.
  .




O.V. Isaenkova,
LECTURER OF THE CIVIL LAW CHAIR,
THE SARATOV STATE ACADEMY OF LAW,
DOCTOR OF LAW



PROBLEMS OF EXECUTION OF ACTS ISSUED IN ARBITRATION AND CIVIL PROCEEDINGS


      Civil and arbitration court proceedings are rather similar not only because they regulate legal relations which arise in the course of justice administration, but also because they have common objectives - to protect violated or challenged rights, freedoms, and legally protected interests of natural and legal persons, to further enhancement of lawfulness, and to prevent offenses (Art. 5 of the Code of Arbitration Practice of RF (the CAP of RF) and Art. 2 of the Code of Civil Practice of RSFSR (the CCP of RSFSR)). These objectives are easily attained in consideration of claims seeking recognition of rights and in ex parte proceedings through execution of a lawful and grounded judgment delivered by a common or arbitration court, or a magistrate.

      However, if a claim is connected with adjudication, it is not enough just to deliver a judgment to protect a claimants right effectively, but it is necessary to take measures of physical coercion: to take the property from an illegal owner and transfer it to a real proprietor, to evict a lodger from the apartment in connection with expiration of a rent period or failure to pay rentals, etc. The actions of the kind, performed with the aim to honor individuals lawful requests, gave rise to proceedings of judgments execution or the executory process (execution force, Zwangsvollstreckung)[1]. It is exactly in the course of the executory process that the acts of both arbitration and civil justice are executed.

      In pre-Revolutionary Russia an executory process meant a process of recovery as a forcible change of actual state of relations by virtue of a judgment or any other judicial act of an enforcement effect (titre executoire, instrumentum paratan executionem habens)[2]. Executory activities were supposed to be so simple that they were not commissioned to courts as public authorities having particular characteristics necessary to administer justice, but to other lower bodies (police, district and rural authorities, and later - to bailiffs).

      It should be noted that in the soviet period the thesis that judgments and other judicial acts enforcement was the final stage of a civil process underlay the development of the scientific theory and legislation on the executory process[3].
      In fact, before the Federal Laws On Bailiffs and On the Executory Process came into force on November 6, 1997, an executory process was regulated by the laws of civil and arbitration procedure (section V of the CCP of RSFSR and section IV of the CAP of RF) and constituted a part, the final stage of a civil process, on the one hand, and that of an arbitration process, on the other hand. New laws have undermined the provision that prevailed in the Russian juridical literature for many decades, to the effect that execution of judgments and other legal acts is a stage of a civil (arbitration) process.

      As a result of the reform of legal regulation of the executory process, the opinion that the executory process constitutes a separate branch of law appeared in the modern procedural literature.[4] But it is known from the theory of law that a branch of law is a totality of legal rules united by the specific subject and method of legal regulation, based on its own principles (etc.). Therefore, the executory process cannot be a branch of law, nor can the civil procedure be. Hence, it is the executory law, as a totality of rules regulating execution of jurisdictional acts, rather than the executory process, is a branch of law.

      The basic principles of independence of the executory process and the rules regulating it as a complex branch of law were singled out already before adoption of the Federal Law On the Executory Process by M.K. Yukov[5], and developed in the works by A.K. Sergun[6], V.M. Sherstyuk[7], E.A. Motovilovker[8], V.V. Yarkov[9], N.A. Pankratova[10], M.A. Vikut[11].
      Nowadays the executory law is one of the branches of Russian law, without which the system of law cannot function properly. Execution of judicial acts regulated by the rules of the executory law is, in essence, the very output whereby it is possible to judge about effectiveness of all law enforcement activities[12]. The executory law regulates legal relations which arise in the executory process, where a substantive right or a legally protected interest, violated or challenged by a debtor and verified by a jurisdictional act, is exercised through the mechanism of public enforcement. The executory process is conducted in a statutory procedural form, when interested persons participating in it are granted certain procedural rights. The executory process serves as a legal and logic implementation of judicial, administrative, and public jurisdiction, going beyond the framework of court proceedings. It ensures attainment of the substantive objective of jurisdictional activities, it is exactly the executory process that makes it possible to judge about effectiveness and efficiency of the legal protection as a whole.[13] Errors committed in the executory process may nullify all law enforcement activities in protection of specific rights and may bring about an opposite result - violation of substantive rights and legally protected interests of parties to legal relations

      Objectives of the executory process are determined by, but do not concur with, purposes of the justice administered in civil cases. The main purpose of the executory process is to ensure lawful, timely, and proper in quality and scope execution of jurisdictional acts.

