The legal nature of the evaluative concepts of ”justice”, “good conscience”, “reasonableness” in the Civil Code of Ukraine.

Abstract

The key ideological and methodological motives of the article were conditioned by the discussion that has been going on for some time among Ukrainian civil-scholars on the need and content of recoding the Civil Code of Ukraine, the main problems of further development of civil law in Ukraine. First of all, the degree of scientific development of the problem is analyzed and it is found that the evaluative concepts of ”justice”, “good conscience”, “reasonableness” in Civil Code of Ukraine are constantly in the field of view of Ukrainian civil scientists, but they are still poorly understood in domestic civil law, from a priori inherent in their knowledge of natural law research approaches. It is shown that they were mainly analyzed using the formal-dogmatic method of the positivist doctrine of jurisprudence, which is unable to ensure the disclosure of the existential nature of the respective categories.
As a result of research of the above-mentioned problem some new scientific results have been received. In particular, in the current Civil Code of Ukraine the evaluative concepts of ”justice”, “good conscience”, “reasonableness” were used 95 times, which is almost an order of magnitude more than they were used in the Civil Code of the USSR, and in the latter concepts ”justice” and “good conscience” weren’t used at all.
It is proved that the content of these categories in the Civil Code of Ukraine goes beyond purely positive legal constructions, and represents the meaning of natural private law in general. Based on this understanding of their nature, as well as the a priori (non-positive) nature of other principles of civil law set out in Article 3 of the Civil Code of Ukraine, is proposed to change the name of Article 3 to «General Principles of Civil Law».
It is concluded that the formula of Part 6, Article 3 of the Civil Code of Ukraine is de facto the most laconic formulation of the anthroposociocultural code of civil law.
Considered that it is contained in one of the title articles of the first book «General Provisions» of the Cіvil Code of Ukraine, it is concluded that it both de facto and de jure permeates the entire content of the current Civil Code of Ukraine. It was also stated that given the key role of Art. 3 of the Civil Code of Ukraine in the entire legal structure of the Civil Code, the categorical series ”justice”, “good conscience”, “reasonableness” of the Civil Code of Ukraine has moved from its periphery to the epicenter of the codex.