Belova O.A. Non-defined Carsharing: The Law Enforcer vs the Legislator
DOI: https://doi.org/10.15688/lc.jvolsu.2022.3.12
Olesya A. Belova, Candidate of Sciences (Jurisprudence), Associate Professor, Department of Civil Law Disciplines, Volgograd Institute of Management, Branch of Russian Presidential Academy of National Economy and Public Administration, Gagarina St, 8, 400066 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0001-5994-192X
Introduction: civil legislation, as litmus of the economic relations that have developed in society, fixes the most well-established and frequently implemented legal relations. At the same time, the “mobility” of civil circulation, its digitalization, the emergence and application of new objects of civil rights, new groups of property relations dictate modifications, selective transformation of certain provisions of civil legislation. The deliberation and slowness of the legislator in carrying out reforms are the guarantor of the stability of civil circulation. The situation with a non-defined civil law agreement, the carsharing agreement, is different. In the conditions of well-established applied practice, the approaches developed by legal science, the formed heterogeneous case practice, the legislator has not yet determined the legal fate of contractual carsharing relations. The justification of the normative consolidation of the legal nature of the carsharing agreement, its essential conditions and content to achieve unity of practice and law, is the purpose of this study. Methods: the methodological framework for the research is a set of methods of scientific cognition, among which the main ones are analysis, synthesis, generalization and comparative jurisprudence. Results: new civil legal relations, which are not regulated by the legislator, known as carsharing, are currently interpreted through the prism of analogy in the framework of dispute resolution, by classifying carsharing as the closest legal relationship. The judicial practice reviewed and analyzed in the paper makes it possible to determine the trends of the law enforcer, developed at the level of case law, which, at the same time, do not correlate with the opinion of the representatives of the scientific sphere. The author has identified the following approaches to determining the legal essence of the carsharing agreement and its place in the system of civil contractual relations: 1. The carsharing agreement has all the features of the rental agreement; 2. Carsharing relations should be regulated by the norms of the civil legislation on the lease of a vehicle without a crew; 3. Carsharing relations are of a mixed nature, but tend more towards service relations. Conclusions: the existing heterogeneous judicial practice does not allow coming to an unambiguous interpretation of carsharing relations, determining the essence and place of the studied relations in the system of civil law. Due to the frequent applicability of the carsharing agreement among consumers, its popularity, the author believes there is an urgent need to overcome the legal vacuum in the civil legislation and fix the concept and essential terms of the carsharing agreement in such a way as not to “stifle” new civil legal relations. In the process of lawmaking, when determining the fate of the carsharing agreement, the legislator must resolve a number of controversial issues: what is the legal nature of the carsharing relationship; is the carsharing contract a public contract; what are the limits of the principle of freedom of contract when establishing the rules for using a vehicle; the method of concluding the carsharing agreement.
Key words: carsharing agreement, freedom of contract, non-defined contract, civil circulation, law enforcement practices, legal vacuum.
Citation. Belova O.A. Non-defined Carsharing: The Law Enforcer vs the Legislator. Legal Concept = Pravovaya paradigma, 2022, vol. 21, no. 3, pp. 87-92. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2022.3.12
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