Публично-правовая и частноправовая природа семейного правоотношения

The article is devoted to the place of financial law in the system of public and private law. The author thoroughly examines the question concerning dividing the system of law into legal sectors of public and private law, as well as the objective nature of such a division. Meanwhile the author highlights different approaches: division of private and public law on the basis of substantive and formal criteria. The author scrutinizes an interest as the material basis of dividing law into public and private. Public law is seen as a set of rules designed to protect values aimed at protecting values associated with the mere existence of the State, and private law is seen as a block of legal norms ensuring the ongoing vitality of the citizen. Along with this, the article contains criticism of dividing law into public and private based on the definition of a public interest as public interests recognized by the state and expressed in the regulatory rules and enforced by the state; division of law into public and private based on the primary role of the State in protection of the interests of an individual, which makes law private. The article substantiates the fallacy of the conclusions. The author notes the inadequacy of the material criterion used to divide law into public and private. The paper analyses the formal criteria of dividing law into public and private depending on the way the right is protected, by way of regulating relations. The author draws a conclusion with regard to the need to apply both substantive and formal criteria to divide law into public and private. In the light of identified criteria, financial law is referred to branches of public law. The article notes the impossibility of making an extremely strict classification of legal material into public and private law, the process of convergence of these two legal categories. The author raises a problem of providing a balance between the public interest of the State and private interests while organizing financial and legal regulation. The author stresses that detailed regulation of the rights and obligations of natural and legal entities in the sphere of public finance activities will contribute to balancing public and private interests in financial law. In the end, the author concludes that public grounds dominate in financial and legal regulation, as well as individual elements of private regulation still can be found.

Personal Inviolability and "Private Law"

Local self-government is one of the major institutions of civil society. Most democracies in the world have a developed system of local self-government, to which a number of state functions are delegated. To characterize this institution and clarify its inherent features of private and public law, it is necessary to study modern systems of local self-government and theoretical achievements in the field of private and public law. The work aims to analyze local self-government given the features inherent in public and private law. The object of research is local self-government in public and private law. The following methods were used during the study: analysis of regulations, articles and monographs, comparisons, abstractions, analogies, and generalizations. The study of the question of the attribution of local self-government as a subject of law to private and public law revealed a number of features that are characteristic of both public and private law. Based on the analysis of the scientific literature, the main characteristics of the system of local self-government in the world are determined, in particular, on the example of such countries as the USA, Great Britain, France, and Japan. Based on the theoretical achievements of legal scholars on private and public law, it was possible to identify their differences, basic features and, on this basis, to conclude that local government is characterized by features of both private and public law.

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 possibleto achieve an optimal ratio of public and private interests.

The article reflects a discussion about the meaning of the division of law into private and public. The author agrees with the researchers, who believe that through any legal norm, regardless of its sectoral affiliation, both private and public interests are realized. In this case, we are even talking about the fact that in itself the ordering of social relations by any legal norm is essential for society and does not allow chaos in relations. The civil law regulation itself contains a mechanism that ensures a balance of both various private and public interests. Confirmation of this to a greater or lesser extent can be found in almost any norm of civil law. Public law, like private law, ensures the implementation of both public and private interests. Entering into various public legal relations in many cases is aimed at satisfying the interests of individuals and is based on their will. Public and private legal blocks are characterized by many features. Raising the question of public and private legal blocks, must understand that the regimes (methods) for regulating social relations by them are more than important, since the establishment of a regime that does not correspond to the essence of certain relations can lead to the impossibility of realizing certain kinds of interests. Thus, the realization of interests (especially private ones) through civil legal relations is mainly possible in the regime of free will. In public branches of law, at least one of the parties does not have the freedom to decide whether to enter into a legal relationship. In addition, as a general rule, unlike private legal relations, public legal relations imply a certain control, which is necessary to ensure both public and private interests.

In the article, the author examines the legal forms of the state’s participation in civil law relations, in particular the legal problems of the state’s creation of legal entities under public law, examines both the doctrinal and legislative provisions of the current legislation. The article provides a definition of the concept of a legal entity of public law, features, and criteria for distinguishing it from legal entities of private law. A legal entity under public law is defined as legal entities that are created directly by law or an administrative act as bearers of public tasks, their organization is regulated by the prescriptions of public interest laws, and they generally perform relevant public functions. The criteria for distinguishing legal entities under private and public law include the following: 1) interest; 2) the presence of authority; 3) organizational and property subordination of a legal entity. The author examines judicial practice regarding the establishment of a legal fact on the issue of classifying a state-owned enterprise as a legal entity under private law. The article analyzes the issue that only state bodies have the authority and competence to create legal entities under public law, local self-government bodies and private individuals cannot have such competence. The author considers the issue of the responsibility of the local self-government body for the debts of commercial enterprises. The article analyzes the legal status of an educational institution as a legal entity under public law on the example of a state university. The author examines the issue of the state’s creation of legal entities of private law. The most common organizational and legal form in which legal entities under private law are created are joint-stock companies. The article analyzes the current legislation in the field of corporatization of state enterprises. The author analyzes the legal status of a public joint-stock company, considers the issues of its creation and nature of activity.

