Civil law

Civil law (цивільне право; tsyvilne pravo). In Kyivan Rus’ custom was the basic source of civil law. The provisions of civil law were compiled in the 11th and 12th century in Ruskaia Pravda (Rus' Law), but some were contained in other sources as well (administrative, ecclesiastical, etc).

Property laws regarding movables, including horses, slaves, etc, were based on actual possession; land ownership was not clearly defined, but some property rights were mentioned (eg, possession of bees’ nests gave the owner certain rights to lands that were called ‘honey lands’). Civil obligations could arise only between persons unrestricted in their legal capacity; sales and purchases, loans, leases, and mortgages were mentioned as contracts. The basic institution of family law was marriage, which in the pre-Christian period was performed by stealing of the bride, purchase, or ‘home-bringing.’ Polygamy was practiced for some time, even after monogamy was introduced by the church. Divorce took the form of a decree by an ecclesiastical or secular court, or a special bill served on the wife by the husband. Inheritance law was already operative, only family members being entitled to the estate, both by testament and by operation of the law.

In the Lithuanian-Ruthenian state old customary laws, especially those specified in Ruskaia Pravda, remained in force, but new laws, primarily those of the Lithuanian Statute, were also introduced. The scope of property rights, especially with regard to real property, was broadened. The laws were clearer in regard to the legal capacity of the different social categories of people, there being a set of civil rights peculiar to each estate. There was only a gradual acceptance of the nobles’ property-inheritance rights. The dominant form was landholding under a contract or grant. Peasants initially enjoyed full property rights to the land they tilled but were later deprived of those rights by the third Lithuanian Statute (1588). Mortgage, fiduciary, and ‘pignus’ forms of pledge were in effect. The development of mortgage law provided more protection for the debtor.

In the area of obligations, contracts of sale and purchase could be concluded by people of all social estates. After the restrictions of 1588 the peasants could alienate the land they tilled only with the consent of their masters. Loans, leases, and barter became legal practices. Marriage became both a contract and a sacrament. Monogamy replaced polygamy almost completely, the latter being punishable by death. Divorces and annulments were within the jurisdiction of the church courts. All children born out of wedlock (eg, children of concubine slaves) were considered illegitimate. Custody was regulated by law. Inheritance law became more complex; the testator was free to select a beneficiary for chattels and real property that had been personally acquired, but property inherited from parents could not be freely bequeathed with disregard for other family members.

During the period of the Hetman state civil law was regulated by custom, the Lithuanian Statute, the Code of Laws of 1743, and, in certain areas, by Magdeburg law. In the field of property rights, in addition to the rights of the nobility, the newly formed Cossack estate retained permanent property rights over their landholdings, with unlimited right of alienation. Peasants on the Cossack landholdings enjoyed their rights to the land throughout the second half of the 17th century. Peasants of the so-called free military estates, who had to perform certain duties for the state, enjoyed the right to dispose of their real property for a much longer time. Most provisions of the Lithuanian Statute concerning family and inheritance law remained unchanged.

On the territory of the Hetman state under Russian domination, the Lithuanian Statute and other sources of law were later abolished, and Russian laws were introduced in the process of Russification. They remained in force until they were replaced by Soviet laws after the First World War.

In Western Ukraine, the Polish law (along with some Germanic law and canon law, etc) was introduced in the 14th century and remained in force until the first partition of Poland in 1772. Civil laws in the Ukrainian territories under Austria (the first Austrian Civil Code of 1811) were modern and relatively progressive, and they remained in effect until they were partially replaced by the successor states after the First World War.

The Supreme Soviet of the USSR adopted the ‘Fundamental Principles of Civil Legislation for All Constituent Republics’ on 8 December 1961. The Supreme Soviet of the Ukrainian SSR adopted the present Civil Code of the Ukrainian SSR on 18 July 1963. Since the civil code incorporated the Union ‘fundamentals,’ it could hardly be regarded a free creation of the Soviet Ukrainian government.

The code regulated relations between persons and legal entities. It granted legal rights and privileges to all citizens of the Union of Soviet Socialist Republics and full legal responsibility to persons over 18 years of age. Because of the Soviet social and economic system, the civil code dealt extensively with legal entities. Most of them were state organizations through which the state entered into civil relations. The legal capacity of such entities (enterprises, collective farms, co-operatives, and mass organizations) was determined by law and by the organizations’ charters. The code specified four types of property: state property, co-operative property, property of mass (public) organizations, and personal property. The first three constituted ‘socialist property.’ State property included the land, natural resources, water, forests, industrial plants, mines, electric-power stations, means of transportation and communication, banks, and state-administered housing projects. It could be assigned for perpetual use to co-operatives, mass organizations, and, sometimes, to private persons. Only certain types of property could be sold to citizens, by special legislation. Private property of citizens was recognized by the code. It was considered as ‘derivative’ from socialist property, and the right to exercise ownership was limited. Only property that ‘served to satisfy their material and cultural needs’ (including earnings and savings) could be owned by citizens; it could not be used for purposes of ‘exploitation’ of other people. The code limited personal ownership to one house or apartment and to a specified living area (60 sq m per family).

Legal relations that arose between private persons did not differ in substance from those in non-Communist countries. Legal relations between socialist organizations (eg, state enterprises or collective farms) arose from acts of economic planning, which usually obligated these organizations to conclude pertinent contracts. The contractual autonomy of such organizations was restricted to secondary details (see Contract).

The Civil Code of the Ukrainian SSR provided for the protection of the rights of authors, discoverers, and inventors but granted the state the right to utilize an invention for a determined fee. Inheritance was permitted in regard to private property. Citizens could bequeath their property to any person or legal entity. The law entitled two groups of heirs in case of intestate succession: (1) children, spouses, and parents and (2) brothers and sisters. However, regardless of any provision in a will, minor and incapacitated descendants retained the right to a certain portion of the estate.

Provisions concerning the family were contained in the separate Code Concerning Marriage and Family of the Ukrainian SSR of 20 June 1969. The objective of the code was the strengthening of the Soviet family on the basis of the ‘principles of Soviet morality’; it postulated ‘Communist upbringing’ of children as the obligation of the family. Parents could be deprived of their parental rights if they failed to fulfill their child-rearing obligations.

The equality of both spouses was assured in all respects. Marriage (registration by the civil registrar’s office) was the basis of family rights and obligations. A marriage could be terminated by annulment or by divorce through a people’s court. The code established the rights and duties of parents and children. Children born out of wedlock, with paternity established by joint parental application or court decision, had the rights and duties of legitimate children. Adoption was permitted and regulated by the code.

Leontovich, F. Ocherki istorii litovsko-russkogo prava (Kyiv 1894)
Maksimeiko, N. Russkaia Pravda i litovsko-russkoe pravo (Kyiv 1904)
Gsovski, V. Soviet Civil Law (Ann Arbor 1948)
Hordon, M. Radians’ke tsyvil’ne pravo (Kharkiv 1966)
Ministerstvo iustitsii Ukrainskoi SSR. Grazhdanskii kodeks Ukrainskoi SSR (Kyiv 1973)

Yurii Starosolsky

[This article originally appeared in the Encyclopedia of Ukraine, vol. 1 (1984).]

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