«Economic rights» as a result of the makrosystemth process in the law: formulation of the problem
Authors: Юлія Ігорівна Остапенко
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The article analyzes the dynamic development of legislation in the field of economic relations is matched to structural transformation in the law, and therefore the law, and legislation is organically linked. Аs a consequence, become structurally tumors in the legal system as a key emerging trend of improving its evolyutsinuvannya. In this sense, the normative legal provision of economic relations – is a complete standalone system, it is appropriate to determine as the only legal complex object. It is established that it is considering systematic in identifying major and minor aspects of the legal functioning of the economic system we can talk about high efficiency of legal regulation of the global economic system. Proved that despite the complex hierarchical nature of relations in the economic system that tends to continuing specialization of its components, ensuring the interaction of all elements of the structure and output of its operation to set general parameters requires an integrative, holistic, coherent with the legal system and legal support in adequate to the problem of this magnitude format.
Now the scientific legal literature began to explore some categorical concepts, some substantive mechanisms for the enhancement of the conceptual level that can be regarded as approval beliefs and understanding of the separation of such jurisprudence as Economic Law of Ukraine [1–11]. The rich have paid attention to this issue and scientists of Kharkiv Donetsk schools of law, namely:, D. V. Zadyhaylo, D. D. Zadyhaylo, V. S. Milash, V. A. Ustymenko and others. Also, this perspective was a range of scientific interests of Kiev and Odessa schools, namely A. M. Vinnik, O. P. Podtserkovnyy, V. S. Shcherbina and others. In the former Soviet Union it examined: A. Alpatov, G. Velyanovskyy, G. Balsevich, M. Odintsov, V. Tambovtsev and others. However, scientists have not paid sufficient attention, and the very conceptual analysis of the category of «economic rights» as a separate legal phenomenon, that conceptual device was left outside the research, also identified and place of the term «economic law» in the legal space as required result Sociodynamics the mechanism legislation. However, usually focuses on individual fragments relationship functioning economic system creating categorical apparatus required for each. It should be added that often because of certain circumstances their views do not correspond to modern realities, because the dynamics of economic relations for ten years - big time. In view of the above it can be stated that the question of integrative processes of legislation on economic issues, the impact of international standards on the process of modernization of national economic legislation and determine their role in it as a whole are not defined.
Consideration of this issue is caused by lack of conceptual apparatus legislation Ukraine of terms such as «economic system» and «economic law». In addition, the domestic legislation is not developed a mechanism to ensure the development of the latter, which operates successfully operates a modern legal systems of the world. Given this, we can state that the need to adapt Ukrainian legal doctrine to the European legal system is in the legal functioning of the economic system of our country, because the design of economic law as a science and discipline will solve the problem of mismatch economic and legal point of view, a holistic concept relations state of law and Economics. Emphasize that while this gap is not eliminated, that remain unsettled some legal aspects of the existing conceptual mechanism of legal support economic system is inadequate. In addition, should agree on the basic provisions of legislation on regulation of relevant relations with foreign countries, to achieve the level of economic indicators sought legal opinion and national general our country.
The article is the rationale for the legislative and legal consolidation of the concept of «economic law» as a structural system neoplasms legislation and establishing a comprehensive nature of the institution as a whole legal complex object in the legal system and functional state’s influence on him.
Axiomatic is provision for a close dialectical relationship between economic and legal systems. Even in the XVIII century, Adam Smith (author of «The Wealth of Nations» and the phrase «life, liberty and property») pondered the economic consequences of the establishment «of mercantile laws». Along with Smith and other philosophers saw the relationship between economics and law. On this occasion expressed their thoughts and «father of communism» – Karl Marx.
However, in today’s issue of legal compliance to ensure economic relations existing forms of their implementation is complex and multifaceted and has a corresponding character. First of all, this is due to globalization of economic processes, the growing role and importance of public international economic law and private international law in the establishment and regulation of foreign economic relations, which play a large share in the global and national GDP. Thus, the emerging global economic right, which may be partly represented the concept LEX mercantoria. However, in internal legislation of the update is kompleknyh a number of industries that are designed to overcome industry barriers to legal provision of economic relations.
The fact is of course that the relationships that are part of the category of «economic system» extremely ambitious and go beyond their own business, tax, natural resource and other sectors zakonodastva. An important factor marker while solving the problem of inter-sectoral barriers is the need for clear and understandable state of economic, including industrial or agricultural policy. Clearly, implementation of this policy occurs within the array of relations in the economic system, and therefore includes a comprehensive, systemic use of state-legal means of influencing the behavior of economic relations, in particular economic entities, local communities, employees, investors, consumers etc...
Thus it is necessary a certain legal unification of the whole arsenal of different-legal instruments. Yes, this formulation of questions, answers attempt to form such a category as an economic right - the integrative result of independent development of its industry components.
1. The economic system is a complex set of social relations of production that ensure economic activities on certain principles of coordination between the participants and subjects of economy in the dominant way to distribute the results of its operations, determining the degree of efficiency of the national economy. Thus, the economic system as a whole set of economic relations should be represented as a single object of legal regulation, because it is a sign of «whole nature» of the latter, which is inherent in any system, its operation logically implies the interaction of all elements by « self-regulation «of all systemically important ties between these elements and therefore obligatory to talk about the development of a single legal model for organizing economic relations in general.
2. In modern terms of structuring the legal system and legislation are distributed between the individual sectors. Some of them are homogeneous by private law or public-legal nature, such as the civil law or the finance law, the while law others are complex the hospodarske law, the agricultural law, the environmental (natural resource) law. However, the structure of the said areas of the economic law as a separate category is not saying.
3. The need for the formation of just such regulatory structural macro grounded weight increasing economic sphere as integral object of social management-for: 1) implementation of a unified economic policy; 2) the macroeconomic state regulation; 3) external influences on the national economy due to the implementation of the economic policy of other states, international economic organizations, the impact kon’yuktury foreign markets; 4) the need to implement (incentives) universal properties of the national economy as such. For example – providing innovative character of economic development, the introduction of alternative energy as the dominant source of energy, the implementation of restructuring the national economy, overcoming depression and economic degradation regions and so on.
4. The possibility and feasibility of forming such superkompleksu the right to an economic right may also grounded bute legal and technical aspects of constitutional and legal support: 1) although fragmented, but overall the nature of the constitutional and legal regulation of economic relations; 2) fixation general legal economic values - objects of constitutional and legal regulation (economic security, constitutional economic order, economic diversity, etc.); 3) if the text of the Basic Law and the common values of the components overall, defining of competence load state authorities, in particular: a) the Verkhovna Rada of Ukraine on objects of legal regulation referred to in Article 92 of the Constitution of Ukraine, namely the use of natural resources, the exclusive ( maritime) economic zone and the continental shelf, the space exploration organization and operation of energy, transportation and communications, the legal regime of property rights, legal principles and guarantees of entrepreneurship, rules of competition and antitrust rules, principles of foreign relations, foreign trade, customs, etc. ; b) The Cabinet of Ministers of Ukraine - the functions of the Government to ensure the functioning of the economic system listed in Article 116 of the Constitution of Ukraine, for example, develops and implements national programs of economic, scientific, technical, social and cultural development of Ukraine, ensures equal conditions of development of all forms of ownership; carries out management of state property in accordance with law; c) general economic content and nature of the competence of certain public authorities such as the NBU, AMC and others.