This chapter is part of a larger book project on legal enforcement. In it, I examine the meaning and importance of rights of action in both private and public law. Rights of action are, I suggest, one kind of legal ‘enforcement’ right, which enable either private or public enforcers to initiate legal proceedings before courts of law in response to the violation of both private and public rights. Much has been made of the importance of rights of action in the private law context by civil recourse theorists in the United States. Here I seek to broaden our understanding of such rights by incorporating reference to their existence and particular configuration in public as well as private law. This broader focus leads me to a slightly different (and ironically slightly more limited) understanding of rights of action that which is posited by civil recourse theorists. The most important point made in the chapter is that rights of action in modern public and private law are not one, single right, but clusters of Hohfeldian liberties and powers that are also accompanied by a variable group of legal claim rights serving to reinforce them. They constitute important liberties and powers to require another publicly to answer a claim before a court of law; and to enliven the public powers and duties of courts to see that justice (either public or private) is done. They are in this respect a source of autonomy for the persons exercising them and an essential feature of the efficacy and legitimacy of any system of law. At the same time, however, their powerful effects upon the interests of others, both private and public, means that their exercise is regularly set about with precautionary devices in the form of preconditions, duties and liabilities, which distribute power in respect of their use in different ways as between public and private law and public and private agents. This creates a jural network of cross-checks and balances upon their abuse or neglect in both public and private law. This system of cross-checks is essential, I suggest, to the normative acceptability of enforcement systems in both legal domains. Finally, I suggest that whilst rights of action are clearly of great normative importance in making the possession of primary legal rights meaningful and in enabling rights-holders to enforce those rights, there is no necessary analytical reason why the holder of a primary right should always hold the power to enforce it, or why the holder of that right should be the only one to be accorded that power. This means that in both public and private law, it cannot be taken for granted that only those holding the primary claim right should be granted rights of action when it is violated; nor indeed that they should universally be granted that right. As it happens, this turns out to be substantiated by a wide range of examples in our modern law, where private enforcers get to enforce public rights and (less often, but sometimes) public enforcers are empowered to play a role in the enforcement of private ones.

This topic is updated by the recent change in the nomenclature of legal scientific specialties, where the central place is assigned to public and private law. The purpose of the article is to study the approaches of S.S. Alekseev to the analysis of private and public law; to their interaction and relationship. Special legal, biographical, hermeneutical and comparative legal methods are used. S.S. Alekseev justifies that the main division of law expresses its deep, initial principles, and hence the fundamental features that appear within the framework of these areas of law, each of which is distinguished by a kind of legal instrument. S.S. Alekseev proves that the main division of law expresses its deep, initial principles, and hence the fundamental features that are manifested within the framework of these areas of law, each of which is distinguished by a kind of legal instrument. Public and private law have their own «spirit», the initial beginnings, the principles, features. Moreover, despite the «strength» and the leading nature of public law in modern legal systems, private law is historically and logically the first subsystem of law that laid its fundamental features in general. The two legal subsystems cannot exist without each other. They are inseparable, but everyone has its own tasks, functions, and its own subject of regulation. Public law is necessary for the authorities to regulate their existence and manage the affairs of society, but the state apparatus is less interested in the existence and development of private law. However, without private law, or if it exists, but with serious diminution or deformation, public law also suffers. Private law disappears under socialism and therefore a logical and important result of the study of the teachings of S.S. Alekseev on public and private law today, in the context of the country's transition to democracy, respect for human rights and a market economy, is the conclusion that the revival of private law in Russia is necessary.

It is generally accepted that law consists of two main domains – private and public. At the same time, there is clear scepticism about the sharp separability of these domains. The problém of distinguishing private and public law is undoubtedly also a problem of public administration and its implementation as it is possible that the public purpose will also be fulfilled by private law norms. In addition, there may be legal institutes that combine more or less the norms of public and private law, for which the designation of hybrid legal institutes seems appropriate. However, such institutes may present some difficulties associated with legal dualism. The aim of this two-part paper (within its limited scope) is to provide a basic introduction to the issue of socalled hybrid legal institutes. In the first part of the paper, besides some general background, the text presents a triad of such institutes that are applied in the context of public administration and for which some debate over their legal nature could be observed in the domestic literature. In the second part (which will be published in a future issue of the journal), the text attempts to answer the research question of how to deal with these institutes, or rather considers some basic criteria for distinguishing private and public law in the context of public administration regulation.

