The institute of counter-security as a novelty of the reform of civil procedure law of Ukraine

Roksolana Khanyk-Pospolitak,Igor Bylytsia,Inna Kovalchuk

doi:10.34069/ai/2020.26.02.3

Abstract

The article is dedicated to investigation of counter-security as a novelty of the reform of Ukrainian civil procedure legislation. The analysis of rules of the current procedural legislation on counter-security as a novelty of the civil process in Ukraine was made in the article. The determination of features of the institute of counter-security in the mechanism of civil proceedings was given. The role of counter-security in the civil process was identified. The conclusion was drawn that through the institute of counter-security, the principle of equality of parties is ensured, which is manifested in the equal assignment of the defendant to such procedural rights which are effectively identical to the rights of the plaintiff. Therefore, the defendant was granted effective protection against the claim by virtue of the new institute. It is stated that the counter-security should be seen as a way of preventing the plaintiff's abuse of procedural rights and offsetting the potential consequences. The introduction of counter-security is a clear step forward to European standards of quality and efficiency in the administration of justice, however, by examining civil procedural law and jurisprudence, the conclusion was made that the institution is not regulated at this stage of its establishment and application.

Highlights

The challenges of modern society lead to the modernization of existing procedures, enshrined in current legislation, including within the framework of civil justice, giving increasing importance to the principle of dispositive civil process
The Ukrainian legislative approach to the substance of counter-security is accompanied by a misapplied categorical apparatus, since injunction relief and counter-security are not identical concepts, these institutions should not be named in order to avoid confusion in their application
Counter-security, in accordance with Part 1 of Art. 154 of the CPC of Ukraine is a guarantee of compensation for the losses of the defendant, which may be caused by securing a claim

Summary

Introduction

The challenges of modern society lead to the modernization of existing procedures, enshrined in current legislation, including within the framework of civil justice, giving increasing importance to the principle of dispositive civil process. With this principle such novelty of the Civil Procedure Code of Ukraine (hereinafter the Civil Procedure Code of Ukraine) as countersecurity institution, is connected. The introduction of counter-security institution is intended to fill the gap in the legal mechanism of justice to protect a defendant from a possible violation of his rights by securing a claim Such a legal construction justifies itself taking into account the lengthy dispute resolution process, whereby the defendant may suffer certain adverse effects not directly related to the resolution of the dispute in favor of the plaintiff. The interaction between the claim and the counter-security is not clear enough, the correlation of the counter-security and the defendant's right to demand damages caused by the claim, the effectiveness of the mechanism for securing the defendant's right to protection against the claim

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Conclusion