Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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M. C
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 79 (2023), 694-705
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido 03/07/23 Aceptado el 15/09/23
The formation of civil legislation and the
peculiarities of its application in Ukraine
during the period of martial law
DOI: https://doi.org/10.46398/cuestpol.4179.46
Olha Burlaka *
Hanna Churpita **
Nataliia Bilianska ***
Svitlana Senyk ****
Anzhela Kaliniuk *****
Abstract
This study analyzes the peculiarities of the formation of
modern civil legislation and peculiarities of its application
in Ukraine, during the period of martial law. With the help
of philosophical, general scientic and special legal methods
and approaches, the legal nature of civil legal relations, the
dynamics of their development and the mechanism of regulation under
the conditions of a special legal regime were investigated. The expediency
of showing a separate section in the Civil Code of Ukraine, which would
contain temporary provisions providing legal guarantees for the period
of war, for the implementation and protection of civil rights and interests
of a person, additional obligations of the state to protect civil rights and
interests, is based on social necessity. In the conclusions it is indicated
that there is a scientic need to clarify the concept of updating the civil
legislation of Ukraine with the key role of an anthropological approach, as a
methodological basis for future recoding, and compliance with the principle
of legality, proportionality of restrictions, proper denition of prerequisites
for establishing restrictions on civil rights and the correct assessment of the
degree of danger of occurrence of relevant circumstances.
* Doctor of legal sciences, Professor of the Department of Civil and Legal Disciplines at the National
Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-7992-7903.
Email: obur83@ukr.net
** Doctor of legal sciences, Professor of the department of civil and legal disciplines at the National
Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0003-3915-347X.
Email: anna828283@gmail.com
*** Candidate of law sciences, Associate professor of the department of civil and legal disciplines at the
National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-1650-
5500. Email: bilianskanv@gmail.com
**** Philosophy Doctor in Law, Associate professor of the department of civil and legal disciplines at the
Ivan Franko National University of Lviv, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0003-
3492-5282. Email: senykswitlana@gmail.com
***** Philosophy Doctor in law, Associate professor of the department of the civil and juridical disciplines,
National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0001-8032-
3632. Email: angel.kalinuk@gmail.com
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Keywords: civil legal relations; military regime; formation of civil
legislation; limitation of rights; protection of rights and
interests of a person.
La formación de la legislación civil y las peculiaridades
de su aplicación en Ucrania durante el período de la ley
marcial
Resumen
Este estudio analiza las peculiaridades de la formación de la legislación
civil moderna y las singularidades de su aplicación en Ucrania, durante el
período de la ley marcial. Con la ayuda de métodos y enfoques losócos,
cientícos generales y legales especiales, se investigó la naturaleza
jurídica de las relaciones legales civiles, la dinámica de su desarrollo y el
mecanismo de regulación bajo las condiciones de un régimen legal especial.
La conveniencia de mostrar una sección separada en el Código Civil de
Ucrania, que contendría disposiciones temporales que brindarían garantías
legales para el período de guerra, para la implementación y protección de
los derechos e intereses civiles de una persona, obligaciones adicionales
del Estado para proteger derechos e intereses civiles, se fundamenta en
la necesidad social. En las conclsuiones se indica que existe la necesidad
cientíca de aclarar el concepto de actualización de la legislación civil
de Ucrania con el papel clave de un enfoque antropológico, como base
metodológica para la recodicación futura, y el cumplimiento del principio
de legalidad, proporcionalidad de las restricciones, denición adecuada de
los requisitos previos para establecer restricciones a los derechos civiles y
la evaluación correcta del grado de peligro de ocurrencia de circunstancias
relevantes.
Palabras clave: relaciones jurídico civiles; régimen militar; formación
de la legislación civil; limitación de derechos; protección
de los derechos e intereses de una persona.
Introduction
As you know, civil law is a branch of law that regulates property and
private non-property relations, based on legal equality, free expression of
will and property independence of participants in civil relations, which
include physical and legal entities (Parasyuk, 2023, p. 210). The general
concept of private and civil law includes: provisions of civil legislation;
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Olha Burlaka, Hanna Churpita, Nataliia Bilianska, Svitlana Senyk y Anzhela Kaliniuk
The formation of civil legislation and the peculiarities of its application in Ukraine during the
period of martial law
legal status of a private person; civil legal relations; legal facts upon which
these relations arise, change or terminate; conditions and procedure for
realization of civil rights and obligations; interpretation and practice of
application of norms of civil legislation.
