Abolition of the commercial code of Ukraine: potential consequences and necessary prerequisites

https ://zakon.rada. gov.ua/laws/show/5080-17. Part 6 of Art. 164 of the Commercial Code of Ukraine contains no regulatory mechanisms. Financial activities of the states that created the real estate operations fund and attracted funds of individuals and legal entities are regulated by the Law of Ukraine «On Financial and Credit Mechanisms and Property Management in the Construction of Housing and Real Estate Transactions» Law of Ukraine “On Financial and Credit Mechanisms and Property Management in Housing and Real Estate Transactions”. (2003, June). Retrieved from https://zakon.rada.gov.ua/laws/show/978-15. Part 7 of Art. 164 of the Commercial Code of Ukraine duplicates the provisions of Part 1 of Art. 14 of the Law of Ukraine «On Securities and the Stock Market» Op. cit., 2006.. The issue and circulation of securities is regulated by the Law of Ukraine «On Circulation of Bills in Ukraine» Law of Ukraine “On the Circulation of Bills in Ukraine”. (2001, April). Retrieved from https ://zakon. rada. gov.ua/laws/show/2374-14 and the Law of Ukraine «On Securities and the Stock Market» Law of Ukraine “On Securities and Stock Market”, op. cit.. Part 8 of Art. 164 of the Commercial Code of Ukraine is purely informative, has no regulatory effect, since the production of securities (or their forms) is regulated by the Law of Ukraine «On the National Bank of Ukraine» Law of Ukraine “On the National Bank of Ukraine”. (1999, May). Retrieved from https ://zakon.rada. gov.ua/laws/show/679-14. The same applies to other articles in this chapter.

The foregoing suggests that Chapter 17 «Securities in Economic Activities», namely Articles 163-166 of the Commercial Code of Ukraine Civil Code of Ukraine. (2003, January). Retrieved from https://zakon.rada.gov.ua/laws/show/435-15 can be removed without negative consequences, given their referential nature and lack of regulatory impact.

Chapter 18 «Corporate Rights and Corporate Relations». Unlike the controversial regulation of corporations and corporate rights in the Commercial Code of Ukraine, the Civil Code of Ukraine does not contain the definition and regulation of corporate law and corporate relations. In its turn, the Commercial Code of Ukraine also does not address this issues, as it rather ambiguously defines the approach to defining corporate rights, since the provision of Art. 167 refers to «the rights of a person whose share is determined in the authorized capital (property) of a business organization». It is known that the authorized capital is the value of the contributions of the shareholders (founders, participants) made for the purpose of forming its assets for the beginning or further activity, and also serves to guarantee the interests of creditors and debtors. In turn, property as a special object is considered to be a separate thing, a combination of things, including property rights and obligations (Part 1 of Art. 190 of the Civil Code of Ukraine). The above suggests that the approach of the Commercial Code of Ukraine to the identification of authorized capital and property of a business organization in the context of modern development of economic relations is unacceptable and creates obstacles in the cooperation of Ukrainian companies with foreign ones. Considering the best practices of the doctrine of private law, business organization should be understood as a generic concept, arising from the basic understanding of the legal entitiy as an organization.

The concept of «corporate relations», which are mentioned in paragraph 3 of Art. 167 Commercial Code of Ukraine, also does not add to the clarity, according to which «corporate relations are relations that arise, change, terminate in relation to corporate rights». Hence the misunderstanding: are the relations between business organizations and participants or the supervisory board and general meetings, etc. corporate?

The issues of the scope of the relations covered by Part 3 of Art. 167 of the Commercial Code of Ukraine remains unclear. Considering the fact that corporate legal relations, like any other legal relations, have their own structure, which consists of subjects, objects, content, as well as the grounds for the emergence of such relationships, it is also erroneous to claim that they are specifically regulated [18-20]. According to the general legal understanding, corporate relations are a type of economic relations, and therefore their regulation should be in accordance with the provisions of the Civil Code of Ukraine¹, the Law of Ukraine «On Business Partnerships» Civil Code of Ukraine. (2003, January). Retrieved from https://zakon.rada.gov.ua/laws/show/435-15; Economic Code of Ukraine. (2003, January). Retrieved from https://zakon.rada.gov.ua/laws/show/436-15 Law of Ukraine “On Business Societies”. (1991, September). Retrieved from https://zakon.rada.gov.ua/laws/show/1576-12, the Law of Ukraine «On Joint Stock Partnerships» Law of Ukraine “On Joint Stock Partnerships”. (2008, September). Retrieved from https ://zakon.rada. gov.ua/laws/show/514-17, the Law of Ukraine «On Limited and Additional Liability Partnerships» Law of Ukraine “On Limited and Additional Liability Partnerships”. (2018, February). Retrieved from https ://zakon.rada. gov.ua/laws/show/2275-19, etc. A much broader list of competences that make up the content of corporate rights is contained in the Principles of Corporate Governance, approved by the National Securities and Stock Market Commission No. 955 of July 22, 2014.

More successful, in our opinion, is the definition of corporate relations contained in the Draft Law No. 2635 dated 19.12.2019. Thus, the draft proposes to supplement Art. 961 of the Civil Code of Ukraine Civil Code of Ukraine, op. cit. as follows: «Art. 96-1. Corporate rights.

1. Corporate rights are a set of competences that belong to a person as a participant (founder, shareholder, partner) of a legal entity in accordance with the law and/or constituent documents of a legal entity.

2. Corporate rights are acquired by a person from the moment of acquiring the right to a share (stock, share, or other object of civil rights, which certifies the participation of the person in the legal entity) in the authorized (compound) capital of the legal entity.

