Selecting a proper methods of land protection: certain problems
In the field of land law science, the category of protection of land rights is investigated, including through the system of its methods. Determining how to protect land law through a conditional legal model allows us to trace the entire substantive component of protection, the totality of substantive legal actions that can and must be carried out within this model to achieve the challenges facing protection. Such a definition also enables the tracking of the activity of the subjects of material legal relations or state bodies and their consequences regardless of the stages of the judicial process up to the actual implementation of the decision of the judicial body (real protection of the infringed right), and not only at the stage of its appeal to the person. The current legislation provides for different types of land rights protection.
The purpose of the article is a scientific and legal analysis of the Supreme Court’s current practice in terms of the conformity of the chosen methods of protecting land rights to the substance of the land dispute. The task is to find out, scientifically, the direct effect of the chosen method of defense on the form of court proceedings and the outcome of the case.
The question of the need to choose the right way to protect land rights has been repeatedly raised in the science of land law by such scientists as A. Miroshnichenko, Yu. Miagkohod, T. Tretyak and others. A. Miroshnichenko in particular, notes that when deciding whether to initiate proceedings in any court case, it is necessary to ascertain whether the method of defense chosen by the plaintiff will lead to the protection of its infringed right. If the answer to this question is negative - the case is not subject to civil (economic) judicial proceedings, the proceedings should not be instituted for the same reasons: the case is not to be considered in court.
Obviously, this conclusion also applies to administrative proceedings today. This is confirmed by the position expressed by the Supreme Court in its Resolution of September 4, 2018 in Case No. 823/2042/16. It should be noted the positive tendency of the Supreme Court to understand the nature of the legal relationship in which the land law was violated. In the above case, the Court substantiated and made the above decision to depart from the legal position of the Grand Chamber of the Supreme Court.
In the present case, the plaintiff erred in the offense against himself, erred in choosing a way to protect his violated right to lease the land, and accordingly erred in choosing a form of defense. According to Art. 16 of the Civil Code he chose paragraph 10) the recognition of illegal decisions, acts or omissions of public authorities, bodies of local self-government and their officials. An appropriate way of protection in this case would be to recognize the right to lease the land to the claimant. In our view, from the point of view of practical expediency in such disputes, it is necessary to lay a claim using several methods of defense at once. Such jurisprudence is quite common.
Kyyiv [in Ukrainian].
Miroshnychenko, A.M. (2011) Obrannya nalezhnoho sposobu zakhystu prav na zemelʹni dilyanky. Advokat. 1(124) [in Ukrainian].
http://reyestr.court.gov.ua/Review/77969515 [in Ukrainian].
Tretyak, T.O. (2016). Vyznannya nezakonnymy rishenʹ, diy chy bezdiyalʹnosti orhaniv vykonavchoyi vlady chy orhaniv mistsevoho samovryaduvannya yak sposib zakhystu prava vlasnosti chy prava zemlekorystuvannya. Ekolohichne pravo Ukrayiny. Naukovopraktychnyy zhurnal. 1-2 [in Ukrainian].
Miroshnychenko, A.M. Pravovi naslidky nezakonnykh administratyvnykh aktiv. URL: http://www.amm.org.ua/images/stories/Land_Law_Metarials/Miroshnychenko_Validity_of_administrative_acts.doc [in Ukrainian].
URL: http://reyestr.court.gov.ua/Review/74266482 [in Ukrainian].
URL: http://www.reyestr.court.gov.ua/Review/75099748 [in Ukrainian].