Civil-law relations and their regulation under the conditions of martial
law declared and operating in connection with the military aggression of
the Russian Federation should be included among the peculiarities of the
application of civil law norms. Temporary displacement of the population
from the occupied territories, departure abroad, created new requirements
for the mechanism of legal regulation of civil-law relations. The prerequisite
for solving this problem is the determination of the connection between civil
relations and civil law, as a tool for their regulation, under the conditions of
martial law in Ukraine (Parasyuk, 2023, p. 210).
According to the provisions of Art. 3 of the Decree of the President
of Ukraine of February 24, 2022 No. 64/2022 «On the introduction of
martial law in Ukraine», approved by the Law of Ukraine of February 24,
2022 No. 2102-IX, in connection with the introduction of martial law in
Ukraine temporarily, for the period of validity of the relevant regime, the
constitutional rights and freedoms of a person and a citizen, provided
for in Articles 30-34, 38, 39, 41-44, 53 of the Constitution of Ukraine,
may be limited, as well as temporary restrictions on the rights and legal
interests of legal entities may be introduced within the limits and to the
extent necessary to ensure the possibility of introducing and carrying out
measures of the legal regime of martial law, which are provided for in the
rst part of Article 8 of the Law of Ukraine «On the Legal Regime of Martial
Law» (ON THE IMPLEMENTATION OF MARTIAL LAW IN UKRAINE.
LAW OF UKRAINE, 2022).
Limiting the rights of individuals is a forced measure to support the
country’s defense capability regime and ensure the functioning of the
national economy. The restrictions stipulated by the special military
legislation concern both the clear functioning of civilian circulation and
certain types of activities, in particular, such as public access to certain
state registers, certain types of business activities, notarization of legal
facts, etc. Under such conditions, in the period of martial law, the question
of preserving the normal dynamics of civil legal relations is of particular
importance in the context of calls to support entrepreneurial activity and
«normally take care of children, play sports, restore normal habits, a normal
way of life» (Mernyk and Radchenko, 2023, p. 52), implementation of civil
rights and protection of civil interests of private individuals.
The majority of modern scientists and practitioners note the tendency
to simplify the procedures for the realization of certain civil rights, and the
introduction of changes in the legislative regulation of certain civil legal
relations in the existing dicult conditions is characterized as a correct
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and expedient decision that corresponds to the principles of a democratic
society (Martial law and labor relations: new legislative regulation, 2023).
The above, however, does not negate the need to harmonize public and
private interests, as an integral task of civil law regulation.
1. Methodology of the study
The methodological basis of the scientic article is philosophical, general
scientic and special legal methods and approaches. A dialectical approach
is used to study the legal nature of civil legal relations, the dynamics of their
development in the conditions of a special legal regime. From the standpoint
of the anthropological approach, the role of man as the highest value and
active participant in civil legal relations is substantiated. The existential
approach made it possible to highlight the personal and spiritual dimension
of private law. The use of a philosophical-communicative approach made it
possible to dene civil-legal relations as a rationally ordered discourse.
The axiological approach made it possible to reveal the humanistic
content of civil law and its principles. The hermeneutic method is applied to
the interpretation of a number of ideas, provisions, concepts and categories,
such as «principles of law», «martial law», «private law», «legal security»,
«personal non-property rights», «right to entrepreneurial activity», «
requisition» etc. General scientic methods of logical modeling, system
analysis, systemic structural method and others were also used, thanks
to which a scientic analysis of civil legal relations and the peculiarities
of their implementation in the conditions of martial law was carried out;
special legal methods, in particular the formal-dogmatic and integrative-
legal approach, made it possible to determine ways of improving the
provisions of civil legislation, bringing it into line with the requirements
of international legal standards, as well as to investigate national judicial
practice in order to identify individual shortcomings of national legislation
and its practice application.
2. Analysis of recent research
The issue of civil-law legal relations, observance of the rights and
legitimate interests of their participants was the subject of research by
many civilists of the past and present, whose writings emphasized the
conformity of legal norms to the principles of law as a prerequisite for the
implementation of the rule of law in a democratic legal society, ensuring the
eectiveness of law as a social regulator. At the same time, in the conditions
of martial law introduced in Ukraine, the harmonization of public and
private interests comes to the fore as an integral task of civil law regulation.
