Organizational Structure of Compulsory Enforcement Bodies of Foreign States

Belarus

In the Republic of Belarus, the organization of the activities of bailiffs of district (city) courts is carried out by the Ministry of Justice of the Republic of Belarus, the departments of justice of the regional and Minsk city executive committees. The functions of enforcement in the Republic of Belarus are assigned to bailiffs who are attached to the respective courts. In courts where there are two or more bailiffs, a senior bailiff is appointed. In courts, the general management of the activities of bailiffs is entrusted to the chairmen of the courts. Direct control over the fulfillment of the tasks assigned to bailiffs is carried out by judges and senior bailiffs.

The execution of judgments issued by economic courts of the Republic of Belarus is entrusted to the Service of Executors of Economic Courts, which is attached to the Supreme Economic Court of the Republic of Belarus. The service of bailiffs of economic courts is included in the system of economic courts of the Republic of Belarus and is the body for the execution of judicial and other acts on economic (economic) disputes. The service of bailiffs consists of the Department for the Organization of Enforcement Proceedings of the Supreme Economic Court and departments for the execution of decisions of the economic courts of the regions and the city of Minsk. The service is headed by the head of the department for the organization of enforcement proceedings - the chief bailiff of the economic courts of the Republic of Belarus. General management of the activities of economic courts in the execution of judicial and other acts is carried out by the Chairman of the Supreme Economic Court.

Belgium has a national organization of bailiffs. Having started his activity, the bailiff automatically (and necessarily) becomes a member of the National Chamber of Bailiffs. Along with the National Chamber of Bailiffs, there are also local-district chambers of bailiffs. The National Chamber adopts recommendations and guidelines. Local authorities complement the disciplinary elements and may make different decisions.

Bulgaria

The position of a private bailiff is established and liquidated by the authorized body within the total number of private bailiffs in the territory of the enforcement district. The number of private bailiffs is determined by the authorized body based on the workload.

In Bulgaria, a professional organization has been established - the Chamber of Private Executors, which includes all private executors. The bodies of the Chamber of Private Bailiffs are the General Meeting, the Council of the Chamber, the Control Council and the Disciplinary Commission.

The Chamber has created a nationwide register of private bailiffs, which contains information about personal data and the area of ​​operation of a particular private bailiff, the address of his office, and the amount of insurance liability. Information from this register is open to the public and everyone has the right to familiarize themselves with it and receive data of interest from it.

Private bailiffs annually submit a report on their activities to the Ministry of Justice.

Judicial control over private bailiffs is exercised by the relevant district court, which hears cases on appealing against the actions of a private bailiff.

Administrative control over the activities of private bailiffs by the state is exercised by the Ministry of Justice.

Great Britain

In England, Wales and Scotland there is a mixed enforcement system.

Enforcement proceedings in the county courts are carried out by the bailiffs, who are part of the judicial system. Their work is supervised by bailiffs who exercise supervision. Management of many matters is carried out by the senior clerk of the county court, to which the bailiffs are attached.

Bailiffs are affiliated in the Association of Bailiffs of the High Court of England and Wales. It is a self-regulatory association and membership is not required.

Germany

In Germany, the body that enforces acts of civil courts is a bailiff, if enforcement on the basis of the law is not assigned to the competence of the court, as a rule, the district, or, for example, when executing a decision of a non-property nature, the court that considered the case in the first instance. If the execution is within the competence of the court, it is carried out by a special category of court employees with a special higher

education, which independently perform certain procedural actions. Enforcement of administrative acts and acts of tax authorities is carried out by these authorities independently.

In Germany, a bailiff is appointed to the position of the chairman of the highest regional court, seconded to the district court of the district in whose territory he is to work, thus acting under the authority of the head of this district court.

On January 1, 2009, the institute of bailiffs came under the direct subordination of the Ministry of Justice (before that, the institute was under the jurisdiction of the judiciary).

In Israel, the Minister of Justice has the right, with the permission of the Parliamentary Committee on Legal Affairs, to establish an office of a bailiff in each district, in the amount of at least one office for each district. The appointment of the head of the bailiff's office is carried out by the Minister of Justice with the consent of the President of the Supreme Court from among the leadership of the Magistrate's Court. The Minister of Justice also appoints the head of the Office of the Judicial Enforcement System, responsible for the actions of the Bureau of Judicial Enforcement and Enforcement of the Orders of the Administration of the Judicial Enforcement System. The head of the enforcement system has the same powers as the head of the enforcement bureau.

Kazakhstan

In the Republic of Kazakhstan, the authorized state body that ensures the timely execution of judicial acts is the Committee on Judicial Administration under the Supreme Court of the Republic of Kazakhstan. Execution of executive documents is assigned to bailiffs. The system of bodies of enforcement proceedings is formed by: the authorized state body for ensuring the execution of executive documents, territorial bodies and departments of territorial bodies. The territorial bodies of the Committee at the regional level are called Administrators of the courts, and at the district level - the territorial divisions of bailiffs. Heads of territorial sites are senior bailiffs.

Control over the activities of the state bailiff shall be exercised by the authorized body and its territorial bodies.

Supervision over the legality of enforcement proceedings is carried out by the Prosecutor's Office.

In addition, in the Republic of Kazakhstan there is a republican board of private bailiffs, which is a non-profit organization and is a professional association of regional boards of private bailiffs. Each of the regional colleges of private enforcement officers elects, in the manner prescribed by the charter of the Republican college of private enforcement officers, representatives to the Republican college of private enforcement officers.

The territory of activity of a private bailiff, as well as the number of private bailiffs within the executive district, are determined by the authorized body together with the Republican Collegium of Private Bailiffs.

