Invalidation by the court of fictitious gift agreements concluded with the purpose of concealing the debtor's property: problems of formation of a unified law enforcement practice

Abstract

The article is devoted to the study of the court's approaches to invalidation of fictitious gift agreements concluded with the purpose of concealing the debtor's property, and determination of directions of improvement of the legislation on the specified question.

The general principles of law, which may or may not be expressed in the texts of written law, are considered, but have a general character and are necessarily applied in judicial practice. The article analyses the judicial practice on this issue.

The role of the Supreme Court in ensuring the formation of sustainable judicial practice is defined. It is emphasized that the proper performance of such a duty will contribute to its predictability, the embodiment of the principle of legal certainty and the implementation of the doctrine of the permanence of justice. The proper performance of such a duty will contribute to its predictability, the embodiment of the principle of legal certainty and the implementation of the doctrine of the permanence of justice.

It is concluded that the problem of forming a unified law enforcement practice is that lower courts do not always refer to the general principles of law and judicial practice, and sometimes try to establish the intent of both the donor and the donee.

This situation has developed due to the lack of detail by the legislator of the issue of invalidation of these contracts and, therefore, the need to address the "judicial precedent", which is provided, in particular, article 13 of the Law of Ukraine "On the judicial system and status of judges". The classical attribution of Ukraine to the Romano-German legal family, where it contributed to the formation of the idea of the domestic system of sources of law, as exclusively a system of normative legal acts. The Ukrainian legislator, realizing the need to develop a sustainable judicial practice, determined that the rules of law contained in the decisions of the Supreme Court are taken into account by other courts.

Given this, it is proposed to detail the legislative provisions on the place and role of judicial precedent in the system of sources of law of Ukraine.