ON THE INTERNAL STRUCTURE OF MODERN PRIVATE LAW

E. G. Komissarova Perm State University 15, Bukireva st., Perm, 614990, Russia ORCID: 0000-0003-4257-5673 ResearcherlD: E-9302-2016 E-mail: grazhdanskoe.pravo@gmail.com Articles in BD «Scopus»/«Web of Science»: DOI: 10.5829/idosi.mejsr.2013.15.9.11540 DOI: 10.5829/idosi.wasj.2013.24.01.13177 DOI: 10.17072/1995-4190-2015-2-61-70 O. A. Kuznetsova Perm State University 15, Bukireva st., Perm, 614990, Russia ORCID: 0000-0001-6880-5604 ResearcherlD: D-1066-2016 E-mail: predprim.pravo@gmail.com Articles in BD «Scopus»/«Web of Science»: DOI: 10.5829/idosi.mejsr.2013.15.9.11540 DOI: 10.5829/idosi.wasj.2013.24.01.13177 DOI: 10.17072/1995-4190-2015-2-61-70 DOI: 10.17323/2072-8166.2017.1.42.58 Rece ived 26 .03 .2018

Introduction
It would seem that the trade law in its true historical meaning of an archaic group of norms seeking for an independent trade codification, has become a part of the history and currently is of interest perhaps only for studying its scientific and legislative history covering the views on the formal unseparated special group of the "trade" norms which had not reached an independent status in due time. Such training courses and textbooks do exist, and their usefulness and timeliness are of no doubt [1]. One of the advantages of these training aids is that they make it possible to understand the essence of the existing and preexisting theoretical discussions on the necessity to adopt the Labour Code. It turns out that in reality this is not quite the case.
The process of the sequential development of the scientific (and often -of the pragmatic) thinking about the necessity to abandon the civil law monism idea and adopt the Business (Entrepreneurial, Economic) Code of the RF is being constantly continued. Sometimes, it is continued with a hyperbolic relying on "what was earlier" and "what they have", in spite of the fact that all social, political, economic, juridical conditions that accompanied Russian pre-revolutionary and then post-soviet history, became a thing of the remote and not so remote past, and new social and juridical time brought about new RF Civil Code (hereinafter referred to as the RF CC). This was the code to unite two "codes, traditional for the continental European private law (the civil law and the business law),... and whose scope of regulation runs far beyond that of its European prototypes and includes practically all the private law branches" [23, sections 1416-1417].
The artificial exaggeration of the place and the role of the procedural and administrative order of regulating the trade that for a long time had not been supported with a system of consistent material norms in its history, causes the mess which starts from the names of the modern academic courses and finishes with the statement (which is not always properly reasoned) that both codes should exist; while only these material norms can comprise the continuity of the regulatory mechanisms.
In our opinion, it's time to once again investigate the existing collected doctrinal and legislative data that were decisive for the trade law which was actually left in past days, and "new" business law which is united with the modern commercial (entrepreneurial) law by some of the scientists, and which is singled out by other scientists who treat it as a natural continuation of the Soviet economic law. We see this investigation important, as today's civil science has actually granted the right of performing the monologue to the representatives of the entrepreneurial and commercial law science.
Adhering to the institutional approach and observing the traditions of the dogmatic and juridical studies, the authors strive for the restoration of the Veritas which often falls out of the investigations of the trade law phenomena of the past and of the present, often detached from their civil law framework. In our opinion, the Veritas implies the contrary view. All the history of the trade law is in fact the history of its co-existence with the civil law. For this, it is important to see and recognize those historical "underachievements", to understand when these links were destroyed for laying more importance onto the (flexible, understandable, manageable, international etc.) trade law to the disadvantage of the civil law, and to find periods when the civil law was obtaining commercialization features at the expense of the more noticeable trade law which was also more in demand at some historical periods.
This will allow to de-escalate the idealization and simple demonstration of the remote past, which first did not rely on any legislation and then relied on administrative procedures when regulating classless relations and later class relations; keeping in mind that this remote past is usually presented without special author's interpretations for supporting the ideas of the modern segregation of the trade law norms. It is not impossible that the problematic of the private law dualism (which traditionally replaced and continues to replace other concepts of the civil and commercial legislations relation) will gradually fade away, and the research line will be finally expanded with other adequate positions that justify this relation in accordance with the already obtained legislative achievements.
Practically all the studies having a "dualistic" character demonstrate a permanent parallel with the trade law of the European states which is arranged as a separate Trade Code (Regulation) in the majority of the countries. This excursus often turns to be the only argument in supporting the idea that "adopting a Trade Code logically flows from the historical and social factors of the Russia's trade activities; besides one should remember that practically every country has both the civil code and trade/ entrepreneurial codes, for example, Germany, France, the USA, and other states which have recently joined the market-oriented path of the economy development including Czechia, Slovakia, Estonia." [2, p. 69]. The scientific supporters of this argument that "they have it but we don't" are not just many in number but too many in number, and any attempt to list the names of the authors can break the logically acceptable limits of the scientific citing, this is why we shall omit it.
Let us remind about the so-called "comparative" etiquette which accompanied the scientific activities of the first Russian civil law researchers. As the Russian law historians note, "in spite the fact that the comparative law method covered all the main civil law issues of that period, it was used by the Russian legal theorists "with no feeble imitation and servility, with no incense to "the civilized legal systems", but with deep understanding of the value and the importance of the domestic law, the depth of its historical roots, its nonborrowed nature and independence" [11, c. 173]. Modern science often lacks it. But it does have enough blind phrases, formulated with no understanding of the true essence of these "historical and social factors (of commercial activity)".
Numerous attempts of the modern trade law investigators to find the Veritas in the history of the trade law and civil law relations, often ignore the scientific researches which were performed at the end of the 19 th century and reproduce the Veritas thoroughly and in detail. These works comprise comprehensive history originates from the ancient Roman law and the law of the absolutism period, and rests in many ways on the real documentation. The force of its content can hardly allow the "modern historical replica" to overpass the documentary argumentation and scientific credibility of the available writings of the pre-revolutionary classics. Two of these works are the background and the mood of this research. The first one is the scientific published monographic work by scientist, law historian and theorist G. F. Shershenevich -"The System of Trade Actions. Criticizing the Trade Law Main Concepts" (1888) [19], which was later used as a basis for the ageless and repeatedly republished trade law course. In his work, the author revealed the true essence of the trade law by separating it from the merchant class law and placing it onto the trade-related actions platform. The second work is the publication by R R Tsitovich "Works on Trade and Exchange Law" [22]. The author who hewed to the private law dualism, is rightfully called the father of the trade law. He appeared to be G. F. Shershenevich's opponent in his views on the civil and trade law correlation. We chose this work to be one more background of this article. By doing this, we get some guarantee of objectivity with respect to the conclusions which were formulated by us after the theoretical analysis of the views and judgements about the problem declared in the title of the article.

