Organization of enforcement proceedings in foreign countries. The world's main enforcement systems. Mixed enforcement system

(Trials! Modern Russian legislation materials of the I All-Russian Scientific and Practical Conference (Irkutsk, October 18, 2012) at 2 o'clock RIA Ministry of Justice of Russia Irkut Law Institute (f-ch) M, Irkutsk, 2012 Part I C 169-173)

The author comes to the conclusion that it is advisable to use, along with the concept of a compulsory execution system, the concept of a model of enforcement proceedings, dividing the corresponding models into administrative and procedural. It is proposed to establish the institution of private bailiffs. subordinate to the arbitration court

According to Professor V.V. Yarkov, according to the method of organizing the profession of a bailiff, the possibilities and limits of participation of non-governmental organizations in enforcement proceedings, the following models of enforcement proceedings have developed in the world: public law (USSR); private law, otherwise called non-budgetary (France, Benelux, Greece, etc.); mixed (Germany, USA, Russia) 51. The public legal system, as V.V. Yarkov points out, is characterized by the fact that both the bailiff and the employees of all organizations involved in the execution process (trade, valuation specialists, etc.) consist of public service. For public 1 Yarkov VV Main world systems of compulsory execution // Universptetski na)KOBi notes Ukraine Khmelnytsky, 2006 No. 2(18) C 84-86

The legal organization of compulsory execution, according to Professor V.V. Yarkov, is characterized by complete nationalization of all its parties, the absence of private initiative when performing certain types of enforcement actions. Dividing enforcement systems into public, private and mixed. Professor V.V. Yarkov emphasizes that this classification is not completely legally pure, but allows us to better understand the content of the enforcement system in a particular country. Indeed, from a legal point of view, it is difficult to say that there was no private initiative when carrying out certain types of enforcement actions in the Soviet system of compulsory execution. In particular, on the initiative of the claimant, a writ of execution was returned to him, according to which the recovery was not carried out or was not made in full (clause 42 of the Instructions on Enforcement Proceedings, approved by order of the USSR Ministry of Justice of November 15, 1985 No. 22). It cannot be argued that employees of all organizations involved in the Soviet executive process were de jure in the public service. For example, collective farms and other cooperative organizations could act as enforcement agents. Paragraphs 105-118 of the said instructions regulated the fulfillment of the obligation of collective farms and cooperative organizations to withhold funds from wages and income for labor, including cash and in-kind payments. Members of collective farms and other cooperative organizations who acted in enforcement proceedings on behalf of collective farms and cooperatives were not government employees. Nevertheless, one should agree with the characterization of the compulsory enforcement system that existed in the USSR as a public system. Agree not because the entire social infrastructure (system) serving compulsory enforcement was state-owned, but because bailiffs, as well as executors of other departments (not to be identified with enforcement agents), were civil servants and received salaries (salary, allowance, maintenance) from state budget. Currently, we believe that public systems should include enforcement proceedings of the Republic of Beparus and Russian Federation.

The division of enforcement systems into private, public and mixed is not based on clear criteria. Depending on the design of the classifier, the same system is called public, private or mixed. If we want to say that in the USSR it was difficult or impossible for a private person who came into contact with the sphere of enforcement proceedings, or a bailiff, to earn money legally, then we classify Soviet enforcement proceedings as public systems. If it is necessary to emphasize that in Germany, where the thought of private bailiffs is not allowed, the performer is given the legal opportunity to receive a modest “weld” to his salary. then we classify German enforcement proceedings as mixed systems. It is more correct to talk not about the system of enforcement proceedings, which is understood as the entire set of economic relations in the field of compulsory execution and around it, embodied in legal forms, the entire infrastructure that provides enforcement services (valuation, storage, representation, organization of tenders, etc.), and about the model of compulsory execution. We are afraid to talk about systems, since in enforcement all systems are public or mixed, depending on the goals of the classifier. It would not be a mistake to talk about the publicity of even ancient or medieval systems, in which the claimant could legally independently resort to coercive measures. In those days, the debt collector, who considered it unwise to use his own strength, often conspired with financial officials so that tax collectors, royal guards, and bailiffs would collect not only taxes, but also private debts (for a fee, of course).

Unlike the compulsory enforcement system, its model is determined by a clear criterion: a procedure according to the rules of which a complaint against acts (actions, inactions) of a bailiff is considered. If the complaint is considered according to the general rules of proceedings in cases of administrative and other public legal relations, we have before us an administrative model of enforcement proceedings. In modern Russia, enforcement proceedings are organized according to the administrative model. Statements to that effect. that Russian enforcement proceedings are part of the process are fair, but only in relation to the ideal civil (arbitration) process, ideas about which exist only in the legal consciousness, but not in legislation. For a Russian court, a bailiff is not an assistant to justice, but an official of an outside agency, whose acts can be challenged on an equal basis with acts of other public bodies and their officials, unlike, say, judicial or investigative acts. If the complaint is against the actions of a bailiff. his delay or refusal to perform actions (acts) is considered in a special manner, in which the presumption of legality of the actions (inaction) of the performer applies; we have before us a procedural model of enforcement proceedings. This model includes enforcement of the Soviet Union, the Republic of Belarus and the Republic of Kazakhstan. In this case, it is not of fundamental importance whether the bailiff is on the staff of the judicial department. Enforcement units may be subordinate to the courts, as is the case in the economic courts of the Republic of Belarus, be in dual subordination to the Ministry of Justice and the court (Soviet Union, courts of general jurisdiction of the Republic of Belarus), be structural parts (divisions) of a special administrative body subordinate to the Ministry of Justice ( Kazakhstan). Departmental affiliation does not matter. The main thing is different, namely, whether in court the bailiff is treated as one of their own, just as an investigator or prosecutor is treated, or as a stranger, as today they are treated in Russian court to the bailiff. If they are one of our own, they consider complaints in a special manner; if they are someone else’s, they consider complaints in a general manner on an equal basis with complaints about the actions of other officials of state and municipal bodies. We believe that it will be successful to combine the experience of Belarus, where state bailiffs are subordinate to economic courts, with the experience of Kazakhstan, where the institution of private bailiffs has been introduced, and to supply arbitration courts with private (non-budgetary) bailiffs. Arbitration courts may consider complaints against the actions of their private bailiffs in the same order as they consider complaints against arbitration managers.

Description of the presentation Enforcement proceedings in foreign countries France Vaud on slides

France In France, a system of private enforcement has historically developed, when the powers of compulsory enforcement officers are exercised not by government officials, but by persons who have received a license from the state for this activity and carry out it independently. The profession of a bailiff was regulated by various royal ordinances adopted in 1556, 1667 and 1813 under Emperor Napoleon. Currently, the legal status of the bailiff is determined by the Ordinance of November 2, 1945. Certain changes in the French enforcement system occurred in 1992.

A compulsory enforcement officer in France is an official associated with the administration of justice, but at the same time acting as a person of a free (or, as they say in France, liberal) profession. In this regard, the compulsory enforcement officer is a free professional to whom the state has delegated the functions of executing decisions in civil cases made by various courts. At the same time, the compulsory enforcement officer is an official, since he receives his powers from the state and has a certain monopoly on a number of legal actions, in particular: execution of a court decision; delivery of subpoenas, notices; drawing up acts of evidentiary value and others. A compulsory enforcement officer in France is also an assistant to justice, in connection with which he is endowed with a monopoly function in notifying acts, along with shareholders, enjoys a monopoly on public sales (auctions) of movable property, carries out amicable or judicial collection on debt obligations, at the request of private individuals, takes actions to secure evidence, and can represent parties in some courts. The enforcement officer also participates in court hearings, ensuring, under the authority of the judge, the maintenance of internal order in the courtroom.