The Republican College of Private Bailiffs: coordinates the activities of regional colleges of private bailiffs, represents the interests of regional colleges of private bailiffs and private bailiffs in state bodies and non-governmental organizations, participates in the work of the International Union of Bailiffs and Employees, other international and foreign organizations on issues organization of private enforcement activities, participates in the rule-making and expert activities of the authorized body, other state bodies on enforcement proceedings and related to private enforcement activities, organizes the training of private enforcement officers, improving their qualifications, ensures the protection of social and professional rights of enforcement officers engaged in private practice and exercise other powers.

Control over the legality of the enforcement actions performed and compliance with the rules of office work by a private enforcement agent is carried out by the authorized body, the Republican and regional colleges of private enforcement agents. Control over compliance with tax legislation by a private enforcement agent is carried out by the bodies of the tax service of the Republic of Kazakhstan.

Enforcement in Canada is carried out by sheriffs who are in the public service, as well as private enforcement officers (bailiff) or specialized firms providing commercial services in the field of civil law enforcement, who receive a license for this activity from the state and carry out it. on one's own.

The typology of bailiffs (in Canadian legal terminology - bailiff or sheriff) differs depending on their jurisdiction and the resulting corresponding legal status, as well as functional duties.

IN last years In Canada, there is a trend to transfer powers in civil enforcement proceedings from government departments to private agencies.

An example is Alberta's legal reform, which many experts in Canada describe as a highly successful enforcement reform project that could be replicated throughout the country. In 1996, the province of Alberta enacted a law on civil enforcement proceedings, which defined a private bailiff and a specialized enforcement agency, detailed their status, rights and obligations, the procedure for interacting with government agencies, as well as the mechanism for organizing an enforcement agency. production. Supervisory functions over the activities of private bailiffs and agencies were assigned to the Ministry of Justice of the province of Alberta, or rather, to a special department of the judicial department of the department - the Sheriff's Office for Enforcement Proceedings. This division is engaged in licensing private bailiffs and agencies, and also has the authority to investigate the facts of non-compliance with business ethics on their part in relation to both creditors and debtors. The purpose of the reform was to minimize the role of the court, leaving it primarily with supervisory powers, as well as to reduce enforcement proceedings in civil cases to an administrative procedure carried out mainly through a specialized agency acting on the instructions of the creditor, thereby increasing the role of the latter in the general system of measures of enforcement proceedings. An important innovation was the abolition of the previous legislative requirement for a creditor to receive a court order to seize property. According to the law on civil enforcement proceedings, only specialized agencies can carry out this measure of enforcement proceedings.

In the province of Ontario, the activities of private bailiffs ( individuals and specialized agencies) is governed by the provisions of the bailiffs law of 1990. The agencies were overseen (as well as their licensing and registration) until 2005 by the Ministry of Consumer and Business Affairs. After the new Ministry of Government Services was created in 2005 in place of the former ministry, the functions of licensing and registering private bailiffs and agencies were transferred to the Ministry of Small Business and Consumer Services. At present, oversight functions are divided between the Department of Small Business and Consumer Services and the Office of the Attorney General of Ontario. Thus, unlike in Alberta, in the province of Ontario, private agencies cannot carry out enforcement actions such as seizure of the debtor's property and restoration of property rights. The implementation of these measures lies within the competence of the Sheriff's Office of the Attorney General's Office.

The enforcement system in Nova Scotia largely mirrors the Alberta model. There, too, in 1996, a reform of the system of civil enforcement proceedings was carried out, as a result of which part of the functions of the department of sheriffs of the Ministry of Justice of the province was transferred to the so-called. provincial civil constables, who may be either individuals or private specialized agencies. Under the Canadian Penal Code, they are treated as policing officials and are similar in status to private bailiffs in other provinces. Their activities are regulated by the Provincial Police Services Act, 1989. However, they have the right to carry out enforcement actions such as seizure of property and repossession of property in court. Supervisory functions are assigned to the Ministry of Justice of the province of Nova Scotia.

Unlike the rest of Canada, Quebec has one integrated body of private bailiffs, the Chamber of Judicial Officers of Quebec. The Quebec model largely copies the European system, in particular the French enforcement proceedings. The functions of bailiffs in the province are not divided. They ensure both the work of the courts (similar to sheriffs) and carry out civil enforcement proceedings (similar to bailiffs). The Chamber of Judicial Officers of Quebec is the only representative from Canada in the International Union of Judicial Officers and Officials.

Netherlands

In the Netherlands, bailiffs are united in a professional organization - the "Royal Organization of Professional Bailiffs", which has a state status, which means that it has the right to issue orders and decisions binding on all bailiffs. All bailiffs are members of this organization. Its tasks include improving the professional activities and advanced training of bailiffs, supervising the activities of bailiffs. The organization is funded by compulsory contributions from all its members. The bailiff is appointed to the position by Royal Decree on the proposal of the Ministry of Justice.

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 officials of the federal justice system reporting to the US Attorney General through the US Department of Justice. Each of them is appointed for 4 years by the President and approved by the Senate and performs his functions within the federal judicial district in the United States, thus, there are 94 US marshals with more than 4,000 employees subordinate to them (more than 3,000 assist the marshals in ensuring the safety of the courts). “contractors” from security firms).

The central office for all US Marshals is the U.S. Marshals Service within the US Department of Justice. The United States Marshal Service is directed by a director appointed by the President.

US Marshals perform tasks that are essential to the smooth and efficient functioning of the federal justice system.

At the same time, attention should be paid to the fact that state bodies responsible for enforcement are used where there is a risk of physical conflict or unrest.

In this regard, a significant part of the work of enforcement in the United States is carried out by private collection agencies, thereby freeing the public authorities to work on more serious cases. This allows public authorities responsible for the enforcement of judgments to prioritize more difficult or potentially contentious cases where public authorities are most needed and effective. The way private collection agencies operate varies from place to place, as does the level of regulation in the states where they operate. In addition, many private debt collections are carried out by agents to whom the creditor sells the judgment, and the sale has been duly registered with the court in which the judgment was issued. In this regard, all rights of the creditor are transferred to the collection agent, and the creditor receives the agreed advance payment from the collection agent. Such an agreement also includes the use by collection agents, if necessary, of the resource of government departments.