Pre-Revolutionary Doctrine of the Civil and
Trade Law: about General and Special Aspects of Regulating the Trade (Commercial)

Relations
The doctrine defines different periods in the trade law development, more often dependency on who is willing to demonstrate/ argue and what is going to be demonstrated and reasoned. We are proceeding from the supposition that in this matter "it has all been discovered before", and so we support the arguments of G. F. Shershenevich who divided the systematic trade activities that appeared in the Middle Ages into three periods: Italian (19-18 centuries), French (14-18 centuries) and German (19 th centuty) [19, p. 101, 110, 122], each of them was described by the author and his contemporaries almost true to fact.
As for the original Russian trade legislation where a true juridical aspect could be found and which is not just used for measuring time starting from random facts of primitive trade operations of the exchange nature, it can be viewed as being in place since 16 th century when the tartars were defeated and the Russian lands accumulation was started which were governed by a single state administration via a single system of the legal norms.
As for the civil law, it has always existed in the Russian history as part of the European culture.
The history kept different civil law memorials for us, as well as different civil law meanings: narrow, broad, mixed special. Irrespectively of the form of its existence that makes up its contents, the civil law was sometimes losing and sometimes giving prominence to the trade law norms which often surpassed the civil law. The whole point is in the nature of both the norms. Having appeared in different time periods and even in different places, they had one common purpose. If we put in the words of A. I. Pokrovskiy, this purpose was in teaching "the humanity to control the property relations standing behind it" [10, p. 9].
The history, the doctrine, and the legislator could never "cancel" this commonality of the targets in spite of the semi -pirate character of the trade law genesis, of its original conventional contents and then -a significant period of existing as one-class law with the mixture of the trade-private and trade-public laws.
The most vivid example of such life-long compatibility of the trade and civil laws is the example of the Russkaya Pravda (the collection of legal norms of the Kievan Rus). It is reproduced in the works of modern researchers for giving an evidence that "the trade law existed back at that time".
We will mention it to mark the milestone in the trade and civil law development which will prove the case of "evasion from the regulations meant for the general civil environment, in favour of the trade circulation" [19, p.  it was a position of advantage to oppose the trade law to the "clumsy and bulky" civil legislation. Its Roman-law background that was focused inside the "life of the citizens" but not on the national interests associated with the trade development and the state's treasure reimbursement, was unknown and unclear for the tradespeople. These utilitarian reasons could become the original and not fully recognized cause for separating the trade norms from the civil norms, and later -for identifying the criteria (originally, simple empirical criteria) for grouping the norms out, for justifying disagreements between them, more often -for segregation, and sometimes for compromising. The legal criteria for separating the civil legislation from the trade one (or for combining them) were absent in every law systematization project of Russia developed before the 19 th century. And even after this period not all the criteria were officially adopted while belonging only to the legal theorists but not to the legislator.
The necessity to fully revise the trade law and bring it to compliance with the West European dualistic templates, was first voiced by S. I. Zarudny, one of the authors of the 1864 court reform, who was anxious about the problems of reforming the commercial court organisation and proceedings, of the trade and non-trade incapacity, and who researched the trade law of Italy [7]. At the same time, the question of the trade law norms and civil law norms correlation was gaining theoretical momentum the civil law science that existed before the trade law science. This meant that everything what was established in the West, would start to spread is Russia. For the first time in the Russian history, the civil legislation together with the trade law began their development not only through the efforts of the legislator and questionable Senate policy, but through scientific concepts as well. The development of these concepts resulted in the gradual transferring of the trade law and civil law relations to the dualism positions. However, the small number of the scientific forces and yet short scientific history of that time did not allow to provide the legislator with the sound conclusions both on the possible separation of the trade law from the civil law fundamentals and on the justified unity of the private law.
As proved by the results of applying the inductive approach to the trade history, trade activities, trade relations and trade law in Russia, this phenomenon is specific due to its generalizednational character of development, and so it differs much from the trade law of other countries. Reviewing the trade law historical distance covered by Russia, G. F. Shershenevich wrote in this regard that "in the West, the state is composed of classes with each of them developed into a special type,in Russia, the state is divided into several classes made up of disintegrated classes which obtain their own specific features only in the course of time". Such a status was largely the characteristic of both lack of independence and weakness of the trade class in the 16-17 th centuries. Neither this class was powerful and authoritative in the 18 th century, having its limiting function of "feeding the treasury and the troops". While a part of the trade establishments of the West (guilds, shops) "reached a great age and are at their last moments" by that time [19, p. 145-146].

