The new procedural law brings a series of short stories to the Institute for securing the claim. Currently, the existing civil and commercial procedural codes of regulation of the provision of the claim is carried out almost equally with small differences regarding the features of the subjective composition of each process. In the “old” versions of the civil procedural code, the institute of securing the claim was settled in sufficient detail, whereas the securing of a claim in the economic and administrative processes was actually regulated mainly by the resolutions of the plenums of the higher economic and administrative courts.
Ways to secure a claim.
The new versions of the Civil and Commercial Procedural Codes have applied a unified approach to how to enforce a claim. In particular, the following are offered:
- imposition of seizure on property and (or) money belonging to or subject to transfer or payment to the defendant and held by him or other persons;
- the prohibition of the defendant to take certain actions;
- the obligation to perform certain actions;
- the prohibition on other persons to take actions on the subject matter of the dispute or to make payments, or transfer the property to the defendant, or to perform other obligations to him;
- suspension of collection on the basis of an executive document or other document, according to which the collection is carried out in an unconditional manner;
- the suspension of the sale of property, if a claim is made for the recognition of the property right to this property, or the exclusion from the description and the withdrawal from his arrest;
- the transfer of the thing that is the subject of the dispute to another person who is not interested in resolving the dispute.
And there are two new ways to secure a claim that was not mentioned before in the procedural codes:
- suspension of customs clearance of goods or objects containing objects of intellectual property;
- arrest of a sea vessel, which is carried out to ensure the maritime claim.
In addition, both the civil procedural code and the commercial procedural code in new editions provide for the possibility of securing the claim in other ways necessary for the effective protection or restoration of the impugned or disputed rights and interests if such protection or renewal is not provided by the measures provided for in the code of measures. It is worth mentioning that in the earlier version of the commercial procedural code there was a direct prohibition to secure claims by measures not provided for by the code.
The legal regulation of the provision of a claim in the code of administrative proceedings is somewhat different from the civil procedural code and the commercial procedural code, which is due to the specifics of the subject structure and subject-matter, however, and in this case the legislator has gone along the way to detail the legal regulation and the issue of securing the claim is devoted to the whole section to replace the two articles that regulated the claim in the earlier version. Thus, in particular, in the “new” code of administrative proceedings, the means of securing a claim by suspending the decision of the subject of authority and a prohibition on certain actions were supplemented by such methods as establishing the duty of the defendant to commit certain actions and forbidding other persons to take actions related to the subject of the dispute. Unlike the civil procedural code and the commercial procedural code, the new version of the code of administrative proceedings does not include the possibility of taking measures to secure a claim not provided for by the Code.
Also, the terms of consideration by the court of the application of measures to secure a claim have changed: now both the civil procedural code and the commercial procedural code and the code of administrative proceedings stipulate that the application is considered by the court not later than two days from the date of its receipt.
Another novelty of the procedural codes is that the court was granted the right to summon a person lodging an application to secure a claim to provide explanations or additional evidence to prove the need to secure a claim or to determine issues related to collateral security.
Collateral support. The greatest innovation in economic and civil procedural law in regulating the laws of securing a claim is the introduction of a counter-guarantee institution. In the previous versions of the procedural codes, such an institution was absent, however, it should be noted that the civil procedural code contained provisions for the applicant to lodge a pledge to guarantee the recovery of potential damages to the defendant in connection with the application of measures to ensure the claim. In practice, such a pledge was used extremely rarely.
In the new civil and commercial procedural codes, in addition to the possibility of reimbursement of damages caused by the provision of a claim, provides for the possibility, and in some cases, the obligation of the court to apply counter-guarantee. Counterfeiting of the claim is regulated in sufficient detail, enabling courts to effectively apply security measures without the risk of causing irreparable damage to the interests of others, when the mere fact of taking measures to secure a claim may lead to damage to the person against whom it is applied.
Similarly to the way in which the claim is secured, countermeasures are not limited to the measures specified in the codes and provide for the possibility of committing other actions determined by the court to eliminate potential losses and other risks of the defendant related to the claim. However, as a rule, collateral is provided by depositing a cash deposit to the deposit account, and in case of impossibility to make the appropriate amount – by providing a bank guarantee, suretyship or other financial security to the amount determined by the court and from the person agreed by the court.
The “New” the civil procedural code even envisages instances where the use of counter-enforcement by a court is mandatory, namely:
1) the plaintiff has no place of residence (stay) or place of residence on the territory of Ukraine and property located on the territory of Ukraine in the amount sufficient to compensate for possible losses of the defendant, which may be caused by the provision of a claim, in case of refusal in lawsuit; or
2) evidence is provided to the court that the property of the plaintiff or his actions regarding the alienation of property or other actions may complicate or make it impossible to enforce a court decision to indemnify the defendant, which may be caused by the provision of a claim, in the event of a denial of the claim.
As a result of non-compliance by a person whose application is applied to ensure the claim, the court’s requirements regarding counter-guarantee in the court specified by the court is the cancellation of the decision on the securing of the claim and on counter-guarantee.
The “New” code of administrative proceedings does not contain such a concept as counter-provision, however, in the same way as in the “new” the civil procedural code and the commercial procedural code, provides for the right of a person to compensate for damages caused by the provision of a claim at the expense of a person on whose application such measures of claim security were used in case of abandonment the claim without consideration, as well as the closure of proceedings in the case with the grounds established by the Code. In addition, it should be noted that according to the code of administrative proceedings, if the application of the measures to ensure the claim violated rights or interests of the subject of authority, the provision for compensation for losses is not applicable.
Principled differences in regulation of relations canceling measures to secure a claim. Thus, in particular, before the effective functioning of the civil procedural code of Ukraine, the right to initiate the cancellation of measures to ensure the claim was granted only to a person against whom measures were taken to ensure the claim without notice thereof and set a time limit of five days from the day the copy of such a decision was received. Whereas in the previous versions of the code of administrative proceedings and the commercial procedural code the issue of the abolition of measures to secure an administrative claim was almost devoid of attention and the abolition of the provision was regulated mainly by the resolutions of the plenums of the higher economic and administrative courts.
Under the current rules, the court has the right to cancel the measures to secure a claim, both on its own initiative and at the request of the party to the case. Any participant, and not just the person against whom action is taken to secure a claim, and it is expressly provided that the refusal to cancel a claim secured does not prevent a repeated application with the same petition in the event of new circumstances.
Attention is drawn to the new regulation in the civil procedural code and the commercial procedural code on the timing of actions to secure a claim. It is thus supposed that in the case of a court decision on the satisfaction of a claim, measures to secure a claim continue to operate within ninety days from the date of entry into force of the aforementioned decision or may be revoked upon a motivated petition of the party to the case. And only if enforcement proceedings are opened within the specified period – the said measures of enforcement of the claim are valid until the full execution of the court decision.
The effective editors of the procedural codes expressly provide that a court order to secure a claim must comply with the requirements of the executive document established by law. Such an order is immediately enforceable from the date of its decision, regardless of its appeal and the opening of enforcement proceedings, a copy of the order to secure the claim is immediately sent to the applicant, to all the persons concerned by the measures of securing the claim and which the court can identify, and, depending on the type of measures taken, is sent by the court for immediate execution to the state and other bodies for taking appropriate measures.
The said legislative provisions, in turn, impose on the court the obligation to issue decisions on the securing of a claim, in compliance with the requirements of the executive document, and to prevent the occurrence of situations where the enforcement of a claim cannot be enforced in a compulsory manner in connection with its non-compliance form or content of the requirements of the law on enforcement.