ANNOTATION
Bondar I. V. The theoretical background of personal non-property legal relations in civilistic process. - The qualifying scientific work on the rights of the manuscript.
The dissertation for the degree of the doctor of legal sciences, speciality 12.00.03 «Civil Law and Civil Procedure; Family Law; International Private Law» (081 - Law).
- Taras Shevchenko National University of Kyiv of the Ministry of Education and Science of Ukraine, Kyiv, 2019. - Taras Shevchenko National University of Kyiv.The thesis work is focused on the comprehensive analysis of realization of personal non-property legal relations in the civilistic process, which should guarantee reliable safeguarding, protection and restoration of these rights. It is in the notary, civil and enforcement processes, together constituting the civilistic process, where the efficiency of the regulation of norms of property rights and the problems faced by individuals exercising their non-property rights manifest themselves. Therefore, the concept of personal non-property legal relations, their structural elements and legal regulation were analyzed from the perspective of their application in the civilistic process.
Thus, the theoretical background of personal non-property legal relations in civilistic process should be understood as a multidimensional category, based on civil and other branch-specific material legal relations, with procedural property and nonproperty relations added, which integrate the features of protection, safeguarding and restoration as well as ensure verification of the efficiency of legislative regulation of non-property relations as well as the fact that significant scope of information is generated to potentially form a basis for improving the relevant legislation and the practice of its application.
It was proposed to introduce a new concept of “mixed personal non-property rights”, considering the fact that current division of personal non-property rights into absolute and relative ones does not meet the civilistic process needs for the appropriate terminology and simplifies the perception of non-property rights, relevant non-property responsibilities and interests, which induce the person to protect, safeguard and seek restoration of violated non-property rights.
Absolute rights must be personified in the procedural branches of legal science and be “transformed” in real cases: when a specific individual whose non-property rights are violated confirms the fact of legal offense, he/she needs to confirm the fact that he/she enjoys relevant rights and has legal relations with a specific counterpart. Significant part of other legal circumstances requires consideration as well: the way a legal offense was conducted, in what conditions, whether the legal offense persists until the case is resolved, what are the results caused by the legal offense, what means should be applied to stop the offense, restore violated rights and compensate material and moral damage caused etc. To duly qualify the infringement of non-property rights, the offender’s personality and behavior are also crucial, in particular his status, whether he/she is vested with authoritative powers, whether he/she requires high professional qualifications, etc. Therefore, the fact of violation of the non-property right can cause the occurrence of new complex property and non-property legal relations that entails the participation of judges, lawyers, and executors in the protection and restoration of this right, i.e. “layering” of new legal relations over the original property right being violated leads to its transformation and makes it mixed.It is reasonable judgment that the provisions of civil law should not be absolutized within the framework of the civilistic process, since the latter relations differ from the civil law relations in terms of their nature, content and tasks performed by officials. Thus, we should recognize a special and important role of the court in the regulation of civil relations and the authority given to the court and its executors to ensure the efficiency of the legal system of Ukraine, protection and restoration of rights of citizens and legal entities. However, even the authorized persons should not cross the line of permissible behavior, regardless of the fact that many violations of persons’ nonproperty rights are difficult to measure, since they are subjective.
Thus, someone can perceive direct “critical” statements addressed to him as an insult, while another person can consider even speaking to him in a raised voice as denigration of his honor, dignity and business reputation. It’s the reason why it is deemed appropriate to include the individual, his perception of certain offenses and conditions of their commission in the basis of non-property rights, as well as the specific relations with other individuals, especially those vested with powers.The thesis work explores problems of realization of personal non-property legal relations in the notarial process, in particular, in notarial procedures of certifying transactions and deeds, certifying and witnessing of indisputable facts, family and inheritance notarial proceedings, etc. It was proposed to create a mandatory notarial form for such deeds as donation agreements, certain legal assistance agreements, agreements on conducting specific trials, agreements on sterilization of an individual, personal papers transfer agreements, since civil law has a rather simplified approach to the form of transactions, in particular, agreements the subject of which is the individuals’ exercising their personal non-property rights, as opposed to the transactions for the realization of their property rights. To ensure duly safeguarding and protection of the rights of minors and the underage children, in particular, when concluding specific deeds, there were defined certain cautions on the obligatory participation of minors and underage children’s during conclusion of agreements on a child’s living with one parent as well as applying special means of recording their consent to witness, etc.
It was determined that in substantive law, in particular in the Civil and Family Codes of Ukraine, which have a significant impact on the notary procedure, the approaches for determining the status of a fourteen-year-old child are not consistent. The State policy on children, in the transitional period of their development, is ambiguous in the matter of granting children the following freedoms: freedom of movement, freedom of choice of residence.
However, a child is not required anything to exercise these freedoms. In this respect, in the regulatory legal acts on the rights of a fourteen-year-old child having his/her own sufficient income, the author suggests granting the child full civil capacity and regulation of the child’s place of residence at the legislative level, since neither parents nor other persons are capable to control and bear responsibility for the child enjoying freedom of movement.The notaries should work out the means for ensuring that a child's right to be heard by parents, by other family members, by officials is actually respected, when matters are personally related to the child and family issues (Part 1, Article 171 of the Family Code). Besides, the notaries shall ensure this mechanism is applied and reproduced in the procedure of their certification of deeds. Thus, 10 year-old children are not yet aware of the notion of a passport, a personal signature and, therefore, the consent given by such child will be difficult to record in the agreement. Thus, it is deemed advisable to perform certification of such an agreement in the presence of witnesses or, alternatively, engage the representatives of the Child Custody & Protection Authorities to record the child’s consent or refusal.
Special attention was given to personal non-property legal relations in the civil process, and it was proposed to clarify the jurisdiction of civil cases arising from personal non-property legal relations; there were disclosed certain problematic aspects of cases’ referral to specific proceedings, when the content of such civil cases contains a dispute about the right, that categorizes these cases as subject to action proceedings etc.
Significant number of findings in this thesis work relates to restoration or compensation of non-property rights by enforcement proceedings. It was revealed that enforcement measures obliging a debtor to take certain actions or to refrain from committing them have several functions: 1) warning function- not to counteract the execution of a judgement; 2) stimulating function - these measures contribute to the implementation of a judgement; 3) enforcement function - enforcement if and when required by law.
The defects of legislation in the field of enforcement of non-property judgements were identified; proposals for improvement of its provisions were formulated. A lot of attention was given to the general and special rules of execution of enforcement proceedings, the principles of the enforcement process, etc.
Keywords: personal non-property legal relations, personal non-property rights, notary, court, executor, notarial process, civil process, enforcement process.