КОНТРАКТ, КВАЗИКОНТРАКТ, ДЕЛИКТ И КВАЗИДЕЛИКТ КАО ОСНОВНЕ ПРАВНЕ ЧИЊЕНИЦЕ И ПРАВНА ТЕХНИКА. ПРИЛОГ ПРАВНОЈ СТАТИЦИ
CONTRACT, QUASI-CONTRACT, DELICT AND QUASI-DELICT AS THE FUNDAMENTAL LEGAL FACTS AND LEGAL TECHNIQUE: A CONTRIBUTION TO LEGAL STATICS

Summary/Abstract: This paper is a contribution to establishing the Trialist philosophy of law and the state. In the earlier papers on this philosophical theory, the author presented the final elaborations on the legal dynamics and legal teleology, as the second and the third part of the Trialist philosophy, respectively. In this paper, the author considers the most complex and, logically speaking, the principal part of this philosophy: the legal statics. In this context, the author presents a new conception of the matter of law, which entails an adequate understanding of the substantive legal matter, whose contents include: objective legal rules, objective legal types, and fundamental legal facts. A significant novelty in this conception is that the fundamental legal facts, such as: a contract, a quasi-contract, a delict, and a quasi-delict, emerge as the formal sources of law. Thus, the law “returns” to its roots - the social contract theory on the origin of the state. The former conceptions of this theory were flawed because they did not recognize the quasi-contract as being comparative to the social contract. This paper rectifies this misconception. Another important dimension is the inclusion of the legal technique into the legal statics. Yet, this presumes the proper understanding of the legal technique. In effect, it entails the fundamental or policy-making legal technique, and the juristic or formal legal technique. The fundamental or policy-making legal technique includes: a legal subject, a constructive or technical legal rule (legal precept), and a legal institute. These three basic concepts of the legal technique are discussed in this paper. The fundamental or policy-making legal technique also includes legal sanctions and legal evidence, but these concepts will not be discussed in this paper. Another significant part of this paper is the elaboration on the basic classification of subjective rights, which are divided into to status rights and vested rights.

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