ON ADVISABILITY OF SUPPLEMENT OF PART 2 OF ARTICLE 76 OF CIVIL PROCEDURAL CODE OF UKRAINE

Abstract

The analysis of content of the provision “novation”, enshrined in Part 2 of Art. 76 of the Civil Procedural Code of Ukraine (hereinafter – CPC of Ukraine), according to which the features of determining the damage caused by the withdrawal of the bank from the market or liquidation of bank on the basis of illegal individual acts of National Bank of Ukraine, Deposit Guarantee Fund of Individuals, Ministry of Finance of Ukraine, National Commission on Securities and Stock Market, decisions of the Cabinet of Ministers of Ukraine to persons, which on the date of adoption of such individual acts or decisions, respectively, had the status of members of such a bank, are established by the Law of Ukraine “On Banks and Banking” and the Law of Ukraine “On Deposit Guarantee System of Individuals”. Given the established traditions of formation and location of provisions in CPC of Ukraine, doubts about the consolidation of this provision in the CPC of Ukraine in general, and in Part 2 of Art. 76 in particular, were expressed. It is alleged that cases of this category are a type of damages cases that are considered and decided by courts in civil proceedings. Traditionally, the civil procedural law does not contain any provision that regulate the specifics of determining the damage caused to a person or the state in different ways. Thus, it seems logical to arise critical considerations about the relevancy to allocate this category of cases with reference to legislation that contains specific provisions for the regulation of this area of public relations. Inconsistency of this novation with the general ideology of Art. 76 CPC of Ukraine “Evidence”, part one of which contains the definition of “evidence”, and part 2 – a list of means of proof that can be used by concerned parties to confirm or refute the circumstances (facts). The main thing in analyzed novation is to focus on laws that contain provisions that express the specifics of determining the damage in cases of this category/ In addition, analysis of the Laws of Ukraine “On Banks and Banking” and “On Deposit Guarantee System for Individuals” suggests that specifics of compensation for such damage consists not only of structural elements of proof mechanism.