The Notion Of Subsidiary Use Of Civil Law As One Of The Manifestations Of Subsidiarity In Civil Law Of Ukraine

Abstract

This article explores the concept and essence of subsidiary use as one of the displays of subsidiarity in civil law. The study of the scientists opinion regarding the notion of subsidiary use of the law norms and the normative and doctrinal interpretation of the notion of legislative gap gave an opportunity to reject the position of authors, who consider the legal loopholes in regulation as a necessary condition for the subsidiary use, since in the subsidiary application of civil law the relations are regulated, albeit indirectly: the rules governing these relations are contained in other institutes or branches of law. It is noted that with the subsidiary application of civil law there is an additional influence of the norms of civil law on other, uncharacteristic for him social relations.

It is concluded that subsidiarity in the aspect of the subsidiary application of the norms of civil law should be understood as the adoption of legislative technique in which, by means of blanket and reference rules, implements the legislator's will to extend the norms of action, along with the social relations for which they are directly designed for. On the social relations of the same or another field of law, which are not directly foreseen in the hypothesis of the legal norm and endowed with the social relations certain commonality, as well as the homogeneity of the methods of their legal regulation, and of express reference of the law - to other social relations. In this case, the referal of civil law to other norms of civil law, should be regarded as subsidiary application of the norms, only when there are no generic relationships between such legal institutions.