Preconditions of the West European Private Law Dualism
As known, studying the foreign law is part of the general history of the civil law. Informal traditions of this study were established in the works of the Russian civil science. Today, this tradition is an integral part of the modern civil science.
The dualism of the European private law is more often mentioned as an existing fact of life, with no discussion of the social and economic reasons which to a much greater extent predetermined the dualism of the European legislations in the property relations regulation sphere. Despite their importance, we are not going to reproduce these reasons in the article. Let us make a reference to work "The History of the Trade Law Separation" by V. A. Udintsev [18], where a detailed description is given for the economic, social, political and legal background which was the reason for the European dualism of the private law in many countries of the continent, and for the reasons that made the dualism in Russia impossible.
In spite of the fact that the modern Russian legislator did not follow the path traditional for many of the European countries of the Franco-German approach, when the trade code was adopted independently of the civil one, we will mention this experience, but not for the repeat demonstration of its historical details, but for the purpose of some generalization, keeping in mind that it was taken into account when adopting the RF CC currently in force.
As Christopher Osakwe, the legislation reform advisor at the RSFSR Supreme Soviet (1990-1993), American comparativist, points out that "there was a conglomerate of ideas serving as the five sources that influenced the RF CC development: Fundamentals of the Legislation of the SSR and the Republics of 1991, the Model Civil Code for the CIS State Members, the Civil Code of RSFSR of 1964, Western civil and trade codes (especially of Holland, Italy, Switzerland, France, Germany, the USA), the Russian Constitution of 1993" [23, sec. 1423].
The prototype of the European trade legislation which was adopted by many countries on the continent, was born in France which headed the European civilization in the second half of the 15 th century. Most Russian legal experts associate the prominence of France and its juridical achievements with the French Civil Code of 1804, its institutional system, formalized norms of the property law and the obligation law, the intelligibility of the code norms which were not so strictly limited scientifically as for example it was the case with Germany.
The less prominence is attributed by the lawyers to the fact of adopting the French Law of France as compared to its total civil law renovation. Its adoption was preceded not only by the Civil Law but by natural evolutionary processes which were involved with the organization and carrying out of the trade. The previous trade ordonnances of 1653 and 1681 in the sphere of the land and sea trade which were the first sources in the trade norms systematization in the French history, actually predetermined the contents of the Trade Code of 1807.
The formalization in regulating the trade relations was the indication of the state law victory in regulating the relations over the guild law. The social and economic reasons for such an outcome of adopting the French Trade Code were named by G. F. Shershenevich: to break the links to the past experience, to destroy the merchant in his class meaning and to replace the tradespeople special law with the trade special law [19, p. 119]. The juridical reason appeared from the norms of the Civil Code which regulated only the general aspects of the property turnover and did not extend to the trade relations.
Together with the experience of consolidating of the trade custom perceived by the law, the preconditions for the Trade Code were represented by the efforts of the legal experts in the customary (coutume) and the written law. Theoretical efforts of J. M. Portalis, F. D. Tronchet, J. Melville, F. J. Bigot de Preameneu, F. Bourjon, R. J. Pothier, K. J. Olivier, who were considered by Napoleon to be the representatives of different components of the French culture, contributed to its development.
The intellectual ideas of the French lawyers were not fully approved in Germany which, starting for the 17 th century, was occupied with its own scientific force which by that time got the "calm and magnificent voice of Savigny" [15, p. 245], who considered the law to be a national product and insisted that it cannot be dictated from the outside. F. C. v. Savigny did not support the codification ideas, but he did not argue against codification while insisting on the further law development and the law formulation via the scientific jurisprudence opportunities. This being the case, the trade law and legislation disappeared from the historical horizon accompanied by the state that ceased to exist after the October Revolution. This is one more historical characteristic of Russia, who, due to the subsequent historical and political events, did not allow the trade law to outgrow the state that triggered it. This is largely due to the fact that the processes similar to the European ones, when the trade law actually expand beyond the narrow limits of the trade sphere relations, spread into other economic spheres but were never fully completed in Russia. For this reason, the trade law concept did not become objectively wider, it did not manage to penetrate into industry, transport, banks, and it did not get to a position to globally mean the legal form of the market exchange of the goods, works, services, as it finally happened in the West.
G. F. Shershenevich wrote about the penetration of the trade law "spirit" into the economic turnover, about its triumphal march which "gradually conquered and conquered, dominated and dominated over more and more economic relations spheres, and stopped after facing the mining industry" [19, p. 150]. However, looking back from our historical moment, it cannot go unnoticed that these statements were in many respects ahead of time. In reality, the Russian history provided little time for the development of the trade law in its true meaning which could have been possible only in the conditions of real capitalist relations. This historical peculiarity explains the reasons of Russia's lagging behind from "getting into the private law dualism" while dualism was successfully adopted in scientific literature and affected the structure of the academic disciplines, but still was not introduced into Is that needed? At least, there were no requests from the law enforcement practice regarding that.

