ЗЛОВЖИВАННЯ ЦИВІЛЬНИМИ ПРОЦЕСУАЛЬНИМИ ПРАВАМИ

Abstract

In the article, the authors reveal a topical issue in the field of civil procedural law, which concerns the abuse of civil procedural rights. Abuse of procedural rights is a significant obstacle to the administration of effective justice. The current level of regulation is in fact unsatisfactory. The correct definition of the criteria for the possible recognition by the court of the exercise by a party of procedural rights as an abuse is of great importance for the application of measures of procedural coercion. In general, to define the action as an abuse of rights, we should talk about a number of specific features: the exercise of the right against its purpose and its exercise outside the permitted limits. From which it can be argued that abuse can be both a specific action and inaction in the form of unjustified failure to perform a specific procedural duty. The question of the limits of the use of rights is more in line with the question of the proportionality of the procedural action and decision. According to part 2 of Art. 44 of the Civil Procedural Code of Ukraine established such a sign of abuse of rights as a contradiction of the principles of civil procedure. That is, an abuse of rights may be an act aimed at preventing a fair, impartial and timely consideration and resolution of cases, effective protection of rights or interests in accordance with part 1 of Art. 2 of the Civil Procedural Code of Ukraine. The authors of this article also analyze aspects of the concept of abuse of civil procedural rights. The problematic aspect is that the general tools of court authorization of abuse of rights (except of deprivation of the opportunity to take procedural action): warning, removal from the courtroom, temporary seizure of evidence for trial, reason, fine, seems questionable. Thus, the authors analyzed the theory, legislation and case law (including the case law of the European Court of Human Rights) on the abuse of procedural rights; systematized the available information and conceptually rethought the mechanism for preventing and authorizing the abuse of procedural rights. They also offered their vision of solving the problem.