LEGAL NATURE OF THE LOAN TO SUBMIT AN APPLICATION FOR DECLARATION OF THE DECISION OF THE TRETAL COURT

Abstract

Problem setting. The Practice of the Supreme Court shows that the fixed 90-day deadline for filing of application about cancellation of the decision of the court of arbitration should be understood as preclusive (discontinuing). The CPC does not have a rule that would define the General rules of use, the features of calculation and the end of the pre-exclusive terms and does not use such a thing as a preclusive (discontinuing) term.

Analysis of recent researches and publications. The studied problem has been the subject of scientific works of such scientists as V. V. Komarov, K. V. Gusarova, D. D. Luspenyk, N. Yu. Sacary etc.

Article’s main body. The article investigates the role of pre-exclusive terms in civil proceedings in Ukraine. The judicial practice is analyzed, the main features of the pre-exclusive terms are formulated, as well as the features that distinguish them from other procedural terms.

The study of judicial practice provides a basis for the conclusion - the procedural term, which, according to the direct instructions of the Civil procedure code, is not subject to restoration, is preclusive. The rule, which fixes the appropriate period for the Commission of procedural action, should be clearly and clearly set out the consequences of its completion and the impossibility of its restoration. The expiration of the preclusive term ceases to exist the procedural law itself.

A preclusive term is a period of time within which a participant can exercise due process rights, as well as determine the boundaries of the existence of procedural law. With the expiration of the preclusive term, not only the right to commit a procedural action, but the right is lost.

Conclusions and prospects for the development. Thus, as the Civil Procedure Code (CPC) do not contain any provisions which establish the prohibition on restoration of term for filing the application about cancellation of the decision of the arbitral Tribunal, like the terms of appeal and cassation appeal (part 2 of article 358, part 3 of article 394 of the CPC), the courts have no grounds to determine the term specified in part 5 of article 454 of the CPC as preclusive.

Based on the above, we believe that there is an erroneous interpretation and incorrect application of the provisions of part 5, part 7 of article 454 of the CPC by the courts, including the Supreme Court.