Requirements 1. Diploma of legal education; 2. Completion of a two-year internship; 3. Passing the state qualification exam.

Appointment to the position Representation as a successor Conclusion of the prosecutor's office and the Chamber of Compulsory Enforcers of the department Order of the Minister of Justice of France. Oath before the court

Rights and obligations The right to: 1. Notification of acts; 2. Conducting public sales (auctions) of movable property; 3. Execution of a court decision; 4. Service of summonses and notices; 5. Actions to secure evidence; 6. Conducting legal consultations

Due to the public legal nature of the activity, the compulsory enforcer is obliged to: 1. Provide services as many times as the need for them arises; 2. Maintain professional secrecy about the content of the documents handed to them and the commenced enforcement procedures; 3. Maintaining internal order in the courtroom.

Compulsory enforcement officers practically do not work alone, but are united in a bureau consisting of several enforcement agents, as well as employees who ensure their work. Compulsory enforcement officers are required to work on weekends, and therefore one enforcement officer from the bureau must work on a day off in order, for example, to carry out a court order to seize the circulation of a newspaper. It is interesting that the bulk of the execution falls on unemployed debtors, small entrepreneurs who took out loans and now cannot pay them off. Compulsory enforcement officers in each department are organized into departmental chambers, which are tasked with representing the profession in court and administrative bodies, as well as ensuring compliance with discipline and professional ethics. Therefore, such departmental chambers are endowed with disciplinary powers, which they exercise in relation to compulsory enforcement officers of their department. Enforcers in the departmental chamber are represented by members of the chamber elected by them, who, in turn, elect the chairman of the said chamber.

The number of enforcement positions is limited and regulated by the French Ministry of Justice. At the same time, a compulsory enforcement officer is a member of the free professions and carries out his activities either individually as individual, or collectively, by joining an association of free professions, endowed with the rights legal entity. Compulsory enforcement officers do not receive wages from the state, but charge fees for the exercise of powers delegated to them by the state, according to tariffs established by the state. For example, the delivery of documents within the framework of the enforcement procedure is rated by the state and paid for by the debtor. If a compulsory enforcement agent provides legal services that can be equally provided by other representatives of the legal profession, i.e., are not of a monopolistic nature (for example, consultations that can also be provided by lawyers, notaries), his remuneration is of a contractual nature and paid by the applicant. Carrying out his professional duties on behalf of the state, the compulsory enforcement officer bears at the same time personal responsibility for the legal consequences of his actions. Thus, a compulsory enforcement agent may be held civilly liable for negligence in serving procedural documents later deadline, To criminal liability– in case of theft of client funds and other cases of violation of their duties. Property risks of the profession are covered by insurance. In addition to civil and criminal liability, it is also possible to bring professional (in the Armenian sense disciplinary) liability for failure to comply with the rules of professional responsibility and ethics. The initiative in this regard can come both from the disciplinary commission at the departmental chamber of compulsory enforcement officers, and from the French Ministry of Justice and its bodies.

Some features An interesting feature of the modern system of enforcement proceedings in France is also the presence of other, specially organized (liberal in the nature of their activities) professions, whose representatives participate in enforcement procedures. Thus, these include prize commissioners as officials vested with a monopoly on holding public auctions for the sale of movable property. Prize-winning commissioners receive powers on behalf of the state, they are organized into communities at all levels (from local to national), and their remuneration is tariffed by the state. It should be noted that there is a general feature of the competence of compulsory enforcement officers in France. The French legal system is built on the division of law into private and public; accordingly, the judicial organization is distinguished by the separation of courts in civil and criminal cases, as well as judges of administrative justice, which are united in different judicial systems. Accordingly, the compulsory enforcement officer does not execute decisions in favor of the state and, in general, acts adopted by administrative courts. For these purposes, there is a special system of bailiffs of the state treasury, who are civil servants.

Organizational structure of US enforcement agencies 1. Sheriffs and their deputies; 2. Marshal service; 3. Private legal (collection) agencies.

In the United States, the functions of enforcement proceedings are carried out by sheriffs and their deputies, partly by the marshal service at the federal level, bailiffs, as well as private legal (collection) agencies. Marshals are officers of the federal justice system, reporting to the U.S. Attorney General through the U.S. Department of Justice. Each of them is appointed for 4 years by the President and confirmed by the Senate and performs its functions within the federal judicial district in the United States, thus, there are 94 US Marshals with subordinate employees totaling more than 4,000 people (more than 3 thousand assist the marshals in ensuring the security of the courts “contractors” from security companies). The central office in relation to all US Marshals is the U.S. Marshals Service within the US Department of Justice. The leadership of the US Marshal Service is carried out by a director appointed to the position by the President. U.S. Marshals perform tasks that are critical to the smooth and efficient functioning of the federal justice system. However, it should be noted that government enforcement agencies are used where there is a risk of physical conflict or disorder. In this regard, much of the enforcement work in the United States is performed by private collection agencies, thereby freeing up government agencies to work on more serious cases. This allows government agencies responsible for enforcing court decisions to prioritize more difficult or potentially controversial cases where government agencies are most needed and effective. The practices of private collection agencies vary from place to place, as does the level of regulation in the states where they operate. In addition, many private debt collections are conducted by agents to whom the creditor sells the judgment, and that sale has been properly recorded in the court in which the judgment was entered. In this regard, all rights of the creditor are transferred to the collection agent, and the creditor receives the agreed upon advance payment from the collection agent. Such an agreement also includes the use by collection agents, if necessary, of the resources of government departments. The enforcement procedure in the United States is regulated by legislative acts states and specific state rules of civil procedure.

Functions of the Marshal's Service In addition to enforcement, the United States Marshal's Service is charged with the following functions: - providing security for federal courts, including ensuring the security of courthouses and federal judges and magistrate judges, as well as litigants, such as jurors and representatives of parties; — ensuring order in the courtroom and escorting defendants in custody; — search and detention of persons hiding from federal justice; — implementation of a federal program to ensure the safety of prosecution witnesses (especially in cases of organized crime) who are at risk of reprisals from criminal elements; — detention and transportation of prisoners; — execution of court orders for arrests and searches; - Seizure, disposal and sale of property confiscated to the government from drug traffickers and other criminals, and implementation of the US Department of Justice's national asset forfeiture and property forfeiture program; — involvement in security measures of foreign government officials on an official visit to the United States; — ensuring the protection of nuclear weapons during their transportation across the country; — responding to emergencies, including riots, terrorist attacks and other crisis situations, through the use of special forces and restoring order; — sale of confiscated property; — assists the US Department of Defense and the US Air Force in transporting tactical missile warheads to US military bases. The US Marshal Service includes task forces, modern weapons, special equipment, and transports. various types etc.

Imprisonment In the United States, in some states, a debtor who evades payment of child support, if there is confidence in his solvency, may be subject to imprisonment. In addition, a method used to force citizens to fulfill their duty to children is monthly access by guardianship authorities to information about new bank accounts opened in financial institutions - thereby identifying the debtor.

Legalization of a court decision In the United States, regulation of enforcement proceedings is carried out at the state level, and therefore, court decisions made in one state must be legalized in another state, for which the necessary legal procedures have been established. In some states, such legalization occurs through filing a claim against a decision, and in others, through going through a registration procedure. The basis for taking enforcement actions is writ of execution, which is issued by the clerk of the court or, in some states, by an attorney authorized by the sheriff.

