Division of law into public and private
Since the Roman times, division of law into public law (jus publicum) and private law (jus privatum) is generally accepted. For the first time, such division was proposed by Ulpian and later used in the Digests of Justinian. According to him, private law was intended for regulation and protection of the sphere of person’s private interests based on the principles of legal equality which is provided by inviolability of their private property, freedom of agreement, legal protection of their rights and interests of others. Public law, in its turn, was directed to regulation of the sphere of state and public interests through a range of imperative (mandatory) rules of conduct.
But over time, in connection with a significant complication of social relations, such classifying feature as the sphere of protected interests was not sufficient. That is why along with this criterion, the manner and nature of impact of law on relationships were also taken into consideration. I.e. when relationships are directed to secure state and public interests and subordination (vertical subordination), organizational-administrative and enforcement principles are inherent for them, they have public law nature. Instead, social relations, which are not only directed at securing private interests and arise between legally equal entities, but also those which are formed at their initiative and on the basis of purview in choice of behavior, i.e. through coordination,have private law nature.
Starting to study civil law, first of all, we need to determine the correlation of this branch with such categories as “private law” and “public law”, since it affects choice of models, according to which the fields of national legislation are formed, codes are created, their content, character of relationships is determined, etc.
The traditional private law is characterized by the “private law - public law” dichotomy.
This approach is completely logical. But here we should consider undesirability of simplifications in establishing differences between private and public law. Most often such simplifications are linked to identification of law and legislation. As a result, we can often find expressions the essence of which boils down to the fact that as each law is a public phenomenon, private law exists only within the framework of public law.
However, we cannot identify the categories “law” and “act”. The term “law” is wider. It covers all obligatory norms that exist in society (including those based on the prescriptions of natural law, corporate norms, etc.) and cannot be reduced only to a set of regulations issued by authorities. That is why one or other branch of law does not automatically become a public law from settlement of relations by legislative acts.
We should also take into consideration that while determining private and public law, we cannot be limited by quoting of Ulpian’s words: “... public law is what concerns provisions of the Roman state, private – what concerns benefit of individuals”. This mechanical citing distorts Ulpian’s position, who did not write about distribution of the Roman law into fields, but that study of the Roman law is divided into two parts: public and private law (D.1.1.1.2). Therefore, he gave the definition of these parts in a simplified form, based primarily on educational purposes.
Taking into consideration the above mentioned about peculiarities of interpretation of the notion of private law, we can conclude that the characteristic features of private law are:
1) recognition of priority of interests of a private individual as to interests of the state and other social and public formations;
2) recognition of “sovereignty of a private individual”, i.e. non-subordination to other persons in private relations;
3) lack of power relations between subjects of private law: they are private individuals, none of which acts on behalf of the state or its bodies (not a figurant of the state);
4) legal equality of participants of private relations before the law (but not necessarily before each other);
5) initiative of the parties in establishing relationships;
6) free choice of subjects of civil law in choosing rules of conduct, not expressly prohibited by law;
7) providing of benefits to ordinary proceeding of protecting the interests of private individuals in court;
8) implementation of “rights, freedoms” of personality based on the norms of natural law through appropriate legal institutions.
Taking into consideration the above mentioned, private law can be defined as a set of ideas, principles, rules and regulations that determine the status and protect the interests of private individuals who are not figurants of the state and not in relations of power - subordination to each other.
Recently, lawyers (in particular, specialists in the field of administrative law) emphasize that when characterizing public law, it is not enough to specify only what concerns interests of the state in general, but one should also note that the following is inherent to public law:
1) official recognition of predominance of public (social) interests over interests of certain individuals;
2) presence of relations of power between its subjects - subordination;
3) clear definition of boundaries of possible behavior of subjects of public law by legislation acts adopted by relevant government authorities;
4) use of such method of legal influence as direct “commitment”, when participants of specific legal relations are suggested to act in a certain way;
5) use of prohibitions on certain actions as a means of formation of behavior of subjects of public law;
6) use of such incentive, first of all, as state coercion to ensure proper conduct by a subject of public legal relations;
7) acting of public law as prerequisites for public order and results of its implementation;
8) one of participants of public relations is necessarily the state or the person which represents it (figurant of the state).
Taking into consideration the above mentioned provisions, public law is a set of legal rules and institutions that make up the functional-structural system, which regulates relations with the state (its figurants) and between subjects that are in relations of power and subordination to each other to ensure public order and protection of interests of citizens (O.I. Kharitonova).
Public law together with private law creates a general system of law that is a part of civilization (culture).
1.2. Correlation of private and civil law
The basis of private law is civil law that most fully absorbed all its features and is the foundation of all private law of Ukraine. Further, we shall review it in terms of four main directions: 1) as a field of law, 2) as a branch of legislation, 3) as a science, and 4) as a teaching discipline (subject).
But despite importance of civil law, we should recognize that in one way or another, signs of private law regulation are characteristic also to other branches of law, which in their totality form Ukrainian private law. Family law, international private law and partly land law, environmental law and labor law must be referred to these areas of law. Today significant discussions arise regarding the place and role of economic law in the system of private law of Ukraine. However, economic law is not only a remnant of the legal system of Ukraine, which tried to synthetically combine organically inconsistent and contradictory private law and public-legal principles, but also a significant obstacle towards development of civil society and market economy. Indeed, in Ukraine there were no preconditions for introduction of dualism (duality) in the system of private law, and such artificial splitting and internal competition can negatively reflect on the unity and uniformity of application of private law norms when applying legal rules.