      As any other branch of law, the executory law has its own subject and specific methods of legal regulation, normative base, and special principles constituting normatively established fundamentals of the executory process, which manifest its specific character and on which basis it is possible to get an overview of the branch. It regulates the activities of special subjects - parties to an executory process who differ from participants of arbitration and civil proceedings both in composition and functions performed.

      The subject of a legal regulation of the executory law is public relations which arise in the the course of the executory process. The executory law is a procedural branch of law, and like any other procedural branch of law, it is characterized by the fact that it regulates legal relations in their dynamics. Therefore, the subject of its regulation comprises obligatorily not only legal relations between parties thereto, but also the procedural activity of their realization.[14] The basis of the subject of legal regulation of the executory law is the totality of relations arising between enforcement agencies (Art. 3 of the Federal Law On the Executory Process), on the one part, and other participants of the executory process, on the other part.[15] Actually, enforcement of jurisdictional acts is not a separate uniform relationship but, as V.V. Yarkov rightly remarks, functions as a whole system of certain procedures in execution of specific acts.

      However, unlike the criminal executory law which has its own Criminal Executory Code of RF dated January 8, 1997, the executory law has no uniform codified source, and its normative base consists of the Federal Laws On the Bailiffs and On the Executory Process, effective as of 6 November 1997, adoption whereof entailed, in fact, abrogation of the majority of sections V of the CCP of RSFSR and of the CAP of RF which formerly regulated the executory process. Lack of a uniform codified normative act regulating the system of executory relationship negatively affects the authority of the judicial power, belittles the importance of execution of judicial acts in the system of administration of justice in civil cases.

      The Executory Code (the EC) is nowadays vitally indispensable, and it is just the EC which pursuant to the rules of international law and the Russian specifics should stipulate the fundamental provisions and institutes pertaining to the whole of the executory process: the principles of the executory process and guarantees of their implementation, the enforcement agencies, participants of the executory process, the system of protection of their rights, representation, time limits for execution of jurisdictional acts, costs and expenses related to then executory process, responsibility, general rules of record of execution actions (The general part of the EC). A special part of the EC will consist of the norms regulating progress, development of the executory process stage by stage, from its initiation until its completion, as well as peculiarities of execution of executory acts in separate categories of recovery and with respect to different persons.

      Inconsistency of the normative base of the executory process with the rules of both the current Russian and international laws, in particular, of the Convention of the Council of Europe On Protection of Human Rights and Basic Freedoms of November 4, 1950 should be remedied in the EC. In view of the volume of the theses, we shall dwell only on some of them. Thus, Art. 50 of the Law On the Executory Process respecting determination of the list of property which cannot be recovered, gives a reference to Attachment No.1 to the CCP which has not been changed for the last two decades. This list is in many respects contrary to Articles 8 and 9 of the Convention dated 8 November 1950. The rights of respect for private and family life, inviolability of the home are not correlated with the possibility of attachment and sale of the debtors houses and apartments where their family members and other persons, who are not parties to the executory process, may live. Para 1 of the List prohibits only execution, pursuant to a writ of execution, upon houses of persons whose main occupation is agriculture. And what about townspeople who have privatized residence or those that got it as a result of a transaction? The exhaustive nature of the List permits a bailiff to execute upon any residence of persons whose main occupation is but agriculture, irrespective of the number of persons living there.

