CONSTRUCTION OF FRAUDULENT ACT IN JUDICIAL AND NOTARY PRACTICE: SEPARATE ASPECTS

Abstract

In the legislation of Ukraine, legal grounds for disputing transactions committed with the aim of concealing property from possible enforcement by the creditor are provided for a small number of feasible cases. Such grounds are provided for in Article 38 of the Law of Ukraine "On the System of Guaranteeing Deposits of Individuals"; part 4 of Article 9 of the Law of Ukraine "On Enforcement Proceedings", as well as Article 42 of the Bankruptcy Procedures Code of Ukraine. At the same time, the practical need to protect the creditor's rights by invalidating the deed, the consequence of which is the debtor's insolvency, goes beyond the defined spheres. Since the Civil Code of Ukraine recognizes the presumption of legality of the deed, clear grounds are needed to recognize its invalidity in court. At first, court practice followed the path of invalidating transactions committed to the detriment of creditors on the grounds of their fictitiousness. At the same time, the legal conclusions formulated regarding the construction of fictitiousness did not always allow to recognize a transaction made with the aim of hiding the property from being imposed on it by a creditor in the future as invalid. Mostly, it occurs due to the actual execution of the deed or lack of evidence of inconsistency of the internal will of the parties with its external manifestation. Finally, the Supreme Court formulated the concept of fraud on the basis of the available tools – Article 6. 3 of the Civil Code of Ukraine (recognition of justice, good faith and reasonableness by the general principles of civil legislation) and Art. 13 of the Civil Code of Ukraine (prohibition of actions to harm others, act to their detriment or otherwise abuse rights). It is worth noting that the concept of fraud is a product of exclusively law enforcement judicial practice. The doctrinal development of the issue is obviously in the future and its transfer to the scientific perspective should contribute to it, including this scientific investigation. The construction of fraud arose in ancient Rome as a response to the desire of debtors to hide their property from the creditor. Initially, the creditor could request an order to take possession of the debtor's property as part of the missio in possessionem bonorum procedure – to monitor and protect it. Subsequently, the rule was approved, according to which in case of alienation of property, which can be levied within the framework of debt relations, both the debtor himself and the person who purchased the property from the debtor were responsible to the creditor. This is how the "Fraus creditorum" rule was formulated. Currently, according to the practice of the Supreme Court, a creditor who is not a party to the transaction can apply for the invalidation of a fraudulent transaction, if he proves that the fact of concluding such a transaction violates his rights and legitimate interests. Fraudulent transactions are unilateral, bilateral and multilateral. The fraudulent component is not limited to binding legal relations, since the division of property between spouses can also be fraudulent – in order to avoid the obligation to answer for debts. In the development of the concept, the Supreme Court formulated two more interesting legal constructions: "use of the right for evil" and use of tools contrary to their purpose. The article also examines the issue of the liability of notaries in the event that the court declares the deed invalid on the grounds of its fraud.