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First of all, it is necessary to pay attention to the fundamental difference between civil law and other branches. If we take into account the history of the development of law and legal science in general, it will not be an exaggeration to claim that the civil law itself became the foundation for the formation of the law – from Roman private law to its reception (lat. reception – "borrowing") by modernity. It is in civil law that the least expressed by definition (unlike, say, criminal or administrative) the principle of publicity, under the hypertrophied status of which the citizen's right to privacy, incl. private property is extremely limited or absent at all, on the other hand, the scope of duties is enormous, and their fulfillment is formally ensured by the application of the strictest sanctionsand petty bureaucratic prescriptions ( USSR, North Korea, China).
Civil disputes (real estate, damages)
Dispositivity is characteristic of private law (lat. dispositivus — "he who disposes", dispono "" "I arrange, I rule")– not only as a principle of judicial procedure, but also as a reflection of the level of legal culture of the population and the real driving force of self-organization. Even if there are gaps in the legislation and, accordingly, the simplification of the judicial procedure itself, the level of compliance with laws in the countries of the European Community is much higher than ours. It is no accident that the very number of ancient Roman terms in modern civil law clearly testifies to the predominance of general, "eternal" principles of morality in the range of possible behavior of subjects in the legal field over some artificial prohibitions: justice – aequitas, good conscience – bona fides, public benefit – utilitas, public duty – officium, Ipso iure – "act on the basis of law", Ius est ars boni et aequi – "law is the science of goodness and justice".
The essence of dispositive is the possibility of interested persons freely applying to court for protection of violated rights or interests protected by law (Article 55 of the Constitution of Ukraine). A whole chapter is dedicated to him in the CPKU from 03/18/2004 – Chapter 12 "Dispositiveness and limits of judicial proceedings". And in general – You may not be an entrepreneur or civil servant, may not participate in elections, or even more so may never commit a crime, but everyone faces civil law hundreds of times in their lives – acquiring civil legal capacity, buying or selling goods or housing, concluding even an oral contract, etc.
Each person participating in the case disposes of his rights regarding the subject of the dispute at his own discretion (Part 2 of Article 11 of the Civil Code). The court should not, as it was before, perform the role of "investigator"; in civil cases, but should only organize the process and manage it in accordance with its functions. How can we not mention the brilliant ancient Roman saying: "Literacy is below the dignity of a judge" (Aucupia verborum sunt iudice sndigna).Refusal to accept an application for court proceedings with reference to the norms of material law is inadmissible, and to refuse to satisfy an illegal demand is possible only after considering the merits of the case. The lists of reasons for refusing to accept a claim or closing proceedings in a case are exhaustive.
It is practically impossible to limit the number of situations and cases in civil proceedings in which dispositivity is manifested, but the most important novelties of the current TsPKU are as follows:
concluding in the course of the trial and under the control of the court through mutual concessions of the parties a settlement agreement, which entails the closure of the proceedings in the case, excludes the possibility of repeated appeals to the court for the same dispute, between the same parties and on the same grounds (art. 228 of the Civil Code).
Extremely low level of understanding of the essence of the contract and psychological unwillingness to make concessions, to negotiate, the global mistrust prevailing in the public consciousness, unfortunately, are also negatively reflected in the lack of proper practice of applying the settlement agreement by the courts. While the Vienna Convention on the Law of International Treaties of 1969 emphasizes the exceptional importance of the treaty in general as a source of international law and a means of developing peaceful cooperation between nations. Frequent cases of improper clarification by the court of the consequences of concluding a settlement agreement, as well as approval of its terms in violation of the interests of one of the parties, cause the cancellation of such decisions. Similarly, mediation (lat. mediatio – "mediation"", "sulphur""melon path") as an alternative to judicial peaceful practice of settling disputes.
Unfortunately, judicial practice regarding the definition of moral damage and its amount in material equivalent, as well as the actual receipt of these compensations in Ukraine is contradictory and is only in the formative stage. In some cases, the courts satisfy claims for compensation of moral damages automatically when the main requirements are met (Article 23, Part 1 of Article 1167 of the CCU). In others, they remain unsatisfied for the following reasons: they are not based on either the law or the contract(Article 611 of the Civil Code); for contractual relations - lack of proof of violation by the defendant of the rights and legally protected interests of the plaintiff or infliction of mental suffering on him.
Among the cases that are decided by the courts of general jurisdiction in the civil procedure, it is not by chance that the palm of primacy is held by cases related to property disputes, especially regarding real estate. For lawsuits arising in connection with the protection of ownership rights and other real rights to immovable property, exclusive jurisdiction applies (Part 1 of Article 114 of the Civil Code) - at the location of the property or its main part. It is also necessary to take into account the date of entry into force of the new CCU - from January 1, 2004 – which affects the possibility of applying Art. 344 of the Civil Code for recognition by the court of ownership of immovable property by statute of limitations.
Such claims include, in particular, claims about:
recognition of the right to property;
about claiming property from someone else's illegal possession;
on removing obstacles in exercising the right to use and dispose of property;
on establishing easement (certain restrictions on use);
exclusion of property from seizure; recognition of the deed as invalid (regardless of the presence of the claimant's demand to apply the consequences of invalidity of the deed – the most difficult category of cases), etc.
Unfortunately, not the least among the causes of such lawsuits are the opaque procedures for conducting public auctions, at which private real estate is offered by the State Executive Service (SES) at extremely low prices, which sometimes do not correspond to the real value of the property. as well as fraudulent manipulations by unscrupulous employees of notaries, banking institutions or housing and communal services. So, before participating in public auctions, study the documents in detail to protect yourself from negative consequences.
The institution of compensation for damage is also actively involved in civil proceedings, even if it does not perform an independent function, such as the institutions of property, contract or inheritance, and the restorative function performed by it, which ensures the return of the property of the victim to the previous one, which existed before the offense (restitution – lat. restitution – "return"), in our society, is obviously almost the most important. Obligations to compensate for damage also owe their origin to the Romans, so they are traditionally called delict (lat. delictum - "offense"). Legal regulation of the obligation is carried out by Chapter 82 of the Central Criminal Code, in particular, the mandatory basis of tortious liability – the illegality of the behavior of the person causing the damage (Part 1 of Article 1166 of the Civil Code).
Obligations caused by "sources of increased danger" stand out separately in this series. (Article 1187 of the Civil Code – their list is not exhaustive), among which the largest percentage of cases is the activity with the use of vehicles (vehicles) in the case of their use for their intended purpose, which by law creates danger for both the driver and others persons Consideration of cases on claims for compensation for damage caused by a source of increased danger is regulated, in addition to the codes, by the Law "On Road Traffic", "On Insurance", "On Mandatory Civil Liability Insurance of Land Vehicle Owners" and Traffic Rules (TDR).
The person who caused the damage is released from the obligation to compensate for the damage, if he proves that the damage was caused by force majeure or the intention of the victim (Part 5 of Article 1187, Clause 1 Part 2 of Article 1167 of the CCU).
One of the most stable forms of securing property interests and a reliable institution for guaranteeing their renewal has always been insurance in the civilized world (Chapter 67 of Section III (Articles 979-099) of the Central Criminal Code). According to Art. 21 of the Law "On compulsory civil liability insurance of owners of land vehicles" dated July 1, 2004 No. 1961-IV, the operation of motor vehicles is prohibited without a compulsory insurance policy, which is a peculiar form of concluding this type of contract. Therefore, before considering disputes about compensation for damage caused as a result of a road accident, the court has the right to
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