Revista
de la
Universidad
del Zulia
Fundada en 1947
por el Dr. Jesús Enrique Lossada
DEPÓSITO LEGAL ZU2020000153
Esta publicación científica en formato digital
es continuidad de la revista impresa
ISSN 0041-8811
E-ISSN 2665-0428
Ciencias
Sociales
y Arte
Año 13 N° 38
Septiembre - Diciembre 2022
Tercera Época
Maracaibo-Venezuela
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Private Law and Public Law relation: dualism of Law branches in
society
Kateryna Mudrytska*
Natalya Panova
**
Olha Melnyk
***
Oleksii Kucherenko****
Tetiana Arifkhodzhaieva
*****
ABSTRACT
The purpose of the research. The article is concerned with researching relations between
private and public law in Ukraine. Main content. The historical aspect of this problem and
the substantiation of its current relevance for Ukraine are analyzed. Methodology: Review
of materials and methods on the basis of analyzing documentary materials concerning
problems of mutual relation and interdependence of private and public law. Conclusions.
The optimal balance of private and public interests can be achieved by considering the
problem of mutual relation and interdependence of private and public law in a dualistic
aspect. Opposition of public and private interests in state regulation by legal means is
unacceptable, since it is through streamlining the public-legal regulation of public-legal
relations that it is possible to achieve an optimal ratio of public and private interests.
KEYWORDS: Administrative Law, Legislation, Natural Law, Private Law, Civil Law, Public
Law.
* Doctor of Philosophy in the specialty 081 "Law", University lecturer of Department of Administrative Law,
Intellectual Property and Civil Law Disciplines, Kyiv Institute of Intellectual Property and Law of the
National University «Odesa Law Academy National University», Kyiv, Ukraine. ORCID:
https://orcid.org/0000-0003-3759-8897. E-mail: mudritckaya@gmail.com
** Doctor Science in Law, Associate Professor, Head of Department of Administrative Law, Intellectual
Property and Civil Law Disciplines Kyiv Institute Intelektual Property and Law of National University
«Odessa Law Academy», Ukraine, ORCID: https://orcid.org/0000-0001-9139-3580. E-mail:
panova.ns.ua@gmail.com
*** PhD in law, senior lecturer of the Department of Administrative Law, Intellectual Property and Civil Law
Disciplines of the Kyiv Institute of Intellectual Property and Law, National University «Odessa Law
Academy», Ukraine. ORCID: https://orcid.org/0000-0002-2088-630X. E-mail:
mailto:olgamelnik_1987@ukr.net
**** PhD in law, Associate Professor of Civil Legal Disciplines Department of Educational and Research
Institute of Law and Innovative Education, Dnipropetrovsk State University of Internal Affairs, Ukraine.
ORCID: https://orcid.org/0000-0003-3339-693X. E-mail: kucherenko-aleksus@ukr.net
***** Candidate of Legal Science, Associate Professor, Interregional Academy of Personnel Management,
Ukraine. ORCID: https://orcid.org/0000-0002-1827-1699. E-mail: ariftabo@ukr.net
Recibido: 12/05/2022 Aceptado: 05/07/2022
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Relación Derecho privado y Derecho público: dualismo de las ramas
del Derecho en la sociedad
RESUMEN
El propósito de la investigación. El artículo se ocupa de investigar las relaciones entre el
derecho público y privado en Ucrania. Contenido principal. Se analiza el aspecto histórico de
este problema y la justificación de su relevancia actual para Ucrania. Metodología: Revisión
de materiales y métodos sobre la base del análisis de materiales documentales sobre
problemas de relación mutua e interdependencia del derecho público y privado.
Conclusiones. El equilibrio óptimo de los intereses públicos y privados puede lograrse
considerando el problema de la relación mutua y la interdependencia del derecho público y
privado en un aspecto dualista. La oposición de intereses públicos y privados en la regulación
estatal por la vía legal es inaceptable, ya que es a través de la agilización de la regulación
público-jurídica de las relaciones público-jurídicas cómo es posible lograr una óptima
relación de intereses públicos y privados.