3. Participants (founders, shareholders, partners) of legal entities can have the rights stipulated in the constituent documents and the law.

4. The law can impose restrictions on the exercise of certain corporate rights by certain persons, as well as conditions and/or restrictions on the exercise of certain corporate rights by certain persons»

Regarding Art. 172 of the Commercial Code of Ukraine, we shall note that its provisions refer us to the Law of Ukraine «On State Property Objects Management». The provisions of this article do not have a regulatory impact, as relations related to corporate rights management are governed by an entire system of legal acts of different legal force. Relations with the exclusive subject of certain activities, in particular banking, insurance, stock exchange, joint investment, etc. are regulated by special legislation, namely the Law of Ukraine «On Privatization of State and Municipal Property».

Therefore, given the existence of an entire system of regulations governing corporate rights in general, including corporate states in particular, Chapter 18 «Corporate Rights and Corporate Relations» can be excluded without any negative consequences for the legal regulation of corporate relations. In turn, the concept of corporate rights and the specifics of their regulation should be enshrined in the Civil Code of Ukraine factoring in these reservations.

The above suggests that articles included in Section III of the Commercial Code of Ukraine «Property Management Basis» can be excluded from the text of the Commercial Code of Ukraine, and the concept and general provisions of corporate rights must be enshrined in the Civil Code of Ukraine.

Comparative analysis of controversial and debatable provisions of the Commercial Code of Ukraine and the Civil Code of Ukraine

Thus, the rules contained in Chapter 19 of the Commercial Code of Ukraine on the regulation of business obligations, by their very nature and content, should exclusively reflect the specific features inherent in the latter. Instead, «the regulation of business obligations in the Commercial Code of Ukraine in many cases almost coincides with the provisions stipulated in Book Five of the Civil Code of Ukraine. An example of this is the very first article of this chapter (Art. 173 of the Commercial Code of Ukraine - definition of business obligation) which by its content repeats Art. 509 of the Civil Code of Ukraine. It would seem that the focus of this paper should be on property and organizational and business obligations, but from the definitions of both property and economic (Part 1 of Art. 175 of the Commercial Code of Ukraine) and organizational and business obligations (Part 1 of Art. 176 of the Commercial Code of Ukraine) follows their private law nature, as directly stated in the analysed chapter of the Commercial Code of Ukraine (Part 1 of Art. 175, Part 4 of Art. 176 of the Commercial Code, etc.). In this regard, Section 1 of the Book Five of the Civil Code of Ukraine would be appropriate to supplement with an article that would enshrine the concept and nature of the legal obligations.

As for the grounds for the emergence of business obligations - Art. 174 of the Commercial Code of Ukraine repeats Art. 11 of the Civil Code of Ukraine almost word for word, at the same time introducing terminological confusion by using the term «agreement» in the context of a transaction. Art. 177 of the Commercial Code of Ukraine «Social and Municipal Obligations of Business Entities» is dissonant with Art. 4 of the Commercial Code of Ukraine and duplicates the provisions of Art. 17 of the Law of Ukraine «On Fundamentals of Social Protection of Persons with Disabilities in Ukraine»¹, Resolution of the Verkhovna Rada of Ukraine «On the Concept of Sustainable Development of Settlements» Law of Ukraine “On the basics of social protection of persons with disabilities in Ukraine”. (1991, March). Retrieved from https://zakon.rada.gov.ua/laws/show/875-12 Resolution of the Verkhovna Rada of Ukraine “On the Concept of Sustainable Development of Settlements”. (1999, December). Retrieved from https://zakon.rada.gov.ua/laws/show/1359-14, Art. 40 of the Law of Ukraine «On Regulation of Urban Development» Law of Ukraine “On Regulation of Urban Planning Activity”. (2011, February). Retrieved from https ://zakon.rada. gov.ua/laws/show/3038 -17 etc. The same applies to the wording of Art. 178 of the Commercial Code of Ukraine «Public Obligations of Business Entities», which duplicates the provisions of Art. 633 of the Civil Code of Ukraine, bringing disharmony into the understanding of the construction of a public contract. Chapter 20, «Economic Agreements» (Articles 179-188), as it appears from its content, is essentially an brief version (a kind of a «sampler») of Chapters 52-53 of the Civil Code of Ukraine. However, based on the titles of Art. 183 «Features of Conclusion of Economic Agreements under Public Procurement» and Art. 186 «Conclusion of Organizational and Economic Agreements» should reflect the dynamics of contractual obligations and their respective features. However, in their current wording, they are «copying» the provisions of Section VII of the Law of Ukraine «On Public Procurement» in the first case, and the general provisions of Chapters 52-53 of the Civil Code of Ukraine in the second case. Furthermore, the provisions of articles of Chapter 20 of the Commercial Code of Ukraine contain significant contradictions regarding the use of the construction of standard contracts (Art. 184) under the Commercial Code of Ukraine and the concept of standard conditions (Art. 630) under the Civil Code of Ukraine. The approaches used in the Commercial Code of Ukraine substantially limit the principle of freedom of contract in business, which significantly impedes investment in the country's economy.

