PROBLEM ISSUES OF COMPETITION OF CLAIMS ON SUBSTANTIAL AND BINDING WAYS OF PROTECTION OF LAW

Abstract

Abstract. This article is dedicated to the scientific study of the topical issue of the applicability of legal mechanisms of rem-legal and mandatory protection in case of violation of property or other property rights. In particular, the security and legal aspect of the protection of the nominal owner of a thing in case of its removal from him and its discovery by a third party is interesting and causes scientific disputes and controversies in the field of law enforcement. Classically, it was considered that the owner has the right to reclaim his property by filing an appropriate claim for its claim. At the same time, when the alienation agreement in relation to this thing had certain defects of the law (for example, lack of authority on the part of the transferor), the current legislation provides for the possibility of declaring the deed invalid, and the legal consequence of such a decision is restitution – the return of property. One cannot help but see that quite often (for example, when the acquirer has a complete package of objections against vindication, provided for in Article 388 of the Civil Code of Ukraine), the use of different methods of protection gives the exact opposite effect. Since the Ukrainian courts applied one or the other rule as a priority (mainly, taking into account the respectability of the person whose right was being defended), the issue became very urgent, and its solution became urgent. Currently, there is an established judicial paradigm, confirmed by the Supreme Court, according to which, in such cases of violation of property rights, the restitution method should practically not be applied, protection occurs only with the help of a vindication mechanism. The author does not agree with the categorical nature of this approach, since it is not based on current civil law: it allows any means of protection. Both methods are analyzed in detail in the work, and it is proved that vindication is more expedient, because it mediates the relationship between the real violator (that is, the one who owns someone else’s thing without title) and the victim (a person who considers himself the owner). If, during consideration of such a claim, it turns out that the acquirer received ownership at the time of handing over the thing to him (according to the rule of Article 330 of the Civil Code of Ukraine), the claim will be rejected precisely because the claimant does not have the right for which he applied for protection. And this circumstance should be decisive when considering a lawsuit to declare the deed invalid. If it is legally established, there will be no difference in the application of two different methods of protection of the violated right.