Civil Legislation Differentiation and Civil Law Commercialization as the Rigorous Dualism Alternatives
In spite of the fact that the civil legislation had also "other satellites" which largely defined its contents, for example, commercialization and Westernization, the private law dualism phenomenon used to be and remains the most noteworthy for scientific exploration.
The private law dualism goes back to medieval Italy which was called "the birthplace of the cus- the modern civil law, will add to turning from underestimating the monistic approach in the RF CC in force.
As the foreign experts see it, the uniqueness of this codification "among the continental European civil codes is in the phenomenal number of the relations that are regulated by it... The Code successfully fuses the rules of two branches into a whole" [23, p. 1417]. Such a state of things was predetermined by the past and the present of the national history of the trade and trade relations development, by the time in the Russian history when the civil science appeared in it, by the specific features of implementing the property relations which experienced the dualism natural for all the countries with its division into the general civil relations and trade relations. But is has to be acknowledged that this was also the result of the civil legislation commercialization which had a "slowly creeping character" in the pre-revolutionary law, got stronger under the influence of the ideological dogmas in the Soviet civil legislation and obtained a completely understandable character in the post-soviet legislation.
The today's commercialization of the civil legislation is the process as much as the result. If we speak about the result, we see the obvious natural growth of the civil legislation driven by the trade law in their common laborious prerevolutionary history. It was the trade law that owing to traditions had to become an inexhaustible source of new institutions and norms generation.
G. F. Shershenevich provides numerous examples of the civil law commercialization due to the lack of its inclination to enforce own prescriptions in life, and due opportunity to make necessary concessions on the part of the less formalized trade law which is free from the necessity to interpret "literally". The author underlined "the economic view (of the trade law) onto the things, its better correlation with life and absence of the details of the Roman studies, the ability to elude the fundamentals acknowledged and canonised by the civil law. ...This is the character of the trade law that makes the economic turnover sympathize with it and which gives it a significant advantage over the obsolete and static civil law" [19, p. 66, 71-78, 80].
G. F. Shershenevich impressively describes the pioneer endeavours of the trade law in the relations of representation, noting that the representation idea originated from trade relations and the trade law... Life insisted on the freedom of representation. The trade law was quick to satisfy this requirement and so deserved its sympathy. At present, the general civil law should follow the example of its little brother [19, p. 66-67]. The scientist also names other juridical spheres where the trade operations were actually the earliest movers: for example, vindicatory action, considering the third parties' interests, fellowships, solidarity in relations and others. Not detracting from these merits of the trade law, G. F. Shershenevich finishes his reasoning with question "what was peculiar about them, what could not become the heritage of the whole civil turnover?" [19, p. 83]. P. P. Tsitovich noted that the trade law takes from the civil law "not only concepts but entire institutions changing the latters in its own way", and on the other hand -it makes its own "institutions which are antithetical to the civil law, and for a long p eriod of time develops them independently... of the civil law, and often passes them over to the civil law already well-developed" [22, p. 168]. The author underlined a comparatively vast creativeness of the trade law, mentioning also the influence of the protective mechanisms generated by commercial relations onto the civil relations" [22, p. 448]. It should be noted that the judgements by P. P Tsitovich about the essence unity of the commercial law and the civil law are currently topical: "Both the laws define the property relations. In both of them, these juridical relations are settled into the rights and duties of the property (absolute) or obligation (relative) character", but "that aggregate of the juridical relations, this active and flexible aggregate representing the trade as the business of a definite person, -is not known to the civil law" [22, p. 166-167].
A. I. Kaminka and K. P. Pobedonostsev gradually evaluated the processes of adoption by the Russian civil legislation (which is a part of the state system) of the constructions and sometimes whole institutions which originated from the trade legislation. In the conditions of the economic relations development, this was in compliance with the interests of the trade turnover in general. And a similar nature of the trade law and the civil law was objectively adding to this converging. Only the trade law is enriched through the general provisions of the civil law, and the civil law enriches through the special provisions of the trade law.
If we speak about the commercialization as a process, then in accordance with the few scientific opinions, it is the previous and current movement of the civil law towards its development, under the influence of the more flexible norms of the commercial turnover and the subsequent adaptation to the requirements of the entrepreneurial activities regulation. There are several limits of such merging named in literature: the limit of the institutions, the limit of the notions, the limit of the principles [5, p. 81-82].
Commercialization can be called a process which is reverse to dualism. It does not separate and does not oppose but unites the civil law norms and the trade law norms, it provides for their interdependence and dependence on each other, and sometimes gives a signal on the necessity to merge certain norms into the other norms or to simply delete some of the (trade law) norms resulting from the civil law enforcement and development.
These processes continue uninterrupted today, taking away the force and the sense of the private law dualism argumentation. The qualitative changes in the property relations made the used-tobe "peaceful and calm" general civil law a thing of the distant past. The scientific treatment of the civil law, the historical savings and achievements implemented in it, accounting for the experience of the continent countries and today's steady processes of its commercialization, have securely provided for its authority in managing the property relations.
The civil legislation commercialization features are numerous. And these are not only the norms covering the contract form liberalization through introducing the electronic document workflow into the practice of contracts, but expanding the contract range via implementing the consider the deal to be a juridical fact. It is impor-tant to recognise the essence of the deal in the process of its life, its implementation aspect, and this is more explicitly achieved through the trade deals. Without any exaggeration, they are the core of the commercial law -without them, there will be no other content that fills in the commercial relations. However, this doctrinal approach should be free from the methods when the reality of this cognition is worked into the theory of the private law actual dualism. The tactics and didactics of the educational process have to proceed from the idea that the dualism theory can and should be considered as one of the trends in views on the status of the trade (commercial, entrepreneurial, economic) law in the Russian legal system The doctrine turns to the "trade deals" notion much less often than to the "trade law" notion, willing to differentiate it from the civil law. For this reason, it is necessary to point out the reserves of the scientific materials on the trade activities, which have not been researched by the contemporaries and were left by G.F. Shershenevich to the contemporaries of the jurisprudence for this purpose.
L. V. Shchennikova made an attempt to attract the doctrinal attention to the trade operations problematics, when she turned to the pre-revolutionary doctrinal views and proposed her own definition of the trade deal as the "deal where the object is the goods meant for using in the trade turnover, when this deal is professionally made by persons (in accordance with their trade profession) with the speculative purpose and as a craft" [21, p. 148]. It is not possible to disagree with the author in her opinion that the barriers for defining the trade deal today are the inertia of the legislator himself and the "doctrinal polyvocality" in matching terms "entrepreneurial activity", "commercial", "economic", "trade" [21, p. 140].
The process of the civil law commercialization is inevitable. Ignoring this process, giving ground to the "rigorous dualism" is the same as attempting to turn around the history of the Russian legislation when all the types of conditions that surrounded it -social, political, economichave become the thing of the past.

Conclusion
The history of the Russian trade law and the trade law legislation which has not in due time acquired the necessary status and remained in the "trade law and trade class law" equivalence, does not give any reason for the automatic transfer of the past scientific concepts on the private law dualism to the modern ground.
The correlation of the trade law and the civil law in their historical and legal reality, the domination of the economic law and legislation over the civil law in the Soviet period, theoretical views aimed at the separation of the entrepreneurial legislation from the civil legislation, despite their legislative correlation established in the post-soviet period, -these are all parts of the Russian juridical model of the private law regulation of property relations.
The problem of the private law model -either or monistic or a dualistic one -has a pure theoretical (conceptual) character. Any conclusions of the theory directly or indirectly affect both the legislator's position and the law enforcer's position. This obliges the theory and its representatives to be both up-to-date and convincing.
There are no reasons to be doubtful about the fact that the economic (entrepreneurial) law theory has grew out the trade law theory, although not in Russia. The creation of the European trade law theory and its predictable derivative -the trade codes -turned to be the impulse for obtaining the mature trade class and horizontal trade relations which were not class-related and so required the recognition of the legal equality and private initiative of its participants. The subsequent extension of the trade rules to the other spheres of the economic life allowed to abandon the narrow sense of the trade law as the one covering exclusively the trade turnover. The Russian trade law could not reach these conditions.
In spite of the qualitative difference and the maturity degree of the trade legislation norms in pre-revolutionary Russia and in Europe, the process of the civil law commercialization driven by the trade law progressed with no interruption and provided the civil law (the law of pandects) with everything what was not received by it when the Roman law was perceived. The opportunities of such enrichment of the civil law at the expense of the trade law did happen and continue to happen due to the trade turnover dynamism and specialization.
Striving for defending and justifying the nonexisting civil law dualism contradicts with the tendencies which are currently observed in regulating the property relations and rest on the equality and autonomy of the participants of the relations. The point is not in the few processes of the trade law processes re-codification, but in the active and sequential processes of the civil law commercialization.
Fostering the idea about the commercial law independence is a step backward, simply for the reason that it will require redrawing of the existing civil legislation to avoid numerous duplications, let alone the established court practice and its positive traditions. A sound view on both the system of the civil legislation in force and its application permits to claim that today there are no reasons for correcting the mystic civil law ideas for the purpose of clearing a part of the normative space for the commercial law. As for the private an d public fundamentals correlation in regulating the trade relations, the algorithm of this correlation has been included into the RF CC norms since 1994 and it is fully applicable for commercial (entrepreneurial) relations which are a kind of the property relations based on the equality, disposition and private initiative.
The importance of the theoretical studies on the commercial (entrepreneurial) law problems is undeniable. The point is that all theoretical ideas should not be typecast to the two-headed concept which finds more and more confirmations of being a "yesterday's" idea. It is more important to enrich the scientific attention sphere with the issues of the terminology stability and its correlation with the civil law conceptual framework, as well as with the issues of the trade operations, the segregation criteria in the general system of the civil contracts, the special features of the commercial relations participants' liability.


