PRINCIPLE OF PROPORTIONALITY AS A CONCEPTUAL BASIS FOR DEVELOPMENT OF CIVIL RELATIONS
Journal Title: Юридичний науковий електронний журнал - Year 2016, Vol 2, Issue
Abstract
The article provides substantial description of proportionality principle, as a component of the supremacy of law, and as a conceptual basis for development of civil relations. It emphasizes the necessity of application of the proportionality principle in national civil and economic law, as it facilitates the assertion of supremacy of law, democratic values and lawful state in modern Ukraine. The issue of the supremacy of law and its substantial description, to which proportionality principle belongs, and its features and requirements were worked out by such Ukrainian scholars – S. Golovatyy, V. Gradova, Y. Zinchenko, M. Patey-Bratasyuk, S. Pogrebnyak, O. Shpakovych, S. Shevchuk, G. Yudkivska and others. Though the study of this principle in civil and economic law, and its application in practice by our lawyers must be increased, especially in the light of Ukrainian striving to integrate into Europe. Principle of proportion is Ukrainian version of principle of proportionality that was accepted in European Law, aims to provide reasonable balance of private and public interests in law regulation, therefore curtailing of rights must be substantial, and methods of its accomplishment must be reasonable and least burdensome towards individuals whose rights are being curtailed. Taking this into consideration, doctrinal features of this principle in the view of the system of requirements of its application come to this – the goal of establishing certain limitations must be lawful and substantial; limitations must be reasonable; the application of limitations must provide reasonable balance of private and public interests. The author emphasizes that European Court of Human Rights greatly contributed to the development of the proportionality principle. It states that certain requirements of proportionality principle already allocated in national law acts, namely, in the Constitution of Ukraine, in the Code of Practice, in the Economic Code of Practice, and in the Code of Administrative Procedure of Ukraine. It shows its application in the courts, where by means of the law they curtail the rights, and appear to be evaluators of curtailing imposed by judicial rulemakers.
Authors and Affiliations
С. С. Осадчук
Keywords
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