The Code of Civil Proceedings of Ukraine and Commercial Procedure Code of Ukraine contain provisions that concern preventative measures, which may be implemented prior to the filing of a claim based on the court ruling.
Thus, provisions of the Code of Civil Proceedings of Ukraine specify grounds for securing of a claim. In particular, under Article 151 of this Code, a court, based on a request of the persons taking part in the case, may take measures securing a claim. An application for measures securing a claim must specify:
- reasons, in connection with it are necessary to secure a claim;
- type of security of a claim that needs be applied, fully justified;
- other information needed to secure a claim.
Securing a claim is allowed at any stage of consideration of a case, provided that non-application of claim security measures may complicate or make impossible to implement a decision of a court.
Based on request by a person concerned, a court may secure a claim prior to the submission of a claim application to prevent a violation of the intellectual property right. A request to secure a claim must be accompanied by documents and other evidence, which should verify that a particular person in question is the subject of the intellectual property right in question and that his/her rights may be infringed upon in the case of a failure to apply measures aimed to secure a claim. Along with the request, its copies must be submitted in accordance with the number of the persons with respect to which the measures to secure a claim are requested.
In the event of submission of a request/application to secure a claim prior to the submission of a claim application/statement, a claimant is required to submit a relevant claim application within ten days following the day of issuance of a ruling to secure the claim.
Article 152 of this Code specifies categories of securing a claim and a list of objects to which measures to ensure a claim may not be applied. A claim shall be secured:
- by levying on the property or monetary assets that belong to the respondent and are in possession of the respondent or other persons;
- by prohibition to carry out certain actions;
- by establishing an obligation to carry out particular actions;
- by prohibiting other persons to make payments or transfer property to the respondent or to fulfil other obligations relating to the property in question;
- by terminating the selling of the levied property, if a claim to the ownership right to this property or a request to exclude it from the levy was filed;
- by terminating the seizing on the basis of the executive document which is appealed by the debtor in court;
- by transferring an article which is an object of a dispute for safekeeping to other persons.
In the event of necessity the court may apply other types of securing a claim. A court may use several types of securing a claim at the same time.
It shall not be allowed to secure a claim by way of imposing a levy on wages, pensions or stipends, general government mandatory social security benefits, which are paid in connection with temporary disability (including care of a sick child), pregnancy and baby delivery, care for a child until the child is three years of age, benefits paid by mutual security associations, by charitable organizations, as well as to severance pay or unemployment benefits. This requirement does not apply to a claim to collect alimony, concerning compensation for a damage caused by disability, other injuries to health or death of a natural person, compensation of losses caused by a crime.
Article 153 of this Code sets forth a procedure for consideration of the application requesting to secure a claim, implementation of a ruling to secure a claim. An application requesting to secure a claim shall be considered by the court which administers the case, on the day of its receipt without notifying the respondent and other persons taking part in the case.
An application requesting to secure a claim, filed prior to the submission of a claim application/statement, shall be considered by the court not later than two days following the day of its submission. In the event of substantiated requirements of the claimant the application to secure a claim, filed prior to the submission of a claim statement, shall be considered only in his presence without notifying a person with respect to which measures to secure the claim are requested.
A court, considering an application requesting to secure a claim, filed prior to the submission a claim statement, may demand from the claimant to submit additional documents and other evidence supporting the need to secure a claim.
A court, when allowing for securing a claim, may demand from the claimant to support the demands of the latter with a security deposit sufficient to prevent abuse of securing a claim, which must be transferred to a deposit account of the court. The amount of the security shall be specified by the court taking into account the circumstances of the case, but this amount may not be larger than the amount of the claim.
A court issues a ruling regarding application of measures to secure a claim, in which it shall specify the type of securing the claim and circumstances of the choice, a procedure for implementation, amount of the security deposit, if such a deposit was ordered. A copy of the ruling shall be sent to the claimant and interested persons immediately after its implementation.
Depending on the circumstances of the case, a court may secure a claim in full or in part.
In the event of issuance of a ruling without notifying a person concerning whom measures securing a claim are requested, a copy of the ruling shall be sent to the person with respect to whom measures securing a claim were taken, immediately after the implementation.
A court, having established that an application requesting to secure a claim was filed in violation of requirements of Article 151 of this Code, shall return it to the claimant, issuing a ruling to that effect.
A ruling to secure a claim shall be implemented immediately in accordance with procedures established for implementation of court decisions. In the event of supporting demands of the claimant with a security, the ruling to secure a claim shall be implemented immediately after the security deposit is provided in full.