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The formation of civil legislation and the peculiarities of its application in Ukraine during the
period of martial law
That is why the purpose of the publication is to develop mechanisms for
achieving a compromise of public and private interests as a basis for the
formation of civil legislation during the period of martial law.
3. Results and discussion
At the beginning of the study, we will outline some features of the
mechanism of civil law regulation of civil relations, taking into account that
the full-scale armed aggression of Russia has become a serious challenge
to the entire system of regulation of social relations. After all, it is obvious
that the system of regulation of personal non-property and property
relations, which is based on legal equality, free expression of will, property
independence of their participants (part 1 of article 1 of the Civil Code of
Ukraine) (CIVIL CODE OF UKRAINE, 2003), the essence of which consists
in ensuring everyday life of a person.
The civil law of Ukraine, which is a manifestation of private law at the
level of the national legal system (Rabinovych, 2004, p. 3), determines the
status of a private person, the grounds for acquiring and the procedure
for the realization of civil rights and obligations by such a person, the
principles of protection of his rights and interests. The above requires the
adjustment of the general provisions of the concept of the mechanism of
legal regulation, taking into account the division of law into private and
public.
It should be emphasized that, when the provisions of the general theory
of rights are fully suitable for application in the public sphere under the
established normativist approach, such an approach cannot be recognized
as justied in the eld of private law, since private law cannot begin with
normative acts, especially when it comes to legislative acts . It is obvious
that the law-making process must be preceded by an awareness of the
essence of private law and an understanding of how it can be implemented.
At the same time, it should be taken into account that the general trend
of the development of the legal system also applies to the scope of civil law.
In this regard, N. Onishchenko reasonably emphasizes the growth of the
social orientation of the legal system as a means of forming and realizing the
interests of legal entities by establishing certain goals, norms, and rules of
behavior. At the same time, ensuring an optimal combination of social and
legal principles of the development of society becomes especially important
(Onishchenko, 2021, p. 11).
In the conditions of martial law, the mechanism of legal regulation in
the eld of civil relations is adjusted in accordance with the main goal of
society - to overcome threats to the existence of society. With this in mind,
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the key principles of the concept of the civil-law mechanism of regulation
in the conditions of a special legal regime with the mandatory denition of
the limits of legal inuence and forecasting of expected results should be
formed.
We will carry out a general description of the concept and properties
of the concepts of natural and positive law in the implementation and
protection of the rights and legitimate interests of a person in the conditions
of martial law.
As some modern scientists rightly point out, natural law is, in fact, a
source of private law, which determines the principles of the legal status of
a person and his relationship with other persons - members of society, and
the analysis of the limits, principles and expediency of legal regulation gives
grounds for the assertion that they are dierent for the sphere of private and
public law. In addition, legal regulation in one and another sphere should
be carried out in a dierent way, using dierent forms of legal inuence,
giving legal meaning to various legal facts, etc. (Kharitonov et al., 2023, p.
34).
Taking into account the fact that the formation and adoption of acts of
civil legislation in the conditions of martial law somewhat loses the features
of private law, in our opinion, under such conditions, natural law cannot
unconditionally be the basis of civil legislation, it can be a direct regulator
of civil relations in temporarily occupied territories and subsequently to be
taken into account when resolving relevant civil legal disputes that arose
during the occupation of certain territories of Ukraine.
Characterizing subjective rights and the means of their legal protection,
it is necessary, rst of all, to determine their nature, that is, whether they
are included in the content of the legal relationship of private or public
law. Modern jurisprudence is characterized by the idea of the existence
of rights and freedoms of citizens in two aspects: subjective rights are
the possible behavior of a specic person, the implementation of which
is legally guaranteed by the existence of a mechanism of legal regulation;
objective rights – legal rights enshrined in legal acts, recognized by the state
and ensured by the judiciary (Alekseev, 2010, p. 109). Legal support is the
creation by legal means of reliable conditions for the implementation of
something, the solution of some tasks that are of interest to society (the
state) (Kharitonov et al., 2023, p. 38).
Despite the fact that Chapter One of the Civil Code of Ukraine is entitled
«Civil Legislation of Ukraine», its content is not limited to the characteristics
of only acts of civil legislation, and the term «civil legislation» serves to
denote the totality of all formally expressed norms and rules regulating
civil relations , and not only acts of civil legislation (Kharitonov and others,
2023, p. 43). After all, contracts (Article 6 of the Civil Code of Ukraine),
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The formation of civil legislation and the peculiarities of its application in Ukraine during the
period of martial law
customs (Article 7 of the Civil Code of Ukraine) and other forms of civil law
can compete with acts of civil legislation as a type of norms of behavior of
participants in civil relations.
