Rules on the Legal Consequences of the Invalidity of Antisocial Bargains: A Test of Proportionality

The article explores the possibility of applying the proportionality test to assess the effectiveness of legal norms. The basis of the study is the materials of contradictory judicial practice on the claims of prosecutors to recover in the state revenue all received by the parties on transactions, contradictory to the foundations of law and order and morality, presented in civil and arbitration proceedings. The conclusion is formulated that there is no unified approach to the application of norms on the legal consequences of antisocial bargains. As part of the proportionality test, the discrepancy between the legislator’s chosen method of achieving the goal of legal regulation and the actual social relations was revealed. Formally defining antisocial bargains as void, civil legislation does not establish any special legal consequences of their invalidity. This approach practically eliminates the need for the legislator to allocate such a category of invalid transactions, devalues the activities of state bodies to identify and suppress them. In specific cases, the absence of legal grounds for the use of confiscation consequences of antisocial bargains disrupts the balance of public and private interests, leading to the prioritization of the interests of unscrupulous individuals. However, the courts, stating the antisocial nature of the bargains executed by the parties, in order to ensure the effectiveness of the prohibition on their commission and a balance of interests, satisfy the requirements for the confiscation of the received property to the state’s income. The use of the proportionality test allows to assess the level of regulatory impact of the norms on the legal consequences of antisocial bargains on public relations as low, and to recognize the norms as ineffective.