Disclosure by the debtor of information about property In the United States, if the creditor does not know about the existence of property in the debtor, the debtor can be subpoenaed to court for the purpose of conducting additional disclosure of evidence. The court has the right to require the debtor to disclose information about his property for the purpose of subsequent foreclosure on it. If the debtor fails to appear when subpoenaed or refuses to disclose information about the existence of property and its location, the debtor may be imprisoned for contempt of court.

Searching for the debtor's property In the United States, the work of searching for the debtor's assets is carried out by the claimant's lawyers, who use both formal (for example, through a request through the court, credit agencies) and informal (for example, through private detectives) ways of searching for property. The debt collector can also resort to the services of special debt collection agencies.

Foreclosure of the debtor's property To impose a foreclosure on the debtor's property, the claimant sends a writ of execution to the US Marshal (or sheriff). At the same time, he pre-pays for enforcement services. The claimant has the right to choose which property to foreclose on.

Foreclosure of a debtor's funds held in banks or other credit institutions A creditor in order to collect funds from a debtor's bank accounts must inform the court which bank the debtor's account is held (and the location of the safe deposit box, if necessary), although some jurisdictions require more precise information (for example, account number). The creditor then obtains a writ of execution from the court and engages a member of the sheriff's office to conduct procedures at the bank, who must deliver the assets to the creditor or official custodian prior to release to the creditor, depending on applicable law. Certain funds are exempt from confiscation, even from bank accounts. Rules vary from state to state, but are generally exempt from penalties. social benefits, including disability benefits (even those from private sources), veterans' benefits, child care, or alimony. If the debtor claims that the forfeited funds fall within the exception category, then various states have legal procedures for the return of such funds by an authorized person (there is a legal period between forfeiture of funds and return to the creditor) or by the creditor, according to rules set by the court.

Custody of Debtor's Seized Property A creditor may obtain a writ of execution from the court to order the sheriff having jurisdiction over the debtor's property to serve a writ upon the third party in possession of the debtor's property to turn over that property to the sheriff. The property is then put up for auction and the proceeds first cover the sheriff's services and then the lender's claim.

Sale of the debtor's property The US experience on the procedure for storing cars depends on their value. Cars costing more than $10,000 are stored in internal parking lots. For more expensive cars, compliance with the rules of their maintenance is also required: every month the car must be started and it must be driven two meters back and forth. The requirement to inspect cars is caused by the need to protect the marshal service from claims by the owners of these cars. Confiscated cars worth up to $500 are subject to disposal.

Sale of the debtor's property The process of sale of seized property on behalf of the US Marshals Service is carried out by competitively selected and licensed corporations. Information about auctions is pre-published in periodicals, primarily in newspapers or magazines with a high rating.

Bailiff: requirements, appointment A non-convicted citizen of the Federal Republic of Germany, aged no less than 23 and no more than 39 years old, with a secondary legal education and an impeccable reputation, can be appointed to the position of bailiff.

Judicial act as the main executive document The legal basis for initiating enforcement proceedings is an official copy of the decision issued by the clerk of the office of the court that issued the judicial act, on which the executive inscription is made. The writ of execution is the following wording indicated by an employee of the court office on a copy of a judicial act: “a certified copy of the superior document is issued to (names of the parties) for the purposes of enforcement.”

Types of executive inscriptions 1. Simple executive inscription; 2. Additional executive inscription; 3. By means of a changing (transferring) executive inscription; 4. Mixed (partial) inscription.

The executive inscription can be of two types: simple or qualified, the latter can be supplementary to the title or amending the executive title. Depending on the type of inscription, the procedure for issuing it differs. A simple writ of execution is made by officials of the court office. A simple writ of execution is issued by the competent authority in the case when the content of the writ of execution does not require change or if the recourse to execution is not related to the occurrence of a certain event (expiration of a period, counter-security). Such an inscription has a formal, declarative meaning. The supplementary writ of execution establishes restrictive conditions or deadlines for execution. In this case, the claimant is required to prove the occurrence of certain events. If the burden of proving such facts lies with the debtor, then a simple writ of execution is issued. By means of an amending (transferring) executive inscription, it is possible to replace the parties to the executive titles in the event of procedural succession.

Delivery An executive inscription can be of two types: simple or qualified, the latter can be supplementary to the title or amending the executive title. Depending on the type of inscription, the procedure for issuing it differs. A simple writ of execution is made by officials of the court office. A simple writ of execution is issued by the competent authority in the case where the content of the writ of execution does not require change or if the recourse to execution is not related to the occurrence of a certain event (expiration of a period, counter-security). Such an inscription has a formal, declarative meaning. The supplementary writ of execution establishes restrictive conditions or deadlines for execution. In this case, the claimant is required to prove the occurrence of certain events. If the burden of proving such facts lies with the debtor, then a simple writ of execution is issued. By means of an amending (transferring) executive inscription, it is possible to replace the parties to the executive titles in the event of procedural succession.

Electronic auction In Germany, property has been sold at electronic auctions for several years. The electronic trading system covers almost the entire country and works very efficiently. For example, an item listed for sale with a price of 1 euro was sold for 370 euros. That is, thanks to the use of electronic trading, the price of the property put up for sale was increased by 370 times. The achievement of such results is facilitated by the procedure used for determining the initial selling price of property put up for electronic auction, which cannot be less than 50% market value. The use of this measure allows at the initial stage to increase the attractiveness of the subject of the auction and, accordingly, attract the maximum possible number of potential buyers to participate in the auction. Electronic trading is carried out within a predetermined time period (for example, within two weeks), which creates the most favorable conditions for the potential buyer, since it allows you to make a price offer at any time convenient for him before the end of the auction. The use of an electronic trading system for the sale of property minimizes corruption risks, since the sales procedure is carried out automatically by software and hardware of the electronic trading platform, which eliminates direct contact between the seller and buyers. Under these conditions, buyers who have a real interest in purchasing the subject of the auction take part in the auction, which, of course, affects the effectiveness of the sale of the debtors’ property. The proceeds from the sale of property owned by the debtor are transferred to the creditor to repay the debt.

Compulsory property management allows you to satisfy the claims of the claimant at the expense of current revenues from the property. For compulsory administration, the same terms and conditions as for compulsory sale apply, with certain exceptions. After the arrest has been issued real estate and making a corresponding entry in the land registry, the enforcement court notifies the parties of the establishment of compulsory administration. As a result of the seizure of property within the framework of this compulsory enforcement measure, the debtor is deprived of the rights to own and use the property, which is transferred by a court ruling to a compulsory administrator. He is obliged to do necessary actions to preserve the property for its economic purpose and use it to satisfy the claims of the claimant. The manager is responsible to the parties for intentional actions that caused them harm. The activities of the manager are under the supervision of the enforcement court. After satisfying the claims of the claimant and covering all expenses from the management income, the enforcement court, by its ruling, cancels the decision on compulsory management and returns the plot to the use of the debtor.