In connection with Ukraine’s European integration aspirations and
the resulting need to adapt Ukrainian legislation to European private law,
according to the Resolution of the Cabinet of Ministers of Ukraine «On the
formation of a working group on the recodication (updating) of the civil
legislation of Ukraine» dated July 17, 2019 No. 650, almost three a year
ago, preparations for the implementation of this ambitious project began.
The course of the mentioned process was slowed down by the coronavirus
pandemic, but still an ocial concept of updating (recodication) of civil
legislation was developed (CONCEPT OF UPDATE OF CIVIL LEGISLATION
OF UKRAINE, 2020), according to which work was carried out on projects
to introduce changes to individual books of the Civil Code of Ukraine.
In the context of the inuence of full-scale military aggression on
the functioning of the legal system of Ukraine and the determination of
directions for the improvement of civil legislation, it is appropriate to clarify
the concept of updating civil legislation. Under such urgent circumstances,
the key role should be played by the anthropological approach, the
methodological basis of the future recodication.
Its special importance is explained by the fact that the civil rights and
interests of a private person in conditions of war, in particular hostilities,
occupation, forced displacement from places of permanent residence, etc.,
are constantly negatively aected. At the same time, the protection of civil
rights and interests is signicantly complicated by the limited possibilities
of applying for jurisdictional protection or the absence of such a possibility
at all.
For this purpose, we see the expediency of dening in book II of
the Civil Code of Ukraine «A person as a private person» the section
«Implementation of civil rights and fulllment of duties of a person in
emergency conditions (terrorism, epidemics, armed conicts, etc.)», which
would contain provisions that would provided legal guarantees for the
realization and protection of civil rights and interests of a person, as well as
additional obligations of the state to protect such rights and interests.
In order to balance the interests of a private individual with the interests
of society and the state, and not with the situational private interests of a
single powerful entity, it is extremely important to observe the principles
of public law (Omelchuk, 2023, p. 19). In this case, attention should be
focused primarily on those factors arising from the content of civil rights.
In particular, the legal equality of civil law subjects also presupposes the
equality of subjects in the respective limitations of such rights, and law
enforcement subjects cannot establish preferences in the scope of powers
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or methods of realization of individual civil rights or protection of civil
interests. Despite this, in order to support the national economy, the
current legislation establishes the priority of the employer’s interests in
labor relations, which consists in additional rights to change labor contracts
and dismiss employees (Cherednichenko, 2022).
One of the important factors in achieving a compromise between the
employee and the employer is compliance with the temporal limits of the
established restrictions on civil rights and the adequate consequential
burden of the cancellation of such restrictions. In this case, we should
talk about the «aspiration» to restore the right, compensation and
encouragement of the right holder. In particular, the right of ownership in
the event of its restriction has the ability to «self-restore.» Other civil rights
dened by civil legislation have a similar quality.
In the conditions of special legal regimes, the practical and procedural
issues of the application of requisition are actualized (Part 2 of Article 353
of the Civil Code of Ukraine) (CIVIL CODE OF UKRAINE, 2003). In clause
1 of Art. 1 of the Law of Ukraine «On Transfer, Compulsory Expropriation
or Expropriation of Property in the Conditions of the Legal Regime of
Martial Law or State of Emergency» denes that requisition (compulsory
expropriation of property) is the deprivation of the owner of the right
of ownership of individually determined property that is in private or
communal ownership and that is transferred into the property of the state
for use under the conditions of the legal regime of martial law or state of
emergency, subject to the previous or subsequent full reimbursement of its
value (ON THE TRANSFER, FORCED ALIENATION OR EXTRACTION
OF PROPERTY UNDER THE CONDITIONS OF THE LEGAL REGIME OF
MARTIAL OR STATE OF EMERGENCY. LAW OF UKRAINE, 2012).