Appealing of the ruling to secure a claim shall not terminate its implementation, and shall not prevent further consideration of the case.
Appealing the ruling to cancel securing a claim or to replace one type of security with another will lead to suspension of implementation of this ruling.
Individuals responsible for violation of measures to secure a claim shall be held responsible in accordance with legislation.
Article 154 of this Code sets forth a procedure for changing ways of securing a claim or cancelling measures to secure a claim. A court may, based on the request of one of the parties and taking into consideration explanations of another party, to change one method of securing a claim to another. An application requesting a change in the way of securing a claim shall be considered by the court within the period specified by Article 153 of this Code. To change the type of securing a claim based on the request of the respondent, consent of the claimant shall be required, except for the case specified in part two of this Article.
In the event a claim is secured to seize monetary assets, the respondent may, upon permission of the court, deposit the amount specified in the claim statement, instead of the allowed type of security, to a deposit account of the court.
Measures to secure a claim may be repealed by the court administering the case.
A person with respect to whom measures to secure a claim were applied without notification of this person, within ten days after the day of receipt of the copy of the ruling may submit to the court an application requesting their cancellation, which shall be considered by the court within two days.
The issue of termination of measures securing a claim shall be considered at a court session and with notification of the persons taking part in the case. Absence of such persons shall not prevent consideration of the issue of measures to secure a claim.
If a claim was rejected, proceedings in the case closed or the application left without further consideration, the measures applied to secure a claim shall be effective until the decision of the court takes effect. However, the court may simultaneously with passing the court decision or after it, issue a ruling concerning revocation of measures securing a claim.
Measures securing a claim, applied by the court prior to the submission of a claim statement, shall be also cancelled by the court in the event of:
- the claimant failing to submit a relevant claim application in accordance with requirements of Article 151 of this Code;
- returning of a claim statement;
- refusal to initiate proceedings in the case.
Article 155 of this Code sets forth a procedure for compensation for losses, caused by securing a claim, and for returning the item held as security. In the event of revocation of measures securing a claim, taking an effect of the decision to reject a claim or passage of a ruling to close proceedings in the case or to leave the application without consideration, a person with respect to whom measures securing a claim were taken, has the right to a compensation for losses caused by the securing of the claim.
In the case of the claimant's providing a security, the compensation for losses caused by the securing of the claim shall be covered, first of all, at the expense of the item provided as security.
An item provided as security shall be returned to the claimant if no claim to compensate for losses is filed within two months after occurrence of circumstances specified in part one of this Article. An item provided as security shall also be returned to the claimant if a decision of a court to satisfy a claim took effect, or if the parties have settled the case.
The Commercial Procedural Code of Ukraine contains the following provisions concerning application of preventative measures:
Article 431 - Grounds for application of preventative measures
A person who has reasons to be concerned that submission of necessary evidence may later become complicated or impossible, as well as reasons to believe that the rights of this person are infringed upon or that there is a real threat of such infringement, has the right to file with a commercial court an application requesting application of preventative measures prior to the submission of the claim.
Article 432 - Categories of preventative measures
Preventative measures include:
- demands to produce evidence;
- examination of premises in which activities relating to violation of the rights are taking place;
- levying on the property that belongs to a person with respect to whom preventative measures have been taken, and is in possession of that person or of other persons.
Article 433 - An application requesting application of preventative measures
An application requesting application of preventative measures shall specify:
- the name of the commercial court to which the application has been filed;
- the name of the claimant and the person with respect to whom preventative measures are requested, their postal addresses; documents that verify that the claimant has the status of the small business person;
- type and substance of the preventative measure;
- circumstances which the claimant refers to when substantiating the need to apply preventative measures;
- a list of documents and other proofs attached to the application;
- signature of the claimant or his representative, if the application is submitted by the representative.
An application requesting application of preventative measures shall have attached to it the documents which verify payment of the state duty in the amounts specified by law and in accordance with the established procedure. Together with the application for preventative measures there shall be filed the copies of this application proportionate to the number of persons with respect to which preventative measures are requested.
A claimant is required to submit a relevant claim during ten days following the day of issue of the ruling concerning application of preventative measures. After the submission by the claimant of the claim statement, preventative measures shall apply as measures to secure the claim.