Enforcement proceedings in the United States are governed by state statutes and the civil litigation rules of a particular state.

Finland

In the Republic of Finland, enforcement functions are assigned to the State Compulsory Enforcement Service.

The State Compulsory Enforcement Service of Finland is an independent executive body subordinated to the Ministry of Justice of the Republic of Finland, which coordinates and supervises the activities of the Service, strategic planning and strategic management, development of legislation related to the scope of the Service, as well as budget planning.

The Service is independently engaged in its administrative management, exercises control and supervision in the established field of activity.

The main tasks of the Service are the organization of the enforcement of judicial acts issued on obligations or prohibitions in the field of private law, as well as the enforcement of public law payments, such as taxes, fines, etc.

The State Compulsory Enforcement Service of Finland consists of a central office and territorial bodies subordinate to it. The Service is headed by a leader appointed by the State Council (Government). The central office of the Service employs 20 people. In total, there are 22 territorial bodies of the Service throughout the country. The management of territorial bodies is carried out by senior district bailiffs. The territorial body has its own area of ​​activity (district), within which the functions of enforcement are carried out. There are 2 to 9 enforcement departments per county, depending on the size of the county. The departments are headed by district bailiffs (by analogy with the Russian system - senior bailiffs).

District bailiffs organize the work of the department, ensure that officials subordinate to them (bailiffs and clerks) properly and in accordance with the law perform their duties, and also carry out their orders.

In general, there are about 650 bailiffs in the country who do not have personal assistants, but the “support staff” of the executors works in the office (also about 650 people across the country). Now in Finland's Compulsory Enforcement Departments the action "enforcement support" is based, that is, when the employees of the office are authorized to perform some actions that were previously performed by bailiffs. These tasks, for example, are related to the control of the correctness of the collection of wages. Of the total number of bailiffs, 100 people are involved in holding auctions and selling debtors' property.

A Finnish citizen who has a bachelor's or master's degree in law, who is well acquainted with enforcement proceedings or who, in the performance of other duties, has acquired the skills or qualifications necessary for successful work in this position, may be appointed to the position of district bailiff. Additional conditions for appointment to the position of a senior district bailiff are good leadership qualities and the ability to manage the practical work of subordinates in the implementation of enforcement proceedings.

A creditor (collector) can send a request for the execution of a court decision via the Internet. In this case, the creditor must have a court decision in his hands and present the original of this decision to the executive body. However, since 2011 it will not be necessary to present the original court decision to the bailiff, because. the bailiff will be given the right to download the judgment.

In France, there are various professional bailiff organizations with different aims and functions. Chambers of bailiffs exist in departments, regions and at the national level. Under the Ministry of Justice of France, the National Chamber of Bailiffs has been established, which coordinates the activities of bailiffs within the country. Its functions include cooperation with bailiffs of the countries of the European Union. The Regional Chamber unites all bailiffs subordinate to the Court of Appeal, settles disputes between the Chambers at the departmental level or with bailiffs of other jurisdictions.

The Ministry of Justice of France exercises control over the execution of court decisions, determines the number of bailiffs, considers complaints against the actions of bailiffs, makes appropriate changes to the country's legislative acts relating to the activities of bailiffs.

Control over the activities of bailiffs is carried out by the Prosecutor of the French Republic through inspections and checks of financial and accounting documents. He can also start criminal prosecution of the bailiff. In addition, the Prosecutor of the French Republic may decide to temporarily suspend the prosecution.

However, a kind of procedural control is exercised by a special category of judges – “enforcement judges”. Thus, the “enforcement judge” considers complaints against the actions of the bailiff, and also resolves all the complex issues that the bailiff has in the process of enforcement of court decisions, for example, decides to exclude property that does not belong to the debtor from the inventory, determines the amount of real debt owed to the claimant, by examining the payment documents submitted by the parties, checks the correctness of the calculation of interest, decides on the suspension of the execution procedure, decides on the arrest of the debtor's property in order to return it to the rightful owner, etc.

To date, the number of bailiffs in France is 3,300 (of which 750 are women), who operate in 2,000 offices (bureaus). These offices (bureaus) are the property of bailiffs who have the right to sell them, transfer them to inheritance or inheritance. Bailiffs involved 10,000 hired workers. The average age of a bailiff in France is 45 years.

The bailiff (or bailiff) of France is a civil servant (official), but his work on the enforcement of court decisions is built exclusively on a private basis. The bailiff is empowered to serve acts, enforce judgments and collect debts.

The bailiff is appointed to the position by a decree of the Minister of Justice of the French Republic - the custodian of the seal and carries out his activities in a free form. The regulation and management of the activities of bailiffs are included in the functions of the Ministry of Justice of the French Republic and the National Chamber of Bailiffs.

The status of bailiffs is determined by Ordinance No. 45-2592 of November 2, 1945 (as amended by Decree No. 55-604 of May 20, 1955 and supplemented by Decree No. 56-22 of February 29, 1956).

French law imposes the following requirements on persons applying for the position of bailiff:

the presence of French citizenship;

not to commit actions discrediting his honor and integrity;

not be convicted of committing acts that entailed the application of disciplinary or administrative sanctions to him in the form of removal from office, exclusion from the professional corps, recall, retirement, withdrawal of consent or permission to conduct activities;

not to go through insolvency cases in connection with the judicial restoration of the solvency of enterprises;

the presence of a certificate of higher legal education or a diploma equivalent to it;

passing a professional internship for two years, of which at least one year in the office of a bailiff, then with a notary, a lawyer, a sworn appraiser or a court attorney, and then passing a professional training course;

passing the state exam for professional suitability;

taking an oath within a month from the moment of his appointment to the position and showing accuracy, decency and understanding of the responsibility assigned to him in his work.

