The dissertation identifies the main functions of securing a claim: securing, protective, motivational, preventive, restorative-compensatory, control, and the function of facilitating the fulfillment of the stateʼs international obligations. This contributes to understanding the complex nature of the institution and its significance in civil proceedings, emphasizing its multifaceted nature and importance in ensuring justice. It is highlighted that securing a claim not only protects the interests of the plaintiff but also stimulates the defendant to proper behavior, preventing possible abuses and violations of rights.
A classification of measures to secure a claim is proposed based on various criteria, including the nature of measures (property and non-property), the procedural status of participants, the term of action, the mechanism of implementation, and the nature of legal relations. Such an approach allows for a more precise determination of the conditions and procedures for their application, ensuring a balance of interests between the parties and the effectiveness of judicial protection. This contributes to the systematization of knowledge about measures to secure a claim and facilitates their practical application in judicial practice.
Problems have been identified with the consideration of applications for securing a claim within the established time frame due to the absence of a mechanism for appointing another judge if the previously designated judge is unable to consider the case, particularly due to illness or business trip. It is proposed to amend Article 153 of the Civil Procedure Code of Ukraine (CPC of Ukraine) to provide for the possibility of promptly appointing another judge in such cases. Such changes will ensure timely consideration of applications and observance of the rights of process participants, increase the effectiveness of judicial protection, and prevent delays in judicial proceedings.
Proposals have been developed to improve the requirements for the content of a court order on securing a claim and the obligation of the court to immediately send the order to the relevant persons and bodies for its prompt execution. It is proposed to establish clear standards regarding the details of the order, including indicating all necessary information for its execution. This will contribute to enhancing the effectiveness of judicial protection, ensuring rapid response and real execution of court orders, which is key to achieving the goal of securing a claim.
It is proposed to grant the right to submit an application for the cancellation of measures to secure a claim to persons against whom such measures have been applied but who are not participants in the case. Such an approach will provide additional guarantees for the protection of their rights and lawful interests, correspond to the principles of justice and procedural equality, and allow avoiding unjustified restrictions of the rights of persons not involved in the case but whose rights and interests may be infringed.
It is proposed to expand the possibilities of applying counter-security in favor not only of the defendant but also of other persons whose rights may be violated by measures to secure a claim. It is also recommended to unify the terminology in the CPC of Ukraine by replacing the term "petition" with "application" in the context of counter-security and to establish the same amount of court fees for persons submitting applications for securing a claim and for counter-security. This will promote procedural equality of the parties, simplify procedures, and enhance the effectiveness of protecting the rights of process participants.
Proposals have been made to replace one type of securing a claim with another by transferring the relevant provisions to a special article in the CPC of Ukraine. Such a step will improve the clarity and logic of norms for process participants, enhance the quality of procedural law, and simplify procedures for practical application. This will ensure more transparent and effective legal regulation of the process of replacing measures to secure a claim.
