Makhinchuk V. Theoretical Problems of Private-Law Regulation of Entrepreneurship according to Ukrainian Legislation

The thesis under consideration is devoted to formation of the unified integral doctrinal concept of the private-law regulation of entrepreneurship. The theoretical basis and historical aspects of legal regulation of entrepreneurship are examined herein. The degree of research development of the subject mentioned above in the modern legal literature is revealed. The foreign experience, including historical experience of the private-law regulation of entrepreneurship, is analyzed. The principal conceptual approaches to the legal regulation of entrepreneurship during the first decade of Soviet power are investigated. It is concluded that the categories of economic management cannot not be used for regulation of the market of entrepreneurial relations in the view of the fact that the conception of economic management had been developing in opposition to the capitalistic market economy. The essence of entrepreneurship and entrepreneurial relations as a subject of legal regulation is examined herein. The legal nature and correlation of such concepts as "entrepreneurship", "entrepreneurial relations", "economic relations" and "commerce" are found out. The private-law and public-law approaches to the regulation of entrepreneurship are differentiated. The private-law essence of entrepreneurial relations is substantiated. The place of entrepreneurial relations in the structure of the subject of private law is revealed. The basic theoretical and practical problems of systematization of the subjects of entrepreneurial relations are disclosed. The author vindicates the absence of the economic legal personality of the subjects of entrepreneurship considering the sufficiency of civil legal personality for entering onto the property relations, as well as the administrative legal personality for entering into the public-law relationships. The necessity of elimination of dual regulation of private entrepreneurial relations by the economic and civil law is proved. The reasonability of concentration of legal regulation of entrepreneurial relations within the frames of the civil legislation is demonstrated. The basic doctrinal approaches to governmental regulation entrepreneurship as the type of economic activity are detected. The author also indicates the place of contractual regulation within the system of normative regulators of entrepreneurship. The role of self-regulatory organizations in the regulation of entrepreneurial relations is investigated. The system of the private-law principles of legal regulation of entrepreneurship is distinguished. It is concluded on the high degree of identity of the principles of legal regulation of entrepreneurship and the principles of legal regulation of the civil property relations. The basic features of international legal regulation of entrepreneurship are explored. The basic unification processes in private international law are disclosed in the context of regulation of entrepreneurial relations. The value and the limits of public law element in the international legal regulation of entrepreneurship are revealed. The meaning of such notion as "lex mercatoria" as the specific regulator of entrepreneurial relations is defined as well as the correlation between Lex mercatoria and the custom of business intercourse. The features of the civil protection of the rights of subjects of entrepreneurial relationships are revealed. The civil and economic legal means of protection of the rights of subjects of entrepreneurial relationships and their correlation are investigated. Three main forms of protection of the subjects of entrepreneurial activity rights are examined, namely: jurisdictional, arbitration and alternative form. Based on the exploration of foreign experience of settlement of business conflicts by means of mediation the author makes suggestions aimed at improvement of the current procedural legislation. The author criticizes the regulations of current Ukrainian legislation which divide the non-governmental bodies resolving the entrepreneurial disputes into the arbitration courts and international commercial arbitration. The groundlessness of separation of special non-governmental body or the system of bodies for resolution of entrepreneurial disputes containing an international element in the modern historical and economic conditions is proved. It is concluded that there is no fundamental difference in the nature of entrepreneurial and civil disputes, consequently, there is the possibility to direct the future unification of civil and commercial judicial proceedings in Ukraine. Generally, in this thesis the peculiarities of entrepreneurial relations are disclosed, the approaches to the improvement of the legal doctrine and legislation, adequate for their essence, are suggested.