The article is devoted to the analysis of issues concerning the distinction between the public law and private law. It is established that most scholars agree with the expediency of dividing the law into two subsystems – private law and public law. It was found that the main criteria for distinguishing between the public law and private law, such as: 1) the nature of the dominant interest; 2) the difference in the subjects of legal relations; 3) the difference in the method of legal regulation. Thus, the criterion of the nature of the dominant interest, allows to distinguish public law, which protects the general, state, public interests, public goods, important not for the individual but for the society, country as a whole. Instead, in private law, the personality interests of the individual (persons) are dominant. The difference in the subjects of legal relations is manifested in the fact that in public law the subject is a person who joins them to exercise their public authority, instead, in private law, a person can exercise the right to enter into legal relations at his own discretion, and the change or termination of private law relations, as a rule, depends entirely on the will of their participants. The difference in the method of legal regulation is manifested in the fact that public law tends to obligations, and private law tends to permits. It is proved that public and private law are two sides of the same coin, which exist in inseparable unity and interdependence, and a clear example of this is the area of labor protection, where legal regulation is both private and public.

Introduction: The relevance of scientific research lies in the fact that for many years Russian legal science has followed the path of splitting the "legal platform" into separate sectors, their isolation in the field of law, sub-sectors, institutions, as well as complex sectors of law and legislation, in isolation from the experience of foreign legal systems. But there are no global breakthroughs, the complicating legislative array from the industrialization of law has not become clearer, on the contrary, the complication and "inventing" of new industries has added confusion to science and practice, diverting understanding from the deep meanings of the structural dualization of law. The author of the article argues his critical attitude to the idea of "cyclic legal arrays" proposed by various scholars, which is based on the idea of "cyclization" in law. Returning to the origins: two large spheres - public law and private law, in our opinion, will "facilitate" the process of adapting law to the new digital reality, when there will be no conditional industries and restrictions, but within the framework of two complementary and interacting spheres (private and public rights) legal relations will consolidate the new rules of the digital world, become an effective tool for resolving a wide variety of "digital" (already emerged and emerging) relations with the rules of law. Purpose: The purpose of the article is to explore the concept, content, place and role of additive technologies in law. The author of the article proves that it is necessary to gradually (thoughtful) unite (enlarge) the existing artificial branches of law (which do not benefit either economics or law) and, ultimately, justify the concept of private and public law in the context of digitalization. Methods. The leading method of studying the problem was the deductive method, which made it possible to study the legal and social nature of the processes of unification (enlargement) of the currently existing artificial branches of law. The article uses inductive method, method of system scientific analysis, comparative legal and historical methods. The leading method underlying the solution to the problem is to justify the concept of private and public law in the context of digitalization. Results. In the article, the author, considering the division of law into industries and institutions largely conditional and outdated, offers a conceptual idea of enlarging the elements of the law system and a return to the idea of dividing law into public and private in terms of the use of additive technologies. As an alternative to the concept of "cyclical legal arrays" and a possible broad discussion, the author of the article proposes his conceptual idea - "additive technologies in law," the essence of which is to combine together the elements (norms of law, institutions and even branches of law), which previously constituted a single system, interacting or not interacting comprehensively or fragmentally, if conditions have "matured" and if their synthesis gives a great effect and breakthrough for the new system into which they merged, and will give new qualitative characteristics to the combined elements themselves.

Purpose. The aim of the research is to solve the scientific task of doctrinal development of regulation of interests in family law, to determine the criteria for building a hierarchy of interests in family and family law, to investigate the relationship between private and public interests in family law and to consider issues of abuse of family interests. Methodology. Among the philosophical, general and special scientific methods used are such as: logical-semantic method for in-depth clarification of the criteria for the division of interests in family law, formal-logical and system-structural methods used in making judgments, analyzing the content of current family law. legislation on the basis of which the legal regulation of the construction of interest in family law. The scientific novelty is that the article improves the concept of independence of interest from subjective family law and the criteria for their delimitation, which is based on the approach that interest is a prerequisite for the emergence of subjective family law, in the absence of the right to demand appropriate behavior from others persons with no specific legal obligations. It is stated that the balance of interests of each individual family member is formed in accordance with the principle of equality, which is inherent in family law, taking into account the priority interests of individual family members (children, pregnant women, disabled, etc.). The hierarchy of interests in the family and their dynamic nature have been further developed.Attention is paid to the study of the category of "abuse of rights", as well as the impact of interest on it. Results. The author investigates the connection between public and private interests and, accordingly, the exclusion of the possibility of abuse of state interests in relation to the interests of other subjects of family law. When these interests collide, the priority of the interests of society can take place only if the interests of the individual are ensured, which is achieved by legislative establishment of maximum guarantees for citizens, which exclude the possibility of abuse of their rights. Practical significance. The results of the study can be used in lawmaking to improve legislation in the field of legal regulation of the category of interest; in the educational process - in the development of textbooks, teaching materials in the discipline "Family Law of Ukraine".

