Антипублічний правочин: окремі засади

It is indicated that the system of rules on the invalidity of transactions is central to civil law, since it is a key mechanism for ensuring the legality and reliability of property turnover, as well as a guarantee of protection of legitimate interests of conscientious participants of civil legal relations. Among the numerous grounds for the recognition of transactions invalid, their contradiction to the principles of law and order, established by the moral values of society and imperative prescriptions of legislation is of particular importance. The article examines the theoretical and practical aspects of the legal regime of transactions in civil law of Ukraine. A critical analysis of existing scientific approaches to understanding the legal regime of transactions and its elements has been carried out. It is substantiated that the design of the legal regime of transactions proposed in the scientific literature is excessively complicated and does not fully correspond to the established understanding of the legal regime as a special order of regulation, which is expressed in the complex of legal means. It is proved that the term «legal regime» is traditionally applied to the objects of law and means the method of acquiring and the order and limits of exercising rights in respect of such object of law. Particular attention is paid to the critical analysis of the category of «non-happening transaction». It is established that this category is logical in terms of the theory of legal facts and is of no practical importance, since cases of failure to reach the purpose of the transaction are already regulated by special rules of civil law. It is not despicable to introduce such a category into scientific circulation and legislation, as this can lead to an unjustified complication of legal regulation and law enforcement practice. On the basis of the analysis of case law revealed the problems of application of Art. 228 of the Civil Code of Ukraine on the declaration of transactions invalid as violation of public order. It is established that the courts sometimes unreasonably apply this rule to transactions that violate private rights and interests, not public order. It is proposed to distinguish between public order transactions from transactions that violate the private rights and interests of persons. The need to improve theoretical approaches to understanding the legal regime of transactions and the practice of applying the legislation on invalidity of transactions is substantiated. Proposals for improving the legal regulation of relations in the field of committing and invalidating the transactions that violate public order are formulated.