What is “good conduct,” what place does it hold in the Civil Code, and why has it sparked a wave of criticism
Kyiv • UNN
The Rada supported the draft Civil Code with a provision on good conduct in its first reading. Experts warn of judicial manipulation and the restriction of citizens' rights.
Draft Law No. 15150 "Draft Civil Code", which the Verkhovna Rada of Ukraine adopted in principle in the first reading with 254 votes in favor, has sparked no less heated discussion and public outrage than its predecessor – Draft Law No. 14394, which allowed courts in exceptional cases to grant the right to marry from the age of 14.
Chairman of the Ukrainian Parliament Ruslan Stefanchuk claims: the bill is the result of over 7 years of work.
"This involves over 300 of the best lawyers from all corners of the country. The draft of the new Civil Code was discussed with all parliamentary factions. And the preparation for the second reading will remain a maximally open and inclusive process," the Speaker of the Rada assures.
At the same time, a number of lawyers, educators, teachers, specialized experts, and civic activists disagree with him. In particular, the stumbling block was a new norm on 'dobrozvychainist' (propriety/good customs), which was introduced into the text of the new Civil Code of Ukraine (CCU).
What is the history of this concept, what does it mean at the legislative level, how will it affect the lives of ordinary Ukrainians, and why is it already causing so many negatively charged discussions and disputes? UNN investigated.
What is 'dobrozvychainist'
The "Great Explanatory Dictionary of the Modern Ukrainian Language" presents this concept as an archaic abstract noun for the word "dobrozvychainyi" – quite decent, normal.
Furthermore, in jurisprudence, there is the concept of boni mores. The Oxford Dictionary defines boni mores as good behavior, virtue. That is, it refers to general principles of morality and proper conduct recognized and accepted in a particular society or community.
How 'dobrozvychainist' is "understood" in the draft of the new Civil Code
In the draft of the new Ukrainian CCU, the term "dobrozvychainist" is used 45 times.
The authors of the document understand it as a set of moral norms and principles, standards of ethical behavior, and generally recognized ideas of proper conduct established in society.
However, lawyers from the NGO "Women's March," who fully analyzed the text of the new draft CCU, claim: 'dobrozvychainist' in this context is a loophole for manipulation and a manifestation of conservatism.
"In the second most important document of the country after the Constitution, they want to mix law and morality. Judges may make decisions not according to the law, but 'according to morality.' There are no clear boundaries for behavior that would be considered 'immoral.' Standards for different people can be different," the lawyers say.
Why did the need arise to introduce 'dobrozvychainist' into the Ukrainian legal field?
The "Judicial-Legal Newspaper," which systematically analyzes the draft of the new CCU in its materials, writes that the concept of "dobrozvychainist" is intended to be officially consolidated so that courts have an additional tool in cases where a law or by-law has a "blank spot" in a specific instance. With its help, it will be possible to close such gaps that have arisen in the law and which unscrupulous citizens might exploit.
At the same time, the idea itself is not new. Courts have previously applied the principles of good faith, justice, and reasonableness as general principles of civil law. But in the new document, lawmakers decided to make this a separate norm.
The main problem lies elsewhere: currently, there are no clear criteria for filling the content of this category. As a result, everything will depend on how courts begin to interpret 'dobrozvychainist' in practice. And this already poses risks of inconsistency in decisions and a rather wide space for subjectivity.
Leading analyst of the EAC "Medical Constructor" Vladyslav Smirnov, who actively tracks all stages of the work on updating the CCU and has already explained the dangers of teenage marriages that were intended to be legalized in the previous version of the document, also seeks an answer to this question.
"The question is not whether the word 'dobrozvychainist' sounds nice. The question is different: why is this amorphous substance being dragged into private law, and who exactly will decide tomorrow what is proper behavior and what is not? Because as soon as something like 'generally recognized ideas of society' appears in the law, I immediately want to ask: which society exactly? For which period: the last 100 or 300 years?" the analyst writes on his Facebook page.
Smirnov believes that the authors of the new code want to give the court another universal key: supposedly, even if there is no direct prohibition, one can look broader — at good customs, moral principles, ethical standards, the general idea of proper behavior; and also emphasize that they are building a system of private law. But at the same time, according to the expert, they do not take into account many contradictions and "sharp corners."