According to the generally accepted approach, requisition is not
alienation of property, since it is done without the will of the owner
(Sagaidak, 2022), and its characteristic feature as a way to terminate the
right of private property is payment. In Art. 12 of the Law of Ukraine «On
the transfer, forced alienation or seizure of property under the legal regime
of war or state of emergency» states that the owner of property that was
forcibly alienated can demand in exchange for providing him with other
property, if possible for the value (ON TRANSFER, FORCED ALIENATION
OR SEIZURE OF PROPERTY UNDER THE LEGAL REGIME OF MARTIAL
OR STATE OF EMERGENCY. LAW OF UKRAINE, 2012).
Similarly, the issue of returning property as a legal consequence of the
termination of emergency circumstances must be resolved (ON THE LEGAL
REGIME OF MARTIAL STATE. LAW OF UKRAINE, 2015). The right to
demand the return of requisitioned property is conditional on the person
having the status of «former» owner. The specied status is accompanied
by such conditions as termination of extraordinary circumstances;
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The formation of civil legislation and the peculiarities of its application in Ukraine during the
period of martial law
preservation of property; statement by the owner of a claim for its return to
the body that carried out its requisition or to which the relevant property
was transferred; establishment of the possibility of return lead to the
restoration of the civil right of a person to the extent that it existed before
its forced termination.
At the same time, the legal consequence of the return of the thing is the
return by the former owner of the amount of money or the thing that was
received as payment minus a reasonable fee for the use of this property.
The issue of restoration of other civil rights requires special attention.
In particular, the right to engage in entrepreneurial activity, which was
signicantly restricted under martial law. After all, the conduct of certain
types of business activity became impossible during the curfew or during
the period of the «Air Alarm» signal.
The freedom of entrepreneurial activity consists in the freedom to
dispose of one’s abilities to work, in the freedom to choose a type of activity
or profession, freedom from unfair competition and monopolistic activity,
as well as the general freedom to do everything that is not prohibited by
law (Kharitonov and Startsev, 2015, p. 226 ). The forced ban on the sale of
alcohol in the conditions of martial law led to losses for representatives of
the corresponding type of business. At the same time, state bodies and local
self-government bodies did not provide for appropriate compensation,
which led to the emergence of a shadow market for the sale of alcoholic
beverages.
As for the proportionality of restrictions to the circumstances that
lead to their introduction, here, rst of all, it is worth pointing out the
identication of circumstances that are dened by law as prerequisites for
the establishment of restrictions on civil rights, and the correct assessment of
the degree of danger or risk of the occurrence of the relevant circumstances.
In particular, in order to prevent threats to the life and health of judges and
participants in the court process during martial law, access to the Unied
State Register of Court Decisions and the «Status of Cases» service was
temporarily suspended. It was the threat of negative consequences that led
to the limitation of the informational rights of the participants in the civil
process.
Taking into account the fact that restrictions have a public-legal essence
and the decisions on their introduction are within the procedural limits
of the branches of public law, it is extremely important to observe the
principles of public law when implementing them. In this case, we can talk
not only about the expediency of restrictions introduced on the territory of
the state or in a separate region, but also about observing the procedural
limits of introducing restrictions on civil rights, as well as about observing
the general principles of public law, such as: objectivity; the priority of
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human and citizen rights and freedoms; compliance of legislation with
international agreements; ensuring legal responsibility for violations
of legal norms; minimization of public administration interference in a
person’s personal life and others.
Conclusions
The mechanism of civil-law regulation of social relations in the
conditions of a military conict requires a signicant increase in eciency,
in particular, adequate regulatory support. Despite the fairly prompt
reaction of the authorities of Ukraine to today’s challenges by adopting a
number of laws designed to regulate social relations in the conditions of
hostilities, temporary occupation and de-occupation of part of the territory,
aimed at protecting property and non-property rights of the state and an
individual, etc., it is necessary to supplement Book II of the Civil Code of
Ukraine «A person as a private person» by the section «Implementation
of civil rights and fulllment of the duties of a person in emergency
conditions (terrorism, epidemics, armed conicts, etc.)», which would
contain temporary provisions that would provide for the period of war
legal guarantees for the implementation and protection of civilians rights
and interests of a person, additional obligations of the state to protect civil
rights and interests.
The nationwide tendency to simplify the procedures for the realization
of certain civil rights, as well as the introduction of changes in the legislative
regulation of certain civil legal relations under extraordinary circumstances
(priority of the interests of the employer in labor relations, requisition,
and others) is an urgent and, in the vast majority, correct decision, which
corresponds to the principles of democratic society. At the same time, it is
expedient to clarify the concept of updating the civil legislation of Ukraine
with the key role of the anthropological approach as the methodological
basis of the future recodication.