An assurance that replaces an oath is a public communication to the bailiff by the debtor about his property and property rights. This measure is applied in cases where a) foreclosure did not lead to full satisfaction of the creditor’s claims, or b) the creditor proved the overwhelming likelihood that as a result of foreclosure he cannot obtain full satisfaction of his claims, or c) the debtor refused to conduct a search , or d) the bailiff did not find the debtor in his home after he notified about the execution at least two weeks in advance. The adoption of an assurance that replaces an oath falls within the competence of the bailiff, to whom the debtor is obliged to provide an inventory of his property, as well as the grounds and means of proving his claims. The inventory of property must also indicate the alienation of the debtor to close persons for compensation during the last two years before the certification, and the gratuitous executions performed by the debtor during the last four years before the certification. The bailiff immediately submits the accepted assurance, which replaces the oath, to the court, and sends a copy to the creditor

Oath Cases when it is possible to take an oath: 1. Seizure of movable property; 2. When seizing and transferring the right of claim, when the debtor is obliged to give the claimant the information necessary to present the claim in the form of testimony equivalent to an oath; 3. If the thing was not discovered and the debtor is forced to hand over the thing.

Testimony equivalent to sworn testimony is taken by a bailiff at the district court in whose district the debtor resides at the time of filing the application. If the debtor fails to appear before the bailiff to give an assurance replacing an oath, or refuses to give such an assurance, the court issues an order regarding his detention for a period of up to six months. At the same time, detention does not relieve the debtor from the obligation to give the appropriate assurance and does not exclude the possibility of re-applying the measure to the debtor in the form of detention in the event of refusal of such assurance. If the debtor makes a representation in lieu of an oath, his name is entered in the list of debtors maintained by the court. Being on the list of debtors significantly limits the economic rights of the debtor, since it entails the refusal of credit institutions to provide loans to the debtor and open an account. The registration entry in the register of debtors is canceled three years after the end of the year in which the corresponding certification was given, the order for detention was issued, or the six-month period of detention expired.

Separate methods of enforcement Securities can be foreclosed on without any registration. The claimant, in order to avoid the sale of securities owned by the debtor, may serve the partnership with a document indicating the amount of the debt and a request to prevent the sale of the debtor's shares. This document is called a “stop notice”. The company receiving such a document must not authorize the transfer of shares without giving notice to the creditor. The creditor applies to the Chancery Division for an order prohibiting the transfer. After six months from the date of the order, the creditor may initiate proceedings to implement the order for collection.

Method of “equitable execution” In accordance with the Rules, the claimant can use the method of “equitable execution” - fair execution, which consists in the fact that the court, at the request of the claimant, appoints a person as a “recipient”. The recipient exercises control over all income, profits of the debtor and submits invoices to the court to authorize payments to the collector. For performing this work, he is entitled to remuneration in the amount established by the court.

Sequestration involves the court ordering four or more people to seize all movable and personal property from the debtor and hold it until the debtor complies with the judgment. Most often, sequestration is used when the debtor is a corporation. In this case, a writ of sequestration may be used against the property of any director or other officer of the corporation.

Summons for Possession This is the most common method. A writ of possession of land is sent to the sheriff with permission to “enter and occupy the land” of the debtor, having first summoned the claimant to “possess it.” A summons cannot be issued without special permission from the court. The court can resolve this issue positively if it is sure that the debtor received notice of the process. This is necessary to guarantee protection for the debtor. Having received notice, the debtor has the right to submit to the court objections that may make it impossible to enforce the summons.

Section II. Legal technique and technology

Victor T. Batychko EXECUTIVE PROCEEDINGS IN FOREIGN COUNTRIES

The importance of enforcement proceedings can hardly be overestimated both in the field of civil proceedings and in public life. The degree of reality of the execution of court decisions is an indicator not only of the state of the judicial branch of government, but also state power generally. In civil science procedural law Many issues of execution cause a lot of controversy and disagreement. However, no one questions the thesis that “there would be no benefit to justice if court decisions were not enforced...”.

The complexity of the situation in the field of compulsory enforcement is noted by many experts. Thus, at the beginning of 2004, the Minister of Justice of the Russian Federation noted that in the country as a whole, the actual execution of jurisdictional acts is still no more than 10% of the amounts presented for collection. In October 2005, the following statistics were presented - for 9 months of 2005 on execution in Federal service bailiffs (FSSP) handled about 18 million enforcement proceedings, of which 11.6 million were completed. The territorial bodies of the FSSP initiated 2,647 criminal cases and more than 80,000 cases of administrative offenses. In 2004, the Chief Bailiff of Russia noted that every third enforcement proceeding was completed with actual execution. According to the latest data provided in the Federal Target Program “Development of the Judicial System of Russia” for 2007-2011. , the level of forced execution of judicial acts does not exceed 52%, the ineffective system of execution of court decisions negatively affects the work of the judicial system in considering and resolving disputes.

The reasons for this situation can be reduced to the ineffectiveness of the legal, organizational and economic mechanisms for organizing enforcement proceedings and, in general, the legal infrastructure of Russia. A variety of measures are possible to increase the efficiency of enforcement, for example, related to increasing the powers of the bailiff service, which are being taken by the Federal Bailiff Service.

What kind of global models exist here? What is useful for our country? Of course, in any country, the institutions regulating the organizational and legal conditions of enforcement proceedings not only have their own characteristics, but also come under different names. French lawyer Rene David, based on scientific research and classification of foreign legal systems, identified three legal families: 1) Romano-Germanic, continental European or investigative; 2) Anglo-Saxon, general or competitive; 3) socialist.

When applying the above classification to the field of civil proceedings, in accordance with these three families, it is divided into three types: Romano-Germanic, Anglo-Saxon and socialist, from which certain features of the enforcement proceedings of these systems follow.

The classification of legal systems is based on the degree of influence of Roman law on them as the main criterion. Accordingly, Romano-Germanic law is seen as a direct consequence of the influence of Roman law. This system is inherent in European (France, Germany, Italy) countries, common in Latin America, in some countries of the Middle East, as well as in Russia.

In the science of English law, other names are given to the two types of civil proceedings. The Romano-Germanic system is also called investigative, and the Anglo-Saxon system is called adversarial. Anglo-Saxon law is free from the influence of Roman law and, in its origin and sources, is based on judicial precedents (case law) that arise during the implementation of judicial activities in the courts. In this system, a court decision rendered in any case is binding on equal or inferior courts considering such cases.

American law belongs to the same group and is based on English law. Although the legal systems of the United States and England are similar, enforcement proceedings in these countries differ. If English justice (judicial activity) is characterized by conservatism, then American justice has gone through an independent path of long-term development. Enforcement proceedings in these systems (Romano-Germanic and Anglo-Saxon) also differ in the organizational and legal sense.

If it is typical for France, Belgium and the countries of continental Europe that compulsory enforcement agents are private individuals working under a license, and the system of compulsory enforcement agents is managed by territorial and national chambers as self-government bodies, then in the USA, in contrast to them, there is an institution of marshals, which is considered as an influential law enforcement agency in the system of government institutions. The Marshal's Service not only carries out the execution of court decisions, but also ensures the security of judicial institutions and litigants and assists the Department of Defense and the US Air Force in transporting tactical missile warheads to military bases. The US Marshal Service includes assignment detachments and is equipped with the necessary modern weapons, special equipment, and vehicles different types etc.

What is common in the enforcement proceedings of different countries are the methods of collection, as well as a number of fundamental principles of enforcement proceedings: equality of the parties, transparency, state supervision of the enforcement proceedings system, etc.

Enforcement proceedings of the two systems are also united by the commonality of economic and legal phenomena: private property, banking system, commodity-money relations and liberal methods of organization. Ultimately, what everyone has in common is the existence of property that can be foreclosed upon.