With regard to the question of the liability of the bailiff, it should be noted that French law provides for the personal responsibility of the bailiff for his guilty actions. Also, the bailiff is liable for his guilty actions in relation to the creditor, even if he is not levied to compensate for the damage caused to the debtor.

As part of the assignment that binds him to his client (claimant), he is responsible for the use of certain methods, but not for the results achieved.

The bailiff must do everything possible to properly enforce the judgment and obtain payment from the debtor, but he is not responsible for the ineffectiveness of the procedure, if he did not commit wrongful acts.

He is also responsible for the advice he gives to his client regarding the choice of enforcement procedure, since it should best suit the debtor's means and property, if any. He must act quickly and accurately. Delay in the seizure of the debtor's property, as a result of which proceedings are initiated to restore (bankruptcy) its solvency, may lead to liability of the bailiff.

Moreover, the debtor or third parties who have suffered losses due to illegal actions of the bailiff may claim damages directly from the bailiff. The latter has the right to turn to the "enforcement judge" in order to invalidate illegal documents, or in order to seek compensation for damages.

In turn, the creditor, on the basis of the liability provided for by the agreement between him and the bailiff, may levy a claim on the bailiff and demand from him compensation for payments made to the debtor or a third party as compensation for damage caused by the guilty actions of the bailiff himself.

Enforcement in Sweden is carried out by the Enforcement Office, a government agency, while the bailiff of either the area where the debtor lives or the area where the property to be seized is located is directly responsible.

Introduction

Chapter 1. Organization of enforcement proceedings in France 16

1. General provisions: terminology and sources of enforcement proceedings 16

1.1.1. On the issue of terminology in the field of enforcement proceedings 16

1.1.2. French Enforcement Sources 19

2. Evolution of enforcement proceedings in France 26

1.2.1. From the history of the profession of bailiffs 26

1.2.2. History of the development of enforcement proceedings 28

1.2.3. Importance of Enforcement Proceedings in France 45

3. Place of enforcement proceedings in the system of law 50

4. Principles of Enforcement Proceedings in France 57

5. Participants in enforcement proceedings 66

1.5.1. Parties and third parties in French enforcement proceedings.69

1.5.2. Bailiff 78

1.5.3. Execution Judge 90

1.5.4. Participation of public authorities in enforcement proceedings 95

1.5.5. Participation in the enforcement proceedings of the prosecutor's office ... 101

6. Executive documents as a condition for the implementation of enforcement proceedings 104

7. Economics of Enforcement Proceedings: Remuneration and Enforcement Costs 108

1.7.1. Remuneration of bailiffs 109

1.7.2. Execution costs imposed on the parties of enforcement proceedings 112

Chapter 2 Carrying out enforcement proceedings in France 121

1. Enforcement measures in France 121

2.1.1. The concept of enforcement measures 121

2.1.2. The ratio of enforcement measures in Russia and in France 124

2.1.3. Types of enforcement measures in France 126

2.1.4. Foreclosure on movable property 129

2. Ways to compel the debtor to perform 131

2.2.1. Methods of direct enforcement 131

2.2.2. Methods of indirect enforcement 136

3. Foreclosure on the debtor's real estate 160

2.3.1. The history of the development of the foreclosure procedure on real estate 162

2.3.2. Object and procedure for foreclosure on real estate 165

4. Proceedings to determine the order of creditors and to distribute funds from the sale of the debtor's property among the creditors 176

2.4.1. Proceedings to determine the order of creditors of an insolvent debtor 177

2.4.2. Proceedings for the distribution of amounts from the sale of property of an insolvent debtor between its creditors 178

Chapter 3 Interaction of execution systems of France and Russian Federation 180

1. Conditions for the recognition and enforcement of foreign judicial acts in France and the Russian Federation 180

3.1.1. Place of the issue of recognition and enforcement of foreign judgments in the system of law 180

3.1.2. Recognition and enforcement of foreign judicial acts in the Russian Federation and in France 185

2. Unification and harmonization in the field of enforcement proceedings 209

3.2.1. The main directions of unification and harmonization in the field of international civil procedure and international enforcement proceedings 211

4 3.2.2. The main directions of unification and harmonization in the field of pan-European enforcement proceedings 215

3. Ways for Russia to enter the European Enforcement Area 230

Conclusion 236

Annex 251

References 260

Introduction to work

Relevance of the research topic. The social and political changes that have taken place in Russia over the past decade, the gradual integration of our state into the world community and many other factors have led to the creation of a new legal reality, the reform of the domestic justice system. As a result, the study of legal experience, individual branches and institutions of law of foreign countries is important for the possibility of their adaptation to the Russian legal system, determining the appropriateness of their application in practice in Russian reality.

The subject of this study is enforcement proceedings, the forms of its existence and interaction in legislation and practice in France and the Russian Federation. It is the enforcement proceedings that determine the effectiveness of the administration of justice in civil cases, the significance of the court decision, the reality of protecting violated or contested rights, confirms the general binding nature of the decision, its legal force, and, ultimately, shows the degree of respect for the Law by both individual subjects and the general population. .

Of course, enforcement proceedings, i.e. the procedure for the enforcement of the requirements of a jurisdictional act exists in each country. Each state organizes its enforcement bodies, creates national rules for the execution of certain documents in relation to certain property of the debtor. Certain legal institutions have similarities, in particular, forms of foreclosure on the debtor's property, property immunities from foreclosure, etc. However, in some countries enforcement proceedings are really effective, in others there are quite serious problems in the enforcement of the requirements of judicial and other acts.

