THE GENESIS OF THE LEGAL FACTS DOCTRINE IN THE CIVIL LAW SCIENCE

ГЕНЕЗА ВЧЕННЯ ПРО ЮРИДИЧНІ ФАКТИ У НАУЦІ ЦИВІЛЬНОГО ПРАВА

Anatoliy Kostruba ()

Post-Print from HAL

Abstract: The article aims at investigating the historical development of scientific ideas of legal facts in the private law doctrine. The authors particularly focus on the approaches used to define the concept of "legal fact" in the institutions of Gaius, the Civil Code of Eastern Galicia of 1797, the Austrian Civil Code of 1811, the Civil Code of France of 1804, the German Civil Code of 1899. The authors analyze "classical" approaches to the definition of the "legal fact" concept in works by F. Savigny, H. Dernburg, R. Sohm, G. Puchta, А.Ton, Ye. Tsytelman, L. Enneccerus, B. Windscheid, K. Lorenz, F. Wieacker, R.Knieper and others. It is argued that the concept of "legal fact" enshrined in Part 2, Article 11 of the Civil Code of Ukraine (Ukraine's CC) evidences the perception of a settled theoretical position according to which it is legal facts that lay the basis for the origination of civil rights and obligations. According to the conclusion made on the basis of the study findings, the authors maintain that legal facts have a wider capability than just to ensure the movement of legal relations. Legal facts can also give rise to legal capacity, legal competence, subjective rights and legal obligations which do not correspond to each other, and separate legal authorities. It is proved that the modern view on the legal fact's nature is shifting from the position according to which the State recognizes a respective phenomenon of the outside world as such a fact towards recognition of a consequence of a respective phenomenon of reality as a legal fact. In this context, the grounds for imparting legal significance to such a fact are, along with a legal rule, other legal regulators of behavior of participants to civil relations (in particular, contract). Special attention is paid to the study of the set of facts. In this article, the "set of facts" refers to a set of legal facts, which in the structural unity entail the consequence in the form of establishment, exercise and termination of subjective civil rights, legal obligations, civil legal relations in general etc. In this context, separate legal facts are incorporated in the set of facts as its elements. The article defines general and special features of a legal fact. Common features of the legal fact are defined as follows: 1) it is specific; 2) it has subject-object causation; 3) attribution; 4) individuality; 5) spatial and temporal certainty; 6) normative formalization; 7) consequence. A legal fact also has special features, namely: 1) the nature of consequences it entails; 2) regressivity of information; 3) combination of legal facts. The concept of legal fact is revealed through the role of a body of general philosophical and special legal features (and thus the definition of legal fact is based on its understanding as a consequence of a fragment of reality, the establishment of which in a normatively formalized manner affects the development of law-absorbent constructs in social relations). Given the latest approaches to defining the nature of legal facts in civil law, the authors believe that it is crucial to make a recodification of civil legislation of Ukraine and improve the relevant provisions of the current Civil Code of Ukraine, with due regard for the developments of modern civil doctrine.

Keywords: legal fact; set of facts; civil law provision; legal relations; obligation under civil-law.; legal regilations (search for similar items in EconPapers)
Date: 2019-01-20
New Economics Papers: this item is included in nep-cis
Note: View the original document on HAL open archive server: https://hal.science/hal-02536267
References: View complete reference list from CitEc
Citations:

Published in Право України, 2019, THE NATIONAL DOCTRINE OF PRIVATE LAW: MAIN METHODOLOGICAL FOUNDATIONS, 1, pp.167-185. ⟨10.33498/louu-2019-01-167⟩

Downloads: (external link)
https://hal.science/hal-02536267/document (application/pdf)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:hal:journl:hal-02536267

DOI: 10.33498/louu-2019-01-167

Access Statistics for this paper

More papers in Post-Print from HAL
Bibliographic data for series maintained by CCSD ().