Negatory action: some aspects of doctrinal understanding, law enforcement, and legal forecasting

Abstract

The article addresses certain aspects of the Supreme Court’s judicial practice regarding the application of the provisions of Article 391 of the Civil Code of Ukraine. In this regard, attention is focused on determining the claimant and, accordingly, the types of subjective civil rights that are subject to protection; the relationship between a negatory action and challenging decisions of state authorities or local self-government bodies; the issue of the possibility of covering a potential violation of a right that does not exist at the time of filing the claim by a negatory action. In this regard, some provisions of the Draft Civil Code of Ukraine (Private Law Code) (draft laws No. 14394 and No. 14394-1) relating to property rights have been analyzed. It has been substantiated that the broad construction of a negatory action proposed in the Draft Civil Code of Ukraine may contribute to the elimination of ambiguous approaches by forming a unified practice. Provisions of the Draft Civil Code of Ukraine have been identified that may require clarification during further legislative work. Critical consideration is given to certain doctrinal definitions of a negatory action. It is stated that de lege ferenda, there are sufficient grounds for expanding the objects of protection under a negatory action and including possession in it. It is substantiated that the unlawfulness of the defendant’s conduct is a necessary ground for satisfying a negatory action due to the contradiction of such conduct to the provisions of Part 2 of Article 13 and Part 2 of Article 321 of the Civil Code of Ukraine. Negatory action is considered within the framework of relative (obligatory) protective legal relations that arise between the holder of civil right and the wrongdoer and continue to exist in parallel with absolute property legal relations between the holder of civil right and third parties. Definitions of a negatory action de lege lata and de lege ferenda have been formulated.