PALABRAS CLAVE: Derecho administrativo, Legislación, Derecho natural, Derecho privado,
Derecho civil, Derecho público.
Introduction
The up-to-date development of Ukraine’s statehood is aimed at the European
community and world experience and tends to formation and development of a civil society
in the conditions of a market economy, increased effectiveness of legal regulation of
individual relations concerning the sphere of private law, recognition of the individual,
his/her rights and freedoms as the highest value. In recent years, there has been a
reorientation and improvement of Ukrainian legislation, taking into account requirements
of the present time: entry into force of the Code of Administrative Legal Proceedings, which
defines the procedure for consideration public law disputes, improving the Civil Code of
Ukraine as a code of private law, development of international private law, etc. Because of
this, the problem of distinguishing private and public law in Ukraine, their mutual relation
and interdependence turned from a scientific one into a practical one; and solution of this
problem is required by modern legal reality.
It is natural that the approach to dividing the law into private one and public one was
revived in the legal science. It was seen that the return to the division of the law into private
one and public one should significantly restructure the sphere of social motivations,
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accelerate development of private law basics and at the same time weaken publicity and
public-law regulation, especially in the sphere of economic relations and free market. Public
law and private law are, on the one hand, contradictory, and on the other hand,
interdependent aspects of law. Up to date, legal systems of many civilized countries are
based on the principle of dividing law into private one and public one (Germany, France,
Italy, Spain, etc.). The world legal science recognizes the division of law into private one and
public one to a certain extent conditional, but necessary. The essence of this division of law
consists in the fact that each legal system includes norms that are designed to ensure general
public interests, i.e. interests of the society, the state as a whole, and there are norms that
protect interests of individuals, in particular, private owners. Therefore, the spheres of
public relations connected with public interests or private interests are subject to the
regulation of public and private law.
The article is concerned with researching relations between private and public law in
Ukraine.
1. Literature review
It should be noted that the problem of dividing the law into public one and private one
has a long history. Its origins date back to the times of Ancient Rome. First, this division
arose as a way of studying the law. In the judicial practice and jurisprudence of Rome two
branches of law were distinguished - public one “juspublicum” and private one
“juspriwatum”. Roman lawyers distinguished private law from public law (as opposed to
public law). The classical division of public law and private law was introduced by Roman
lawyer Ulpian (170-228) who defined that “public law concerns the status of the Roman state
while private law concerns the benefit of separate individuals” (Banchuk, 2007). The greatest
attention in those times was given to private law (civil, family legal relations, property law,
law of obligations, inheritance). As for public law, it covered only the judicial system, civil
process, and application of lawsuits. At the same time, certain elements of law institutes
were borrowed from Greek and Egyptian law; some were determined by the will of the next
ruler or were formed from local traditions and customs. The peculiarity of private law was
that not all people were its subjects. This was due to the fact that Rome was a slave-owning
state and slaves who owned by their slave owners did not have any rights. Rights were
granted only to free people, in particular, only Roman citizens were recognized as full-
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fledged people. Only later, did the circle of individuals (subjects of private Roman law)
expand (Borisevich, 2013).
Over the centuries, this understanding of public law and private law remained
unchanged, so it was only at the beginning of the 19th century that scientists began to
actively study this issue both in Western Europe and in the territory of the Russian Empire.
Since the specified period and up to the present-day time a large number of theories have
been put forward and many criteria for distinguishing public law from private law have been
defined.
Public law and private law are traditionally regarded as cross-cutting lines of legal
development of the Romano-Germanic family. For this family, the history of these concepts
is the history of the whole law. This is due to the influence of the Roman law: the Romano-
Germanic law has inherited such classification of norms from the Roman law (Dorokhin,
2006).