Chapter 21 «Prices and Pricing in the Commercial Field» (Articles 189-192) has neither substantive nor regulatory weight, since the basic principles of price policy, the detailed regulation of relations in this field, and the exercise of state control (oversight) and surveillance in pricing is governed by the Law of Ukraine «On Prices and Pricing». Given the existence of which retention of a separate chapter in the Commercial Code of Ukraine is inappropriate. Chapter 22 «Performance of Business Obligations. Termination of Obligations» (Articles 193-208) as well as Chapter 20 of the Commercial Code of Ukraine also constitute a brief version of Chapters 48-51 of the Civil Code of Ukraine. Thus, Art. 193 of the Commercial Code of Ukraine contains provisions which, within a single article, specify: 1) the general conditions for the performance of the obligation (Art. 526 of the Civil Code of Ukraine); 2) elements of performance (Articles 527, 529, 531 of the Civil Code of Ukraine); 3) the legal consequences of non-performance or improper performance (Articles 610, 615, 616, 622 of the Civil Code of Ukraine); 4) confirmation of performance (Art. 545 of the Civil Code of Ukraine), which indicates the inappropriateness of its retention. By analogy, Art. 194 of the Commercial Code of Ukraine «Performance of a Business Obligation by a Third Party», which duplicates the provisions of Art. 528 Civil Code of Ukraine and creates the effect of excessive «regulation» of relations concerning the possibility of involving third parties as executors of a contractual obligation. Concerning the revision of Art. 195 of the Commercial Code of Ukraine «Transfer (Delegation) of Rights in Business Obligations» we deem it appropriate to transfer Part 1 of this Art. to Book Five of the Civil Code of Ukraine by supplementing Part 1 of Art. 527 of the Civil Code of Ukraine with paragraph 2 of the following content:

«1. The debtor shall be obliged to perform its obligation, and the creditor shall be obliged to accept the performance in person, unless otherwise stipulated by the agreement or law, does notfollow from the essence of the obligations or customs of business turnover. The creditor, unless otherwise stipulated by law, can transfer to another person, with their consent, the right to accept performance from the debtor».

The wording of Art. 198 of the Commercial Code of Ukraine «Performance of Monetary Obligations» contradicts the provisions of Art. 533 of the Civil Code of Ukraine «Currency of Monetary Obligation Performance», considering that these articles reflect different approaches to assessing the possibility of a mismatch between the currency of an obligation and the currency of payment under an agreement. In modern circumstances, it appears to be impractical to imperatively restrict the ability of business entities to express monetary obligations in foreign currency (Art. 198 of the Commercial Code of Ukraine). With that, the currency of payment within the territory of Ukraine should be exclusively hryvnia.

The provisions of Chapter 22 of the Commercial Code of Ukraine (Articles 199201) should be deleted as devoid of regulatory load, but merely repeating in brief the general and special provisions of Chapter 49 of the Civil Code of Ukraine «Ensuring Performance of Obligations». As for articles dealing with the termination of business obligations and their legal consequences (Articles 202 to 208 of the Commercial Code of Ukraine), it is appropriate to emphasize that the content of Art. 202 of the Commercial Code of Ukraine indicates duplication of the provisions of Art. 598 Civil Code of Ukraine, which consolidates a non-exhaustive list of grounds for termination of obligations under Articles 599, 601, 606, 604, 607 of the Civil Code of Ukraine, etc. The same applies to Art. 203 of the Commercial Code of Ukraine, which in its content is a combination of such articles of the Civil Code of Ukraine as: 1) Part 1 of Art. 203 of the Commercial Code of Ukraine - Part 1 of Art. 599 of the Civil Code of Ukraine; 2) Part 2 of Art. 203 of the Commercial Code of Ukraine - Part 1 of Art. 539 of the Civil Code of Ukraine; 3) Part 3 of Art. 203 of the Commercial Code of Ukraine - Parts 1-2 of Art. 601 of the Civil Code of Ukraine; 4) Part 5 of Art. 203 of the Commercial Code of Ukraine - Part 1 of Art. 602 of the Civil Code of Ukraine. A similar situation occurs with other articles in this chapter, which duplicate the provisions of the Civil Code of Ukraine, which raises reasonable doubts about their practical value and the need to retain them. The existence of Chapter 23, «Bankruptcy Procedure for a Business Entity» (Articles 209-215) within Section IV of the Commercial Code of Ukraine has previously caused some surprise and astonishment, and even more so with the adoption of the Bankruptcy Procedure Code of Ukraine, since there neither was nor is the need for fragmentary, superficial regulation of relations by provisions which do not regulate, and in many cases even contradict the newly adopted codified act.

Therefore, the provisions of Section IV «Business Obligations» should, by their very nature and content, reflect the specific features inherent exclusively in business obligation. Instead, the proposed regulation in the respective articles of the Commercial Code of Ukraine in many cases actually repeats the provisions of Book Five of the Civil Code of Ukraine. Accordingly, there are no arguments regarding the advisability of keeping this section in the Commercial Code of Ukraine.

The provisions of Section V, «Responsibility for Offenses in Business Activity» duplicate, by their general content, the provisions of Chapter 51 of the Civil Code of Ukraine. As an example, it is advisable to cite the provisions of Chapter 24, «General Principles of Responsibility of Participants in Economic Relations» of the Commercial Code of Ukraine, which duplicate the provisions of Chapter 51 of the Civil Code of Ukraine, and in some cases only enshrine the general rules, such as: «Participants of business relations are economically and legally liable for offenses in business activity by means of applying economic sanctions to business offenders on the grounds and in accordance with the procedure established by this Code, other laws and agreement» (Part 1 of Art. 216 of the Commercial Code of Ukraine) or: «grounds for commercial law liability of the participant in economic relations are an offense committed in business activity» (p. 1, Art. 218 Commercial Code of Ukraine). Partially duplicating the provisions of Art. 617 Civil Code of Ukraine, Art. 219 of the Commercial Code of Ukraine consolidates the grounds for exemption from said liability. This duplication appears to be inappropriate. However, Part 4 of Art. 219 of the Commercial Code of Ukraine deserves to be transferred to Art. 617 of the Civil Code of Ukraine by consolidating the ability of the parties to envisage certain circumstances which, by virtue of their extraordinary nature, may give rise to their exemption from liability in case of a breach of the obligation due to given circumstances, as well as the procedure for attesting to the occurrence of such circumstances.

