Storage of things that are disputed between persons according to judge decision: civil legal aspect
Journal Title: Правова позиція - Year 2018, Vol 2, Issue
Abstract
The article is devoted to consideration specificity of establishment legal civil relationships of storage things that is subject of the dispute on basis of court’s decision. The author determines that storage of things that is subject of the dispute between persons (from Latin “sequestrum”) was known in Roman law as one of guarantee means that ensured interests of parties to legal conflict providing safety of such things. According to traditional sequestration construct two or more persons – parties to legal conflict concluded appropriate contract passing thing to intermediator-keeper who undertook to return it to trial’s winner. The author’s attention is especially invited to modern legal construct of sequestration in particular to establishment storage relationships on the basis of judgment. According to article 976 Civil Code of Ukraine things that is subject of the dispute between persons can be pass for storage on the basis of judgment. In addition storage of things that is subject of the dispute between persons determines by Civil Procedural Code of Ukraine as a legal mean ensuring judgment. But lack of necessary legal instruments for providing effective usage of appropriate mean is demonstrated by decisions of courts that refuse to satisfy requirements of claimants to use such an ensuring mean. That shows that judges shun risks of breaking law refusing to resort to actions that are not regulated properly by legislation. Courts participation in legal mechanism of sequestration establishment determines possibility of existence two main models: 1) sequestration establishment directly from court’s decision; 2) sequestration establishment from actions of bailiffs based on court’s decision. Here it should be understand that court has no possibility to pass directly thing that is subject of the dispute for storage because has no access to such a thing. As is known bailiffs empowered to comply with a judgment. That’s why case law in appropriate sphere formed by decisions of not many courts that ruled in favor claimants requirements to use sequestration as a mean of ensuring judgment show embodiment of both mentioned legal models. In some cases courts decide to pass thing that is subject of the dispute to state bailiff for storage. Taking in to account civil legal nature of storage relationships legal connection between court and bailiff related to storage looks controversial. Such relationships show signs of public legal relationships. But in other cases courts decides to pass thing that is subject of the dispute for storage to persons that have no interest in trial’s result. In those cases bailiffs concludes the storage treaty with appropriate person. Despite of above-mentioned obvious that current legislation needs improvement, because in actual version it unable to satisfy requirements of courts and claimants in effective usage such mean of ensuring parties to legal conflict as storage things that is subject of the dispute
Authors and Affiliations
К. В. Ступницький
Keywords
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