Peculiarities of applications judicial review to secure a claim and enforcement of decrees prohibiting certain actions
Keywords:
real estate, right to housing , marriage contract, deprivation of parental rights, alimony, legal protection of children, establishment of parentage, parents, child, family, civil justice, adults, adoption, dismissal, discrimination, judicial control, seizure of property and/or funds, court judgment, enforcement of a claim, court decision, inter-branch relations, executive process, civil process, martial lawAbstract
In the chapter of the monograph «Peculiarities of the judicial review of applications for securing a claim and the enforcement of decisions prohibiting certain actions» the purpose of the procedural institution of securing a claim, which consists in guaranteeing the enforcement of a court decision on the condition that the claims are met, is analyzed.
The authors defined the concept of «claim security» and analyzed its legal nature.
It has been established that securing a claim is essentially a limitation of the subjective rights, freedoms and interests of the defendant or other persons connected with him in the interests of ensuring the future implementation of acts of justice and satisfied demands of the plaintiff (applicant). The specified restrictions are established by the court in the decision, they are valid until the court replaces the type of security for the claim or cancels the measures for securing the claim. The basis for securing a claim is the threat of difficulty or the impossibility of executing
a court decision, if measures to secure the claim are not taken in a timely manner, and the condition is a sufficiently justified assumption that the property that the defendant has at the time of filing a claim against him may disappear for a moment implementation of the decision.
It was concluded that the procedural legislation contains a system of protection of the person rights in respect of whom the measures to secure the claim have been applied, the elements of which are:
– proportionality of the types of security of the claim with the requirements stated by the plaintiff;
– the ability of the court to require the plaintiff to secure his claim with collateral;
– compensation to a person for damages caused by securing a claim;
– the right to appeal the court’s decision to secure the claim.
The main signs of abuse of claims enforcement measures are highlighted:
– measures to secure the claim coincide with the content of the claim requirements, or are disproportionate to them;
– enforcement of the claim affects the rights and interests of persons who are not parties to the case;
– the claim is obviously unpromising and unfounded, or does not concern the real protection of any rights or interests of the formal claimant;
– securing the claim does not affect the further execution of the court decision;
– the lawsuit was filed in violation of the rules of subject or territorial sub-department;
– after taking measures to ensure the claim, the case does not find a further solution until a decision is made due to procedural delays or termination of the proceedings
Цивільний та виконавчий процес: міжгалузеві зв’язки. Особливості розгляду судами певних категорій справ та виконання судових рішень. Монографія