What are the positive sides of such a decision
The authors of the new version of the CCU claim that highlighting 'dobrozvychainist' as a separate legal category is an important stage of Ukraine's legal modernization.
In turn, analyst Vladyslav Smirnov says that 'dobrozvychainist' as a category could become a defense against trap contracts.
However, MP Inna Sovsun, who did not support the draft law on the new CCU in the session hall during the first reading, is categorical.
"Under the guise of 'dobrozvychainist,' the Russian 'Domostroy' has been stuffed into the document by which the whole country will live," she says.
Dobrozvychainist in the updated CCU: cons and pitfalls
The first "pitfall" is the contradiction with the legislative ban on discrimination, explains MP Inna Sovsun.
Article 317 of the draft updated CCU states that restrictions, privileges, and requirements are not considered discrimination against a person if they are aimed at protecting 'dobrozvychainist.'
"People in Ukraine cannot be discriminated against on the following grounds: sex, age, health status, race, skin color, style of clothing, appearance, body type, physical features, presence of signs of disability, weight, height, voice, movement disorders, manner of behavior, political, religious or other beliefs, ethnic or social origin, property status. You can't, but if it's necessary to protect 'dobrozvychainist' — then you can. How is that even possible? Give me at least one example where any discrimination becomes acceptable because it corresponds to ideas of 'dobrozvychainist'?" says the MP.
Sovsun also does not consider Article No. 1516 to be legal. It states that a man and a woman who entered into marriage, took a common surname, but later divorced, have the right to demand the restoration of the pre-marital surname of the spouse who "behaved unworthily" (committed domestic violence, a criminal offense, an immoral act, or adultery).
The MP explains: the concepts of "unworthy behavior" and "immorality" almost throw Ukraine back to the times of customary law. Moreover, it discriminates against women, as it is most often they who take their partner's surname in marriage.
"This norm also applies to women, but let's be honest, men rarely take their wife's surname in marriage. It's a good thing they aren't being stoned or burned at the stake," the parliamentarian says indignantly.
Inna Sovsun also criticizes the draft CCU for excessive state interference in people's private lives. In particular, this refers to Art. No. 1513 and Art. No. 1553. They stipulate that:
- the court receives the right (and in cases involving children — the obligation) to impose "reconciliation" on spouses during divorce;
- the criterion for such interference is blurred and subjective — so-called "dobrozvychainist";
- this can prolong the divorce process, increase costs, and effectively restrict the freedom of adults to make decisions about their own lives;
- in the presence of children, the procedure becomes even more coercive, although the author believes this does not solve real problems and does not improve the situation of the children.
"In other words, if a judge decides that it is immoral and unethical for you to divorce, they will try to reconcile you. Set aside months for court hearings and meetings with people who will stick their noses into your personal life. Into the personal lives of two adults who have decided that it is better for them to build their lives separately," the MP explains in simple terms.
Disputes surrounding 'dobrozvychainist' in particular and the new edition of the CCU in general continue. Members of Parliament, for their part, voted to extend the deadlines for preparing the bill for the second reading. Therefore, the version of the document currently being so heatedly discussed by Ukrainians may undergo further changes.
MP Inna Sovsun believes that all updates her colleagues introduce to the bill should be discussed exclusively by a wide circle.
"Let's start 'dobrozvychainist' by democratically discussing such significant bills in a wide circle. With human rights organizations, with professional communities (for example, reproductive doctors have proposals regarding norms on reproductive rights), with organizations representing various groups in society," Sovsun summarized.
Analyst Vladyslav Smirnov, for his part, adds that it is necessary to clearly define where the line is between 'dobrozvychainist' and a judge's personal views. Furthermore, parliamentarians should think about how to prevent the use of the concept of 'dobrozvychainist' from becoming a pretext for selective decisions.
Reminder
On April 28, the Rada adopted the new Civil Code in the first reading. If it is passed in its entirety, Ukrainians will be able to inherit accounts and crypto-assets, demand compensation for war losses under separate rules, and courts will receive tools against cyber fraud and abuses involving artificial intelligence.