Revision of Approaches to the Institute of Civil Liability in the Process of Recoding the Civil Code of Ukraine

Abstract

Although the issue of civil liability is not new to civil doctrine, it is still relevant. In the research of Ukrainian scientists there are two approaches to understanding the concept of civil liability – positive-perspective and negative-retrospective. However, recently the issue of extension to contractual relations, risk-related relations, the category of “civil liability” has been actively discussed. There are opinions that in cases of breach of contractual obligations or damage as a result of risky activities, it is difficult to justify and apply measures of civil liability. Moreover, in foreign doctrine, breach of contract is not traditionally considered an offense. Therefore, the purpose of this article is development of approaches to the institute of civil liability and outlining the directions of updating civil legislation considering current European trends. The work based on economic analysis of law using dialectical, comparative, logical-dogmatic and other methods analyzes approaches to understanding the concept of civil liability and distinguishes between measures of civil liability and measures to protect civil rights. In particular, it is concluded that the use of the category of “civil liability” to cases of offense, i.e. unlawful infliction of harm, is justified. It seems appropriate to introduce into civil law, along with the category of “legal consequences of default” a broader legal category “legal consequences of non-performance (violation) of civil duty”, as civil obligations may arise from both obligations and other legal facts. This will allow expanding the possibilities of protection of rights and legitimate interests and effectively restore the violated right, as the restorative function is inherent in the measures to protect subjective civil rights