Musculoskeletal injuries among adolescent cricketers in Zimbabwe

Many sports have been researched on, for example, soccer basketball and athletics among others due to their popularity in Zimbabwean schools. In African continent, there are few countries playing competitive cricket on One Day International (ODI) and T-test and these are South Africa, Kenya and Zimbabwe. Due that fact not much has been said in school cricket. The uniqueness of cricket is that unlike other target games like archery, darts and shooting; cricket demands hitting a target whilst in motion. This angular motion has a restrictive range of motion which can cause more complicated injuries to the player. Also cricket a more protected target is used despite the complexity of ROM and angular restrictions. Zimbabwe has become more popular in male and female professional cricket and street cricket in the recent decades. This sport is dynamic and involves a scientific knowledge to cope with the new developments in the game. It involves many abstract skills and movements which need to be enhanced so that players are guaranteed that their bodies are kept in shape and strong.1,2 At a young age, cricket is for enjoyment, health and professional development. Inevitably, injury is potential outcomes of participation hence young athletes are vulnerable to cartilage which is less resistance to repetitive micro injury, apophysis and growth plate’s injuries.1,3-7 Competitive element intervenes young players’ decreased flexibility due to pronounced growth spurt through training harder and longer times which lead to varied physiologic response to exercise hence injuries.4,7-9 Bowling, batting and fielding are the three unique aspects of the game of cricket which are associated with risks of injury due to its repetitive nature and played often for long periods of time.1,10 In cricket, musculoskeletal pain and injuries are very common. They can occur when a player had rapid rotational movements, collisions with other players, struck by a ball or bat, sliding and diving during fielding and over-use injuries; thus physical macro trauma and microtrauma.1,9,11 A single high force and impact incident results in a macro-trauma which whilst micro-trauma is a result of repetitive or chronic injury which can have a lifetime.1,12 Importantly, inadequate nutritional intake, physical training and psychological preparation of players have great effects on muscle strength, endurance, flexibility, agility and fitness in the field of play and therefore hinder player performance in the game of cricket.7,13

Introduction
Many sports have been researched on, for example, soccer basketball and athletics among others due to their popularity in Zimbabwean schools. In African continent, there are few countries playing competitive cricket on One Day International (ODI) and T-test and these are South Africa, Kenya and Zimbabwe. Due that fact not much has been said in school cricket. The uniqueness of cricket is that unlike other target games like archery, darts and shooting; cricket demands hitting a target whilst in motion. This angular motion has a restrictive range of motion which can cause more complicated injuries to the player. Also cricket a more protected target is used despite the complexity of ROM and angular restrictions. Zimbabwe has become more popular in male and female professional cricket and street cricket in the recent decades. This sport is dynamic and involves a scientific knowledge to cope with the new developments in the game. It involves many abstract skills and movements which need to be enhanced so that players are guaranteed that their bodies are kept in shape and strong. 1,2 At a young age, cricket is for enjoyment, health and professional development. Inevitably, injury is potential outcomes of participation hence young athletes are vulnerable to cartilage which is less resistance to repetitive micro injury, apophysis and growth plate's injuries. 1,[3][4][5][6][7] Competitive element intervenes young players' decreased flexibility due to pronounced growth spurt through training harder and longer times which lead to varied physiologic response to exercise hence injuries. 4,[7][8][9] Bowling, batting and fielding are the three unique aspects of the game of cricket which are associated with risks of injury due to its repetitive nature and played often for long periods of time. 1,10 In cricket, musculoskeletal pain and injuries are very common. They can occur when a player had rapid rotational movements, collisions with other players, struck by a ball or bat, sliding and diving during fielding and over-use injuries; thus physical macro trauma and microtrauma. 1,9,11 A single high force and impact incident results in a macro-trauma which whilst micro-trauma is a result of repetitive or chronic injury which can have a lifetime. 1,12 Importantly, inadequate nutritional intake, physical training and psychological preparation of players have great effects on muscle strength, endurance, flexibility, agility and fitness in the field of play and therefore hinder player performance in the game of cricket. 7,13 Literature concentrate on cricket-related injuries affecting elite fastbowlers; spinal abnormalities in young fast-bowlers, musculoskeletal pain among adolescent cricketers and prevalence of cricket-related musculoskeletal injuries among elite cricketers mentioning that the most common anatomical sites of injury identified were lower limb, upper limb and lower back 1,2,9,11,14−18 whilst limited information exists regarding the Southern Africa high cricketer. It is imperative that the lack of information exists regarding the epidemiology of musculoskeletal pain and injury for high school cricketers. The current study aims at describing and documenting cricket-related musculoskeletal injuries among high school cricketers in Zimbabwe during inter-schools' competitions.

Design
The study was a retrospective descriptive study which documented male cricketers' musculoskeletal pain and injuries in a year's period. The incidence of injuries documented was during the National Association of School Heads (NASH) U19 cricket championships, which was held in 2015-16 season. Both qualitative and quantitative designs were used. For this purpose, all the teams participating in these competitions were invited to take part in this study.

