In jurisprudence, there is such a thing as “dualism of law”. Public and private law is precisely the classic manifestation of this concept. But, besides such a division, there is another. This is the dualism of private law. In European legal science, it appears as a segregation of norms that govern commercial, or commercial, activity from the norms of civil law.
This position is opposed to monism, which implies that civil norms are embedded in a single system. The existence of such duality has created the problem of dualism of private law in European countries, consisting in the delineation of commercial law.
General concept
The dualism of private law is a phenomenon that is characteristic mainly for states where a continental system is present. This concept suggests that in the field of private law there are two aspects - commercial and civil. Moreover, they are characterized by parallel existence and independence. This fact of the lack of a clear legislative separation creates a number of problems in legal regulation.
Along with civil, there are commercial codes and commercial courts. As a rule, relations are subject to civil law regulation only when there is a lack of relevant necessary norms in the commercial. At universities in countries such as Germany, Spain, Japan, etc., courses in commercial and civil law are taught separately, often even within separate departments.
A detailed study of the question of what this is - the dualism of private law, it would be advisable to start by considering the conditions for its occurrence.
History of origin: Italy and France
The dualism of foreign private law in many cases is considered as a phenomenon. After all, he arose in Europe in the Middle Ages and continues to exist to this day. Italy is considered his homeland. It was there that merchants developed very actively, whole trading cities appeared.
Later, commercial law began to develop rapidly in France. There, the merchant class as a class was quite strong. It was able to counter its activity to the nobility. It was in France in 1807 that the Commercial Code was adopted, and in 1810 the Civil Code.
Development of commercial and civil law in Germany
In Germany, dualism arises for political and social reasons. Against the background of the fragmentation of the country in the first half of the 19th century. the creation of a unified civil law could not lead to the desired result.
Nevertheless, in 1861, the adoption of the Commercial Code, which was all-German, was adopted. This act concerned religious, family and other important issues. He acted along with the legislation of subjects based on Roman sources, which was not enough for a rapidly developing trade.
Then, in 1897, a trade code was adopted, while in 1896 the Civil Code already appeared. At the same time, the main principles of trade were included in the latter.
Staging
As a rule, there are two stages in the evolution of the dualism of private law. This is the classic and stage of the century of dualism.
- The first of them is characterized by the fact that both commercial and civil law coexist in parallel with each other. Where there is a lack of regulation of the rules of formalized Roman law for their application to relations in the commercial sphere, commercial law is applied.
- In the second period, not two systems that are parallel operate in trade, but one of the branches of private law, which is set out in two codes - commercial and civil.
Over time, the differences between trade and civil transactions of a different kind begin to gradually fade. At the same time, from the point of view of jurists, the existence of two types of legislation inevitably leads to problems in legal regulation.
Regulatory Items
The structure of civil regulation traditionally includes:
- general provisions regarding the status of individuals and legal entities;
- property law;
- obligatory;
- hereditary;
- family.
Commercial law includes:
- designation of the legal status of trading companies and partnerships;
- consideration of types of trade agreements, among which the first positions are sale, purchase and transportation;
- regulation of relations related to settlements, lending and insurance;
- industrial property law;
- maritime law.
Thus, in the commercial and legal sense, trade is understood as any transactions related to the onerous sale of goods, as well as work and services.
Regulatory issues
At the same time, the absence of a clear separation between the above relations, which are regulated by both commercial and civil law, leads to the fact that in legal literature they are often analyzed in the context of holistic private law. This happens, for example, in Italy and Spain. Or, general collections of normative acts are published.
In this regard, often in textbooks on civil law, albeit in a generalized form, attention is paid to such central institutions of commercial law, such as, for example, sale and purchase. So, the two-volume Aransadi published in Spain is called Civil Law, but it has such a subtitle as Trade Laws. It contains the main commercial legal acts. Often, in unity, individual trade and civil institutions are examined, such as the general conditions of contracts.
The dualism of private law in Russia
In contrast to the West, a separate commercial law never existed in the Russian Empire. At that time it was considered as a special part of civil law. In 1814, the preparation of the draft Commercial Code on the French model was completed, but it was not accepted.
In 1857, the Code of Institutions and Charters existing at that time was transformed into a Commercial Charter. In 1887, he underwent significant changes. In Russia, by the end of the 19th and beginning of the 20th century codification of civil law began, the completion of which did not happen.
Thus, in Russia even before the revolution, the concept of a single private law was formed. Although at the same time the first school of commercial, or commercial, law developed. Its brightest representatives, such as G. F. Shershenevich, vigorously defended the sovereignty of commercial law.
Today, a number of scientists are proposing the development of an Entrepreneurial codec, saying that there is a great need for this. In their opinion, it should include ten sections that contain a description of general provisions, subjects of entrepreneurial relations, their property, contracts and other obligations, state regulation of entrepreneurs, their financing, innovation, investment, responsibility and protection of entrepreneurial rights and interests.
At the same time, supporters of this concept are aware of the danger of taking the path of duplication of provisions in the two codes. As a way out, one sees the exclusion of rules on the activities of entrepreneurs from the Civil Code and their introduction into the Entrepreneurship Code.
As regards Western private law, there, primarily in Germany and France, a path is being promoted and introduced step by step to reduce the content of the Trade Codes by removing special laws from them. For example, about joint-stock companies, which, in the end, should lead to the rejection of dualism in private law.
Dualism of Roman Private Law
It lies in the fact that there is also observed its own internal structure, which is as follows:
- Civil law, it is also Cyrillic.
- The right of peoples.
- Fee law, or magistrates law.
The first of them, the oldest, was based on the laws of 12 tables. Quirite property was the property of full Roman citizens. It was acquired using such methods as: coercion, power order, division of movable property, transfer as a result of a fictitious process.
In the second there were legal norms that were borrowed from the allied and subjugated peoples, in contrast to the Quiritian law. Its sources were the edicts of the magistrates for foreigners and praetors. The subjects of law were peregrines - foreigners.
The third arose along with the law of the peoples in connection with the development of trade, commodity-money relations among the Romans, which were its subjects. In accordance with its provisions, transactions were made at the will of the parties. Judicial authorities provided legal protection to all their species. The sources were praetor’s edicts, as well as decrees of city magistrates, kurul aediles who were in charge of trade affairs.
Thus, all three of these types of private law intersected, which led to the dual dualism of Roman private law. It was overcome in 2012 AD e., when the emperor Caracalla issued a decree equalizing Roman citizens with those who lived permanently in Rome.