The main difference in the regulation of enforcement proceedings of the two legal systems indicated is the different degree of influence of judicial supervision on their activities. It should be noted that the level of judicial supervision over executive activities is higher in the countries of continental Europe.

The experience of enforcement proceedings shows that the efficiency of execution is incomparably higher in those countries where the body implementing them is endowed with a power element. The organization and efficiency of execution in the USA or Russia cannot be compared with the countries of continental Europe (France, Italy, Poland), which are inferior to them both in speed and volume of execution.

Although to ensure recovery in order to restore property rights, socio-economic, natural, geographical, socio-psychological, ideological, educational, cultural, everyday and other factors that are directly related to the mechanism are important legal regulation However, even the most perfect law cannot act without coercion. This can be confirmed by the experience of the USA and Russia.

Unfortunately, in the domestic scientific literature there is no information about enforcement proceedings in other countries, so the subject of analysis of this article will be materials on enforcement proceedings in those countries that the author managed to find.

Let us consider the main aspects of enforcement proceedings in two continental countries - France and Italy, as well as in one Anglo-Saxon country - the USA, comparing them with each other. As a supplement, information is provided on the organization of enforcement proceedings in the CIS countries.

Enforcement proceedings in France and Italy. In France, a system of private enforcement has historically developed, when the powers of compulsory enforcement officers are exercised not by civil servants, but by persons who have received a license from the state for this activity and carry out it independently. The profession of a bailiff was regulated by various royal ordinances adopted in 1556, 1667 and 1813 under Emperor Napoleon. Currently, the legal status of the bailiff is determined by the Ordinance of November 2, 1945. Certain changes in the French enforcement system occurred in 1992.

A compulsory enforcement officer in France is an official associated with the administration of justice, but at the same time acting as a person of a free (or, as they say in France, liberal) profession. In this regard, the compulsory enforcement officer is a free professional to whom the state has delegated the functions of executing decisions in civil cases made by various courts. At the same time, the compulsory enforcement officer is an official, since he receives his powers from the state and has a certain monopoly on a number of legal actions, in particular: execution of a court decision; delivery of subpoenas, notices; drawing up acts of evidentiary value and others.

A compulsory enforcement officer in France is also an assistant to justice, in connection with which he is endowed with a monopoly function in notifying acts, along with shareholders, he enjoys a monopoly on public sales (auctions) of movable property, carries out amicable or judicial collection of debt obligations, and, at the request of private individuals, carries out actions to secure evidence, may represent parties in some courts. The enforcement officer also participates in court hearings, ensuring, under the authority of the judge, the maintenance of internal order in the courtroom.

In order to become a compulsory enforcement agent, you must have a diploma in legal education, undergo a two-year internship in the office of a enforcement agent, and successfully pass the state qualification exam.

The internship includes practical professional work and the study of theoretical disciplines. The title of compulsory enforcement officer is assigned by order of the French Minister of Justice, issued upon receipt of the conclusion of the prosecutor's office of a given territorial district and the Chamber of Compulsory Enforcement Officers of the department. The person receiving the title must take an oath within a month after his appointment before the grand court of the district in which the position was created. In this case, appointment is possible only for a

The role of a bailiff, which already exists or is being created again by the state. The compulsory enforcement officer has the right to nominate his successor to the Ministry of Justice to obtain consent to his appointment. Thus, no one can be appointed to the position of bailiff unless he has been elected by his predecessor in that position and has received the consent of the Ministry of Justice for the appointment. The state also controls financial aspects appointments. In practice, the holder of an office representing his successor receives compensation for this service depending on the economic potential of the position. This cash buyout is called “funding” the position. When appointing, the justice authorities check the ability of the future holder of the position to repay the loan that he had to take out to pay for the “financing” of the position, based on the volume of its document flow and estimated profit.

As an official, the compulsory enforcement officer serves subpoenas and executes court decisions on behalf of the state, including resorting to the assistance of state coercion. The compulsory enforcement officer also has the right to draw up draft documents, draw up protocols that have the value of evidence, give legal advice and perform other legal actions. The acts and activities of the bailiff are of a public legal nature, therefore he is obliged to provide services as many times as the need arises. Therefore, the compulsory enforcement officer does not have the right to choose his clients (since he is not a private lawyer). An important part of the profession is the obligation to maintain professional secrecy about the content of procedural documents served on them and initiated enforcement procedures under the threat of criminal liability.

Compulsory enforcement officers practically do not work alone, but are united in a bureau consisting of several enforcement agents, as well as employees who ensure their work. Compulsory enforcement officers are required to work on weekends, and therefore one enforcement officer from the bureau must work on a day off in order, for example, to carry out a court order to seize the circulation of a newspaper. It is interesting that the bulk of the execution falls on unemployed debtors, small entrepreneurs who took out loans and now cannot pay them off.

Compulsory enforcement officers in each department are organized into departmental chambers, which are tasked with representing the profession in court and administrative bodies, as well as ensuring compliance with discipline and professional ethics. Therefore, such departmental chambers are endowed with disciplinary powers, which they exercise in relation to compulsory enforcement officers of their department. Enforcers in the departmental chamber are represented by members of the chamber elected by them, who, in turn, elect the chairman of the said chamber.

At the level of each appellate court, which has jurisdiction over several departments, enforcement officers are united in regional chambers that represent and defend their interests before the appellate courts. In particular, regional chambers represent enforcement officers before senior magistrates in the courts of appeal. Regional chambers are not superior to departmental chambers, but complement the activities of the latter. The composition of the regional chamber is elected by compulsory enforcement officers of each of the departments included in the district of a given court of appeal, in proportion to the number of enforcement officers in this department. Among the powers of regional chambers, one can note the organization of control and audits of accounting in the offices of compulsory enforcement officers.

At the national level, compulsory enforcement officers are represented by the National Chamber, consisting of 32 members elected by departmental and regional associations. All members of the National Chamber are elected for a term of 6 years by an electoral college consisting of elected members of the regional and departmental chambers. A bureau is formed in the National Chamber of Compulsory Enforcers, which includes the president, vice-president and treasurer. The main functions of the National Chamber of Compulsory Enforcers are to ensure representation of this profession in government and administrative bodies, other liberal professions (for example, notaries, lawyers), organization of professional training, management of organizations in charge of social and pension issues, organization of the annual congress of compulsory enforcement officers and others .

The number of enforcement positions is limited and regulated by the French Ministry of Justice. A compulsory enforcement officer is, however, a member of the liberal professions and carries out his activities either individually as an individual, or collectively by joining an association of liberal professions, endowed with the rights of a legal entity.

Compulsory enforcement officers do not receive wages from the state, but charge fees for the exercise of powers delegated to them by the state, according to tariffs established by the state. For example, the delivery of documents within the framework of the enforcement procedure is rated by the state and paid for by the debtor. In the event that a compulsory enforcement agent provides legal services that can be equally provided by other representatives of the legal profession, i.e. are not of a monopolistic nature (for example, consultations that can also be given by lawyers and notaries), his remuneration is of a contractual nature and is paid by the applicant.

Carrying out his professional duties on behalf of the state, the compulsory enforcer bears at the same time personal responsibility for the legal consequences of his actions. Thus, a compulsory enforcement agent can be held civilly liable for negligence in serving procedural documents later than the established deadline, and criminally liable in case of theft of client funds and other cases of violation of his duties. Property risks of the profession are covered by insurance. In addition to civil and criminal liability, it is also possible to bring professional (in the Armenian understanding - disciplinary) liability for failure to comply with the rules of professional responsibility and ethics. The initiative in this regard can come both from the disciplinary commission at the departmental chamber of compulsory enforcement officers, and from the French Ministry of Justice and its bodies.

