PENALTY AS A MEASURE OF PROCEDURAL COMPULSION IN   CIVIL PROCEEDINGS: THE PRACTICE OF THE SUPREME COURT

PDF

УДК 347.93

DOI 10.37566/2707-6849-2021-3(36)-7

Inna VOLKOVA,

Head, the employment department

secretary and judges of the court chamber

job managementthe second court chamber

Secretariat of the Civil Court of Cassation

the staff of the Supreme Court,

Candidate of Historical Sciences

Penalty as a measure of procedural compulsion in civil proceedings: the practice of the Supreme Court

The article is dedicated to the analysis of the normative provisions of the Civil Procedure Code of Ukraine regarding penalties as a measure of procedural compulsion for abuse of process of the court and litigation practice of the Supreme Court on its application. The concept and legal nature of the penalty, the grounds and procedure of its recovery has been explained. The Supreme Court decisions rendered following the results of the review of the Board of Appeals decisions on the recovery of penalty, as well as the practice of penalty recovery for the abuse of process of the Supreme Court, have been studied. Based on the research findings, it was concluded that abuses of the process of the court in civil proceedings are not unusual and take diverse aspects and forms. One of the effective tools to prevent and stop abuse is to recover a penalty for violating procedural rights and obligations. It has been suggested to define the concept of «procedural irregularities» at the legislative level, to regulate an exhaustive list of such irregularities, to provide the possibility of deferral or installment plan for the payment of a penalty in case of its imposition, considering a property, marital status of the individual etc. It has been emphasized that the difficulty of exacting a penalty in practice is that the determination of the elements of a violation is left entirely at the discretion of the court, and in each individual case the court should determine the boundary between the fair use of procedural rights and their abuse, to choose at its discretion the penalty amount within the limits set by the legislator. Furtheremore, it was concluded that it is necessary to regulate the mentioned issues in terms of legislation, which will help to ensure the unity of litigation practice and enhance the liability of parties to a case for their procedural conduct in court.

Keywords: abuse of process of the court, measures of procedural compulsion, penalty, litigation practice, proceeding in civil cases, party to a trial.

REFERENCES

Civil Procedure Code of Ukraine: current legislation with changes and additions as of 10.02.2020: Ofits. text. K .: Alerta, 2020. 248 p. [ukr.]

Kutsyk K. V. Measures of procedural coercion in civil proceedings: dis. for science. degree of Cand. jurid. Science: special. 12.00.03 «Civil law and civil procedure; family law; international private law». K., 2017. 187 p. [ukr.]

Tkachuk A. О. Abuse of procedural rights in civil proceedings in Ukraine. Dis. ... Dr. of Philosophy in Law Science. Kyiv, 2020. 216 sheets. [ukr.]

Judicial practice regarding the application of novelties of the process on the inadmissibility of abuse of procedural rights is positive. URL: https://supreme.court.gov.ua/supreme/pres-centr/news/1087726/ [ukr.]

Judges of the Supreme Court reported abuses of substantive and procedural rights. URL: https://supreme.court.gov.ua/supreme/pres-centr/news/1070738/ [ukr.]