The Soviet legal doctrine completely rejected the concept of private law (incompatible
with the nature of the socialist system). After the October Socialist Revolution of 1917, the
division of the law into public one and private one was abolished, because such a division
was considered incompatible with the nature of the new system and the economic bases of
the state, which did not recognize private property and private law and private relationships.
Such an order could not help but have a negative impact on the complex mechanism of legal
regulation in the USSR: The state had the right to interfere in the private (then - personal)
life of citizens, it did not ensure democratic rights and freedoms and limited the desire in
property relations, etc. (Borisevich, 2013). By means of rejecting the idea of dividing the right
into public one and private one the Soviet jurisprudence at the same time deprived the
concept of “private law” of its inherent content. In the absence of a clearly defined structure
of the legal system, private law was equated with civil law, and these terms were used as
synonyms: “the ruling division of law is an ambiguous division into a) private or civil law; b)
public law” (Shershenevich, 1995).
With the collapse of the Soviet Union and the establishment of Ukraine’s
independence, a new stage in the construction of the legal system has begun.
2. Materials and methods
The research is based on works of foreign and Ukrainian researchers concerning
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mutual relation (ratio) of private law and public law in Ukraine.
Comparative analysis and the dialectical method of cognition made it possible to
comprehensively study the relationship between private and public law in Ukraine. The
concepts of private law and public law in Ukraine are determined using the synthetic
method.
3. Results and discussion
One of the main factors that complicate the division of Ukrainian law into public one
and private one consists in the lack of uniform criteria which could create a clear boundary
between public-law and private-law relations. Thus, according to some modern Ukrainian
scholars, a dominating criterion of the public law is presented as state interests, the legal
status of state bodies, officials, as well as the regulation of relations of a pronounced social
nature, while in case with the private law the main role belongs to interests of individuals
(Nechay, 2004) is. According to O. Banchuk establishment of privacy or publicity of
relations will be enhanced through considering public law and private law not as separate
systems with a sharp boundary between them, but as a set of social relations that are
constantly moving from one quality to another and combined into a single regulatory system
(theory of the unity of the legal system). The scientist believes that when dissolving public
and private relations the following criteria should be taken into account: 1) difference
between subjects of relations; 2) distinguishing the legal status of participants in relations;
3) difference in the method of regulating legal relations; 4) exceptional nature of legal
protection of rights (Banchuk, 2007).
Other opinions can be also found in the educational and methodical literature. For
example, the following criteria of assigning norms to private law or public law are proposed
to be distinguished: 1) interest; 2) subject of legal regulation; 3) method of legal regulation;
4) subject-matter composition (Leheza et al, 2020).
Establishing a unified approach to the criteria for dividing the law into private one
and public one is necessary to clarify the limits of state (public authority) intervention in the
interests of a person, as well as limits of the impact on the legal system in general.
There are no non-transitional borders between public law and private law. They are
interconnected. The functions they perform are in the interests of everyone. Therefore,
private law actually does not exist without public law, because public sphere is called to
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protect and defend private relations. Private law is based on public law, it could be devalued
without public law. In addition, in the process of historical development boundaries
between these branches of law in a number of spheres of public and state life are blurred,
mixed public and private relations arise (for example, concerning issues of social law, labor
law and other spheres of law). At the same time, today public law and private law remain
fundamental initial constituents of a truly democratic legal system. But the modern legal
system of Ukraine is characterized by insufficient development of private law, since for a
long period of time the main attention was paid mostly to the development of public law.
Therefore, there is a tendency to support the priority development of private law - conditions
for approximation of Ukrainian law to the standards of the Western tradition of law
(Maidanik, 2013). Thus, some sources note that, despite equivalence and interrelations
between private law and public law, “... increased attention should still be paid to private
law, because it (along with or in combination with human rights) reflects the main processes
associated with formation of a system of subjective rights opening a guaranteed space for
people’s own active work, their creativity, initiative ...” (Boshytsky & Chernetska, 2009).