Sample size and sampling
A total of 252 subjects who volunteered to participate were recruited. In Zimbabwe cricket has been franchised into four main regions; southern, central eastern and northern. This study focus on the central region under auspices of Midwest Rhinos franchise and the paper will not compare injuries sustained in different regions. Only top cricketing schools among the 12 high schools in the region were selected. These players were from five high schools namely; Goldridge, Kwekwe, Mbizo, Shungu, and Rutendo.

Ethical considerations
Ethics approval for this study was obtained from the National University of Science and Technology (NUST) Sports science and coaching department and permission to use the schools were obtained from the Ministry of Primary and Secondary Education, Midlands Province and School Heads. Informed consent was obtained from each of the study subjects and their parents or guardians. Only cricketers with both written assent and consent were used as subjects in this study. The researcher kept subjects' identity anonymous and confidential.

Data collection
An edited self-reported musculoskeletal questionnaire (combined pain assessment and Borg CR 10 scales) was used. The questionnaire was designed to obtain musculoskeletal pain, location of injury, type of injury and injury severity. At the beginning of the season cricket players were taught how to report pain and injuries. Team medics were used as research assistants to monitor the record of injury from individual players after a match. The information for each injury was obtained throughout the season. A summary of individual player's seasonal record of injuries was used to complete the questionnaire. Other medical records from other sports played were not obtained since they were not necessary.

Data analysis
The SPSS version 20.0 statistical software was used for data entry and statistical analysis. Pearson correlation analysis and Chi-square tests were performed. P-value ≤ 0.05 was regarded as significant. Hypothesis test was done on the descriptive.
Anthropometric and demographic characteristics are shown in Table 1. Table 2 shows prevalence of player's musculoskeletal injury in relation to the players' role among cricketers. Out of 195 players investigated for pain; 36% were bowlers, 32% were batsmen, 22% of all-rounders, and least were wicket-keepers with10%. The anatomical site for specific musculoskeletal pain and injury levels on cricket player is shown in Figure 1. Distributions of cricket-related musculoskeletal pain in relation to anatomical sites were; knee (35%), lower back (30%), shoulder (23%), thigh (18%), hands and wrist (16%) and 15% for the neck. Most common injured is the lower limb as compared to the upper limb. Figure 2 shows distribution and extent of each type of injury suffered by high school boys' cricketers. Most common injuries/pain suffered by cricketers was sprain and strain; however, sprain (45%) was more than strain (30%), wounds were 15%, 5% fractures, dislocation 3% and the least were cramps with 2% ( Figure 3).

Discussion
The principal objective of this study was to investigate the prevalence and nature of cricket-related musculoskeletal pain among male adolescent cricketers in Kwekwe. In this study, the anatomical location of pain, intensity of pain and duration of pain (nature of pain) clearly indicates musculoskeletal pain pathologies, hence indicating the prevalence of cricket-related musculoskeletal pain. Among the 240 adolescents high school boy cricketers surveyed, 195 (81.25%) experienced cricket-related musculoskeletal pain and injury within the previous season (p<0.001). There is a 35% of prevalence of injuries among cricket players. These findings are similar and match with other international injury surveys which recorded the prevalence of male adolescent cricket-related musculoskeletal pain and injury. 1,12,19,20 The knee, lower back, and shoulder were the three common most vulnerable anatomical site of musculoskeletal pain and injuries in cricket players (p<0.001). Basing on role specificity; bowlers (36%) and batsmen (32%) had a high prevalence of injuries and were the most injured playing position as compared to all-rounders (22%) and wicket-keepers (10%). Biomechanically, the bowling action applies large amount of forces onto the spine, which adversely acts on it causing pain and injury. 15 Also, high percentage of lower back pain and injuries was a result of repeated hyper-extension of trunk before releasing the ball while bowling and during batting -offside pulling the ball. Similar to other international studies, the findings supported other previous findings regarding to bowlers being at the greatest risk of musculoskeletal pain and injury and the lower limbs being the most commonly injured site. 1,2,5,9,10,14−16,20−23 Higher lower limb injuries were a result of; bare and uneven ground, improper shoes and technically from run up while bowling, fielding and making runs between wickets. 19 Batsmen and wicket-keepers were subjects who mostly experienced knee pain. This is because batsmen display movements which are either on through forward propulsion or back foot backwards propulsion. These movements mount pressure and tension on the knee and surrounding joints of the patella during flexion and extension, placing the knee joint at increased risk of injury. 24 This is supported by Noorbhai et al. 1 wicket-keepers spent most of the time kneeling down and flexing their knees while playing, which also increases their risk of pain at the knee joint. The findings were in line with literature that the third most common site of injury is shoulder (23%). 1,17 This resulted from repetitive inappropriate shoulder movements during bowling, poor throwing technique when fielding. When bowling, batting or fielding repeated throwing using the same arm may result in shoulder overuse, causing some degenerative changes in the rotator cuff, tendinitis and over-stretching or tear of the supraspinatus tendon can be witnessed. 20 The two most common types of injuries among cricketers were sprain (45%) and strain (30%) compared among wounds, fractures, dislocation and cramps. Similar findings to the present study were found in line with those of Stretch 9 , Kumar et al. 18 , Das et al. 11 , Stretch & Trella. 22 Training high schools' cricketers need coaches, parents and clubs who are knowledgeable to strength and flexibility balanced training to produce better performance and fewer injuries/ pain. Noorbhai et al. 1 emaphasised that the chances rate of injury and pain among players can he reduced by initiating more strength and flexibility training.

Conclusion
It was noted that prevalence of injuries in high school cricket is high in bowlers than other play positions. This, therefore means that coaches should consider conditioning of players, warm up activities should address nature of injuries and injured part noted, also fitness testing for endurance, agility, power, strength and flexibility need to be introduced in the training program to minimize the rate of injury. Database for cricket-related musculoskeletal injury of male adolescent cricketers in Zimbabwe is essential for coaches, physicians and physiotherapists to condense the injury rate. Future researchers may consider the following; analysis of player position and injury, improvement of play technique, playtime visa-vie injury prevention and consideration of a specific number of over for specific age groups to reduce overuse and injuries.