An interesting feature of the modern system of enforcement proceedings in France is also the presence of other, specially organized (liberal in the nature of their activities) professions, whose representatives participate in enforcement procedures. Thus, these include prize commissioners as officials vested with a monopoly on holding public auctions for the sale of movable property. Prize-winning commissioners receive powers on behalf of the state, they are organized into communities at all levels (from local to national), and their remuneration is tariffed by the state.

It should be noted that there is a general feature of the competence of compulsory enforcement officers in France. The French legal system is built on the division of law into private and public; accordingly, the judicial organization is distinguished by the separation of courts in civil and criminal cases, as well as administrative judges.

tive justice, which are united into various judicial systems. Accordingly, the compulsory enforcement officer does not execute decisions in favor of the state and, in general, acts adopted by administrative courts. For these purposes, there is a special system of bailiffs of the state treasury, who are civil servants.

In addition, within the framework of general courts, there is a specially designated enforcement judge, who has the right to single-handedly resolve disputes arising as a result of expression of disagreement or interference with the execution of a court decision, resolve petitions for deferment of execution and resolve a number of other issues. At the same time, this enforcement judge cannot interfere with the actual enforcement actions.

In Italy, enforcement is mainly regulated by the Code of Civil Procedure.

Significant issues at the execution stage are resolved by the executive judge, bailiff, and justices of the peace. It is interesting that the number of executive documents also includes bills of exchange and other securities that have equal legal force. In the corresponding section of the Code of Civil Procedure of Italy, issues of enforcement proceedings are regulated in much more detail and detail than was the case in the Code of Civil Procedure of the RSFSR, and then in the Law of the Russian Federation “On Enforcement Proceedings” of 1997. Thus, the third volume of the Code of Civil Procedure of Italy contains: the concept and characteristics of enforcement documents ; forced alienation procedures; alienation of movable and immovable property of the debtor; alienation of the debtor's property held by third parties; features of the alienation of indivisible property, etc. The procedure for conducting auctions and resolving a number of other issues of enforcement is described in detail.

Among the enforcement measures of interest, we can note the judicial administration of alienated property. Such property is transferred to the management of one or more creditors, or an authorized organization, or the debtor himself, subject to the consent of all creditors. The manager is obliged to provide quarterly financial reports on the results of property management, as well as to deposit the amounts received as a result of such management in the manner determined by the judge. Income from property management is distributed among creditors by decision of the executive judge. At the same time, any of the creditors has the right to demand the appointment of a new auction for the sale of the described property.

In the United States, the procedure for executing judicial acts is carried out in accordance with the laws of individual states. According to Art. 69 "a" of the Federal Rules of Civil Procedure, enforcement is carried out in accordance with the practice and procedure of the state in which the federal district court operates.

Since the regulation of enforcement proceedings is carried out at the state level, court decisions made in one state must be legalized in another state, for which the necessary legal procedures have been established. In some states, such legalization occurs through filing a claim against a decision, and in others, through going through a registration procedure. The basis for carrying out enforcement actions is a writ of execution, which is issued by the clerk of the court or, in some states, by an attorney authorized by the sheriff.

Thus, unlike the countries of the continental system, where a unified enforcement system is basically formed, there is no such system in the United States. Thus, the execution of confiscation decisions in favor of the US government is carried out by the US Marshal Service. Judgments in private claims are enforced by sheriffs or other officials in accordance with the laws of a particular state.

A significant role in the execution of the decision belongs to the claimant’s lawyer, who must engage in practical work to collect necessary information about the debtor's property. In addition, it is possible to collect debts without using a judicial procedure.

In the United States, debt collectors are regulated by the Fair Debt Collection Practices Act of 1978. Debt collectors receive between 30 and 50% of commissions, which is a sufficient incentive for them. Debt collection is carried out in a variety of ways, forcing the debtor to pay without going to court. At the same time, the debt collector is placed within certain limits, and quite significant restrictions are placed on his activities. The debt collector has no right to: disturb the debtor at odd hours (from 9 pm to 8 am) without his consent; visit the debtor at his place of employment if his superiors or employer objects to this; tell anyone about the debt and contact third parties about the debt problem, with the exception of the debtor’s lawyer.

Thus, enforcement proceedings in various countries (using the examples discussed) are characterized by fairly detailed regulation of the enforcement actions performed, which, in general, is justified due to the procedural component of this legislation. This ensures unity of approaches and legal regulations, reducing the possibility of conflicts and contradictions between the actual executive and other legislation.

BIBLIOGRAPHICAL LIST

1. Aristotle. Policy. - M., 2002. - P. 230.

2. ChaikaYu.Ya. For a single legal space // Russian justice. - 2004. No. 2. - P. 5.

3. Vinnichenko N.A. About current issues activities of bailiffs at the reform stage federal bodies executive power // Justice. - 2005. No. 1.

4. Foreclosure of property of commercial organizations / Ed. V.V. Yarkova.

St. Petersburg, 2006. - pp. 62-85.

5. Information about the press conference of the director of the FSSPN. A. Vinnichenko // Rossiyskaya Gazeta. 2007. August 10. - P. 1-2.

N.F. Zemchenkov

PROBLEMS OF SOCIO-CULTURAL AND LEGAL RELATIONS IN THE RUSSIAN TECHNOCOENOSIS

Modern development of society is a process of complex interaction of various internal and external factors. The main ones are competition and the competitive environment it generates, which generate and maintain constant tension in society and between individual countries, their blocs and unions. A contradictory picture of globalization is emerging, which, on the one hand, demonstrates people’s desire for peaceful cooperation, and on the other, gives rise to disintegrative processes leading to the emergence of new challenges and threats in the socio-cultural space of the globalizing world.

Competition, which is driving force market economy, has other aspects associated with the growing tension of economic and national

There are different views around the world on the system of both public and private enforcement of court orders. Thus, Harry Becker and George Stigler in their work consider it best to extend the private system to those areas of law where the state system is mainly used. Their main argument is that the basis state system forced execution lies in a false (incorrect) reward system.

According to the rules of the private enforcement system, a bailiff is a free professional who independently organizes his activities and bears full financial responsibility for the results of his work. A private bailiff receives powers from the state through the judicial authorities and acts on behalf of the state. Admission to this position is regulated by law and is usually carried out on a competitive basis. The state regulates the competence of a private bailiff, operating procedures, the amount of tariffs and other fees charged as remuneration for the work of a private bailiff. The state also controls the work of a private bailiff, carries out inspections of professional activities, and also issues and revokes licenses to operate.

Thus, in France, the Netherlands, Luxembourg, Slovenia, Italy, Poland, Romania, Slovakia, Estonia, Latvia and Lithuania, bailiffs are private individuals working under a license. Bailiffs are managed by regional and national chambers as self-government bodies

France

The French system of execution of acts of courts and other bodies of civil jurisdiction developed in the 19th century and differs significantly from other systems. The rules of enforcement in this system have existed since the beginning of the 19th century. Over the course of two centuries, the rules changed slightly and adapted to the requirements of the socio-economic and political situation. It is the stable, conservative and at the same time flexible nature of the norms of enforcement proceedings, adaptation to the socio-economic conditions of life in French society that show the viability and effectiveness of legal norms, institutions and the entire branch of enforcement law.

