Yearly journal of scientific articles “Pravova derzhava”
Volume 34 (2023), 457-465 p.
Venetska Maryna. Securing obligations in the Concept of updating the Civil Code of Ukraine
The article is devoted to issues of legal regulation of the institution of securing of obligations in the civil legislation of Ukraine and the analysis of proposals for it simprovement in the Concept of updating the Civil Code of Ukraine.
A critical analysis of the proposed changes to the current legislation was carried out and the need to take into account the needs of civilian turnover and economic practice was emphasized. It is emphasized that the most controversial and unresolved issues of legal science remain the definition of the concept of ensuring the fulfillment of obligations, evidence of which is the lack of its legal definition in the Civil Code of Ukraine, as well as repeated attempts to develop a classification of their types.
The statement that, since the restorative function is increasingly recognized undersecurity obligations, this category is converging with the category of civil liability has been criticized. Attention is drawn to the importance of observing the principle of accessory, which is also aimed at ensuring effective protection of the person who provided the security, against abuses by the creditor, creating obstacles to unjust enrichment, because precisely because of the accessory of the scope and enforcement, the creditor, who received performance from the debtor, will not be able to obtain performance a second time - from the security.
It is proven that the modern civil doctrine reasonably recognizes not only the existence of the main and collateral obligations, as the main and accessory obligations, but also the nature of their relationship, which consists in the fact that the additional obligations are dependent on the main ones and serve the main obligations, following their fate, since they are devoid of independent meaning, and lose their meaning in the absence of the main obligation.
The expediency and timeliness of developing and enshrining in the Civil Code of Ukraine a correct legal definition of the general concept of security obligation as additional, accessory, subsidiary, as well as the features and procedures of it simplementation and responsibility for its violation are argued. Significant attention is paid to the issue of the legal nature of accessory law.
Key words: obligations, securing obligations, contract, creditor, debtor.
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