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AllaLESKO,

Judge, the Supreme Court

RESOLVING BY THE COURT OF CASSATION INSTANCE THE ISSUE ON SUSPENSION OF ENFORCEMENT OF A COURT DECISION OR SUSPENSION OF EFFECT OF A COURT DECISION

The article contains the results of studies of the norms of the Civil Procedural Code of Ukraine regarding the issue of suspension of enforcement of a court decision or suspension of effect of a court decision by the cassation court and the practice of their implementation.

The powers of the cassation court to decide whether to suspend the enforcement or effect of a court decision belongs to the right of the court and are inherently discretionary. The author emphasizes the difference of notions “suspension of enforcement” and “suspension of effect” of a court decision, considers the special aspects of solving the issue on suspension enforcement or effect of a court decision on motion of a person who filed the cassation complain and on court’s own motion. The article proves the necessity to submit the proper justification for the suspension in the motion and/or cassation complain filed by a person on the one side and the requirement of the cassation court to adopt the resolution for the suspension grounded on properly analyzed subsequences submitted in the motion/cassation complain on the other side.

The author also looks into a question of the right of a cassation court to suspend the enforcement of a court decision for which the Civil Procedural Code of Ukraine provides the possibility of immediate execution.

In this article the author formulates suggestions for improvement of the appropriate norms of procedural legislation and provides recommendations of its implementation. In particular, the author explains the reasonability to enhance p. 8 art. 394 of the Civil Procedural Code of Ukraine with the provision that a motion for suspension of enforcement of a court decision or suspension of effect of a court decision can be submitted at any stage of the cassation proceedings and not only upon filling the cassation complain.

Key words: suspension of enforcement of a court decision, suspension of effect of a court decision, discretionary powers of court, discretion, cassation.

References

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