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ZABEZPEČOVACIE OPATRENIA V NOVOM CIVILNOM SPOROVOM PROCESE – VYBRANÉ PROBLÉMY

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Džačár Ľ., Földes R.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2016
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vol. 99
|
issue 6
525 – 554
EN
The Act No. 160/2015 Coll. Civil Dispute Proceedings Code introduces security measure as a completely new institute of the Slovak procedural law. Systematically, it is included among protective instruments whose primary purpose is to support achieving fundamental objectives of the main adversarial proceedings. Extreme brevity of the regulation does, however, raise several serious and troubling ambiguities, and produce unpredictably varying results even in identical case scenarios, as is already evidenced in the practical application thereof by courts of the first instance. This article, therefore, attempts to define the place of security measures in the Slovak legal system and to examine them, particularly, in the context of constitutional limits and distinctive features of similar legal institutes. One of its main intentions is to review admissibility of analogy in gap-filling of the regulation in question, as well as define and analyse the limitations thereof. It also raises imperative questions of functions and effects of the encumbrance created by the security measure. A significant attention is paid to examination whether the regulation provides sufficient level of protection to the rights of other subjects directly affected by such a judicially established encumbrance, particularly other creditors of the debtor, who are not participants in the proceedings. In its final chapter, the article aims to formulate a set of recommendations which – given the present state of the regulation of numerous aspects of security measures, or, more precisely, the lack thereof – should be observed in the decision practice.
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