislation, taking into account trends in the legislation of the EU and
clarifying the feasibility of introducing into the hereditary legislation of Ukraine
certain legal structures and concepts. This is also facilitated by the process of
updating civil legislation in European countries, which takes place both through the
adoption of new codes (Czech Republic, Hungary) and by making significant
changes to existing codifications (Germany, France, Moldova) in the regulation of
inheritance law.
At the same time, the modernization of legislation, its improvement should be
distinguished from the mechanical borrowing of certain legal structures, even legal
institutions from foreign legal systems. It is inadmissible to include in civil law
constructions and traditions, the origin and development of which are not completely
known to us and are not fully understood. This is especially acute in the field of
inheritance, which is inextricably linked with national customs, the special mentality
of society, which has been formed over the centuries.
The analysis of European legislation in the field of inheritance law shows a
significant increase in the freedom of wills and the introduction of legal structures
unknown to national law. Certain foreign legal systems regulate fidecommissioner
substitutions, i.e. sub-appointment to the heir who accepted the inheritance. French
law, since 2006, allows for video commissioners, and not only in relation to
relatives. Fide-commissioned substitution is also known under German law, where
the testator has the right to appoint an heir in such a way that he becomes the heir
(additional heir) only after the first heir is another person. In Austria, the testator has
the right to oblige the heir after his death or in other cases to transfer the inherited
property to another designated heir.
Under Spanish law, video commissioners are allowed, according to which the heir
must preserve and transfer all or part of the property to a third party; they extend to
the second degree of kinship or are established in favor of persons who were alive
at the time of the testator's death (Article 781 of the Civil Code of Spain).
Another important area of regulation of inheritance relations in foreign legal systems
is the recognition of inheritance rights for the children of the testator, conceived after
the opening of the inheritance with the use of assisted reproductive technologies. For
example, Art. 9.2 of the Spanish Reproductive Aid Act of 26 May 2006 provides for
the use of reproductive material for twelve months after the death of a husband to
inseminate his wife with legal consequences arising from family origin. The use of
reproductive material after death is possible subject to the consent of the husband in
a special document, will or instruction. This right is also granted to unmarried men.
According to § 2101 of the NCU, in the case of appointment by the heir of a person
not conceived at the time of the opening of the inheritance, it should be considered
that he is an additional heir, unless proven otherwise. Prior to the birth of a child
conceived after the death of the testator, the main heirs are the legal heirs (§ 2105
NCU).
In addition, there should be a significant "relaxation" in the regulation of the right to
a mandatory share in the inheritance, which has been observed recently in some
European countries. In particular, according to § 773a of the Austrian Civil Code, if
the testator and the person entitled to receive a compulsory share in the inheritance
have never been in the close relationship that usually exists in the family between
such relatives, the testator may reduce the compulsory share in half. However, this
possibility does not apply if the testator unreasonably denied the exercise of the right
to personal communication with the heir, who is entitled to a mandatory share in the
inheritance.
According to Art. 1056 of the Civil Code of Spain in order to preserve the business,
the integrity of the enterprise, maintaining control over the capital of the corporation
or their groups, the mandatory share in the inheritance may be paid in cash. If there
is not enough cash, payment may be deferred for a period not exceeding 5 years from
the date of death of the testator.
Under Czech law, the obligatory share in the inheritance includes everything
acquired by the obligatory heir as a result of a testamentary disclaimer and other
orders from the testator. In addition to the obligatory share, the obligatory heir
received free of charge from the testator during the last three years before his death,
including the costs of creating a separate household and paying the debts of such an
heir. In this case, the usual gifts are not taken into account.
In 2010, German legislation was substantially amended to increase freedom of will
by reducing the rights of compulsory heirs. As a result of such changes, the list of
grounds for depriving the heir of the right to a mandatory share in the inheritance
has been expanded (§ 2333 NCU), and the rights of testamentary heirs to defer
reimbursement of the value of a mandatory share in the inheritance have been
significantly increased (§ 2331a NCU). The heir has the right to demand the
postponement of the obligatory share in the inheritance, if the immediate execution
would put him in a difficult situation, in particular, would force him to sell the
apartment where his family lives, or sell the property that is the economic basis of
life. The decision on postponement belongs to the jurisdiction of the court in
inheritance cases.
The prudent use of this experience of foreign countries will significantly improve
the level of legal regulation of inheritance relations.
During the codification of Ukrainian PrIL, the ideas of the Rome Convention, the
1986 Hague Convention and other Hague Conventions were widely used. Since
then, new approaches to conflict decisions and the international civil process have
been further developed and reflected in EU regulations and the documents of the
Hague Conference on Private International Law (The Hague Conference).
Fundamentally important in terms of recoding of Ukrainian conflict of law
legislation are modern EU regulations in this area (Rome I, Rome II, Rome III, Rome
IV, Brussels I, Brussels II bis, etc.), which actually created the European codification
of MLA.
The Hague Conference has a special place in the implementation of the idea of broad
unification of private law. The conventions of this organization, of which Ukraine
has been a member since 2003, cover a wide range of issues in the field of
international civil procedure, family law, inheritance law, and certain aspects of the
law of international commercial contracts. To date, a number of documents have
been developed within this organization on the unification of conflict-of-law rules,
in particular, the Convention on the Law Applicable to Agency Relations of 1978;
Convention on the Law Applicable to Trusts, 1985; 2006 Securities Convention, etc.
The basic ideas of the above-mentioned regional and universal unification acts are
to strengthen the private law principles of conflict law, expand the dispositiveness
of private international law, increase the regulatory capacity of conflict rules, giving
the latter more flexibility while maintaining their certainty, "materializing" the
choice of law. question.
It should also be noted that in the XXI century. The most modern ideas of conflict
regulation are embodied in numerous new codifications of MLA, both in the
framework of civil codes (Argentina, Lithuania, Moldova, the Netherlands,
Romania, etc.) and in some laws and codes on MLA of Estonia (2002), Belgium
(2004), Bulgaria 2005), Japan (2007), Turkey (2007), Poland (2011), the Czech
Republic (2012), Monaco (2017), Hungary (2017), etc.
 6. EXPECTED RESULTS OF MODERNIZATION