Emphasizing the exceptional role of civil law (as the central division of law in the countries
of the Romano-Germanic family), R. David noted that private law remains the true law and
that formation of a lawyer can be provided through studying civil law (Maidanik, 2013).
Also R. Maidanyk notes that supporters of economic law consider division of law into
public one and private one (in any case, in the sphere of entrepreneurship) to be a
phenomenon that has outlived itself.
Of course, in modern conditions it is impossible to draw a clear line between public
law and private law by means of placing it on one or another side of the positive law sphere.
Attempts to scatter existing industries in these areas, which are made today by individual
authors, are unproductive. Many new branches of law are a combination of various elements
(public ones, private ones, public-private ones, private-public ones). A number of spheres,
which are no doubt included in private law, have a public beginning. The process of mutual
penetration is manifested in the expansion of the use of public-law principles in the sphere
of regulation of property relations, contractual relations, on the one hand, and at the same
time the use of private-law institutions for implementation of public goals. In turn, civil legal
constructions extend to the traditional sphere of public law, which is a process of
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“civilization” of public relations. In public law, coordination methods are sometimes used in
relations between state authorities, contractual relations begin to be applied not only in
international public law, but also in the national law of Ukraine (Leheza et al, 2021).
The private legal component is convincingly present in legal fields belonging to the
sphere of public law, in particular in all procedural fields. The basic principles of private legal
regulation of public relations are determined by the Constitution, so the constitutional law
touches one or another sphere, it forms a common basis, shows not only public but private
interests, it agrees these interests and brings them into the unified system.
In our opinion, despite the processes of mutual penetration of public law and private
law, the dualism of law continues to exist. Dualism (from the Latin double) is a philosophical
theory that allows two independent and non-subordinate principles in any field. In a broader
sense, dualism is the coexistence of two different and closely similar principles (Leheza et al,
2018).
In the modern legal science, all researchers formally recognize existence of two
spheres of law - private one and public one. Besides, the Ukrainian scientist M. Sibiliov
expressed the opinion that the normative principles of recognizing division of the law into
private one and public one are presented in the Constitution of Ukraine, in particular, Article
3 emphasizes that a person, his/her life and health, honor and dignity, inviolability and
security are recognized as the highest social value, and the main duty of the state (which is
responsible for its activities to a person) consists in affirmation and provision of person’s
rights and freedoms. It is human rights freedoms and guarantees that determine content and
direction of state’s activity (Sibilov, 1998).
V. Selivanov also notes that any democratic transformation processes in the state,
modern transformations in the national legal science should ensure implementation of one
of the main public interests - recognition of the person, his/her life and health, honor and
dignity, inviolability and security as the highest social value through protection of his/her
rights and freedoms, harmonization of common private interests as well as private and
public interests coordinated with each other. The qualitatively new goal of Ukraine’s social
progress should not be the immediate good of the state, but good for every person (Selivanov,
2001).
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Conclusions
Therefore, the theory of dividing the law into public one and private one is a
multifaceted phenomenon that has both theoretical and practical value. At the same time,
the problem of relationship between private and public law is important because its solution
will give an opportunity to solve a large number of actual practical issues, in particular,
possible limits of state interference in the economy and private life of persons, etc. Up to
date, legal systems of many civilized countries are based on the principle of dividing law into
private one and public one. The world legal science recognizes the division of law into
private one and public one to a certain extent conditional, but necessary. Opposition of
public and private interests in state regulation by legal means is unacceptable, since it is
through streamlining the public-legal regulation of public-legal relations that it is possible
to achieve an optimal ratio of public and private interests.
From the point of dualism optimality of interrelation between private law and public
law, consists in interconnection and interdependence, as well as in establishing equilibrium
and a fair balance of private and public interests for the purpose of achieving modern tasks
of Ukraine.
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