Limitations of the study
Cricket playtime and time of research was retrospective. Despite having taught how to report pain and injury, the cricketers may have not reported more than one injury. Data collection was done late after season and was only from the central region out of the four regions.


Excellence of Universities versus Autonomy, Funding and Accountability

Universities see a need for major changes in their organisational structures and functioning to be able to respond adequately to current social expectations. A greater provision of funds and an increase of university autonomy are priorities of today’s university policy. This article presents the results of relating excellence and autonomy through data from the Academic Ranking of World Universities of the University of Shanghai and the indicators developed by the European University Association for four types of university autonomy: organisational, academic, staffing and financial.

Presentation
The role of universities has suffered a deep change during the last decades. Besides universities' traditional functionsresearch and teachingnew ones have emerged because of recent demands that respond to economic, social, and cultural progress. These demands are increasingly complex and relevant due to the contribution of higher education to social and economic development, its capacity for competition in an international context, and excellence as an aim in research activities and education. Another point to consider is that the transfer of knowledge through applied sciences and technology created by university departments has increased thanks to university entrepreneurshipstart-ups or spin-offsand research units founded in collaboration with private firms. Furthermore, there is a need to assess the university's role in lifelong learning, training according to labour market needs. The acquisition of new skills and entrepreneurial attitudes extends beyond the traditional horizons, limited to the accumulation of knowledge, completing, this way, the development of human capital.
Against this backdrop, reforms and new Higher Education national laws in Europe have been numerous in the last 30 years. 1 Since 1986 this has been particularly evident in 15 countries: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, the Netherlands, Norway, Portugal, Spain, Switzerland, Sweden and the United Kingdom. These countries made 35 large reforms. Chronologically, the first changes took place in Finland in 1986 with the approval of the Higher Education Act, and in the Netherlands with the University Education Act (Higher Education: Autonomy and Quality). France and Portugal are also good examples, with the Law for Freedom and Responsibilities of Universities (LRU in France in 2007) and Portugal's Legal Regime of Higher Education Institutions from the same year.
These 30 years represent a period of considerable university reforms, similar to what occurred in 1968 in other regards. It was very important even without considering the changes produced because of the implementation of Bologna process principles. As a result, we have seen a change in the relationship between governments and universities. This adjustment in the relationship between politics and universities could be summed up by the idea of more independence in exchange for the implementation of better accountability systems.
New ways of governing and management in universities are an immediate result of changing governance models. There are more rigorous funding models, better linked with performance and results in public universities. It is a combination of transparency and stimuli for a well-done job. This evolution has not happened at the same speed in all the countries. Nevertheless, the campuses with the most excellence in teaching and research are usually located in those countries with more advanced reforms in the governance of higher education institutions.
In summary, university autonomy has been increasing because of a reduction of regulation and adoption of efficient accountability systems. In addition, staffing autonomy is a permanent demand from universities to gain self-reliance in hiring and also in managing the workload for teaching and research. The professionalisation of management is an argument for staffing autonomy. The presence of professional staff suitable to each function is unavoidable in those new services related to a university's 'third mission' (the way the institution relates to its territory and participates actively in its economic and social development). Regarding university governing boards, external members are getting more relevance linking the university with regions and society. Finally, some systems lack differentiation between universities, which might be solved with more autonomy and specific funding, mainly in public systems.

Autonomy, Funding and Accountability
The above introduction points to a relationship between the autonomy of universities and their excellence. However, as shown in Figure 1 it is also important to take into account funding and accountability. Therefore, autonomy, funding and accountability cannot be considered isolated from each other. Each one is part of an indivisible one. The interaction between them determines the results of university policy. The three elements are necessary for an optimum balance. It is not enough to only take two of the elements.
Substituting accountability for the incentive system, Philip Aghion analysed the oscillation of the three elements underlining their interdependence. 2 He remarks that if one only increases the funding and the autonomy, this could lead to misguided resource management. If only the autonomy and the incentives expand without a variation of funding linked to results, we could improve the efficiency but not provide faculties with the means required to reach excellence. Finally, if the funding and the incentives are increased and the autonomy remains the same, there will be low efficiency because the institution is not able to transform itself and take its own decisions.
In the following, we will now look into the effects of funding, accountability and autonomy on the excellence of university systems. In so doing, we will use the ARWU ranking as an indicator for the excellence of university systems. 3 This ranking adds the score achieved for each 'national' university ranked between positions 1 to 500 in ARWU 2015. The score for universities from the first 100 positions was published by ARWU 2015. The university ranked in the first position scored 100 points, while the university in 100th place obtained 23.9 points. ARWU did not publish the score assigned for the universities ranked from positions 101 to 500. So, to create a solution for this data problem, we have given a uniformed score for the universities ranked in each range: 20 points for all the universities ranked from positions 101 to 200; 15 points for those ranked between positions 201 and 300; 10 points for the universities in the 301-to-400 range; and 5 points for those ranked between positions 401 to 500.

Funding and Excellence of University Systems
As we relate funding to the excellence of university systems, our indicator is the expenditure per student in tertiary education, provided by the OECD. 4 Relating this variable to the overall ARWU score per millions of inhabitants ( Table 1) we find that countries with higher funding in higher education exhibit higher excellence in their university system. On top are Switzerland, Sweden and Denmark and at the lower end are the Mediterranean countries of Italy, Spain and Portugal. We can establish a high positive linear correlation between the funding and excellence variables (0.89). Results might be very similar if we take data for academic excellence from other rankings such as Times and QS.