Implementation of the proposed Concept, which is based on the idea of "soft

recodification", will, on the one hand, preserve all the achievements and
achievements of the current Central Committee of Ukraine, and on the other - adapt
it to today's realities, including those dictated by modern European approaches. and
business turnover, which is characterized by digitalization of all processes in society,
deep penetration of new technologies into business, priority application of ECHR
provisions and other international human rights instruments, support of international
initiatives for information society development, conscious use of automated robots
and artificial intelligence, reproductive technologies and genetic engineering,
increasing the role of dispositiveness in contractual regulation, etc.

Recodification of the Central Committee will provide answers to a number of threats

to intrusion into the private life of an individual due to modern technology. These
include the prohibition of eugenics, the birth of genetically identical people, the
transformation of genes (except for the treatment of genetic diseases); consolidation
at the level of the Central Committee of the reproductive rights of an individual as a
system of separate personal non-property rights aimed at exercising the reproductive
function of individuals; determining the civil consequences of gender reassignment;
ensuring civil law protection of the right to personal data, etc.

Modernization of property law will ensure its more effective interaction with
obligations, other legal arrays and thus contribute to the stability and predictability
of private law. The third book will have a complete form: it offers both general
provisions and clarified and supplemented special institutions in the field of RP.
Systematic updating of the Book, along with a positive impact on domestic civil law
mechanisms for regulating property relations, will help bring the relevant domestic
institutions closer to European standards of civil (private) law.

The most important result of the update of Book Four will be the completion of the
update of legislation on the protection of intellectual property rights in Ukraine,
including special laws and the Central Committee of Ukraine, with the achievement
of:
(1) compliance of legislation with the provisions of the Association Agreement and
EU legislation, international treaties to which Ukraine is a party;
(2) harmonization of the provisions of the Central Committee and special laws;
(3) solving problems identified during the application of the legislation.