      The List does not include things of religious and ritual purpose, which is contrary to para 1, Art. 9 of the Convention declaring the right of every individual to freely practice any religion, to observe religious and ritual procedures. Proceeding from the purport of the List, a bailiff is obliged to execute upon objects including religious and ritual ones, which are or are not articles made of precious metals regardless of their artistic value, and that violates para 2, Art 9 of the Convention permitting restriction of free religious practice only in cases established by law and necessary in a democratic society to protect the public order, health, or morals, or to protect the rights and freedoms of other persons. Nor has the problem been solved by the Law dated 26 September 1997, No. 125- On Freedom of Conscience and Religious Associations which, although provides for impossibility to execute upon the property of religious purpose following the debtors claims (Art. 21)[16], does not define the list of types of such property. The Russian Government was charged with adoption of the list, but so far it has not fulfilled the request of the legislative power

      Besides, many of the rules of the present-day executory law providing for liability in their sanctions, define it vaguely, establish the extent of liability without definite standard criteria. Thus, Art. 85 of the Federal Law On the Executory Process stipulates that citizens and officials failing to follow lawful demands of a bailiff and otherwise infringing the laws of the Russian Federation related to the executory process are fined at the rate of up to one hundred minimal labor remuneration. The same rate of the fine is fixed in Art. 87 of the Federal Law On the Executory Process. The legislator is rather unscrupulous in determination of regulations respecting liability, does not determine even the lowest limit - the minimal rate of the fine. This allows a law enforcement agency to apply freely and ambiguously one and the same rule of the executory law in different legal situations and to impose penalties on a person within unjustifiably wide limits, from 1 kopeck (that is a minimal pecuniary unit in Russia and must be applied as the lowest limit) up to one hundred minimal labor remuneration.

      Such situation cannot be recognized as rightful, it is expedient to reasonably narrow the procedural limits of liability by establishing legislatively not only the upper limits, but also the lower limits of liability and optimal criteria of its application (the circumstances mitigating and aggravating the offenders guilt). Some steps have already been taken in solution of the problem, in particular, Art. 81 of the Federal Law On the Executory Process has expressly fixed the execution dues. However, the aforementioned example of express regulation of the liability extent is rather an exception than a rule in the legislative practice.

      In practice, the procedure of issue of writs for execution of resolutions of intergovernmental agencies for protection of human rights and freedoms (for example, of the Commission of Human Rights of CIS, the European Court of Human Rights)[17] is not regulated, whereas applications of Russian subjects to intergovernmental organizations for protection of their rights occur more often nowadays.

      Adoption of the Executory Code of RF would allow to solve these and other problems by unifying execution of acts issued in arbitration and civil proceedings following the example of execution of acts issued in criminal proceedings.



[1]  See: E.V. Vaskovski, Textbook of the Civil Process, the 2-nd revised edition, Moscow, 917, p. 367.
[2]  See: K. Malyshev, The Course of Civil Proceedings, in 3 volumes, Saint-Petersburg , vol. 3, 1879, p. 373.
[3]  B.A. Liskovets, G.V. Chugunov, Ispolnenie Sudebnyh Reshenij (Execution of Judgments), Moscow, 1952, pp. 4-5;
M.G. Avdyukov, Ispolnenie sudebnyh reshenij (Execution of Judgments), Moscow, 1960, p.3;
Yu.I. Grinko. Ispolnenie sudebnyh reshenij (Execution of Judgments), Kazan, 1969, p.3; The Course of the Soviet Law of Civil Procedure, volume 2, p. 321;
L.F. Lesnitskaya, L.V. Filatova, M.K. Yukov, Ispolnitelnoye proizvodstvo (The Executory Pprocess), Moscow, 1983, p.3; The Law of Civil Procedure of Russia: the Text-book for Higher Educational Institutions, ed. by M.S. Shakaryan). Moscow: 1996, p. 303;
The Civil Process of Russia: the Text-book for Higher Educational Institutions, ed. by Yu.K. Osipov,. Moscow, 1996, p. 387, etc.

