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Omonillo Okyulov, Honored Lawyer of Uzbekistan,
Doctor of Law, Professor of Tashkent State University of Law, Tashkent,
Republic of Uzbekistan
DIRECTIONS AND PROSPECTS FOR IMPROVEMENT AND DEVELOPMENT OF
CIVIL LEGISLATION
Omonillo O
Abstract: In this article have been expressed directions and prospects
for improvement and development of civil legislation in the republic by the
helping scientific literatures.
Keywords: development, Civil Code, Crime Code, direction,
improvement, legislation, human rights.
INTRODUCTION
Napoleon is known as one of the warriors who tried to conquer the
whole world, he won many military victories, but he was always proud of
his life, he surpassed all his victorious marches, he had an achievement, he
refused to develop and adopt the French Civil Code in 1804 which was.
Simply put, the Civil Code regulates various trade relations between people.
Unlike public law, in which the state is the main participant, civil law is also
called private law. Private relations between people should be based on
justice, fairness and the law. One's right must not remain with another,
otherwise one's consent will be reckoned on the Day of Judgment. Even Allah
does not like to interfere in private affairs, in the forgiveness of sins in this
area. When our Prophet (S.A.W.) asked Allah to forgive the sins of his people,
He said, âI have forgiven other than human rightsâ. The above-mentioned
cases were mentioned in connection with the draft Civil Code under
discussion today.
METHODS
The initiator of the revision of the Civil Code is the President, who said
that in the coming years the Parliament (I would like to emphasize this term,
the President is setting a deadline, not in a hurry, - my emphasis - the author)
said that it is expedient to re-adopt the Civil Code. the goal is that tomorrow
it should give people practical benefits, make their lives easier.
In his address to the Oliy Majlis of the Republic of Uzbekistan on January
24, 2020, President of the Republic of Uzbekistan Sh. Mirziyoyev stated that
it is expedient for the Parliament to re-adopt the Civil Code in the coming
years. The purpose of the legislation is not only to adopt laws, but also
stressed that it should consist of a headache about how to alleviate [1].
For this reason, the draft Civil Code, discussed by the Institute of Legal
Policy under the Ministry of Justice of the Republic of Uzbekistan, is the
subject of heated debate. This is understandable, of course, because each of
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us is in daily life, constantly under the influence of the Civil Code. The more
rationally the norms of the Civil Code are developed, the more convenience
will be created for the people.
RESULTS AND DISCUSSIONS
First of all, there are different opinions on the naming of the Civil Code.
At one time, the late Professor Sh. Shorakhmedov emphasized that the Civil
Code is related to the daily interaction of people, including property,
contractual, personal relations, and proposed to call it the âCode of Conductâ.
Some argue that the etymological meaning of the word citizenship stems
from poverty, which is why it is inappropriate to use the term, while others
argue that the word citizenship has lost its former meaning and is gaining
new meaning today. show that Proponents of calling the Civil Code the Civil
Code are not absent. They justify the use of such a name in the developed
countries of Europe.
It is worth noting that in our country, without giving in to emotions,
based on the real situation, there are three high normative documents
related to the term citizenship. These are the Civil Code, the Code of Civil
Procedure and the Law on Citizenship of the Republic of Uzbekistan. We are
all citizens of the Republic of Uzbekistan, so we belong to the state of the
Republic of Uzbekistan. There are special stable legal ties and ties between
the state and us. The state of the Republic of Uzbekistan protects us as its
citizens, and at the same time we have certain obligations to the state.
Citizenship can be interpreted in this sense as the status of an individual
under the Law of the Republic of Uzbekistan on Citizenship. True, the Civil
Code and the Law on Citizenship of the Republic of Uzbekistan differ in the
Russian texts Civil Code and the law on citizenship. In the scientific
literature, âCivilâ is used as citizenship and âCitizenshipâ as citizenship.