In recent years, the system of enforcement proceedings has been radically reformed in Russia. But the existing legislation, as emphasized by experts1, needs to be improved. Besides, for

full-fledged legal regulation of any issue, it is necessary to take into account not only doctrinal interpretations, requirements of a practical level, but also foreign experience, centuries-old traditions of other countries. But which ones: related to the Romano-Germanic or to the Anglo-Saxon legal family?

As practice shows, some legal institutions borrowed by domestic legislation from the Anglo-Saxon legal system do not actually operate2, since Russia is more related to the countries of the Romano-Germanic legal family, one of which is France. The legal system of the latter clearly divides law into public and private, it is characterized by the priority of law over other sources of law, a clear and consistent branch division of norms. This country has a rich legal tradition and it would be worthwhile to propose practical advice on improving Russian legislation on enforcement proceedings based on her legal experience.

Why France? After all, as you know, for a certain time in Russian legal life, the developments and the general style of the German branch of European jurisprudence dominated. But, despite this, in the development of some bills (for example, in the preparation of the draft Civil Code of the Russian Federation), legislative materials and practice data, largely based on Romanesque culture, were widely used. It is obvious that French legislative documents of the revolutionary period had a significant impact on the development of legal reality in Russia. This is evidenced, for example, by the consolidation of such basic principles of civil law in Russian laws as the inviolability of property, freedom of contract, etc.3.

Why is the French system of enforcement proceedings the object of this dissertation research?

Firstly, the French system for the execution of acts of courts and other bodies of civil jurisdiction has developed historically for a long time and is distinguished by a number of

advantages compared to the Russian one, which, as you know, does not fully meet the needs of practice.

Secondly, the French system of enforcement to the greatest extent meets the needs of the functioning of society and the state, the implementation of economic activities by subjects of civil circulation, guaranteeing the timely execution of acts of civil jurisdiction bodies by obligated persons and ensuring their rights.

Taking into account foreign legal traditions will undoubtedly give new ideas, ways out of the current situation for the Russian legislator. But, nevertheless, we should not forget about the specifics of the legal system, the constitutional system, the historical traditions of our country, the possibility and ability to accept and put into practice certain legal institutions of foreign countries.

The study of the legal experience of France in the field of enforcement proceedings is due to the fact that the rules of enforcement in this country have existed since the beginning of the 19th century, slightly changing and adapting to the requirements of a socio-economic and political nature. It is the stable, conservative and at the same time flexible nature of the norms of enforcement proceedings, adaptability to changes in the political system and socio-economic conditions of French society that show the viability and effectiveness of legal norms, institutions and the whole branch of "executive law". In addition, at present, representatives of some European countries (Italy, Belgium) say that the purpose of their national legislation is to adopt the French model of execution4. Representatives of other countries (for example, the Netherlands) say that their domestic system of enforcement proceedings is already based on the model of enforcement of the French Republic5. In addition, it is the basis of the enforcement systems of many countries of Eastern Europe and the Baltic States (for example, Poland, Hungary, Slovakia, Lithuania, etc.).

The specificity of the enforcement proceedings in France is that the very

the existence of norms of enforcement proceedings, a simple possibility

the use of state coercion encourage debtors to voluntarily

fulfill the duties assigned to them. Be a bad debtor

unprofitable and dangerous for a particular subject of civil circulation.

The dissertation research is aimed at studying the advantages and disadvantages of the Russian and French enforcement systems, focusing on the possibility of perceiving individual institutions of enforcement proceedings in France in the Russian Federation, taking into account the specifics of Russian reality. This task is due, in addition, to the directions of convergence of various legal systems. We are talking about the "internationalization" of law, its unification and harmonization, both on a European and global scale. It is necessary to study the positive interaction of the legal experience of our countries, including taking into account the pan-European trends in the development of law and legislation.

A comparative analysis of the norms and institutions of enforcement proceedings in France and Russia allows us to draw conclusions about the possibility or necessity of accepting the positive legal experience of one of the leading European countries. 2. Goals and objectives of the study. The purpose of this work is a comprehensive study of the issues of enforcement proceedings in France and Russia in three aspects:

1) conceptual (research of enforcement proceedings as necessary condition for the actual execution of acts of courts and other jurisdictional bodies),

2) comparative law (the study of individual institutions of enforcement proceedings in the Russian Federation and France), 3) international law (analysis of the main directions of harmonization and unification of the international civil process and interstate enforcement proceedings, the interaction of enforcement systems of our states).

To achieve this goal, it is necessary to solve the following tasks:

1) determine the place of enforcement proceedings in the Russian and French legal systems;

2) to explore the main institutions and principles of enforcement proceedings in France in historical and methodological aspects;

3) determine the place of the institution of recognition and enforcement of foreign judgments in the Russian and French legal systems;

4) analyze the conditions for the recognition and enforcement of foreign judgments in France and Russia;

5) explore the significance of an international treaty and the principle of reciprocity in resolving issues of recognition and enforcement of foreign judgments;

6) determine the main directions of unification and harmonization in the field of international civil procedure, affecting the issues of enforcement proceedings;

7) explore the main directions of unification and harmonization in the field of enforcement proceedings, identify global and European trends in the convergence of the norms and institutions of enforcement proceedings in various states;

8) identify the main ways for the Russian Federation to enter the European executive space;

9) to formulate individual proposals for improving the civil procedural and arbitration procedural legislation, enforcement proceedings of the Russian Federation based on the French experience in the area under consideration.

3. Methodological and theoretical basis research. This study was carried out using both general scientific (historical, genetic, systematic research, etc.) and special legal (dogmatic, comparative legal, technical and legal analysis, etc.) methods. The paper provides a comparative legal analysis of the solution of issues of enforcement proceedings in Russian, French and international legislation, an analysis of the judicial practice of Russian and foreign courts.