This paper charts the development and identifies the core features of a unitary conception of public law that emerged in English law in the wake of procedural reforms in the late 1970s that established the judicial review procedure. This public interest conception holds that the principal concerns of public law are regulation of public power in the public interest and according to precepts of good administration. Private law was distinguished on the basis that its concern was enforcement of private rights and protection of individual interests. This public interest conception underpinned major legal developments in a critical ten- to fifteen-year period following the procedural reform which, together, forged a distinctive, integrated “system” of public law in English law. These developments were radical in a jurisdiction characterised by the Diceyan tradition that public law is private law. On the other hand, it was consonant with the historical development of English law that a substantive legal change was secreted in the interstices of a procedural innovation.The public interest conception has proven hugely influential. It has been used as a normative idea to guide legal development across public law fields. However, the paper argues that this is problematic. This conception was forged by reference to only one branch of public law, the common law of judicial review. Contemporary public law is composed of a range of different bodies of doctrine; it has no functional unity. Where the public interest conception is used to guide development in fields other than common law review, which continues to bear its hallmarks, the risk is that the distinctively valuable functions of those other fields are impeded, while the coherence of those bodies of doctrine may be distorted. The paper analyses two examples of where this risk has become reality: the approach to grant of relief in review proceedings on EU grounds (specifically in the context of EU environmental Directives), and the approach to damages under the Human Rights Act 1998.Ironically, principal lessons to be drawn from the emergence of the unitary public interest conception of public law are that there is no such thing as a unitary system of public law in contemporary English law, and resting legal development on the idea of a general divide between private and public law is likely to lead to fuzzy thinking, incoherence and the warping of legal doctrine; such over-simplifications, while they may appear “neat” or seem “intuitive”, should be repudiated.

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

In the modern Ukrainian legal literature there is a lack of thorough research on the functioning of the territorial community as a legal entity under public law. The purpose of the article is to analyze the doctrinal sources and legislative principles of determining the territorial community as a legal entity of public law. This involves the following tasks: determining the specifics of the legal status of the territorial community as a legal entity under public law, a subject of civil and municipal relations; delineation of the scope of its powers; substantiation of the need for formation, implementation and protection of public local interests, implementation of relevant functions by the territorial community. Methodology. Methodological tools are selected in accordance with the stated purpose, specifics of the object and subject of research. The application of scientific tools was based on system-structural and interdisciplinary analysis. General scientific methods were used, first of all, the dialectical method of scientific knowledge of real phenomena, as well as during the study of the activity of local self-government bodies in Ukraine. Special methods were also used: system analysis; system-structural – to establish the content of the studied categories and legal phenomena, the formation of the conceptual-categorical apparatus; comparative law – for a comparative analysis of the legislation of different countries on the establishment and operation of legal entities under public law; methods of induction, abstraction and formal logic – to summarize the proposals and conclusions regarding the improvement of the domestic legal framework governing the creation and operation of legal entities under public law. The scientific novelty is to improve the definition of the meaning of the term “territorial community as a legal entity under public law”. It is proved that the realization of the right of local residents to self-organization and self-government, protection of legitimate interests of members of territorial communities through creation, management, strategic development of “territorial corporation” – territorial community – requires improvement of legislation, including rights and responsibilities of territorial communities. institutions. It is proposed to change the relations between territorial communities (residents) and central, other authorities, as well as to create a full-fledged legal entity of public law – territorial community, change the budget and tax policy of the state, to implement real decentralization (legal, financial, material, organizational and administrative). interests of local residents. Conclusions. The article provides a comparative legal analysis of the legislation of Ukraine and some foreign countries governing the establishment and operation of a legal entity under public law – “territorial corporation” (territorial community). It was found that the legislation of Ukraine differs from the legislation of most European countries. Legal entities of public law in Ukraine are created and operate in the manner prescribed by civil law, in contrast to some European countries, where “territorial collectives” are constitutional persons of public law and operate within public rather than private law. Some norms of the current legislation, according to which local self-government bodies are legal entities in accordance with the civil legislation, seem to be imperfect. Instead, it is advisable to consolidate the status of territorial communities as legal entities under public law