Application by the court of an effective method of protection, which is not established by law or contract: some civil-procedural issues

Abstract

The article deals with civil procedural issues related to the application of an effective method of protection by the court, if the law or contract does not establish such a method of protection of the violated, unrecognized or contested right, freedom or interest of the person who appealed to the court. court. The main theoretical provisions regarding the application of an effective way of protecting the violated right by the court have been studied, the civil procedural legislation and relevant judicial practice have been analyzed. It is noted that the procedure for determining the method of protection by the court, which is not defined by law or contract, should be considered in combination with other provisions of the Central Committee of Ukraine, in particular with the norms determining the form and content. statement of claim. It is noted that the court does not have the right to independently determine an effective method of protection of the violated, unrecognized or contested right, freedom or interest of the person who appealed to the court, if such a method of protection is not defined in the law or contract. A similar duty is placed on the plaintiff, who must independently determine such, as well as justifythe effectiveness of the chosen method of protection and prove that the chosen method of protection does not contradict the law, that is, such a method should not violate the rights of the defendant or other persons or cause harm. It is noted that when deciding on the application of an effective method of protection, if such a method of protection is not defined by the law or contract, the court must proceed from one of the following criteria: 1) the method of protection, which is defined in the law or the contract, is not effective for the protection of the corresponding violated or unrecognized right or interest; 2) the plaintiff's claim regarding the method of protection set forth in the lawsuit is not effective in terms of protecting the violated right and restoring it. 3) the method of defense chosen by the plaintiff does not contradict the law. Based on the results of the research, legislative proposals were formulated to improve the institutionof the court's use of an effective method of protection in civil proceedings.