The theoretical basis of the study was the works of such Russian scientists as S.S. Alekseev, L.P. Anufrieva, M.M. Boguslavsky, A.T. Bonner, D.H. Valeev, M.A. Vikut, O.V. Isaenkova, D.V. Litvinsksh, L.A. Luni, D.Ya. Maleshin, N.I. Marysheva, V.A. Musin, I.V. Reshetnikova, A.G. Svetlanov, M.K. Treushnikov, M.S. Shakaryan, V.M. Sherstyuk, Ya.F. Farkhtdinov, M.K. Yukov, V.V. Bright and others.

In addition, the works of the following foreign authors were widely used in the dissertation: R. David, K. Zweigert, X Kötz, X. Shack, J.-B. Aubu, E. Blanc, Bouttier, L. Cadiet, P. Catala, G. Couchez, Croze, M. Dagot, J. Debeaurain, Ph. Delebecque, M. Donnier, J. Isnard, J.-P. Faget, Jeandidier, A.-W. Jongbloed, S.

Guinchard, D. Martin, R. Martin, T. Moussa, B. Nicod, J. Normand, G. Perrot, R. Perrot, J. Prevault, E. Putman, R. Soulard, B. Stemmer, J. Vincent, M. Veron, Glasson, Tissier, Morel, G. Tarzia, J. Tambour, G. Taormina, M. Veron and others.

4. Scientific novelty of the research. This work is the first comprehensive study of French enforcement proceedings in the Russian Federation. The study of French legislation, doctrine and judicial practice on issues of enforcement proceedings was carried out taking into account the identification of general trends in the development of this branch of law, which made it possible to analyze the possibilities for further development of the principles, norms and institutions of enforcement proceedings in Russia, both by borrowing certain provisions of French civil procedural law and executive production, and by adapting the provisions of Russian legislation to the requirements imposed as a result of such borrowing. The author suggests ways of practical interaction between the legal systems of the Russian Federation and the French Republic in the field of national enforcement proceedings, the pan-European judicial space and the rules for the interstate enforcement of foreign judgments.

In addition, this paper explores the grounds, limits and possibilities for the recognition and enforcement of foreign judgments in both theoretical and practical aspects: the recognition and enforcement of French judgments in Russia, and Russian - in France. In addition, the main ways for the entry of the Russian Federation into the European executive space are substantiated.

5. The following main provisions are submitted for defense, reflecting the novelty of the study.

1. An analysis of the French doctrine, legislation and judicial practice of the French Court of Cassation allowed the dissertation to conclude that in France, enforcement proceedings are traditionally considered as part of civil procedural law, as an essential condition for a citizen’s access to justice, since practical protection of violated or disputed rights, freedoms, legally protected interests. Procedures for the execution of acts of courts and other bodies of civil jurisdiction are part of the legal proceedings in France, since

execution is a logical continuation and completion of the trial; without execution, the litigation has no meaning, and the judicial system has no purpose. Only when implementing a court decision is real protection of violated or contested rights or legally protected interests.

At the same time, the conducted research allowed the author to conclude that the enforcement proceedings in France are autonomous and actually play an independent role in the system of law, since the very essence of the enforcement proceedings is fundamentally different from the activities of the court within the framework of the civil process - justice is not administered here, not a substantive dispute or other legal matter is resolved; the bailiff, not being an independent arbitrator, acts on behalf of and in the interest of his client, exercising his powers within the framework defined by law.

1) from the era of Roman law - until the adoption of the Code of Civil Procedure of France in 1806;

2) from 1806 until the adoption of the law of July 9, 1991, which reformed the system of foreclosure on the debtor's movable property; at this stage, the execution procedures operated virtually unchanged, only slightly adapting to the socio-economic and political changes in French society and the state;

3) from 1991 to the beginning of the 21st century, there was a significant renewal of French legislation, which was the result of the reform of enforcement proceedings in 1991-1992, which, in turn, provided the basis for significant doctrinal research and the development of judicial practice;

4) at the beginning of the 21st century, the legislation on enforcement proceedings is characterized by the development of legislation on enforcement proceedings in France in accordance with European trends in the unification and harmonization of legal norms and law enforcement practices.

3. Having studied the status of a bailiff in the French Republic, legal traditions and historical experience of organizing this profession, the author

came to the conclusion about the expediency of perception in the Russian Federation of the status

French bailiffs as "free professionals". This could

be representatives of the liberal profession and at the same time officials,

having the authority to carry out enforcement measures

execution. Enforcement system based on "free

status” of enforcement bodies, is effective, because in this case

bailiffs are materially interested in prompt and correct

debt recovery. The dissertation proposed, as an experiment, to provide

independent status to some bailiffs by removing them from the system

public authorities and subordinating the obligation to comply with the conditions of admission

into the profession (obtaining a license from the Ministry of Justice, mandatory

pre-insurance, etc.). If successful, it is advisable

involve in the sphere of enforcement proceedings, bearing a private law

character, more and more state bailiffs, giving them

independent legal status and powers on behalf of the State.

4. Having studied the system of French enforcement proceedings as a whole, the dissertation came to the conclusion that it is expedient to reform the profession of bailiffs in the Russian Federation. Thus, the association of bailiffs on a regional basis into Chambers with representative and disciplinary powers will really increase the responsibility of bailiffs for the performance of enforcement actions, significantly improve the quality of such actions and the effectiveness of their application in practice. In addition, a mandatory condition for taking up the position of a bailiff should be his mandatory membership in the relevant Chamber. One of the consequences of reforming the profession of bailiffs will be the introduction of a rule according to which, for obligations arising as a result of causing harm in the course of enforcement proceedings, the specified harm will be compensated not at the expense of the state budget, but by a specific Chamber, of which the relevant official is a member.