Articles 220 and 221 of the Commercial Code of Ukraine completely duplicate the provisions of Articles 612 and 613 of the Civil Code of Ukraine. The same applies to the expediency of regulating procedural issues in the pre-trial dispute settlement procedure (Art. 222 of the Commercial Code of Ukraine). Art. 222 of the Commercial Code of Ukraine contains many aspects of the procedural nature that must be enshrined in the procedural codes. In this regard, it is worth emphasizing that it is appropriate to exclude Chapter 25 «Compensation for losses in the in Business Activity» of the Commercial Code of Ukraine, since it does not carry any legal load. In particular, Articles 224-225 of the Commercial Code of Ukraine duplicate the provisions of Articles 22, 623 of the Civil Code of Ukraine, and Articles 227-228 of the Commercial Code of Ukraine, respectively, duplicate Articles 541-544 of the Civil Code of Ukraine.

Chapter 26 «Penalties and operational-economic sanctions» should be excluded, given the internal inconsistency of its rules (for example, the recognition of fines and penalties as separate sanctions apart from the forfeit or consolidation of a set-off penalty in Art. 232 of the Commercial Code of Ukraine contrary to the provisions of Art. 624 of the Civil Code of Ukraine, etc.) and duplication of provisions of the Civil Code of Ukraine (for example, Art. 233 of the Commercial Code of Ukraine duplicates the provisions of Articles 551 and 616 of the Civil Code of Ukraine; Art. 234 of the Commercial Code of Ukraine duplicates provisions of Art. 622 of the Civil Code of Ukraine; Art. 235 of the

Commercial Code of Ukraine duplicates provisions of Art. 615 Civil Code of Ukraine, etc.). Furthermore, there is doubt regarding the wording of Art. 231 of the Commercial Code of Ukraine (especially Part 2), in which the expediency of imposing sanctions is unclear if the party to legal relations is the state. This article effectively negates the principle of legal equality of the parties in private law relations, and Chapter 26 «Penalties and operational-economic sanctions» itself does not contain any new approaches to the mechanism of bringing the offender to justice, thereby duplicating the provisions of the Civil Code of Ukraine.

Special attention should be paid to the provisions of Chapter 27 «Administrative and Economic Sanctions» of the Commercial Code of Ukraine on issues that were separately resolved in the provisions of the codified acts of public law (Tax Code, Customs Code, Laws of Ukraine «On Foreign Economic Activity», «On Features of State Regulation of Activities of Business Entities Related to the Sale and Export of Timber», etc.). Furthermore, to date, by means of removal of Art. 37 of the Law of Ukraine «On Foreign Economic Activity», the legislator has refused to apply such special sanctions to business entities engaged in foreign trade activities as temporary suspension of foreign economic activity; individual licensing regime and penalty). Instead, in Chapter 27 of the Commercial Code of Ukraine, these types of administrative and economic sanctions remained. The foregoing indicates that special legislation in this field has been updated without amending the Commercial Code of Ukraine as an ineffective regulator of these relations.

The presence of Chapter 28 «Responsibility of the Business Entities for the Violation of Antitrust and Competition Laws» in the structure of the Commercial Code of Ukraine also raises a few concerncs on this matter. Thus, the logic of the legislator is unclear, who, having foreseen the specific features of holding business entities liable for violation of antitrust law, placed this chapter in the Commercial Code of Ukraine. The expediency of its existence is undermined by the existence of perfect special legislation in this field, which is evidenced by the adoption of the Law of Ukraine «On Protection of Economic Competition» (section VIII, IX) and the Law of Ukraine «On Protection against Unfair Competition» (Chapter 5, 6). Considering the existence of special legislation in this area, the value of Chapter 28 of the Commercial Code of Ukraine is minimal, because the provisions stipulated therein do not reflect the mechanism of holding business entities liable for violations of antitrust and competition law.

Analysis of the subject matter ofprovisions of Section VI «Features of legal regulation in certain economy sectors» of the Commercial Code of Ukraine

The largest by volume is Chapter VI, «Features of Legal Regulation in Certain Business Sectors», consisting of 8 chapters and 118 articles. This section begins with Chapter 29 «Industries and Types of Business Activity», the content of which indicates that it does not carry any regulatory burden and practical value. Chapter 30 «Features of Legal Regulation of Economic and Commercial Activities» is divided into 6 paragraphs: supply, contracting, energy supply, stock trading, property rent and leasing, including other types of economic and commercial activity.

§ 1 «Supply» essentially duplicates the general provisions of the Civil Code of Ukraine on the sale and purchase.

§ 2 «Contracting Agricultural Production» partially duplicates the provisions of Art. 713 of the Civil Code of Ukraine. At the same time, it would be advisable, within the framework of the same article, to consolidate separate features of the performance of the terms of this agreement (Parts 2-3 of Art. 273 of the Commercial Code of Ukraine). Instead, Art. 274 of the Commercial Code of Ukraine on liability is general and does not contain any features that would distinguish it from liability under agreements of this contractual type. Thus, the Commercial Code of Ukraine does not contain rules that would not be covered by the Civil Code of Ukraine in the regulation of agricultural contracting. Furthermore, it is doubtful whether regulation of agricultural production contracting is based on a model agreement.