At the same time, in Book Four and Chapter 75 of the Civil Code of Ukraine, the
main provisions of the regulation of intellectual property relations for various IPR
objects, the development of which is carried out by special legislation, should be
determined from a single theoretical and methodological standpoint. This process is
part of the formation of a modern, meeting the needs of society, the intellectual
property system in Ukraine.
Updating the codification of the law of obligations in line with current European
and global trends will bring these rules as close as possible to the rules of world law
of obligations (in particular, with the rules of the EU, which are currently actively
reforming their own law). This will create appropriate conditions in Ukraine for
reliable protection of subjective civil rights and legally protected interests of all
participants in civil relations, ensure the active development of civil society and
create favorable conditions for the integration of Ukraine’s economy into the
European community.

As a result of such an update, the rules of the law of obligations of Ukraine will be
able to more effectively ensure the achievement of those important goals of the legal
order, which are aimed at the entire European legal community, which seeks to
achieve unity, clarity and clarity of civil law across the continent. Ukrainian law of
obligations will become not only more adequate to modern realities, but also simpler,
clearer and accessible both for citizens of Ukraine and for citizens of other countries.

Renewal of inheritance law will promote the unity of judicial practice and the
uniform application of inheritance law in notarial practice. In addition, it is expected
to improve the national legislation on inheritance, taking into account trends in the
legislation of EU countries in compliance with national traditions and customs,
which will contribute to the proper protection of the rights and interests of the
participants in inheritance relations.

In recoding civil law, it is proposed to return to the world-accepted view of the place
in civil codification of private law in the field of family and marriage. Given the
history of law and legal logic, such a normative array is an important part of private
law and is organically intertwined with all structures and sections of civil codes -
inheritance law, property rights, obligations, capacity, guardianship and custody,
and so on. Modern family law cannot be considered separately from civil law, even
from the point of view of legal technique - so organically issues of family law are
woven into the outline of all civil law. Thus, the inclusion of family law in the
renewed Central Committee of Ukraine is considered by the Working Group as an
archival step towards the harmonization of Ukrainian doctrine and legislation with
the jus commune.

Updating the codification of PrIL will ensure more effective interaction of the
Ukrainian legal system with the legal systems of the world and thus contribute to the
development of international economic and other relations.
The restoration of the book "Private International Law" in the updated Central
Committee of Ukraine will correspond to its legal tradition (the Central Committee
of 1963 contained a similar part, although under a different name: "Application of
foreign law and international treaties, legal capacity and capacity of foreign
citizens"). The practical benefit of transferring conflict of law to the code is to
increase both its role in the regulation of private relations and the importance of the
rules of private international law. And the code itself will have a complete form: the
book on MLA offers special regulatory mechanisms in case of transfer of private
relations to the international arena. The inclusion of MLA in civil codes, in addition
to the advantages of unity, logic and convenience of closely related legal arrays, will
provide all the positive aspects of the so-called "autonomous" codification, as well
as significant didactic and law enforcement benefits.

[1] On Amendments to Certain Legislative Acts of Ukraine Concerning the

Improvement of Legal Protection of Geographical Indications: Law of Ukraine of
September 20, 2019 № 123-IX. Information of the Verkhovna Rada of Ukraine.
2019. № 45. Art. 290; On Amendments to Certain Legislative Acts of Ukraine
Concerning the Improvement of Protection of Rights to the Layout of
Semiconductor Products: Law of Ukraine of September 19, 2019 № 111-IX.
Information of the Verkhovna Rada of Ukraine. 2019. № 42. Art. 236; On
Amendments to Certain Legislative Acts of Ukraine Concerning Strengthening the
Protection and Protection of Rights to Trademarks and Industrial Designs and
Combating Patent Abuse: Law of Ukraine of July 21, 2020 № 815-IX. Official
Gazette of Ukraine. 2020. № 67 (28.08.2020). P. 248. Art. 2148; On Amendments
to Certain Legislative Acts of Ukraine Concerning the Reform of Patent Legislation:
Law of Ukraine of July 21, 2020 № 816-IX. Official Gazette of Ukraine. 2020. №
67 (28.08.2020). P. 268. Art. 2149