5. The dissertation research substantiates the need to introduce the principle of paid performance in the Russian Federation. Remuneration to bailiffs must be paid by the parties to enforcement proceedings, the entire course of enforcement must be financed by them. The general rule should be

imposing the obligation to bear all the costs associated with the implementation of enforcement proceedings on the debtor. Thus, the burden of financing enforcement procedures from the state budget will be removed, since such a system “feeds” itself. In addition, the introduction of such a principle should be subject to special regulations, i.e. tariffs for the performance of certain executive actions, as well as preferential regimes for their payment, should be established by a special federal law, and the rates should differ depending on the type of action performed and its complexity, as well as taking into account the social nature of specific types of penalties.

6. Having studied the practice of law enforcement in the field of enforcement, the author came to the conclusion that it is necessary to perceive in the legislation of the Russian Federation on enforcement proceedings indirect measures to coerce the debtor to fulfill his obligations, which differ significantly from enforcement measures and allow expanding the scope of enforcement proceedings.

Thus, in France, the introduction of the institution of astrent (ever-increasing penalties) contributed to strengthening the effectiveness of justice, protecting the rights of subjects of enforcement proceedings. The significance of this institution in modern enforcement proceedings in France is manifested in the fact that in the event of deliberate non-execution of a court decision, the debtor may be ordered to pay a penalty that constantly increases depending on the period of delay. The issues of establishing an astrent, as well as removing the said sanction from the debtor, are within the exclusive competence of the court. It is expedient to perceive this legal institution, but taking into account the specifics of the Russian legal reality. Thus, the amounts of penalties collected from the debtor should be distributed between the claimant and the off-budget fund for the development of enforcement proceedings in equal amounts, and not be awarded in full to the claimant. Considering that the accumulation of penalties up to astronomical limits is unlikely to have a positive impact on the effectiveness of this institution, the author came to the conclusion that these amounts are limited to 10 times the amount of the main obligation.

7. Having studied the French jurisprudence in cases related to enforcement proceedings, the author substantiated the expediency of transferring powers to resolve disputes and other issues related to the course

enforcement proceedings, a specialized judge. It is possible to grant appropriate powers within the framework of courts of general jurisdiction to an individual judge of a district (city) court, in the system of arbitration courts - to a judge of an arbitration court of first instance. Moreover, we should not talk about the withdrawal of other cases from the proceedings of this judge, since the formal consolidation of the specialization of judges implies in this case the provision of a specific judge with special powers to consider and resolve cases related to the implementation of enforcement proceedings. This will strengthen judicial control over the course of enforcement of jurisdictional acts and increase the guarantees of the rights of participants in enforcement proceedings.

8. When considering the place of the institution of recognition and enforcement of decisions of foreign courts in the legal system, the author, based on the analysis of the doctrine (L.P. Anufrieva, M.N. Kuznetsov, L.A. Lunts, N.I. Marysheva, etc. ) the conclusion is made about the complex nature of the institutions of the international civil process, combining elements of the domestic civil process and private international law. Issues of recognition and enforcement of foreign judgments should be regulated in procedural codes.

9. On the basis of the study, the dissertator concludes that it is expedient for the Russian legislation to refuse the condition of the need for an international treaty when deciding on the recognition and enforcement of a foreign court decision. An international treaty should not be regarded as a basis for applying to a competent court, but as one of the conditions for the recognition and enforcement of a foreign court decision.

10. The dissertation research substantiates the possibility of recognition and enforcement in the Russian Federation of decisions of foreign courts in civil cases on the basis of the principle of reciprocity or verification of the compliance of such acts with national and international principles of justice (or the basics of public order of the national legal system and the requirements of procedural legislation). So, as of the current moment, it is advisable to establish the principle of reciprocity, but, taking into account the tendencies of unification and harmonization of the principles, norms and institutions of enforcement proceedings within the framework of European Union, in the future it is possible to abandon this principle by setting the criterion

recognition in the Russian Federation of a decision of a foreign court, verification of its compliance with national and international principles of justice, following the example of France. 6. The theoretical and practical significance of the study lies in the possibility of using the findings and provisions contained in the dissertation for the further development of the science of civil and arbitration procedural law, international civil procedure, enforcement proceedings, and for the improvement of Russian legislation. The conclusions formulated and substantiated in the dissertation research can make a positive contribution to the development and expansion of ideas about the essence and practical significance of enforcement proceedings. The material concerning the analysis of French enforcement proceedings, international civil procedure and European enforcement proceedings can be used to teach civil procedure courses, arbitration process, enforcement proceedings, private international law and international civil procedure.

The work was written in accordance with the tradition of publishing scientific literature in France, which consists in continuous numbering throughout the text of separate provisions united by a common content. This numbering is convenient, because it allows you to make internal references in the text to certain paragraphs containing certain information.

On the issue of terminology in the field of enforcement proceedings

Enforcement proceedings are the most important stage on the way to the restoration of violated rights and freedoms or legally protected interests. Voluntary execution of acts of courts and other bodies of civil jurisdiction has not yet become an integral part of legal culture. In order to organize the process of restoring violated rights or legally protected interests within the framework of enforcement proceedings, each state creates special bodies and regulates their activities. Execution is characterized as "the most important area of ​​legal practice, which reflects the effectiveness of the entire mechanism of legal regulation and the ability of law to influence human behavior"6.

First of all, it is necessary to define the terms and main categories that will be used in this study. First of all, it should establish what is meant by enforcement proceedings in Russia and in France.

In the Russian Federation, “enforcement proceedings” are commonly referred to as the procedure for the enforcement of acts of jurisdictional bodies7.

In France, it is generally accepted that the fact that the creditor has his status is not sufficient for the debtor to fulfill his obligations. The latter may, for example, dispute the existence of the right to claim (obligation), or be unable to fulfill it due to lack of funds or other property. However, civil procedural law (droit judiciaire prive), and enforcement proceedings (or civil execution procedures - procedures civiles d execution) allow the creditor under the obligation to achieve its enforcement.

