Public order as a legal category: doctrinal analysis

Abstract

Listen

Translate article

Modern legal doctrine considers public order as a multifaceted legal construct that integrates key principles of law and order, ethical norms of society and basic legal values. The article examines the institution of public order as a complex legal phenomenon in the civil law system of Ukraine. Based on the analysis of scientific sources and legislation, the essence and content of the category of public order, its features and significance for the legal system are revealed. Special attention is paid to the study of public order in the context of the invalidity of transactions and private international law. The problem of determining the content of public order in judicial practice and doctrine, its correlation with the norms of civil law are analyzed. Theoretical and practical problems of applying the category of public order as a basis for the invalidity of transactions are considered. The historical development of the concept of public order from Roman law to the present day, its transformation in the Soviet period and the peculiarities of understanding in the conditions of a market economy are investigated. Special attention is paid to the analysis of public order as a mechanism for restricting the application of foreign law in private international law. The approaches to the definition of public order in the legislation and judicial practice of Ukraine are analyzed, in particular, some positions of the Supreme Court of Ukraine on the interpretation of this category. The issues of the correlation of public and private law in the context of public order are studied, as well as the features of its application in different legal systems. The specifics of the application of the category of public order in international commercial arbitration and in the recognition and enforcement of foreign court decisions are considered. Based on the conducted research, the need for a clear legislative definition of the category of public order and improvement of the mechanisms of its application in judicial practice is substantiated. The conclusion is made about the dual nature of public order in civil law and its importance for protecting the fundamental interests of society and the state. Ways of improving the legal regulation of public order are proposed, taking into account international experience and modern trends in the development of law.