The new procedural legislation introduces a number of novelties to the institution of securing a claim. In the civil and economic procedural codes currently in force, the regulation of securing a claim is carried out almost identically with small differences concerning the peculiarities of the subject composition of each of the processes. In the “old” editions of the Civil Procedure Code, the institution of securing a claim was regulated in detail, while the securing of a claim in economic and administrative processes was actually regulated mainly by resolutions of the plenums of higher economic and administrative courts.
Ways of securing a claim.
In the new editions of the civil and economic procedural codes, a unified approach to the methods of securing a claim is applied. In particular, the following are proposed:
1) seizure of property and (or) money belonging to or subject to transfer or payment to the defendant and held by him or other persons;
2) prohibiting the defendant from taking certain actions;
3) establishing the obligation to perform certain actions;
4) prohibiting other persons from taking actions regarding the subject of the dispute or making payments, or transferring property to the defendant, or fulfilling other obligations in relation to him;
5) suspension of collection on the basis of an executive document or other document, according to which collection is carried out in an undisputed manner;
6) stopping the sale of property, if a lawsuit has been filed to recognize the ownership of this property, or to exclude it from the inventory and to remove the seizure from it;
7) transfer of the thing that is the subject of the dispute to another person who has no interest in the settlement of the dispute;
And two new ways of securing a claim, which were not previously mentioned in procedural codes:
8) stopping customs clearance of goods or objects containing objects of intellectual property;
9) seizure of a sea vessel carried out to secure a maritime claim.
In addition, both the Code of Civil Procedure and the Code of Criminal Procedure in the new editions provide for the possibility of securing a claim in other ways necessary to ensure the effective protection or restoration of violated or contested rights and interests, if such protection or restoration is not ensured by the measures provided for in the codes. It is worth mentioning that the earlier version of the Code of Criminal Procedure contained a direct prohibition of securing a claim with measures not provided for by the Code.
The legal regulation of securing a claim in the Civil Code is slightly different from the Code of Civil Procedure and the Code of Criminal Procedure, which is due to the specificity of the subject composition and subject specialization, however, in this case, the legislator followed the path of detailing the legal regulation and devoted a whole section to the issue of securing a claim, replacing two articles that regulated the provision of the claim in the previously effective version. So, in particular, in the “new” CAS, the methods of securing a claim by stopping the action of the decision of the subject of authority and prohibiting certain actions were supplemented by such methods as establishing the obligation of the defendant to perform certain actions and prohibiting other persons from performing actions related to the subject of the dispute . Unlike the Code of Criminal Procedure and Code of Criminal Procedure, the new version of the Code of Criminal Procedure does not include the possibility of taking measures to secure a claim that are not provided for by the Code.
The terms of consideration by the court of the issue of taking measures to secure the claim have also changed: now both the Civil Procedure Code and the Civil Procedure Code and the Civil Procedure Code provide that the application is considered by the court no later than two days after its receipt.
Another novelty of the procedural codes is that the court is given the right to summon the person who submitted the application for securing the claim, to provide explanations or additional evidence confirming the need to secure the claim, or to clarify issues related to counter-security.
Countervailing security. The biggest innovation of the economic and civil procedural legislation in the regulation of claims security relations is the introduction of the institution of counter security. In the previous versions of the procedural codes, such an institution was absent, however, it is worth noting that the Code of Criminal Procedure contained a provision for the applicant to provide a bond to guarantee the compensation of the defendant’s potential losses in connection with taking measures to secure the claim. In practice, such a pledge was used extremely rarely.
In the new civil and economic procedural codes, in addition to the possibility of compensation for damages caused by securing a claim, the possibility, and in some cases, the obligation of the court to apply counter-security is provided. Counterclaim security is regulated in sufficient detail, which allows courts to effectively apply security measures without the risk of causing irreparable damage to the interests of other persons, when the very fact of taking measures to secure a claim can lead to losses for the person to whom they are applied.
