The dissertation is devoted to the complex theoretical and practical analysis of the material and procedural legal aspects of the termination of surety in civil relations of Ukraine.
In the dissertation the concept and essence of guarantee as a legal phenomenon are investigated. In a market economy, surety is one of the most effective instruments for ensuring financial obligations. The surety institution is originated from Roman private law, its formation in the national legal systems took place in the context of the reception of the basic provisions of Roman law and its application to the modern regulation of civil-law relations. In the dissertation, by conducting a comparative analysis, the formation of the surety institution in other countries is also revealed.
The controversial issues of concepts of understanding the nature of the surety - both obligations and measures of responsibility are revealed in dissertation. As a result of the analysis of relevant concepts, the essence of which is to understand the surety as an obligation by which the guarantor undertakes to perform the actions of the debtor in the case of failure by the debtor to the creditor, and the responsibility that is assigned to the guarantor in the case of failure or improper fulfilment of his obligations of the debtor, including indemnification, payment of a penalties, etc., an understanding of the relationship of surety as an obligation in which the debtor, the guarantor and the creditor establish the duty of the guarantor to bear responsibility for actions (improper fulfilment or failure to fulfil their duties) by the debtor is formulated. Such responsibility includes the obligation to repay the amount of the principal debt, penalties, etc.
In the case law, three cases of determination of the duration of the surety are formulated: 1) within the period established by the surety contract; 2) within six months (three years) from the date of termination of the principal obligation if the creditor fails to make a claim to the guarantor; 3) within one year (three years) from the date of the conclusion of the surety contract (if the term of the main obligation is not established or established by the moment of bringing a claim), if the creditor does not bring a claim to the guarantor. The changes introduced into the legislation actually replace the different legal nature of the terms of the surety, identifying them with the terms of limitation.
The dissertation deals with the procedural issues of consideration and resolution of cases of termination of surety. In particular, the emphasis was placed on changing the legislative emphasis in protecting the rights of persons applying to the court and, accordingly, on the right of the court to protect the rights of the person, in a way that would be most effective in the relevant dispute. It is concluded that the choice of a method of protection by the court on the basis of Art. 5 The Civil Code of Ukraine is not an out-of-court claim in the case of a claim by a guarantor indicating a method of protection not provided for by law.
In cases on the termination of a surety, the subject of a claim is the requirement to terminate the legal relationship of surety that arose between the creditor and the guarantor (plaintiff) on the basis of the contract of surety. The reason for the claim is the factual circumstances, indicating the existence of grounds for termination of the guarantee stipulated in Art. 559 of the Civil Code of Ukraine (expiration of the term of the surety contract, the deadline for bringing a claim, etc.). The content of the claim is a way of protecting the chosen plaintiff - termination of the relationship of surety.
Issues of differentiation of jurisdiction in the case of termination of surety are revealed, and it is determined that such disputes are considered in the order of civil or economic proceedings, depending on the subject structure and the nature of the relations between the parties. In cases on the recognition of the surety with the suspension, written evidence is used to confirm the fact of the conclusion and terms of the surety contract, the conclusion and terms of the credit contract, additional agreements to a credit contract or a surety contract, which increases the responsibility of the debtor and, accordingly, the guarantor, confirming the fact of recourse or delay of the creditor’s demand to the guarantor for satisfaction of debt claims, etc.
The subject matter of the relevant cases is the creditor, the guarantor and the debtor, respectively the plaintiff and defendants. In decision on the termination of a surety, the court has to adopt a decision that will comply with the general requirements of the procedural law to the court’s decision and contain motivation regarding the terms of the guarantee, its calculation, termination, etc.