This is caused by the fact that the civil rights and interests of a private
person during occupation, hostilities, forced displacement from places of
permanent residence, etc., are constantly negatively aected. This approach
to the assessment of regulatory changes is aimed at harmonizing public and
private interests, which is an integral task of state civil law regulation. At the
same time, it is important to observe the principle of legality, proportionality
of restrictions, adequate denition of the prerequisites for establishing
restrictions on civil rights, the choice of the type of restriction and the range
of subjects of civil law to whom it applies, the correct assessment of the
degree of danger or the risk of the occurrence of relevant circumstances in
the case of relevant restrictions.
704
Olha Burlaka, Hanna Churpita, Nataliia Bilianska, Svitlana Senyk y Anzhela Kaliniuk
The formation of civil legislation and the peculiarities of its application in Ukraine during the
period of martial law
Bibliographic References
ALEKSEEV, Sergey. 2010. Collected composed. In 10 volumes. Volume 3:
Problems of the theory of law: Course of lectures. 495 p. Kiev, Ukraine.
CHEREDNICHENKO, Maxim. 2022. Martial Law: Have the Consequences
of Failure to Fulll Civil Law Obligations Changed? Jurliga. Available
online. In: https://jurliga.ligazakon.net/analitycs/210706_vonniy-
stan-chi-zmnilis-nasldki-nevikonannya-tsivlno-pravovikh-zobovyazan
Consultation date: 31/05/2023.
CIVIL CODE OF UKRAINE. 2003. dated January 16, 2003. No. 435-IV.
Information of the Verkhovna Rada of Ukraine. 2003. No. 40. Art. 356.
KHARITONOV, Evgeny; KHARITONOVA, Olena; NEKIT, Kateryna. 2023.
Problems of implementation and protection of civil rights under martial
law: monograph. 2023. 336 p. Odesa, Ukraine.
KHARITONOV, Evgeny; STARTSEV, Oleksandr. 2007. Civil law of Ukraine:
textbook. 816 p. Kiev, Ukraine.
MARTIAL LAW AND LABOR RELATIONS. 2022. In: New Legislative
Regulation. Available online. In: https://biz.ligazakon.net/
analitycs/210189_vonniystan-ta-trudov-vdnosini-nove-zakonodavche-
regulyuvannya. Consultation date: 31/07/2023.
MERNYK, Anastasia; RADCHENKO, Yaroslav. 2020. “The principle of the
legality of limiting the rights and freedoms of a person and a citizen”.
In: Legal scientic electronic journal. No. 3. pp. 50–53. Available
online. In: http://www.lsej.org.ua/3_2020/11.pdf Consultation date:
31/07/2023.
OMELCHUK, Oleksandr. 2022. “Obstacles to the realization of civil rights
under martial law and ways of nding a compromise between public and
private interests” In: Time for civility. Issue 45. pp. 1822.
ON THE APPROVAL OF THE DECREE OF THE PRESIDENT OF UKRAINE
«ON THE IMPLEMENTATION OF MARTIAL STATE IN UKRAINE».
2022. Law of Ukraine dated 24.02.2022 No. 2102-IX. Available online.
In: https://zakon.rada.gov.ua/laws/show/2102-20#Text Consultation
date: 31/07/2023.
ON THE LEGAL REGIME OF THE MARTIAL STATE. 2015. Law of Ukraine
dated May 12, 2015 No. 389-VIII. Available online. In: https://zakon.
rada.gov.ua/laws/show/389-19#Text Consultation date: 31/07/2023.
705
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 694-705
ON THE TRANSFER, FORCED ALIENATION OR SEIZURE OF PROPERTY
UNDER THE CONDITIONS OF THE LEGAL REGIME OF MARTIAL
OR STATE OF EMERGENCY. 2012. Law of Ukraine dated 05/17/2012
No. 4765-VI. Available online. In: https://zakon.rada.gov.ua/laws/
show/4765-17#Text Consultation date: 31/07/2023.
ONISHCHENKO, Nataliya. 2021. The value of law: social dimension // New
way to law. Collective monograph. 208 p.
PARASYUK, Mykhailo. 2023. “About some problems of civil law” In: Scientic
notes of the Lviv University of Business and Law. Issue 36. pp. 210216.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79
