RENEWAL GENERAL PROVISIONS ON CONTRACTUAL OBLIGATIONS: IMPROVING PRIVATE LAW RELATIONS IN CIVIL SOCIETY

Abstract

The article examines the approaches to updating the general provisions on contractual obligations based on the analysis of the Concept of recodification of the Civil Code of Ukraine. It is stated that the current permanent reform of contractual legislation, which has led to the creation of a large, and sometimes unsystematic, array of legal norms does not contribute to the proper settlement of private law relations in the context of European integration processes in Ukraine. Accordingly, the study of the latest changes in the mechanism of contractual regulation is an important prerequisite for starting the process of updating the Civil Code of Ukraine. It is concluded that the process of updating contractual legislation should affect not so much the form in which certain legal ideas are expressed, as the shift of emphasis from the legislative regulation of legal relations between their participants in the direction of their contractual definition. The problems of contractual regulation of private legal relations common with the EU member states are singled out, as well as the basic provisions on which such updating of the civil legislation in the field of contractual obligations should take place. It is proposed to classify obligations into separate types (alternative, optional, in-kind) within the framework of Section I “General Provisions on Obligations” and to determine the peculiarities of the legal regulation of these separate types of obligations. In addition, it is proposed: 1) to establish a single criterion for determining the liability of counterparties for «breach of obligation », which will include both its non-performance and improper performance; 2) to reflect the features of the implementation of optional obligations; 3) to reflect the peculiarities of enrollment performed at the expense of several homogeneous obligations; 4) to differentiate between the legal penalty established by the imperative and dispositive norms of the law; 5) to fix the inexpediency of simultaneous accrual of both interest and penalties for non-performance or improper performance of a monetary obligation; 6) to separate the legal consequences of the payment of the guarantee and termination of the main obligation; 7) to fix along with standard conditions of the contract also approximate conditions of the contract.