§ 3 «Energy Supply» partially replicates Art. 714 of the Civil Code of Ukraine. Furthermore, the subject of the agreements stipulated by Art. 714 of the Civil Code of Ukraine and Art. 275 of the Commercial Code of Ukraine is not identical. This issues arises due to the confusion of the terminological nature of the mentioned agreements in the Commercial Code of Ukraine and the Civil Code of Ukraine, considering that the former implies under the wording «to comply with the contractual regime of its use» the use of energy (electricity, steam, hot and overheated water), and the latter, respectively, under «adhering to the contractual regime of its use» means the use of an affiliated network, which creates a certain terminological confusion, which, with the wrong qualification and understanding of the essence of such an agreement can cause problems in its proper application.

§ 4. Stock trading concerns, as follows from the content of Part 1 of Art. of the 278 Commercial Code of Ukraine, the legal status of commodity exchange. Hence, firstly, the question arises as to the expediency of placing this paragraph within the individual contractual groups at all, and secondly, the legal status of the commodity exchange is regulated in detail at the level of special legislation (the Law of Ukraine «On Commodity Exchange»), and therefore the advisability of retaining this paragraph is rather dubious.

§ 5. «Property and Leasing» duplicates the general provisions for the rental (lease) of Chapter 58 of the Civil Code of Ukraine. Furthermore, the lease of property under Art. 283 of the Commercial Code of Ukraine is described exclusively as real, although the agreement must be described both as real and as consensual. Furthermore, the analysis of Chapters 58-59 of the Civil Code of Ukraine reveals a more detailed regulation of lease relations, both at the level of general provisions and in such objects of civil legal relations as land, housing, buildings or other capital structures, vehicles, etc. Moreover, special law «On Leasing of State and Municipal Property» and § 6 of Chapter 58 of the Civil Code of Ukraine, Law of Ukraine «On Financial Leasing», etc. cover such relations as rental of state, municipal property, and leasing. Given the significant differences between the provisions of the Civil Code of Ukraine, special legislation in these fields and § 5 of Chapter 30 of the Commercial Code of Ukraine, there is no doubt in the expediency of completely excluding this paragraph.

§ 6. Other types of business and commercial activities cover barter relations (Art. 293) and storage in the warehouse (Art. 294). The expediency of retaining this paragraph appears to be doubtful, because barter relations are settled at the level of § 6 of chapter 55 of the Civil Code of Ukraine, Art. 716 of which provides for the possibility of applying to such relations general provisions on the sale and purchase, supply agreement, contracting agreement or other agreements, the elements of which are contained in the barter agreement, if this does not contradict the essence of the obligation. Instead, storage relations are regulated by the provisions of Chapter 66 of the Civil Code of Ukraine, under which a separate paragraph «Storage at the warehouse» is highlighted, including the special Law of Ukraine «On Certified Warehouses and Simple and Double Warehouse Certificates».

Chapter 31 «Commercial Mediation (Agency Relations) in Management» raises several questions, the main of which is the following: why does the Commercial Code of Ukraine identify commercial mediation in management exclusively with agency relations? At the same time, the issues of legal regulation of relations under such intermediary agreements as power of attorney, commission, consignment, and property management are left out of legal regulation. The differences between these agreements are conditioned upon the scope, subject matter, content of the rights and obligations of the parties.

The principal factor underlining the agent's intermediary functions is its performance of actions at the expense of the principal. An agency agreement can be implemented in a wider scope of relations than commission and power of attorney. This is a consequence of the coverage by the subject of actions of any nature, subject to their legitimacy and based on the authority granted. Thus, an agency agreement is an independent contractual model that has several specific features that distinguish it from adjacent contractual structures. At the same time, by its legal nature, an agency contract is a type of contract for the provision of intermediary services, where the agent always acts in the interests of the principal, based on the latter's authority and at its expense. Accordingly, it was expedient to place the said agreement within the bounds of Book 5 of the Civil Code of Ukraine by transferring the individual rational ideas of Chapter 31 of the Commercial Code of Ukraine to the Civil Code of Ukraine. For example, as implemented in Anglo-American law, which is described by an understanding of the agency agreement as a generic, where the power of attorney and the commission act as special types subordinate to the agency institution.

Chapter 32 «Legal regulation of freight transportation» duplicates the general provisions on transportation in Chapter 64 of the Civil Code of Ukraine. Furthermore, these relations are governed at various levels of special legislation: transport codes (Air Code¹, Commercial Maritime Code Air Code of Ukraine. (2011, May). Retrieved from https://zakon.rada.gov.ua/laws/show/3393-17 Code of Merchant Shipping. (1995, May). Retrieved from https://zakon.rada.gov.ua/laws/show/176/95-), laws of Ukraine («On Transport»³, «On Railway Transport»⁴, «On Road Transport⁵, etc.), sub-legislative acts (Charter of Railways, Charter of Inland Waterways, Rules for Transportation of Freight by Road in Ukraine, Rules for Transportation of Freight by Rail, etc.). Due to the presence of such a wide array of multifaceted acts of the legislation in freight transportation, including the absence of any specific features in the transportation of goods that would not be covered by the Civil Code of Ukraine and the abovementioned special acts of legislation, the analysed chapter of the Commercial Code of Ukraine is subject to abolition.