A few years ago, representatives of some European countries (Italy, Belgium) said that the purpose of their national legislation was to adopt the French implementation model. In parallel with them, representatives of the Netherlands claim that their system of enforcement proceedings has long been based on the model of enforcement of the French Republic. In addition, this model is the basis for the execution systems of many countries in Eastern Europe and the Baltic countries: Poland, Hungary, Slovakia, Lithuania, etc.

Based on global experience in the enforcement of decisions of courts and other bodies, two main designs of the system of enforcement bodies can be distinguished. The first system is dominant in most countries of continental Europe - in the aforementioned French Republic, Belgium and Luxembourg, where bailiffs are not in the public service, but are private individuals working under a license. The management of bailiffs is carried out by regional and national chambers of bailiffs with self-government status.

In France, enforcement proceedings are carried out not only by bailiffs, but also by prosecutors general, prosecutors, commanders and police officers. At the same time, the elements of an independent practitioner and a civil servant are characteristic of the legal status of bailiffs. Candidate bailiffs are subject to strict requirements: having a legal education, successfully completing a two-year internship in a bailiff’s office, and passing a state qualification exam.

Thus, the judicial organization of the French system is distinguished by the separation of civil and criminal courts, as well as judges of administrative justice, which are united in different judicial systems. The country's legal system is built on the division of law into private and public. According to these norms, a private executor does not implement decisions in favor of the state and, in general, acts adopted by administrative courts. For this purpose, there is a special system of bailiffs of the state treasury, who are civil servants.

Within the framework of general courts, a specially designated execution judge is the one who has the right to single-handedly resolve disputes arising as a result of expressing disagreement or creating obstacles to the execution of a court decision, consider a request for a deferment of execution and resolve other issues. In addition, the enforcement judge cannot interfere with enforcement actions.

To become a bailiff, you must have a diploma in law, undergo a two-year internship in the bailiff's office, and successfully pass the state qualification exam. The internship includes practical professional work and the study of theoretical disciplines. The title of compulsory enforcement officer is assigned by order of the French Minister of Justice, which is issued after receiving the conclusion of the prosecutor's office of a specific territorial district and the Chamber of Compulsory Enforcement Officers of the department.

As an official, the compulsory enforcement officer serves subpoenas, executes court decisions on behalf of the state, while simultaneously resorting to state coercion. The compulsory enforcement officer also has the right to draw up draft documents, protocols that have the value of evidence, provide legal advice and carry out other legal actions. The acts and activities of the bailiff are of a public law nature, therefore he is obliged to provide services as many times as required. The compulsory enforcement officer does not have the right to choose his clients, since he is not a private lawyer.

Netherlands

In the Netherlands, bailiffs combine the features of a public and private person in their functional responsibilities. They have the right to engage in private practice in debt collection by mutual agreement of the parties, give legal advice, be attorneys in court and base their activities on the basis of an approved business plan. Having such a plan is a mandatory requirement. Such a plan must contain provisions on the recoupment of costs of bailiffs, an indication of potential clients, etc.

Luxembourg

In Luxembourg, bailiffs are classified as persons of a liberal profession, working under a license (as in Belgium and France). Legal status The bailiff combines elements of an independent practitioner and a civil servant, and the bailiff system is administered by regional or national chambers acting as self-governing bodies.

Slovenia

In Slovenia, enforcement proceedings are entrusted to the district (district) court. Bailiffs are persons who directly carry out enforcement actions. Bailiffs are appointed by the Minister of Justice within the territory of their district (territorial) courts. IN special cases bailiffs are appointed by court order, just as the creditor himself has the right to choose a specific bailiff. Also, in special cases, the bailiff has the right to exercise his powers throughout the territory of the Republic of Slovenia.

The bailiff service is a public service that bailiffs perform autonomously. Thus, bailiffs are personally responsible for any damage caused in the exercise of their powers and when insured event for their actions or inaction in executing court orders. In cases of sufficiently significant violations, bailiffs may be removed from their duties by the Minister of Justice.

The enforcement document may be presented in person from the creditor. Although, according to the rules, this document is submitted by a lawyer who is familiar with the rules of law.

In the case where the creditor independently resolves all issues of enforcement, he must pay for the personal presentation of documents, as well as for the court decision on a specific case. If the debtor acts through an attorney, he must also pay the attorney's fees.

It should be noted that in the above countries, the bulk of court decisions that are executed by private enforcement agents fall on problem debtors - the unemployed, small entrepreneurs who are unable to pay off loans. Some European countries solve the problem of debtor insolvency by transferring the debt to themselves. That is, they pay the workers of bankrupt enterprises the court-appointed amounts of arrears of wages and other payments.

This article was copied from https://www.site

Nomination “Foreign experience in the field of enforcement proceedings” (1st place)

K.M. IVANCHIN,

4th year student at Far Eastern Federal University

scientific supervisor - candidate of legal sciences, associate professor E.I. Kareva

Introduction

No state has yet succeeded in achieving mass voluntary execution of judicial acts by citizens and organizations without the use of coercion. Until now, the voluntary assignment of funds or property by the debtor has not become an integral part of the legal culture. In other words, a property dispute is most often resolved only as a result of a persistent struggle between the parties. It is for this reason that special services are created to ensure the restoration of the infringed rights and interests of citizens in all states, regardless of economic and military power.

Social and political changes that have occurred in Russia over the past two decades, the gradual integration of the state into the world community and many other factors have led to the creation of a new legal reality, which has led to the reform of the domestic justice system. Many problems had to be solved in the field of execution of court and other decisions. In light of the above, the task of improving enforcement proceedings and searching for optimal models of its organization acquires particular relevance.

Studying the legal experience and norms of individual branches and institutions of law in foreign countries is important to determine the feasibility of their adaptation to the Russian legal system for the purpose of application in practice.

Despite the active reform of enforcement proceedings, the increase in costs for the organization and functioning of enforcement bodies, the main problem remains the low enforceability of court and other decisions. On average, less than 40% of court decisions are executed in Russia. The percentage of actual sales of property seized through enforcement proceedings remains unacceptably low (less than 11%). All this significantly undermines the prestige of the judiciary.

The purpose of the study is comparative analysis legislation and law enforcement practice in the field of execution of judicial and other decisions in Russia and foreign countries and formulating proposals for reforming and improving the enforcement proceedings system.

To achieve this goal were:

The main classifications of the world's enforcement systems are considered;

The features of enforcement proceedings in foreign countries are determined;

The effectiveness of some methods and means used in enforcement proceedings in Russia and foreign countries is analyzed;

‡- the main proposals for reforming the existing system of enforcement proceedings in Russia have been formulated.

The work mainly used such general scientific methods as systemic and functional approaches, as well as analysis, synthesis and comparison.

The theoretical basis of the work was the works of famous scientists - V.V. Yarkova, I.V. Reshetnikova, O.A. Dolgopolova, V.O. Abolonina, E.I. Chugunova and others.

The work of foreign authors was also used: A. Uzelac, V. Hess, S. Goldstein, K. Zweiger, N. Kotz, R. Na-pierala and others.

Chapter 1. Global systems of enforcement proceedings: comparative legal analysis

Comparison of models for the construction and functioning of various systems of civil jurisdiction, including enforcement proceedings, is extremely important. Currently, comparative legal research is significant not only and not so much for scientific reasons. There are many purely pragmatic reasons for this, caused by the need for effective legal regulation and stimulation of the development of economic life. Currently, there is intense competition between different legal systems, when states that create better legal conditions for doing business, protecting the rights of investors, offering more convenient jurisdictional conditions for resolving disputes and executing court decisions, ultimately attract capital and people.

