| Article | Novels of Special Proceedings |
|---|---|
| Authors | HANNA CHURPITA |
| Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
| Issue | 10 / 2018 |
| Pages | 147 - 159 |
| Annotation | The most recent novelization of the civil procedural legislation of Ukraine dated October 3, 2017 has had an impact almost on all of the institutes of civil procedural law, with certain changes made, inter alia, to the institute of special proceedings. Among the issues of concern the most crucial one is to find the answer to a whole range of general theoretical and practical issues stemming from the need for appropriate interpretation and application of separate novels pertaining to this procedural institute. The purpose of the article is to analyze the main legislative novels relating to the institute of special proceedings which will contribute to their appropriate interpretation and application, and also to the development, on this basis, of proposals and recommendations for further optimization of the civil procedural legislation of Ukraine in this context. Special proceedings as a type of the civil court procedure are characterized by certain specifics of the procedural form owing to: absence of a dispute on law, however, not excluding the dispute on fact, namely, the non-obviousness of its existence; a special object of court protection which is the interest protected by law (legitimate interest); a special purpose -confirmation of the presence or absence of legal facts relevant to the protection of the rights and interests of a person or the assurance of conditions for the exercise of his/ her personal non-property or property rights. The author establishes that novelization of the institute of special proceedings in the CCP of Ukraine is mediated mostly by the provisions regulating the procedure of consideration of certain categories of civil cases. In particular, the most crucial innovations of the institute of special proceedings are associated with the emergence of such a category of civil cases as cases of issuance and extension of the restrictive order (Chapter 13, Section IV of the CCP of Ukraine), and also with the introduction of time limits of validity of a court decision in cases where an individual is recognized as incapacitated (Part 6–9, Article 300 of the CCP of Ukraine). The general provisions which govern the special proceedings (Article 293–294 of the CCP of Ukraine) have remained unchanged and this confirms the efficiency and sustainability of a respective civil procedural form. The author proves that some novels of the institute of special proceedings require further optimization, and for this reason the following changes are advisable to the CCP of Ukraine: a) to supplement Part 2, Article 293 of the CCP with cl. 12 as follows: “issuance and extension of the restrictive order”; b) to delete Part 6–9, Article 300 from the CCP of Ukraine. . The most recent novelization of the civil procedural legislation of Ukraine dated October 3, 2017 has had an impact almost on all of the institutes of civil procedural law, with certain changes made, inter alia, to the institute of special proceedings. Among the issues of concern the most crucial one is to find the answer to a whole range of general theoretical and practical issues stemming from the need for appropriate interpretation and application of separate novels pertaining to this procedural institute. The purpose of the article is to analyze the main legislative novels relating to the institute of special proceedings which will contribute to their appropriate interpretation and application, and also to the development, on this basis, of proposals and recommendations for further optimization of the civil procedural legislation of Ukraine in this context. Special proceedings as a type of the civil court procedure are characterized by certain specifics of the procedural form owing to: absence of a dispute on law, however, not excluding the dispute on fact, namely, the non-obviousness of its existence; a special object of court protection which is the interest protected by law (legitimate interest); a special purpose -confirmation of the presence or absence of legal facts relevant to the protection of the rights and interests of a person or the assurance of conditions for the exercise of his/ her personal non-property or property rights. The author establishes that novelization of the institute of special proceedings in the CCP of Ukraine is mediated mostly by the provisions regulating the procedure of consideration of certain categories of civil cases. In particular, the most crucial innovations of the institute of special proceedings are associated with the emergence of such a category of civil cases as cases of issuance and extension of the restrictive order (Chapter 13, Section IV of the CCP of Ukraine), and also with the introduction of time limits of validity of a court decision in cases where an individual is recognized as incapacitated (Part 6–9, Article 300 of the CCP of Ukraine). The general provisions which govern the special proceedings (Article 293–294 of the CCP of Ukraine) have remained unchanged and this confirms the efficiency and sustainability of a respective civil procedural form. The author proves that some novels of the institute of special proceedings require further optimization, and for this reason the following changes are advisable to the CCP of Ukraine: a) to supplement Part 2, Article 293 of the CCP with cl. 12 as follows: “issuance and extension of the restrictive order”; b) to delete Part 6–9, Article 300 from the CCP of Ukraine. |
| Keywords | novelization; special proceedings; general provisions of special proceedings; absence of a dispute on law; time limits of validity of a court decision |
| References | REFERENCES Bibliography |
| Electronic version | Download |