Chapter 33 «Capital Construction» must be excluded as such that is not based on a unified legislative approach and causes numerous legal conflicts both in the titles of these agreements under the Civil Code of Ukraine and the Commercial Code of Ukraine and in the content of this chapter of the Commercial Code of Ukraine. For example, in the very content of Chapter 33 of the Commercial Code of Ukraine there are terminological contradictions. Art. 324 of the Commercial Code of Ukraine exemplifies this issue, where, compared to the Civil Code of Ukraine, the same agreement has different names, does not stipulate the possibility of involvement of third parties to perform certain stages of work, consolidates the obligation to conduct both prospecting (according to commercial law terminology - exploratory) and design works, the possibility is included for applying the provisions of the agreement for capital construction to the legal relations for the conduct of both prospecting and design works. The same applies to provisions concerning the legal regulation of capital construction relations that would not be covered by the Civil Code of Ukraine. Therefore, Chapter 33 of the Commercial Code of Ukraine «Capital Construction» should be abolished as such that is not based on a unified legislative approach and causes numerous legal conflicts both in the titles of these agreements under the Civil Code of Ukraine and the Commercial Code of Ukraine, and directly in the content of this chapter.

Chapter 34 «Legal Regulation of Innovation» in fact reproduces the provisions of Chapter 62 «Performing research, development and technological works» of the Civil Code of Ukraine. The said chapter of the Commercial Code of Ukraine is fragmentary, and on certain aspects, contrary to the provisions of the Civil Code of Ukraine, regulates scientific and technical activities. This creates shortcomings in the contractual regulation of research, development, and technological works. Moreover, Articles 325-330 of the Commercial Code of Ukraine cover not the agreement, but the innovative activities and their «state» regulation (as defined in Art. 328 of the Commercial Code of Ukraine). At the same time, several special laws, such as the Law of Ukraine «On Innovative Activity»¹, the Law of Ukraine «On Scientific and Technical Activity» Law of Ukraine “On Innovation Activities”. (2002, July). Retrieved from https ://zakon.rada. gov.ua/laws/show/40 -15 Law of Ukraine “On Scientific and Scientific and Technical Activities”. (2015, November). Retrieved from https ://zakon.rada. gov.ua/laws/show/848-19, and the Law of Ukraine «On Scientific and Technical Information» Law of Ukraine “On Scientific and Technical Information”. (1993, June). Retrieved from https ://zakon.rada. gov.ua/laws/show/3 322-12 cover the legal settlement of these relations. Accordingly, the expediency of a «summary» review of something that has a detailed regulation within the framework of the Civil Code of Ukraine (regarding an agreement for the implementation of research or development and technological works) and special legislative acts (on the legal regulation of innovation activity) is devoid of any sense. Therefore, the abolition of Chapter 34 of the Commercial Code of Ukraine will in no way affect the mechanism of legal regulation of these relations.

Chapter 35 «Features of Legal Regulation of Financial Activities» consists of 5 paragraphs, each of which duplicates the provisions of the Civil Code of Ukraine and contains a summary of the special legislation.

Thus, § 1 «Finance and Banking» covers the definition of the legal status of banks and their financial activities. With that, the legislator, within the framework of this paragraph, allowed the combination of the legal status of banks, their legal forms, bank deposit, credit, settlement, factoring, leasing operations agreements, effectively combining the uncombinable. For instance:

1) definition of the legal status of banks, their legal forms, etc. is covered by separate laws of Ukraine «On Banks and Banking», «On the National Bank of Ukraine»;

2) legal regulation of financial activities and financial services is covered by several special laws, such as: «On Financial Services and State Regulation of Financial Services Markets», «On Financial and Credit Mechanisms and Property Management in Housing and Real Estate», «On Financial Leasing», «On State Aid to Business Entities», etc.¹;

3) Chapters 71-74 of the Civil Code of Ukraine cover banking operations.

§ 2 «Insurance» duplicates the provisions of Chapter 67 of the Civil Code of Ukraine and the provisions of special laws («On Insurance», «On Compulsory Insurance of Civil Liability of Owners of Land Vehicles» Law of Ukraine “On Financial Services and State Regulation of Financial Services Markets”. (2011, July). Retrieved from https://zakon.rada.gov.ua/laws/show/2664-14; Law of Ukraine “On Financial and Credit Mechanisms and Property Management in Housing and Real Estate Transactions”. (2003, June). Retrieved from https://zakon.rada.gov.ua/laws/show/978-15; Law of Ukraine “On State Aid to Business Entities”. (2004, July ). Retrieved from https://zakon.rada.gov.ua/laws/show/1555-18 Law of Ukraine “On Insurance”. (1996, March). Retrieved from https://zakon.rada.gov.ua/laws/show/85/96-%D0%B2%D1%80; Law of Ukraine “On Compulsory Insurance of Civil Liability of Owners of Land Vehicles”. (2004, July). Retrieved from https ://zakon.rada. gov.ua/laws/show/1961-15.). It is therefore doubtful whether Articles 352-355 of this paragraph should be retained.

§ 3 «Mediation in Securities Transactions. Stock Exchange» covers the intermediary relations in the stock market of Ukraine and directly the legal status of the stock exchange. As for brokerage agreements, these relations are governed at the level of the general provisions on representation by Chapter 17 of the Civil Code of Ukraine and the Law of Ukraine «On Securities and Stock Market» Law of Ukraine “On Securities and Stock Market”. (2006, February). Retrieved from https ://zakon.rada. gov.ua/laws/show/3480-15, which stipulates both the legal status of such an intermediary and the stock exchange. Accordingly, the expediency of retaining this paragraph is doubtful.

