The Concept of Dualism in Private Law in European Countriesand the Practice of Recodification of Commercial Law in Ukraine

The article is devoted to the scientific and legal analysis of the European doctrine of dualism of private law in the context of the recodification of commercial legislation. Different concepts are consistently researched: (1) dualism of private law, in its historical development; (2) dualism (competition) of civil and commercial legislation; (3) «soft» and «hard» dualism of private law. The legal construction of the subsidiary application of the norms of the civil code in situations of gaps in the commercial (economic) code and prevention of possible collisions was specially studied. It is noted that this mechanism could be used to solve the existing problems of competition between the two codes without abolition of the Economic Code of Ukraine. It was established that the dualism of private law cannot be reduced only to legislative dualism. The very fact of cancellation of the Civil Code of Ukraine does not mean at all that the scientific discussion on this issue should stop. It was found that the main objective necessity of the recodification of economic legislation was due to the fatal ability of civil-commercial dualism to conflicts in law enforcement. However, taking into account the experience of European countries, this problem could be solved through the introduction of soft dualism. It should be taken into account that certain risks will arise during the transitional stage of recodification, associated with a large-scale revision of special legislation and the need to adapt judicial practice to the updated legislation. To prevent these negative consequences, an in-depth study of the experience of abandoning the dualism of private law in such European countries as Italy, Switzerland and the Netherlands is necessary.