Suspension of execution (action) of a court decision at the stage of cassation review: separate issues of law enforcement

Abstract

The presented article is devoted to the discussion of problematic issues of the application of the procedure of suspension the execution of the decision or suspension its effect at the stage of cassation review. It is claimed that the outlined procedure serves as an important guarantee of the protection of the rights, freedoms and interests of the participants in the process in case of an illegal court decision, and its basic purpose is to prevent the violation of the rights, freedoms and legally protected interests of the person who filed a cassation complaint and other persons participating in the case, if such consequences may occur in connection with the implementation (action) of the contested court decision. Based on the analysis of the practice of the application of certain norms of the procedural law by the Supreme Court when considering requests to suspend the execution (action) of a court decision, it was concluded that the specified procedure has signs of exclusivity and requires the applicant to pay due attention to justifying the existence of grounds for the court to take appropriate measures. The latter is a meaningful aspect of this procedure and involves not only the requirement of qualitative argumentation by the applicant for his petition, but also the submission by him of a sufficient amount of proper and admissible evidence, which testifies to the appeal of the contested decision to enforcement (for example, resolutions on the opening of executive proceedings, resolutions on the commission of certain executive actions, etc.), as well as other circumstances, the establishment of which will allow the court of cassation to be convinced of the existence of objective risks to assume that failure to take measures to suspend the execution (action) of the court decision will affect the impossibility or make it difficult to restore the violated right of the applicant, in the event of cancellation in subsequent Supreme Court of such a decision. Along with this, within the scope of the study, a some of inconsistencies between individual provisions of Articles 394 and 436 of the Civil Procedure Code of Ukraine were identified, and proposals were made to eliminate them.