§ 4 «Audit» is an attempt to regulate the audit activity and the legal status of its entities. At the same time, these legal relations are governed both by the general provisions on services (Chapter 63 of the Civil Code of Ukraine) and by the updated Law of Ukraine «On Audit of Financial Reporting and Auditing» Law of Ukraine “On Audit of Financial Reporting and Auditing”. (2019, December). Retrieved from https://zakon.rada.gov.ua/laws/show/2258-19. In this regard, the expediency of retaining this paragraph is also doubtful.

Placing § 5 «Lottery activity» in the structure of the Commercial Code of Ukraine raises serious questions, since Art. 365-1 has no regulatory effect, as it immediately refers to a special law in this area «On State Lotteries in Ukraine»¹, which establishes the basic principles of state regulation of lottery activity in Ukraine with the purpose of creating favourable conditions for the development of the lottery market based on the principles of state monopoly on the issue and holding of lotteries, meeting the needs of the state budget, rights, and legal interests of citizens.

Chapter 36 «Use of the rights of other business entities in entrepreneurial activity (Commercial Concession)» duplicates the provisions of Chapter 76 of the Civil Code of Ukraine. Thus, the content of the provisions of the analysed chapter of the Commercial Code of Ukraine superficially, and in certain aspects contrary to the provisions of the Civil Code of Ukraine, regulates the contractual relations on the use of intellectual property rights. Furthermore, chapter 76 «Commercial Concession» of the Civil Code of Ukraine is placed after chapter 75 «Disposal of Intellectual Property Rights» of the Civil Code of Ukraine, which altogether creates a common conceptual framework for regulating relations of disposition of intellectual property rights.

Thus, the analysed content of Chapters IV-VI of the Commercial Code of Ukraine suggests that there is no need to retain them, given the existence of such a wide array of multi-level legislative acts, as well as the absence of any specific regulation of the above relations that would not be covered by the Civil Code of Ukraine and special acts of legislation.

Section VII «Foreign Economic Activity», in particular Chapter 37 «General Provisions», and the provisions of Articles 377-389 duplicate the rules of other legislative acts. Thus, provisions on the definition, entities, types, licensing and quotas, foreign economic agreements, their state registration, customs regulation, principles of taxation in the implementation of foreign economic activity, foreign currency accounts of entities, foreign exchange earnings, obtaining loans by subjects in foreign financial institutions, state protection of rights and legitimate interests duplicate the provisions of the Law of Ukraine «On Foreign Economic Activity» Law of Ukraine “On State Lotteries in Ukraine”. (2019, September). Retrieved from https ://zakon.rada. gov.ua/laws/show/5204-17 Law of Ukraine “On Foreign Economic Activity”. (1991, April). Retrieved from

https ://zakon.rada. gov.ua/laws/show/959-12, the Civil Code of Ukraine (in terms of the subject composition), the Customs Code of Ukraine, the Tax Code of Ukraine, including the Law of Ukraine «On State Control of International Transfers of Military Goods and Dual Use», Law of Ukraine «On State Defence Order» Customs Code of Ukraine. (2012, March). Retrieved from https://zakon.rada.gov.ua/laws/show/4495-17; Law of Ukraine “On State Control over International Transfers of Military and Dual-Use Items”. (2003, February). Retrieved from https://zakon.rada.gov.ua/laws/show/549-15.

Thus, Articles 377-389 of Chapter 37 «General Provisions» in Section VII «Foreign Economic Activity» of the Commercial Code of Ukraine are subject to exclusion in the absence of direct regulatory impact. The provisions of Chapter 38 «Foreign Investment» (Articles 390-400) duplicate the provisions of the Law of Ukraine «On the Foreign Investment Regimes» dated May 7, 1996. Thus, in particular, the first part of Art. 390 of the Commercial Code of Ukraine duplicates the provisions of part 1 of Art. 1 of the Law of Ukraine «On Foreign Investment Regimes» Law of Ukraine “On Foreign Investment Regime”. (1996, March). Retrieved from

https://zakon.rada.gov.ua/laws/show/93/96-%D0%B2%D1%80. Art. 391 of the Commercial Code of

Ukraine duplicates Art. 2 of the abovementioned law. Part 2 of Art. 391 of the Commercial Code of Ukraine contains a reference to the law and also has no independent regulatory effect. Art. 394 of the Commercial Code of Ukraine duplicates the provisions of Art. 7 of the same Law. Thus, given that the Law of Ukraine «On Foreign Investment Regimes»¹ regulates the types, forms of implementation, objects of foreign investment, prohibition and restriction of any forms of foreign investment, determines the territories where the activity of foreign investors and enterprises are restricted and prohibited, we shall conclude that Articles 390-400 of Chapter 38 of the Commercial Code of Ukraine are subject to be excluded as such that duplicate the provisions of the Law of Ukraine «On Foreign Investment Regime». In Section VIII «Special Economic Modes», Chapter 39 «Special (Free) Economic Zones» of the Commercial Code of Ukraine, namely provisions of Articles 401-405 duplicate the content of the articles of the Law of Ukraine «On General Principles of Establishment and Functioning of Special (Free) Economic Zones» Law of Ukraine “On Foreign Investment Regime”. (1996, March). Retrieved from https://zakon.rada.gov.ua/laws/show/93/96-%D0%B2%D1%80 Law of Ukraine “On General Principles of Creation and Functioning of Special (Free) Economic Zones”. (1992, October). Retrieved from https://zakon.rada.gov.ua/laws/show/2673-12. In particular, Art. 401 duplicates the provisions of parts 1-2 of Art. 1 of the specified Law, Art. 402 duplicates the provisions of Art. 2 of the said Law, Art. 403 duplicates Art. 3 of the Law, Art. 404 duplicates the provisions of Art. 13 of the same Law, and Art. 405 duplicates the provisions of Art. 4 of the same Law. Thus, given that the special regulatory act regulates the special economic regimes in detail, in particular the special (free) economic zones, Chapter 39 of the Commercial Code of Ukraine, namely Articles 401405 of the Commercial Code of Ukraine, should be excluded as they duplicate the provisions of the articles of the Law of Ukraine «On General Principles of Creation and Functioning of Special (Free) Economic Zones» Ibidem, 1992..