Similarly, as in the case of the methods of securing a claim, the methods of counter-securing are not limited to the measures specified in the codes and provide for the possibility of taking other, determined by the court, actions to eliminate potential losses and other risks of the defendant related to the securing of the claim. However, as a rule, counter-security is carried out by depositing money into the court’s deposit account, and in case of impossibility to deposit the corresponding amount – by providing a bank guarantee, surety or other financial security for the amount determined by the court and from a person approved by the court.
The “new” Code of Civil Procedure even provides for cases when the application of counter-security by the court is mandatory, namely:
1) the plaintiff does not have a registered place of residence (residence) or location in the territory of Ukraine and property located in the territory of Ukraine in an amount sufficient to compensate the possible losses of the defendant that may be caused by securing the claim, in case of refusal to lawsuits; or
2) the court is provided with evidence that the claimant’s property status or his actions regarding the alienation of property or other actions may complicate or make impossible the execution of the court’s decision to compensate the defendant for damages that may be caused by securing the claim, in case the claim is rejected.
The consequence of non-fulfilment of the court’s requirements regarding counter-security by the person, according to whose statement the measures for securing the claim were applied, within the term determined by the court is the annulment of the resolution on securing the claim and on counter-security.
The “new” KAS does not contain such a concept as counter-security, however, similarly to the “new” Code of Civil Procedure and Code of Civil Procedure, it provides for the right of a person to compensation for damages caused by securing a claim, at the expense of the person, according to whose statement such measures to secure the claim were taken in case of abandonment the lawsuit without consideration, as well as the closing of the proceedings in the case on the grounds specified by the Code. Along with this, it is worth paying attention that according to the requirements of the CAS, if the rights or interests of the subject of authority are violated by taking measures to secure the claim, the provisions on compensation for damages do not apply.
The regulation of the relationship of cancellation of measures to secure a claim is fundamentally different. Thus, in particular, the right to initiate the cancellation of measures to secure a claim was granted to the previously active CPC of Ukraine only to a person in respect of whom measures to secure a claim were taken without notifying him, and the deadline was set – within five days from the day of receiving a copy of such a decision. Whereas in the previous editions of the Civil Code and Civil Procedure Code, almost no attention was paid to the issue of cancellation of security measures for an administrative claim, and the cancellation of security was mainly regulated by resolutions of plenums of higher economic and administrative courts.
According to the currently valid rules, the court has the right to cancel the measures to ensure the claim both on its own initiative and at the request of a party to the case. Any participant, and not only the person against whom security measures have been taken, and it is expressly assumed that the refusal to cancel the security of the claim does not prevent a repeated application with the same request when new circumstances arise.
The new regulation in the Code of Criminal Procedure and Code of Criminal Procedure of the validity periods of measures to secure a claim attracts attention. Thus, it is assumed that if the court decides to satisfy the claim, the measures to ensure the claim continue to operate within ninety days from the date of entry into force of the specified decision or may be canceled at the motivated request of the participant in the case. And only if enforcement proceedings are opened within the specified period – the specified measures to ensure the claim are effective until the court decision is fully implemented.
The current versions of the procedural codes expressly provide that the decision of the commercial court to secure a claim must meet the requirements for an executive document established by law. Such a decision is subject to immediate execution from the date of its decision, regardless of its appeal and the opening of enforcement proceedings, a copy of the decision on securing the claim is immediately sent to the applicant, to all persons who are affected by the measures to secure the claim and whom the court can identify, as well as, depending on the type of measures taken , is sent by the court for immediate execution to state and other bodies to take appropriate measures.
The specified legislative provisions, in turn, impose on the court the obligation to issue decrees on securing a claim, in compliance with the requirements for an executive document, and are designed to prevent situations where a decree on securing a claim cannot be enforced by force due to its non-compliance the form or content of the requirements of the legislation on executive proceedings.
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