Potapenko A. Court determination of an effective way to protect a private right and interest that does not contradict the law

The thesis consists of three chapters, divided into five subdivisions, in which the consideration begins with elucidation of theoretical approaches to the understanding of the category of "effective way of judicial protection" in private law through the disclosure of the grounds and procedure for court determination of the way of judicial protection of private right and interest and ends with substantiation of author's models of determination of effective protection of private rights and interests in certain categories of cases based on the study of materials of decisions of courts of different instances of civil and, in some cases commercial jurisdiction. The first chapter "Theoretical approaches to the understanding of the category" of effective remedy "in private law" studies the development of the category "effective remedy" in Ukrainian private law. It was proved that often there is a low level of legal technique in formulation of claims. The author's definition of the legal category "court determination of an effective way of protection" is a procedural action of the court, which is carried out at the stage of legal qualification of disputed relations and consists in assessing the claim set out in the claim for its "effectiveness" in deciding the issue of belonging (adequacy) of the method of protection of private right or interest selected by the plaintiff and further reflecting this claim in the operative part of the court decision. Also the author offers the definition of the legal category "a way of protection which isn't contrary to the law". The first section of the dissertation concludes with a substantiation of the legitimate limitations of judicial discretion in the mechanism of effective remedies in the practice of the European Court of Human Rights (civil aspect). The second section "The grounds and procedure for the court to determine the method of judicial protection of a private right and interest" contains three divisions, within which, in particular, the requirements of effective protection of the right in procedural documents from the position of the parties to civil proceedings are established. It is proved that the claim must contain an adequate legal basis for the claims by the relevant norms of substantive law, but the court according to the principle of jura novit curia ("the court knows the laws"), independently carries out legal qualification of disputed legal relations and applies for decision exactly those norms of material law, the subject of regulation of which is the relevant legal relations, does not lead to a change in the subject of claim and / or the method of protection chosen by the plaintiff. Produced a single procedural mechanism for the court to determine an effective way to protect violated, unrecognized or disputed private right and interest, which can be used as an algorithm (roadmap) of application of Part 2 of Art. 5 of the Civil Procedural Code by courts and holders of subjective private rights and interests. In the third chapter "Definition of effective protection of private rights and interests in separate categories of cases" which consists of four divisions and is devoted to formation of author's models of definition of effective protection of private law, effective ways of protection of the rights and interests in land disputes are defined. It is proved, that the modern condition of the legal toolkit given to owners of the subjective rights for protection of the rights of ownership and land use in land relations, including a novelty of civil legal proceedings - "definition by court of an effective way of protection, not contradiction to law", testifies that owners and land users along with traditional criteria of a choice of judicial ways of protection of legality and belonging should consider criteria "efficiency" and "proportionality. It is concluded that the doctrines "compensation (redress)" in the ECHR's understanding of Art. 13 ECHR and "compensation (redress)" in the understanding of Art. 1 of the Protocol 1 are completely different in nature and are aimed at ensuring substantively different convention rights, and therefore require a separate interpretation and mandatory substantiation of the conditions of their application in the domestic law enforcement sphere.