Considering that the Law of Ukraine «On Concession» Law of Ukraine “On Concession”. (2019, October). Retrieved from https://zakon.rada.gov.ua/laws/show/155-20 was adopted on 03.10.2019, which defines the legal, financial, and organizational foundations for the implementation of concession projects to modernize the infrastructure and improve the quality of socially significant services, Chapter 40 «Concession», in particular, Art. 406 of the Commercial Code of Ukraine should be excluded as a provision which duplicates the provisions of the abovementioned law. Regarding Chapter 41 «Other Types of Special Regimes ofEconomic Activity» (Articles 411-418 of the Commercial Code of Ukraine), we shall note that the Law of Ukraine «On Exclusive (Marine) Economic Zone» Law of Ukraine “On Exclusive (Marine) Economic Zone”. (1995, May). Retrieved from https://zakon.rada.gov.ua/laws/show/162/95-%D0%B2%D1%80 dated 23.05.1995 regulates the legal regime of exclusive (maritime) economic zone Ukraine, subject to the relevant provisions of the 1982 United Nations Convention on the Law of the Sea. Considering the fact that this law was adopted in 1995, we shall state that at the time of adoption of the Commercial Code of Ukraine in 2003, its provisions were already duplicating the provisions of the Law of Ukraine «On Exclusive (Marine) Economic Zone». For example, parts 1-2 of Art. 411 of the Commercial Code of Ukraine duplicate the provisions of part 1-2 of Art. 2 of the Law of Ukraine «On Exclusive (Marine) Economic Zone»¹. Part 3 of Art. 411 of the Commercial Code of Ukraine duplicates Part 1 of Art. 9 of the same Law. Part 4 duplicates Art. 10 of the above law. Part 5 contains a statutory reference to other regulations and has no regulatory effect. Art. 412 of the Commercial Code of Ukraine completely duplicates the provisions of Art. 18 of the Law of Ukraine «On State Border» Law of Ukraine “On Exclusive (Marine) Economic Zone”. (1995, May). Retrieved from https://zakon.rada.gov.ua/laws/show/162/95-%D0%B2%D1%80 Law of Ukraine “On State Border”. (1991, November). Retrieved from https://zakon.rada.gov.ua/laws/show/1777-12 dated 18.12.1991. Part 3 of this article duplicates Art. 19 of the Law of Ukraine «On State Control» Law of Ukraine “On State Control”. (2017, May). Retrieved from https ://zakon.rada. gov.ua/laws/show/2042-19. The provisions of Art. 413 of the Commercial Code of Ukraine contain provisions referring to special legislation, in particular the Land Code of Ukraine Land Code of Ukraine. (2001, October). Retrieved from https://zakon.rada.gov.ua/laws/show/2768-14 and the Law of Ukraine «On the status and social protection of citizens affected by the Chornobyl disaster» Law of Ukraine “On the status and social protection of citizens affected by the Chornobyl disaster”. (1991, February). Retrieved from https://zakon.rada.gov.ua/laws/show/796-12. The provisions of Art. 414 of the Commercial Code of Ukraine contain no regulatory impact, since they refer to other regulations, namely the Law of Ukraine «On the Armed Forces of Ukraine», the Law of Ukraine «On economic activity in the Armed Forces of Ukraine», which are special acts and determine the conditions of economic activities in the Armed Forces of Ukraine. Furthermore, Part 1 of Art. 414 of the Commercial Code of Ukraine establishes a general rule that specifies the powers of the Cabinet of Ministers of Ukraine, which are governed by the Law of Ukraine «On the Cabinet of Ministers of Ukraine» and the Resolution of the Cabinet of Ministers of Ukraine No. 950 «On Approval of the Regulation of the Cabinet of Ministers of Ukraine» dated 18.07.2007 Law of Ukraine “On the Armed Forces of Ukraine”. (1991, December). Retrieved from https://zakon.rada.gov.ua/laws/show/1934-12; Law of Ukraine “On Economic Activity in the Armed Forces of Ukraine”. (1999, September). Retrieved from https://zakon.rada.gov.ua/laws/show/1076-14.

Art. 415 of the Commercial Code of Ukraine has a blanket form under which the law may specify the territory where, under certain conditions, a special regime of investment activity can be introduced. The relevant procedure and conditions are regulated by the Law of Ukraine «On General Principles of Creation and Functioning of Special (Free) Economic Zones» Law of Ukraine “On General Principles of Creation and Functioning of Special (Free) Economic Zones”. (1992, October). Retrieved from https://zakon.rada.gov.ua/laws/show/2673-12. Thus, there is no need for additional regulation of this issue, and therefore Art. 415 should be excluded as such that does not contain an applicable law and has no independent regulatory impact.

Art. 416 of the Commercial Code of Ukraine contains a referential provision and has no regulatory effect, given that the procedure for conducting business activities in a state of emergency, environmental emergency is established in Part 2 of Art. 64 of the Constitution of Ukraine Constitution of Ukraine. (1996, June). Retrieved from