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DŽAČÁR,
Ľ. – FÖLDEŠ, R.: Security measures in new civil dispute proceedings – selected
problems.
Právny obzor, 99,
2016, č. 6, s. 525 – 554.
Abstract.
Security measures in new civil dispute proceedings – selected problems. 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. 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.
Key words:
security measures, civil dispute proceeding, procedural-law encumbrance, effects
of encumbrance, analogy in law, protection of fundamental rights
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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