It is necessary to evaluate the role of the Russian legal system as the most important factor in the competitiveness of our country and work to improve it. This has a direct bearing on the judicial system and the jurisdictional system in general (including enforcement proceedings), since it largely creates the legal image of the country and determines its attractiveness for business activity.

Without proper and timely execution of a court decision, it is impossible to talk about the viability of the judiciary and the full implementation of its powers in the legal system of the country. At the same time, an effective enforcement system is important not only for increasing the authority of the judiciary. The main result of its activities is economic: a strong enforcement system, by its very existence, is able to preventively influence the behavior of participants in civil transactions and regulate economic processes in society, that is, make lawful behavior more profitable.

When choosing the direction of development of enforcement proceedings and the compulsory enforcement system, it is necessary to determine the model of organization of the compulsory enforcement system and decide whether a transition to another model is necessary, which may provide a more effective solution to the problems facing the enforcement authorities, or whether it is better to improve the current enforcement model. Thus, the question of the form of organization of the Federal Bailiff Service and the entire compulsory enforcement system in Russia is now one of the most controversial.

To determine trends in the development of global enforcement systems, it is necessary to consider the classification of these systems. Compulsory enforcement systems are distinguished according to a number of criteria.

For example, Professor A. Uzelac distinguishes the judicial system of execution, the system of execution as part of the executive branch and the private system of execution.

Professor B. Hess classifies enforcement systems, dividing them into centralized and decentralized, and divides enforcement bodies into enforcement-oriented, judicial-oriented, mixed and administrative.

When classifying enforcement systems according to the method of organizing the profession of a bailiff, as well as the possibility and limit of participation of non-state organizations in enforcement proceedings, public law, private law (non-budgetary) and public law with elements of private law (mixed) models of enforcement proceedings are distinguished.

In its pure form, the public legal (completely state in form) organization of enforcement proceedings developed in Soviet times, when both the bailiff and the employees of all organizations involved in the enforcement process were in the public service. The public legal organization of enforcement proceedings is characterized by complete nationalization of all its parties, the absence of private initiative when performing certain types of enforcement actions. At present, such an organization may have been preserved in North Korea, in Cuba, but, as researchers note, it is quite difficult to collect reliable material on this matter.

Due to the fact that both the advantages and potential, as well as the disadvantages of public law and mixed systems, are well known, the private law system of enforcement of jurisdictional acts is attracting more and more attention.

It is characterized by the fact that the profession of a bailiff is organized on a liberal basis: a bailiff is a professional who independently organizes his activities and bears full financial responsibility for the results of his work. This is how the enforcement system is organized in France, Belgium, Luxembourg, the Netherlands, Italy, Greece and a number of other countries that have adopted the French system of liberalizing the activities of legal professionals. In the UK, along with bailiffs - civil servants, there are also non-budgetary bailiffs.

According to a number of authors, such a system of execution of jurisdictional acts is most adapted to the needs of society and the state, to the implementation economic activity subjects of civil turnover; in most cases, it guarantees the timely execution of acts of civil jurisdiction, which makes it attractive for countries reforming their enforcement systems.

Undoubtedly, the private law organization of the enforcement system deserves close attention. At the same time, it is necessary to see both the positive results of adopting such a model of organizing compulsory enforcement and the negative ones. One of the first is that the state relieves itself of the burden of financing the system of enforcement agencies - it falls exclusively on debtors. The remuneration of a bailiff directly depends on the results of his activities in the execution of jurisdictional acts, which makes it possible to increase the efficiency of the enforcement system.

But there are also possible negative consequences of the introduction of a private law enforcement system: abuse by bailiffs, since the incentive for their work will be the desire to obtain as much profit as possible; the threat of criminalization of this segment of legal activity due to its significance and the possibility of obtaining information about the debtor and his solvency through the bailiff.

It should also be taken into account that the transition to a private law enforcement system can lead to a significant increase in the income of bailiffs compared to the income of representatives of other legal professions.

One of the last countries to introduce the French liberal model of enforcement proceedings was Lithuania. Since January 2003, Lithuanian bailiffs have ceased to be civil servants, having received the status of free professionals based on the Law on Bailiffs.

More common in modern legal systems a mixed model of organizing enforcement proceedings, when, with the public legal organization of the bailiff profession, organizations operating on a very different organizational and legal basis are allowed into the enforcement process to varying degrees, in particular, specializing in the search for debtors and their property, assessment, storage and sale of the debtor's property. At the same time, the degree of “privatization” of the execution process varies in different countries. For example, in Germany, a bailiff, being an official of the judicial system, receives part of the money directly for the performance of his functions.

The public legal organization of the enforcement system with elements of the private law model exists in the countries of Northern Europe (Sweden, Finland, Denmark), Germany, the USA and a number of other countries.

In the United States, the search for the debtor’s assets is carried out by the collector’s lawyers, who use both formal search methods (for example, using a request through the court, credit agencies) and informal ones (through private detectives). The debt collector can also resort to the services of special debt collection agencies.

The work of such agencies is widespread in Germany, Denmark, Sweden, Finland and can be quite successful.

Undoubtedly, the experience of countries that have switched or are switching to a private law or mixed model of enforcement deserves study and reflection and can be taken into account when discussing reform of the Russian compulsory enforcement system.

The system of enforcement proceedings in Russia today is characterized by the fact that certain functions carried out in the process of compulsory execution are transferred to organizations and individuals not included in the system of state bodies and bodies local government. According to a number of researchers, such a combination of public law and private law principles in enforcement proceedings “allows government bodies - the Federal Bailiff Service - to focus on public law functions, namely compulsory execution, involving in this area commercial organizations, which ultimately operate under the control of the state, since interested parties always have the right to file a lawsuit in court in case of violation or challenge of their rights and legitimate interests.”

At the same time, one cannot help but see that liberalization has led to a significant increase in the costs of enforcement and the growth of structures that have little interest in increasing the efficiency of execution of jurisdictional acts. Attention should also be paid to the high level of criminalization of the privatized segment in the field of enforcement proceedings, as well as to the fact that the sale of seized property is currently outside the control of the FSSP of Russia.

There are prerequisites for the introduction of a private model of voluntary and compulsory execution of jurisdictional acts in the field of enforcement proceedings in Russia today. It seems more acceptable to organize a system of voluntary and compulsory execution along the lines of the Institute of the Bar and the Institute of Notaries.

Classification of enforcement systems according to the place of relevant bodies and officials in the mechanism of the state. Based on the place of enforcement authorities in the state mechanism, three models of organizing compulsory execution can be distinguished:

1) enforcement authorities operate under the court;

2) enforcement proceedings are concentrated in the hands of the executive branch;

3) some of the enforcement bodies operate under the court, and some - in the executive power system (mixed model of compulsory enforcement).

Judicial model. Bailiffs are officials at the courts, or the enforcement functions themselves are assigned to the courts. This model of enforcement operates, for example, in Germany, Denmark, Spain, and Cyprus.

A typical example of the judicial model is the organization of compulsory enforcement in Germany, where enforcement proceedings are carried out by court registrars, who have a special certificate giving the right to execute court decisions. The main subject of enforcement proceedings is the bailiff.

However, here, too, a number of enforcement powers belong to executive authorities: for example, the land cadastre service is responsible for the execution of decisions regarding real estate. Enforcement of decisions in civil cases is carried out only by government agencies. Possibility of enforcement of decisions by private individuals