However, there are some who believe that the distinction between
citizenship and citizenship does not create separate concepts for ordinary
people. The author of these lines, as a specialist in civil science, gave many
lectures on âCivil Lawâ to community activists, law students and other
audiences, but always at the beginning of these lectures had to explain to the
audience not to confuse the Civil Code with the Civil Code. In other words,
citizenship of the Republic of Uzbekistan is a legal relationship between a
citizen and the state, a system of mutual legal obligations, and the Civil Code
of the Republic of Uzbekistan is a property based on equality, independence,
freedom of will between equal subjects (including citizens, legal entities,
state), is a system of contractual, personal, corporate relations. At this point,
it is up to the intelligent reader to address the need and problems of
renaming the Civil Code [2].
The Civil Code occupies a unique leading position in the national legal
system. The application of civil law to labor and family law is an axiom, but
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a number of categories and concepts such as property law, property,
property law, absolute (exclusive) right, damage and loss, legal entity,
contract and so on are included in the Tax Code, Criminal Code,
Administrative Code. Given that they also apply to the Code of Liability, the
Customs Code and a number of other laws, it means that they must be
expressed in the same terms in the national legal system and be consistent
in their interpretation of the content. This a priori must be followed without
deviation in the process of law-making and law-making.
The normative base of the mechanism of civil legal regulation is very
wide and diverse. There is a lot of talk today about âsmart lawsâ and laws
that work directly. The law requires a drastic reduction in the norms of the
law, it must be acknowledged that such requirements are important for law
enforcement practice. Civil law regulation today is mainly two-tier (Civil
Code - special laws) and sometimes three-tier (Civil Code - special laws -
separate laws and by-laws). For example, the Civil Code, which has a three-
tier mechanism of legal regulation of mortgage relations - the law on
mortgages - the laws on mortgages and the register of mortgages, and so on.
The same situation is observed in copyright. The Civil Code - the law on
copyright and related rights - the law on legal protection of programs and
databases for ECM, etc. In inheritance relations, the Civil Code itself is the
main source of regulation. Of course, the question of abandoning the multi-
level legal regulatory mechanism can be raised, but it is doubtful that this
can be done in practice. It is important to maintain a two-tier system and
clearly define the relationship between the Civil Code and special laws, and
their scope. They should be based on scientifically based approaches that
are convenient for law enforcement practice in defining their spheres of
influence.
In other words, the Civil Code should define the basic concepts,
principles, categories, means and methods of ensuring the rights and
interests of the subjects. Most importantly, there should be no duplication
between the Civil Code and individual laws, and at the same time there
should be norms that lead to contradictions and different interpretations.
For example, Anglo-Saxon legal constructions are widely used in trade
today. First, these constructions are based on the most modern legal
techniques, and secondly, they allow the parties to show maximum
independence and initiative, as a result, they will be able to choose the model
of behavior and behavior that is acceptable to them. Today, it would not be
expedient to include these constructions directly in the Civil Code. UzLIDEP,
the ruling party in the country, has included in its policy documents the
solution of problems of systematization and codification of legislation in the
field of entrepreneurship in its program documents prepared for the
electorate. In particular, the development of a Business Code or Commercial
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Entrepreneurship Code. If this is done, there will be a problem in
determining the relationship between the Civil Code and the Commercial
Code. First of all, the science of civilization and business law require the
development of its theoretical and methodological foundations. It would be
appropriate to adopt a special law on the modern constructions of the Anglo-
Saxon legal system. It should be noted that even in the absence of such a
special law, commercial entities in our country have the right to use English
constructions. Because the law does not prohibit this, on the contrary, even
if both parties to the contract are subjects of the Republic of Uzbekistan, they
have the right to apply the constructions of the contract in the laws of foreign
countries (with certain exceptions) [3].
Life goes on fast, in some cases the agreement of the parties and the
actions of the agreement (purchase, performance of work, service, etc.) are
required to be carried out in a quick, easy and simple manner. For example,
fruit and vegetable export contracts set out procedures for the availability
of invoices instead of well-structured 25-30 pages. The Resolution of the
President of the Republic of Uzbekistan dated June 8, 2020 on measures to
simplify the state regulation of entrepreneurial activity and self-
employment provides the following rights to self-employed persons
(freelancers) providing services (performers) via the Internet:
-Acceptance of payments in foreign currency from individuals and legal
entities abroad - non-residents for services rendered (work performed) to
bank accounts of the Republic of Uzbekistan without entering the relevant
information into the single electronic information system of foreign trade
operations;
-Providing services (performance of work) to foreign individuals and
legal entities without concluding a contract, accepting a public offer (offer)
of the agreement or exchanging electronic correspondence or providing
invoices, including in electronic form.
