When legislators replace one vague concept with another, it is worth understanding whether this makes things more precise. This very question arose after the Verkhovna Rada supported in the first reading a draft of the new Civil Code, in which the term "moral principles of society" was replaced by "good practices."
Where the word comes from and what it means
Secretary of the working group and co-author of the document Mykhailo Khomenko insists that the concept is not revolutionary. According to him, "good practices" is a calque from the German gute Sitten and French bonnes mœurs, a standard that has existed in continental law for over a century. Similar formulas are enshrined in the Civil Codes of Germany, Austria, and Switzerland and are regularly applied by courts without collapsing the legal system.
The authors' logic is transparent: "moral principles of society" is a legacy of Soviet jurisprudence, where courts appealed to collective morality defined by the state. "Good practices," on the other hand, presupposes an orientation toward established business and social practice—what a reasonable person would consider acceptable in a specific situation.
Where the risk emerges
Lawyer Dmytro Palyushchenko formulates the objection concretely: without a legal definition of the term and without a precedent base of Ukrainian courts, the concept of "good practices" leaves too wide a field for judicial discretion. In a country where the independence of the judicial system is still the subject of reforms, expanding discretion is not an academic problem.
"Good practices" sounds better than "moral principles," but if a judge doesn't know how to define them, we have simply replaced one vagueness with another.Dmytro Palyushchenko, lawyer
The problem is not merely terminological. In Ukrainian judicial practice, there is an almost complete absence of an established system of precedents that a judge could rely on when interpreting an evaluative concept. In Germany or the Netherlands, gute Sitten works because a judicial doctrine developed over decades narrows judicial discretion to acceptable limits.
What lies between these positions
Both sides of the discussion actually do not contradict each other on the main point: the term itself is not the problem. The problem is the infrastructure around it. "Good practices" can work as a precise instrument under two conditions:
- official interpretation or linking to specific criteria in the Code text;
- development of judicial practice—or direct references to the practice of the ECHR and EU courts as guidance for Ukrainian judges.
Neither of these conditions exists in the draft that passed the first reading so far. This means that between the first and second readings—and that is where amendments are made—the issue must be resolved textually and not left for a future Supreme Court.
If the authors do not propose by the second reading either a definition or criteria for interpreting "good practices," the real risk lies not in the word itself—but in the fact that for the first five to ten years after the Code enters into force, courts will apply it differently depending on the region and composition of the panel.
