Das konzept der handlungsfreiheit im ukrainischen und deutschen zivilrecht

Abstract

The article focuses on researching into freedom of action and freedom of contract in civil law of Ukraine and civil law of the Federal Republic of Germany. The author makes a detailed study of the provisions of civil legislation of Ukraine, namely Articles 6 and 627 of the Civil Code of Ukraine (Ukraine’s CC) which define the essence of the principle of freedom of contract. It is established that the only limits of freedom of contract are peremptory norms which may establish special requirements in respect of the parties to particular contractual relations, and also restrictions ensuing from the need to respect the rights and interests of third parties, as well as public order. Based on the findings of the research, the author draws the conclusion that freedom of action is wider than freedom of contract, since it also covers, for example, unilateral legal transactions, such as freedom to establish the will and etc. At the same time, “freedom of contract” refers to a range of potential opportunities of the parties to particular contractual relations. The author asserts that in terms of the issues under research German civil law has no fundamental differences from Ukrainian civil law. It is noted that freedom of action and freedom of contract, and also their limitations prescribed by the German Civil Code (BGB) are generalized by the concept of private autonomy (as a rule, it is a component of free development of an individual and general freedom of action). At the same time, the author believes that in the German Civil Code there is no equivalent to Articles 6 and 627 of Ukraine’s CC, since BGB does not contain any provisions defining the principles and limits of freedom of contract, freedom of action and private autonomy. An attempt is made to present the juridical, historical and legal philosophical prerequisites of private freedom of action and private autonomy, and also the dangers which threaten them with digitalization. The author believes that the objective of finding implementation of subjective freedoms in private autonomy of civil law, at the same time discarding any reflections on efficiency, is inconsistent with the current state of development of society and the legal system. Particular attention within the framework of private-law regulation is given to the category of “efficiency”. The author notes that currently there is a trend towards perception by the scientific community, the legislator and judicial authorities of the basic provisions of the doctrine which is referred to as “economic analysis of law”. In the author’s opinion, objectivity and development of the concept of reasonable participant to legal relations which lawyers and judicial authorities base their own rational ideas on, do not contradict the foundations of private autonomy. Particular attention is given to development of smart-contracts, which the author believes to help the participants to civil relations to get rid of distrust of the counterparty, and also to avoid the insecurity of subjective rights and interests, information asymmetry, and etc. The article provides a review of the legal nature of the smart-contract, its characteristics and specific features. The author notes the rapid development of the blockchain technology and analyzes its impact on the development of civil law.