This situation, i.e. simplified compact contracts as well as smart
contracts, deviates from the traditional approaches of the Civil Code.
However, due to their widespread use in practice, it is a requirement of the
time to set them in special norms. One of the most problematic issues in the
current Civil Code was the grounds for the invalidity of transactions and the
application of its consequences. Accordingly, once a transaction is found to
be invalid, it is inevitably subject to the consequences of its invalidity. It was
not uncommon for a conscientious objector to be slandered in transactions
involving homes and cars. The draft stipulates that, based on the experience
of the CIS countries, the court should be allowed to exclude the
consequences of invalidity when there are certain grounds, finding the
agreement invalid. This is definitely a huge positive shift. But the problem
was not solved until the end. In resolving the transactions as invalid, three
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issues must be addressed. Liability measures applied to the unscrupulous
party who committed the actions on the basis of which the transaction was
declared invalid, who owns the property under the transaction, who
receives compensation (compensation system should also be introduced)
and the grounds on which the transaction is invalid. Another issue is that
delimitation of the scope of influence of the Civil Code, the Criminal Code
and the Tax Code on these transactions is punishable under Article 175 of
the Criminal Code. On April 25, 2016, Article 1711 of the Code of
Administrative Liability was introduced on the basis of the Law No. 405,
according to which measures of administrative responsibility for concluding
transactions contrary to the interests of the Republic of Uzbekistan are
established. This means that finding certain transactions invalid is within
the sphere of influence of the Crime code and the NCC [4]. Article 14 of the
Tax Code also defines the economic content of transactions and their
legalization. According to the first part of this norm, the tax authorities
evaluate the transaction on the basis of its actual economic content,
regardless of the method of legalization of transactions or the name of the
contract. Agreements entered into to obtain a tax deduction, to evade a tax,
or to reduce its amount are considered an abuse of the right. Detection of
cases of abuse of the right, forgery, fraud, as well as the application of their
consequences is carried out by the tax authorities, and in case of
dissatisfaction of the taxpayer - by the court at the request of the tax
authorities. It is clear that the tax authorities have de facto powers to declare
the transactions invalid. The point of view of the tax office will be in effect
until the case reaches the court. One of the main principles of the Civil Code
is to undermine the presumption that the fairness of the parties to a civil law
relationship is implied until proven otherwise.
It is natural that the question arises as to how fair and expedient it is to
undermine the leading position of the Civil Code in declaring transactions
invalid, to transfer it to the sphere of public law.
The most important group of relationships regulated by the Civil Code
includes property rights and property-related relationships. Any property is
the legal embodiment of material goods, the main source of state power, the
welfare of the people and human consumption. No wonder Article 53 of the
Basic Law does not set norms on property rights, equality of forms of
property and protection of private property rights. Public property and
private property belonging to persons differ in certain respects, ie the
grounds for its formation, the purpose of appointment, the exercise of the
ownerâs powers in relation to the property, including the procedure for its
possession, features of its use, disposal. In private property, powers are
exercised by the owner in easy, convenient, simple procedures and
procedures to the extent permitted by law. Public property is managed by a
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system of authorized entities in accordance with the procedures and
procedures established by law. For example, the order of formation of the
state budget, its adoption, distribution, use, spending, system of targeted
use, discipline of execution and control - all this is based on a complex
procedure of public property subject to both civil and public law. is a specific
legal form. But both forms of property are equally and equally protected
before the law. Laws around the world provide for a mechanism of legal
protection and safeguarding private property because there is no need to
train the private owner. He is a concrete subject who is well aware of his
desires and interests and can use his property effectively. However, a system
of efficient and targeted use of property around the world in public property
will be established. For public property to function normally, public
property must serve the countryâs defense, security, social security, and
similar social interests. However, the Civil Code project has abandoned the
tradition of distinguishing forms of ownership and defining the specifics of
these forms. We think this is a conceptually wrong approach. Public
property is in the interest of the entire population. For this reason, the FC
must state that every person has the right to demand the targeted use of
public property, and in any case that he considers that this requirement has
been violated, to apply to the court or the relevant competent authority.
