Original scientific paper
Civil Law and Special Legal Systems for Particular Types of Goods
Nikola Gavella
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
In the contemporary legal systems there exist, along the general organisation established through civil (private) law, also a large number of special legal systems for particular types of goods, in rule for things, and especially for real property. They are established with the purpose of protecting and forwarding of general interests. That is why they generally distinguish themselves from general rules of civil law that were created on the individualistic-liberal principles for the individuals, their freedom and market economy. In the contemporary Croatian legal system there exist – besides general rules of civil law, that is basically individualistically and liberally organised – some special systems for particular types of goods, that usually have strongly expressed collectivistic and authoritative elements. They have them because, with the aim of achieving wellbeing of the entire state and its citizens, .they specially regulate legal affairs in relation to those goods declared to be of interest for the Republic of Croatia. Based on the Constitution of the Republic of Croatia, those goods enjoy special protection, so special legal systems were set up by law, out of which each individually sets the special legal treatment of that type of goods that is the object of the system.
The rules of the civil law and special legal systems for particular types of goods are not separated segments of the legal organisation, but are its elements, that co-exist in a certain kind of unity of opposites. Their activities are in conflict, they intermingle and replenish each other, which demands that these special systems are given attention from the point of view of the civil law in general, and property law in particular. Legal relations regarding goods for which a certain special legal system was established are regulated in the first line through norms of these special legal systems. Norms of the civil law can influence these relations on basis of subsidiarity – if they are not differently organised by rules of special organisation. And they often are not, because the norms of the special legal systems regularly do not function comprehensively on the legal relations regarding goods that are their objects. They have – in order to achieve those special social purposes and achieve those aims that that special legal system is supposed to serve – their place in the legal order, but only as exceptions from general rules of the civil law, or as their supplements. Whenever the legal relations regarding the goods for which the special legal system was established are not completely regulated through norms, than the implementation of such norms unavoidably leads to the place where the implementation of the norms of the civil law should be added. That place is particularly sensitive part of the legal tissue. If there is a larger or a smaller gap between the norms of the special system and those of the civil law, which sometimes happens, these difficulties are encountered that are not easy to solve. In order to override it, it is necessary to interpret and implement the norms of the special system, not as something apart from the legal system and self-sufficient, but taking into account their integration into the whole of the legal system, so that to its implantation we can add the implementation of the general norms of the civil law.
Special legal systems that exist in the contemporary legal systems are especially established for the parts of the material world – for things, and especially for real property. That is why that integral part of the civil law of those systems, that we call property law, contains, besides its general norms, also special norms for those types of things that are general goods or are of general and/or public interest (e.g. special legal system for agricultural land, for forests, for minerals, for water, for public roads, etc.). Looking from the point of view of the civil law, those special norms build – connected into larger or smaller systems – special property law systems.
In the contemporary Croatian legal system there are special property law systems for those things that are of interest for the Republic of Croatia, that have a very important role. With its implementation the space for implementation of the norms of the property law narrows. Since the area of their implementation is gradually broadening more and more, Croatian property law, and through it the whole civil law, gradually loses its basic liberalistic-individualistic character, which then of course influences our entire legal system. Is such direction of development desirable or not, form sociological, economical, political or any other meta-juridical point of view, are questions that need answers from experts of the corresponding professions and research that would definitely need to be conducted on the issue. However, is this development of the legal system unavoidable, how much is it in accordance with the constitutional organisation, are they and to what extent pertinent the existing special legal systems for the goods of interest to the Republic of Croatia and how suitable is their content, are the questions on which the legal science and profession should give some answers. Those answers should, one should hope, help to make corrections that, and if, prove themselves needed and useful.
Until now those special legal systems were mostly dealt with by doctrine and legal literature of administrative law. In it the civil law aspect of these special systems, as well as the relation of their norms with the norms of the civil law, did not always get the attention it deserved. That is why it is necessary to broaden the research on regulation of civil law relations to this area as well, that from the civil law position still is not researched adequately. It is necessary however also to research the special property law systems from the point of view of the civil law, in order to get a more complete picture on what legal system of goods belonging to people really exists in the legal system. In would be of multiple uses, so we should heavily pledge on it and constantly work in that direction.
Keywords
civil law; ownership; private; public; general interest
Hrčak ID:
100046
URI
Publication date:
28.12.2012.
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