The need for a reliable assessment of each factual state as an incentive to determine the state of lis pendens

Abstract

The subject of these observations is the presentation of several facts in a civil case, which may end with premature discontinuation of the proceedings. When analyzing the procedural and substantive legal effects for the plaintiff, it requires deep reflection, bearing in mind the right to a court, the right to a fair trial, caution in formally terminating the proceedings by discontinuing them. I will focus on the aspect of the impossibility of delivering a copy of the statement of claim to the defendant, failure to determine whether the defendant lives at a given address, as well as determining other addresses, attempting to deliver to other addresses and returning the parcel again in the mode of substitute delivery. The legal problem arises at the stage of the decision on the validation of the mode provided for in the delivery of an uncollected parcel by the bailiff at the request of the claimant, as well as the statutory deadlines for suspending the proceedings and then for discontinuing them. The aspect of excessive formalism in coherence with the lack of procedural effects when discontinuing the proceedings by the Court by operation of law, including the interruption of the limitation period, requires clarification. Contrary to the unification of the jurisprudence of common courts, it should be determined whether, by initiating the procedure of serving a copy of the statement of claim by the bailiff several times, the guarantees of any of the parties to the proceedings will be violated, or, on the contrary, the decision to accept the application, e.g. to appoint a probation officer for the defendant whose place of residence is unknown, will be made prudent, preventive, protective, as well as allowing the defendant to independently defend his rights.