Article 434 - Procedure for consideration of an application requesting application of preventative measures
An application requesting application of preventative measures shall be considered not later than two days following the day its submission by the commercial court in the area of jurisdiction of which necessary proceedings shall be carried out, with notification of interested persons. However, failure to appear in court does not prevent consideration of the application.
In the event of substantiated demands of a claimant, an application requesting application of preventative measures shall be considered only on the basis of his/her participation without notifying a person with respect to which application of preventative measures is requested.
A commercial court has the right to demand the claimant to add to the application any available proof of violation or threat of violation of his/her rights.
A commercial court may require a claimant to secure his claims by the collateral sufficient to prevent abuse of preventative measures, which need be deposited with the commercial court. The amount of the collateral shall be specified by the commercial court taking into account the circumstances of the case and may not be greater than the size of the claimed damage.
As regards application of preventative measures, the commercial court shall issue a ruling specifying selected preventative measures, grounds for choosing such measures, a procedure and ways of implementation, amount of the collateral, if such collateral was ordered. Copies of the ruling shall be sent to the claimant and to the person with respect to whom preventative measures have been applied, immediately after its issue. In the event of the issue of the ruling with participation of the claimant without notifying the person with respect to whom application of preventative measures is requested, a copy of the ruling shall be sent to the person with respect to whom preventative measures are taken, immediately after its implementation.
In the event of absence of the grounds specified by Article 431 of this Code, as well as a failure to meet requirements established by this Article, the commercial court shall issue a ruling denying satisfaction of the application requesting application of preventative measures.
Article 435 - Effects of submission of a request concerning application of preventative measures which does not meet the requirements of the law
A judge, having established that the application requesting preventative measures has been submitted in violation of requirements specified in Article 433 of this Code, or that the State duty has not been paid, shall issue a ruling to deny the application further consideration, which must be notified to the claimant, who is then also given a period of time to eliminate deficiencies.
When a claimant in accordance with instructions of the judge within the established period fails to meet all of the specified requirements in Article 433 of this Code and fails to pay the State duty, the application shall be considered as if it had not been submitted, and then it shall be returned to the claimant, based on the justified ruling to that effect issued by the judge.
Article 436 - Implementation of the ruling concerning application of preventative measures
The ruling concerning application of preventative measures shall be implemented immediately in accordance with procedures established for implementation of judicial decisions.
In the event of supporting demands of a claimant by the collateral, the ruling concerning application of preventative measures shall be implemented immediately after the collateral is submitted in full.
Article 437 - Revocation of the ruling concerning application of preventative measures
Regarding a ruling concerning application of preventative measures, issued with participation of the claimant without notifying the person with respect to whom preventative measures are applied, the latter, within ten days following the day of the receipt of a copy of the ruling, may submit an application requesting its revocation.
Submission of an application concerning revocation of the ruling concerning application of preventative measures shall not lead to termination of implementation of the ruling concerning application of preventative measures.
An application concerning revocation of application of preventative measures shall be considered within three days by the commercial court which issued the ruling concerning their application. Failure of the interested persons to appear in court shall not prevent consideration of the application.
Based on the results of the consideration of an application, the commercial court shall issue a ruling to leave unchanged the ruling concerning application of preventative measures, or to change or repeal it.
Article 438 - Appealing rulings concerning application of preventative measures
With respect to the ruling concerning application of preventative measures, a ruling to reject an application requesting preventative measures, as well as with respect to the ruling to leave unchanged the ruling concerning application of preventative measures or its change or cancellation, an appeal/complaint may be filed.
Submission of an appeal against a ruling on application of preventative measures shall not lead to termination of implementation of the ruling in question. Submission of an appeal complaint against a ruling concerning revocation of preventative measures or their change shall terminate implementation of the ruling in question.
Article 439 - Termination of preventative measures
Preventative measures shall be terminated in the event of:
- claimant's failure to submit a relevant claim within the period specified in part three of Article 433 of this Code;
- refusal of the commercial court to accept a claim application for reasons specified in part one of Article 62 of this Code;
- claimant's failure to meet the requirements specified by Article 63 of this Code;
- issuance by the commercial court of the ruling concerning revocation of the ruling concerning application of preventative measures.
Article 4310 - Compensation for the damage caused by the application of preventative measures
In the event of termination of preventative measures or in case of the claimant's withdrawing his claim, or if a decision concerning rejection of the claim takes effect, the person concerning whom preventative measures have been taken has the right to a compensation for the damage caused by the application of these measures.
In the event of claimant's submitting collateral, compensation for the damage caused by the application of preventative measures, first of all, shall be carried out at the expense of this pledge.