Entities authorized to own public property must be accountable to the
beneficiary or beneficiary of that public property.
Another case of conceptually incorrect approach in the draft Civil Code
is that the list of legal entities has been closed. The most controversial issue
is that it is limited to commercial legal entities, business associations and
companies, production cooperatives. Many civilized scholars familiar with
this part of the project are surprised by this. Liquidation of private
enterprises, family enterprises, farms, dehkan farms and their
transformation into LLCs, which carry a heavy burden on the economy of the
country (because the participants of additional liability companies are
jointly and severally liable for each other, ie for the obligations of
participants and legal entities). fears the establishment of such a legal
entity) is incomprehensible. In the economic system, it takes three to four
years to reorganize commercial legal entities. This has a negative impact on
the effective implementation and management of their activities. Who can
guarantee that there will be no confusion, misunderstandings,
misunderstandings until the participants, founders, managers, business
leaders realize their new legal status, understand their powers and develop
the ability to apply them.
The Civil Code contains norms on the structure of a simple company that
organizes the joint activities of individuals and other entities. Under the
current CC, only sole proprietors and commercial organizations can be
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parties to a simple partnership agreement, a written agreement of a simple
partnership agreement is required. If we look at everyday life, there are tens
of thousands, hundreds of thousands of structures in life that look like a
normal company. Here is the simplest example, laborers are usually three or
four people who get together, take orders for a particular construction or
repair, and work together. Or there are temporary or permanent groups
(ensembles) to serve weddings and similar events, also known as
herdsmenâs groups. Such groups are formed quickly and can disperse after
doing certain work. They are a convenient form of organization of joint
activities for people. It is necessary to bring the norms of the Civil Code on
ordinary company closer to real life. To do this, the requirement to register
the participants of an ordinary company as sole proprietors and the
requirement to enter into a written agreement of an ordinary company must
be changed to a dispositive. Hundreds of thousands of people would then be
satisfied that they have the opportunity to carry out their activities in
accordance with the law. Another issue is that there is a type of ordinary
company âneglasnyyâ, ie undisclosed to third parties, which is defined in the
CC as a âsecret companyâ. In fact, it has no place of secrecy, only that the
participants did not disclose it to third parties. Therefore, we believe that it
would be appropriate to use the term "undisclosed" company instead of
âsecret companyâ.
Another issue related to the discussion of the draft Civil Code is the
question of whether laws, in particular the Civil Code, can be prepared in
Uzbek. Although I consider myself a passionate expert on the full support of
the Uzbek language as the state language, unfortunately, I would say no. The
vast majority of laws are being translated into Uzbek. Whether we like it or
not, the objective real situation forces it. It is rare to create original, unique,
final norms in our national legislation. On the basis of civil law, both the
Anglo-Saxon legal system, the Roman-German legal system and the Muslim
legal system have norms and constructions formed over the centuries.
Therefore, for example, in the preparation of a new draft of the Civil Code,
the main focus is on the formation of norms in developed countries, based
on the requirements of international conventions, law enforcement and
judicial practice. More precisely, it is required to place in the project fair,
reasonable, self-justifying norms in life. After all, who needs to reinvent the
already invented bike. The main problem here is to choose the most optimal,
with several alternative options for the norm. Much of the debate over the
draft Civil Code revolves around the question of why you took this norm
from that country, and on what basis another norm in another country was
rejected. In this regard, it must be acknowledged that the project developers
have worked very hard. The laws of many countries have been studied, and
among them certain norms have been taken as a basis. These include
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contract sele / by - back (by / sele - back) (sell / buy - repurchase)
constructions, which may be a good solution to problematic situations for
our law enforcement practice. For example, the Supreme Court experts are
positive about the design of a contract of sale, which is then concluded on
the condition of repurchase. In practice, they point out, there is a lack of
confidence in collateral when lending money, and there are cases where a
loan agreement is formalized as a home or car purchase agreement,
resulting in litigation. If the temporary financing provided for the
repurchase of the house, neither the six nor the kebab would have been
burnt.
