Evaluative Concepts in Civil Law: Features and Enforcement Practice

The article describes main features of evaluative concepts, which are an element of contemporary legislation, in the scope of revaluation of techniques and methods of legal regulation of civil relationships. It is accented that the role of legal provisions containing evaluative concepts in legal regulation of civil relationships has transformed. Nowadays such legal provisions are an instrument of discretion limits extension according to intensification of optional fundamentals in the Civil law of Ukraine. The specific legal nature of evaluative concepts, which makes their total elaboration impossible and inappropriate, is also emphasized. Elaboration of an evaluative concept is made during its direct application with regard to the factual circumstances. It is defined that existence of evaluative concepts in the legislation facilitates both flexibility and stability of it. It is estimated that arrangements for determination of limits and rules of evaluative concepts interpretation can be found in legislation (e.g. – definition of petty daily transaction, rules for non-pecuniary damage determination), can be set by judicial and other law enforcement practice and can be influenced by social sense of justice or individual legal consciousness of law enforcers. Determination of limits of evaluative concepts elaboration in positive law is exercised in order to prevent an abuse of discretion of any law enforcer. At the same time a standard of the one concept estimation can be established through the other evaluative concept. For example, the evaluative concept of the violation of contract materiality is explained through the other evaluative concept – significant level of the other party losses, whether they expected to get the benefit during the contract formation. A court can refer to the general practice in similar relations as well. It is underlined that discretion of a law enforcer is limited by the current legislation, as well as his culture, language and ideology. Actually, the positive law and legal consciousness of the law enforcer are interacting during the process of evaluative concept elaboration. The author summarizes that evaluative concepts are such concepts, the content of which is not specified in the legislation as a consequence of their distinctive nature. However, their specification happens as the result of law enforcement corresponding to certain circumstances, which are regulated by legal provisions involving evaluative concepts