[4]  See: D.Kh. Valeev, Protsessualnoye polozhenie lits, uchastvuyuschih v ispolnitelnom proizvodstve. (The position of Persons Participating in the Executory Process. Ph.D. Thesis ) An abstract from doctoral thesis, Kazanj, 1999, pp. 6,8-9, etc.
[5]  See: M.K. Yukov, Samostoyatelnost norm , reguliruyuschih ispolnitelnoye proizvodstvo, v: Problemy sovershenstvovaniya GPK RSFSR. (Independence of the Rules Regulating the Executory Proces, in: Problems of Improvement of the CCP of RSFSR.) Sverdlovsk, 1975, pp. 91-97; Teoreticheskiye problemy sistemy grazhdanskogo protsessualnogo prava (Theoretical Problems of the System of the Law of Civil Procedure), An abstract from doctoral thesis, Sverdlovsk. 1982, pp. 155-191.
[6]  See: The Soviet Civil Process: Text-book, ed. by M.A. Gurvich, Moscow, 1975, pp. 281-282.
[7]  See: V.M. Sherstyuk, Systema sovetskogo grazhdamskogo protsessualnogo prava (Voprosy Teorii) (The System of the Soviet Law of Civil Procedure (Issues of theTtheory)), Moscow, 1989, pp. 22-23.
[8]  See: E.A. Motovilovker, M.G. Baumov, Grzhdanskii protsess i ispolnitelnoye proizvodstvo, v: Problemy sovershenstvovaniya pravosudiya po grazhdanskim delam. (The Civil Procedure and the Executory Process, in: Problems of Enhancement of Justice in Civil Cases.). Yaroslavl, 1991, pp.86-96.
[9]  See: I.V. Reshetnikova, V.V. Yarkov, Grazhdanskoye pravo i grazhdanskij protsess v sovremennoi Rossii. (The Civil Law and the Civil Procedure in the Present-Day Russia), Ekaterinburg-Moscow, 1999, pp. 204-205;
V.V. Yarkov, Problemy realizatsii sudebnyh actov po grazhdanskim delam, v: Problemy sovershenstvovaniya pravosudiya po grazhdanskim delam. (Problems of Execution of Judicial Acts of Civil Cases, in: Problems of Enhancement of Justice in Civil Cases). Yaroslavl, 1991, pp. 80-81;
Kontseptsiya reformy prinuditelnogo ispolneniya v sfere grazhdanskoi yurisdiktsii, v: Rossijskij yuridicheskij zhurnal. (The Concept of the Reform of Enforcement in the Sphere of Civil Jurisdiction, in: Russian Juridical Magazine). 1996, No.2, pp. 36-38.;
U. Bernem, I.V. Reshetnikova, V.V. Yarkov, Sudebnaya reforma: problemy grazhdanskoi yurisdiktsii (The Judicial Reform: Problems of the Civil Jurisdiction). Ekaterinburg, 1996, pp. 118-119.

[10]  See: N.A. Pankratova, K voprocy ob ispolnitelnom prave, v: Teoreticheskiye i prikladnye problemy reformy grzhdanskoi yurisditsii. (To the Problem of the Executory Law, in: Theoretical and Applied Problems of the Reform of the Civil Jurisdiction.) Intercollege collected scientific works, Ekaterinburg, 1998, pp. 195-206.
[11]  See: M.A. Vikut, I.M. Zaitsev, The Civil Procedure of Russia: Text-book. Moscow, 1999, pp. 349-350.
[12]  See: V.F. Kuznetsov, Realizatsiya sudebnyh reshenii, ne svyazannyh s peredachei imuschestva ili denezhnyh summ. ( Enforcement of Judgments not Connected with Transfer of Property or Sums of Money. An abstract from doctoral thesis). Sverdlovsk, 1986, pp. 1-2.
[13]  See: The Civil Process. Text-book for Higher educational institutions ed. by Yu.K. Osipov. Moscow, 1996, p.387.
[14]  See: M.A. Vikut, I.M. Zaitsev, The Civil Process of Russia: Text-book. Moscow, 1999, p. 16.
[15]  See: N.A. Pankratova. K Voprocy ob Ispolnitelnom Prave// Teoreticheskiye i Prikladnye Problemy Reformy Grzhdanskoi Yurisditsii. (To the Problem of the Executory Law// Theoretical and Applied Problems of the Reform of the Civil Jurisdiction.) Intercollege collected scientific works. Ekaterinburg, 1998, p. 204.
[16]  See: Sobranie zakonodadelstva RF (Collected Laws of RF), 1997, No. 39, Art. 4465.
[17]  At present, it is suggested to adopt a special legislative act or rules regulating issue of writs on the basis of resolutions of intergovernmental agencies on protection of human rights and freedoms. See: V.V. Yarkov, Kommentarii k Federalnomu zakonu Ob ispolnitelnom proizvodstve i k Federalnomu zakonu O sudebnykh ristavakh (Comments on the Federal Law On the Executory Process and the Federal Law On Bailiffs), Moscow, Yurist Publishing Group, 1999, pp. 64-65.


   .
  .