Collaterals shall be returned to a claimant in full if the commercial court satisfies a claim of the claimant, or if the respondent has admitted the claim, or if the commercial court has approved the settlement between the parties.
Besides, this Code contains provisions concerning the securing of a claim (Section Х):
Article 66 - Grounds for securing a claim
A commercial court basing itself on the request of the parties, prosecutor or his deputy, who filed a claim, or on its own initiative, may take measures to secure a claim. Securing a claim shall be allowed at any stage of proceedings in the case where non-application of such measures may complicate or make impossible the implementation of a decision of a commercial court.
Article 67 - Measures aimed to secure a claim
A claim shall be secured by:
- levying on the property or monetary assets that belong to the respondent;
- a prohibition for the respondent to carry out particular actions;
- a prohibition to other persons to take steps relating to the subject of the dispute;
- termination of the seizing on the basis of the executive document or other document under which the seizing is to be carried out irrevocably.
To secure a claim, a ruling shall be issued.
Article 68 - Repealing security of a claim
The issue concerning revocation of the security of a claim shall be decided by the commercial court which considers the case, with this being indicated in the decision or ruling.
The Code of Administrative Judicial Proceedings of Ukraine contains the following provisions concerning measures to secure a claim:
Article 117 - Securing the administrative claim
A court, basing itself on the request of the claimant or acting on its own initiative, may pass a ruling concerning application of measures to secure the administrative claim, if there is an imminent threat of damage to the rights, freedom and interests of the claimant prior to the approval of a decision in the administrative case, or if protection of these rights, freedom and interests will become impossible unless such measures are applied, or if for restoring such rights and freedom extraordinary efforts and costs will be required, as well as if there are obvious signs of unlawfulness of the decision, action or omission of the authority.
A ruling concerning application of measures to secure the administrative claim may be passed by a court of first instance, and if appeal proceedings have been initiated, such ruling may be issued by a court of appeals.
Submission of an administrative claim, as well as initiation of proceedings in an administrative case shall not terminate application of the disputed decision of the authority. However, a court, in order to secure the administrative claim, may terminate, by issuing an applicable ruling, a decision of the authority or particular provisions of that decisions which are being appealed. The ruling shall be immediately sent to the authority in question which passed that decision and shall be mandatory for implementation.
It shall not be allowed to secure a claim by way of revocation of decisions of the National Bank of Ukraine which concern appointments and temporary administration or liquidation of a bank, prohibition for a temporary administrator to carry particular activities, a prohibition for a bank liquidator or the National Bank of Ukraine when carrying out provisional administration or liquidation of a bank.
Article 118 - Procedure for securing the administrative claim
A plea requesting to secure the administrative claim shall be considered not later than on the next day after its receipt and in well-grounded and urgent cases it shall be acted upon immediately by means of a ruling without notifying the respondent and other persons taking part in the case.
A respondent or other person taking part in the case may file at any time a plea requesting to replace one way of securing the administrative claim by another or requesting cancellation of measures taken to secure the administrative claim. Such a plea shall be considered not later than on the next day after its receipt and in well-grounded and urgent cases it shall be acted upon immediately by means of a ruling without notifying the respondent and other persons taking part in the case.
Issues concerning securing administrative claims, changing one method of securing an administrative claim with another, other issues concerning revocation of measures aimed to secure administrative claims, except for cases established in parts one and two of this Article, shall be decided in court session with notification of the persons taking part in the case. Failure to attend a court session of the persons who were properly notified, shall not prevent consideration of such issues.
If demands of the claimant were rejected, the measures applied to secure the administrative claim shall stay in effect until the decision of the court becomes effective. Notwithstanding this, a court may, simultaneously with the passage of the ruling or after such passage, issue a ruling concerning revocation of measures to secure the administrative claim or replacing one method of securing the administrative claim by another method.
Implementation of the rulings concerning issues relating to securing administrative claims shall be ensured immediately in accordance with procedures established by law for implementation of decisions passed by judicial bodies.
A ruling for issues to secure the administration of a claim may be appealed. Appeal of the ruling shall not lead to termination of implementation of the ruling; neither shall it prevent further consideration of the case.
Preventative measures include examination of premises in which activities relating to violations of the rights take place, and levying on the property that belongs to the person with respect to whom preventative measures have been applied.
A demand of a claimant concerning application of preventative measures may be secured by the collateral the amount of which shall be specified by the court.