Accountability and Excellence
Accountability increases transparency of universities and produces an increment of trust in society towards university. There are two main components in accountability: the response of a university to social needs and efficiency in resources management. It is definitely a comprehensive explanation about how a university is performing its functions, how public and private resources are managed, the state of a university and its comparison with others. Such accountability can and should have a more social and political nature so that it is not limited to a mere economic vision of the subject. For this reason, it must be addressed by at least by five different stakeholder groups, and be elaborated with all the rigor required but with the appropriate language for each of them: the university community, future students and families, businesses and industries, the governments they depend on, especially in the case of public institutions, and, finally, citizens in general who must be well informed to feel closer to the subject (this is often the case in American campuses and is cited as exemplary). Ideally, the greater the autonomy a Higher Education Institution has, the greater the exigency that it must submit regarding accountability. In addition, accountability is useful for benchmarking, especially at the international level, the diversity of academic activities, in particular research and science production. It is a process to make individually, and not between university systems by countries. For a better result, benchmarking should be made with enough homogeneity between the institutions for the comparison.
As an example, Table 2 shows one of the areas compared in the benchmarking for a selected group of European technological universities included in the 2016 Accountability Report of the Universitat Politècnica de València: 5 the relation between two variables, i.e. the published articles per professor (in SCOPUS) and the budget per student enrolled. We can see considerable differences both in terms of publications and budget per student. Die Technische Universität München stands out at top on both variables, while Universitat Politècnica de València is lowest on publications as well as in the lower group in terms of budget per student. Excellence of Universities S51

University Autonomy and Excellence of University Systems
In 2007, the Lisbon Declaration of the European University Association established that there are four fundamental dimensions of university autonomy: academic, financial, organisational and staff management. 6 Academic autonomy implies the freedom of the institution to select future students, the creation and elimination of curricula, the definition of fields of research and their aims and methodologies, as well as the implementation of appropriate mechanisms for quality assurance. Financial autonomy corresponds to the setting of tuition fees, the possibility of borrowing and many other economic and financial aspects involved in the preparation of budgets, while organisational autonomy means the capacity of universities to design, implement and modify their structures, and the composition and selection of governing bodies. Staff management autonomy, finally, includes the recruitment of academic and management personnel, the establishment of salaries and the procedures for promotion of faculty and staff. In order to analyse the relationship of each of the four types of autonomy to the excellence of university systems we have used data presented by the European University Association in its study of autonomy published in 2011 'University Autonomy in Europe II'. 7 For each type of autonomy, this publication establishes a set of indicators with weighting factors. This methodology implies a survey that the EUA targeted at university leaders from each country for quantification about the development of the four components of university autonomy in their systems. Table 3 shows the indicators and weights assigned by the EUA for organisational autonomy, staffing autonomy, academic autonomy and financial autonomy, respectively. For the calculation of the score of each of the four types of autonomy, the EUA designed a procedure by experts from each country that quantified the indicators.
Specifically, there are eight indicators for organisational autonomy, eight indicators for staffing autonomy, seven for academic autonomy, and seven for financial autonomy. Regarding the relevance of each of them, the weight of the indicators for organisational autonomy varies between a maximum of 15% and a minimum of 9%. The oscillation in the weight of the indicators used in staffing autonomy is between 12% and 13%. For academic autonomy, the range of weights is between 11% and 17%, while for financial autonomy the difference between the maximum and minimum values is the greatest, ranging between 9% and 21%. The highest value of each indicator corresponds to the option in which the university makes the corresponding decision and assumes the responsibility for having done so.
As an example, for each type of autonomy, the greatest value of the first indicator for organisational autonomy, 'selection procedure for the executive head', means that the selection of senior executives does not have to be validated by any external authority or government. Also, for staffing autonomy, the highest value for the first indicator, 'capacity to decide on recruitment procedures of professors and researchers', signifies recruitment is freely carried out by universities. The highest value for the first indicator corresponding to academic autonomy, 'capacity to decide on overall student numbers', implies the university decides on the total number of students. Finally, regarding financial autonomy, the last indicator, 'ability to charge tuition fees for non-EU students', means that the university is free to fix its price levels for tuition fees. Similar comments can be made for the remaining indicators in each of the autonomies. Table 4 shows the results obtained by country and for each type of university autonomy (organisational, staffing, academic and financial management) as well as the ARWU Score per million inhabitants. It shows that the universities in the United Kingdom have the highest autonomy in terms of all four types. For organisational autonomy Denmark, Portugal and Austria exhibit scores above 75, while Switzerland and Greece have scores below 50. With respect to staffing autonomy the United Kingdom, Sweden, Switzerland and Denmark score above 75, whereas the Mediterranean countries Italy, Spain, France and Greece are below 50. In terms of academic autonomy, it is only the United Kingdom that has a score above 75 and the countries below 50 are the Netherlands, Greece and France. A financial autonomy, finally, above 75 was found in the United Kingdom and the Netherlands The results shown in Table 4 imply that the most linear adjusted relationship is between staffing autonomy and excellence, resulting in a correlation of 0.84, followed by financial autonomy (0.38), academic autonomy (0.39) and organisational autonomy (0.12). In all the cases, the correlation is positive even though in some cases, the linear correlation is almost zero. The average of the four types of autonomy related to excellence results in a correlation of (0.57) although, certainly, each type of autonomy should have a different weight accordingly.
In relation to the above results it can be concluded that, although university autonomy has had a great development in Europe, there are still many restrictions on its full use. The recent policies of economic austerity have reduced both financial autonomy and staffing. In addition, the capacity of European universities to own and use buildings is remarkable, although more symbolic than realistic in most cases. In addition, some academics view the strict and exhaustive procedures for accreditation of curricula within the new legal status for quality assessment agencies as serious limitations for university autonomy.

Conclusions
The above leads to an undeniable conclusion: for good university governance, it is imperative that academic results achieved by institutions be valued, recognised and considered in the allocation of new resources. In addition, there should be mechanisms for long-term funding of public institutions by governments so that universities have sufficient stability in planning their educational offer and consolidating research teams. One of the worst risks that universities can suffer is 'shorttermism', so is the existence of operating regulations or organisational structures that limit their creativity and penalise their willingness to take risks and only 'work on what is safe'.
More university autonomy values the intervention of academics in their own areas. A good example of this is the ad hoc committees set up at the Massachusetts Institute of Technology (MIT), which have sought to give the floor to those who wish to contribute to innovative educational or research initiatives. It is an attempt to involve teachers and researchers without distracting them for too long from their academic tasks. The report from this committee says: 8 '[it is] absolutely essential for MIT operation, much more than the official committees, for being a source of dynamism and collegiality of our Institution'. This is a best practice of how university autonomy can be understood.
According to the above analysis, the university systems best ranked are also those with the highest expenditure and those, the same ones, with more autonomy, mainly in staffing and finances. The United Kingdom, Sweden, Switzerland, Denmark and the Netherlands form this solid group of the best-ranked university systems. It is not a coincidence. It is a fact that universities permanently demand continuous progress of their governance regulation in order to increase their capacity to improve their results.