In the digital economy, there are real estate cadastres, registers of
various property rights, databases on property deals, such as pledge
registers, and so on. Such databases are not only a source of information on
the registration of rights, but also an important source of information and
data for the participants of civil transactions in the conclusion of agreements
and contracts, decision-making. The FC should establish the legal regime of
such databases, the procedures for organizing their activities, including
openness, transparency, free access to information, access and access to
information, and the duty to notify stakeholders in the conduct of relevant
operations. This would not only create convenience for the participants of
the civil transaction, but also serve as an important factor in helping to
prevent dishonesty and illegal actions.
It was also inappropriate to define entrepreneurship in the draft Civil
Code as an activity aimed at making a profit on a permanent systematic
basis. Article 3 of the Law on Guarantees of Freedom of Entrepreneurship
defines entrepreneurial activity as an entrepreneurial activity based on risk,
property responsibility, with the purpose of making a profit. In this article,
the main feature of entrepreneurship is defined as an activity carried out in
accordance with the law. In his address to the Oliy Majlis on January 24,
2020, the President set the task of drastically reducing the âshadow
economyâ in our economy. The main difference between the shadow
economy and the legal economy is that the shadow economy operates on a
systematic basis for the purpose of making a permanent profit, but does not
operate in accordance with the law (ie not registered as an entrepreneur,
does not keep financial records, does not pay taxes and other mandatory
payments). does not provide, there is no control over its activities,
employees are not entitled to a pension, sick leave). At a time when the fight
against the shadow economy is being waged, equating it with the legal
economy in the Civil Code is no illogical approach.
Of course, these comments apply only to some parts of the project, while
the importance of other positive parts is recognized by many. In general, the
process of developing and discussing a new draft of the Civil Code should
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not be rushed. This process requires a one-size-fits-all approach.
Entrepreneurs, lawyers, legal advisers, legal scholars, economists, political
scientists, sociologists, philosophers, linguists and other experts would be
actively involved in this process. In many countries, the development of
draft Civil Code has been based on alternatives. In Russia, for example, there
were alternatives developed by the Institute of Private Law and the Ministry
of Economic Development (then Minister of Civilization German Gref).
Therefore, if the creation of alternative versions of the Civil Code at TSU or
the newly established Institute of State and Law can be predicted (or rather
dreamed) in a very optimistic spirit. In any case, it would be expedient in the
future to process the draft Civil Code in accordance with the following
principles. One of the basic principles of law, including civil law, is harm (no
sri). Hence, it must be ruled out that the new norms will cause harm. The
second principle is the effective use of the existing scientific basis of
civilizational science in our country, and the third is to preserve the justified
norms and system of the current Civil Code as much as possible. This system
was developed by academician Rakhmonkulov. The great work of the
teacher in the field of law and civil law of our country should not be
forgotten, and it is necessary to avoid unnecessary damage to the system.
CONCLUSION
While the Civil Code regulates peopleâs normal daily relationships, its
method of expression should be simple, understandable to all. The
formation of a norm through long-running compound sentences prevents
one from understanding the essence of the law. When our famous poet Erkin
Vokhidov wrote that language is a mirror of the nation, we should not forget
that he was laughing at the incomprehensible abstract laws that he would
forget his head when the norm came to an end, quoting the norm of long
sentences in civil law.
References:
1. Law of the Republic of Uzbekistan âOn protection of private property and
guarantees of the rights of ownersâ // Collection of Legislation of the Republic of
Uzbekistan, 2012, No. 39, Article 446; 2015, No. 33, Article 439; 2017, No. 24,
Article 487.
2. Nodirkhonova N. Initiative leads to entrepreneurship, entrepreneurship
to development. 14.09.2019.// https://postda.uz/uzc/news/spirituality/9842-
2.
3. Heather Boushey and Adam S. Hersh. The American Middle Class, Income
Inequality, and the Strength of Our Economy.
4. Crime Code. Tashkent: Mekhnat, 1994.
