EFFECTIVENESS OR APPROPRIATENESS OF THE REMEDY?
DOI:
https://doi.org/10.17721/1728-2195/2023/2.126-3Abstract
Background. Article 5(2) of the Code of Civil Procedure of Ukraine and Article 5(2) of the Code of Economic Procedure of Ukraine cause academic discussions and challenges in case law. In particular, they may be a reason for dismissing a claim if the court believes that the remedy chosen by the plaintiff to protect the violated civil right is not effective. However, the analysis of other provisions of Ukrainian law, as well as the understanding of the concept of effectiveness, raise doubts as to whether the court should analyse the effectiveness of the remedy chosen by the plaintiff. Therefore, the purpose of this article is to answer the question: should the court assess the effectiveness of the remedy or its appropriateness? In connection with this task, the study aims to analyze the concepts of appropriateness and effectiveness of remedies for the protection of violated rights.
Methods. To achieve the purpose of the study, the author used the following methods: formal and logical, dialectical, and comparative.
Results. The concept of "method of defense determined by law or contract" applied in Ukrainian legislation and its understanding in the doctrine and case law is studied. The categories of "effectiveness" and "appropriateness of the remedy" are analyzed.
Conclusions. An effective remedy is one provided for by law or contract, or one that is not provided for by law or contract, but does not contradict the law, and which, in the opinion of the person whose right has been violated, is in his or her interests. A proper remedy is a remedy provided for by law or contract or not contrary to law, and which can be applied to protect the violated right based on the actual circumstances of the case. Any effective remedy is appropriate, however, not every appropriate remedy is effective. Appropriateness is an objective category, so it can be assessed not only by the subject of the relevant rights, but also by the court. Effectiveness is a subjective category, so it can be assessed only by the subject of the relevant rights, and should not be assessed by the court. Implementation of this idea requires amendments to the Code of Civil Procedure and the Code of Economic Procedure of Ukraine.
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