UDC 347.122

DOI 10.37566/2707-6849-2019-4(29)-4

(PDF)

Andriy Potapenko, 

Judge of the Rzhyshchiv City Court of Kyiv Region,

Lecturer at the National School of Judges of Ukraine

The effective method of judicial defence of private right and interest as category of judicial right

The article is sanctified to research and analysis of short story of civil judicial legislation “effective method of judicial defence” of private right and interest as a legal category of judicial right. Drawn conclusion, that the “effective method of defence” of private right or interest it follows to examine as the combined legal category, where triangle: effective-defence-right, it is his constituents that form an only judicial mechanism. Thus “efficiency” in a civilly-judicial legal mechanism is not independent, but depends on many factors. “Efficiency” is examined as a legal criterion that it does not follow to examine separately, but as category “effective method of defence” of private right or interest. Investigated separately and in their intercommunication legal categories: “effective method of judicial defence”; “determination of cramps of effective method of defence”; “method of defence, that does not conflict with a law”; on the basis of analysis of practice of ECHR and national courts of cassation instances intermediate determinations of the above-mentioned concepts are given.

A “effective method of judicial defence” is the requirement (materially-legal measure of a force character) produced in a court about defence of private right or interest that answers maintenance of the broken right and the real renewal provides him, and if it be impossible such renewal must avouch for the face of receipt of corresponding compensation.

“Determination of cramps of effective method of defence” is a judicial action of court that comes true during the stage of acceptance of cramps of decision and consists in the estimation of the requirement expounded in a lawsuit for the purpose her “efficiency” at the decision of question of belonging (adequacies) of select a plaintiff method of defence of private right and interest.

“Method of defence, that does not conflict with a law”, - it produced in a court with the aim of effective defence broken, unrecognized or contested private right or interest requirement about defence of private right or interest, that does not conflict with a law (not forbidden by a law), answers maintenance of the broken right and provides him it is real renewal.

Keywords: effective defence of the unrecognized or contested right broken; effective method of judicial defence; determination of cramps of effective method of defence; method of defence, that does not conflict with a law; access is to the justice; effective means of legal defence.

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