French scientists speak not so much about enforcement proceedings (Procedure d execution), but about the methods, ways of execution (Voies d execution), understanding them as "procedures aimed at forcing an obligated person either to execute a judgment or an obligation"8. Some authors speak of enforcement proceedings as a set of legal means that the law puts at the disposal of claimants to effectively meet their legal requirements. In any case, we are talking about the fact that the law provides the creditor with legal means to overcome the obstinacy of the debtor. In fact, the concepts of "enforcement proceedings" in the Russian Federation and "methods of execution" in France are identical. In both cases, we are talking about the procedure for the enforcement of various acts of jurisdictional bodies.

Enforcement procedures are, according to French law, such enforcement methods that allow the recoverer to place “under the control of Justice”10 (or literally “under the hand of Justice” - “sous la main de Justice”) the property of his debtor for its subsequent sale to meet your requirements. These are procedures for foreclosing the debtor's property (saisie), which are aimed primarily at ensuring future enforcement (by placing the seized property "under the arm of Justice", the recoverer protects himself from the debtor's insolvency), and then directly to the implementation of the requirements of the enforcement document.

There are two categories of execution procedures. The first corresponds to what is called "methods" or "ways of execution" (votes d execution) stricto sensu. A study of the enforcement proceedings in France shows that they mainly concern the procedures for the imposition of arrest12 (saisies d execution). Within the framework of enforcement proceedings, only varieties of these procedures can be distinguished. For the claimant, it is about forcing his debtor to sell property in order to satisfy his claims (seizure-sale carried out in relation to movable property (saisie-vente), attachment of immovable property and property rights related to real estate (saisie immobiliere)) , or to force third parties (debtors of the main debtor) to fulfill their obligations to the latter in order to satisfy the interests of the claimant under the main obligation (arrest-provision - saisie-attribution). These procedures, under other circumstances, allow the claimant to achieve the appropriation (withholding) of the property that the debtor must transfer or reimburse to him. In these cases, we are talking about the possibility of achieving direct enforcement proceedings, direct ways of execution. The second category is determined by measures of a security nature (mesures conservatoires), which allow a creditor who does not yet have an enforcement document to prohibit the debtor from disposing of his property. These measures are understood as procedures for imposing an arrest of a security character (saisie conservatoire).

But there are other ways, enforcement procedures that do not correspond to the above definitions and were not regulated by the reform of enforcement proceedings in France carried out in 1991-199213: for example, the institution of astreinte (see below, No. 257). These procedures are also the object of this study, they will be discussed in the second chapter of this work.

It should be noted that enforcement proceedings in France have the same sources as French civil proceedings (see below, no. 64). It is subject to the basic principles of civil procedure, in particular, regarding the competence of the courts and their level, the role of assistants to justice, the form of acts and sanctions for their violation, the timing and methods of their calculation. The main source is legal norms; one cannot, however, fail to recognize the role of jurisprudence, doctrine and, sometimes, professional practice in this area.

French Enforcement Sources

The main source of enforcement proceedings at the legislative level is represented by book V of the 1st part of the French Code of Civil Procedure of 1806 (Code de procedure civile, hereinafter referred to as the old Code of Civil Procedure of France), called "enforcement of judgments". However, articles 517-550, 812-818 were abolished by the Decree of May 12, 1981, and their provisions were repeated in the French Code of Civil Procedure of 1975 (hereinafter referred to as the new CPC of France). Articles 806-811, concerning the procedure for issuing determinations on urgent matters, were also transferred to the new Code. The common law security seizure procedure (saisie conservatoire de droit sottipe), created in 1955, was incorporated into articles 48-57 of the old Code. Some legal acts adopted back in 1806 have been changed several times; the same thing happened with the legal acts regulating the seizure of real estate - their provisions were completely changed in 1938.

The basic principles of enforcement proceedings were also reflected in the Napoleonic Code - the Civil Code of France (for example, articles 2092, 2093 on the basic right of pledge of creditors). Prior to the reform of enforcement proceedings carried out in 1991-1992, certain provisions on foreclosure of property were removed from the Code of Civil Procedure and placed in the Civil Code (and then in the Law of July 9, 1991, which reformed the system of enforcement proceedings in France - see below , No. 18). In addition, enforcement proceedings are closely related to the security law, which explains the application of the rules on the security law contained in the Civil Law in enforcement proceedings.

As a source, it is necessary to mention the Code of Judicial Organization of 1978 (or the Code of the Judiciary - Code de (organization judiciaire), some of the norms of which, especially in the area of ​​competence, directly relate to enforcement proceedings.

Before the reform of 1991-1992. Enforcement proceedings in France were regulated by a significant number of acts of various legal force. Thus, the norms on enforcement were contained in ordinances, laws, decrees, court decisions. Here are the legislative acts that regulated the sphere of enforcement proceedings before the reform of 1991-1992. - Great Royal Ordinance 1667. regarding the civil process, concerning, among other things, the obligation of bailiffs to perform official actions (issue subpoenas, send official notifications, provide copies of documents, etc.). - Law of June 2, 1841 regarding foreclosure on real estate. - Law of February 28, 1852. regarding the procedures for foreclosing real estate by the Bank "French Land Credit" (Credit Fonder de France). - Law of May 21, 1858 regarding the procedure for determining the order of creditors of an insolvent debtor (procedure d ordre). - The law of July 22, 1867, which abolished the deprivation of liberty imposed in case of non-fulfillment of property sanctions, determined by a guilty verdict of the court. - Law of July 12, 1895 regarding the seizure of wages. - Law of March 31, 1896 about the sale of things that were lost or left as a pledge by persons living in hotels. - Law of July 17, 1907 regarding the reduction of the amount of funds seized due to their excess over the recoverable amounts. - Law of August 24, 1930 concerning the foreclosure of the salaries of civil and military officials. - Decree-Law of June 17, 1938 regarding foreclosure on real estate. - Law of July 23, 1942 regarding malicious evasion of family responsibilities. - Ordinance of November 2, 1945. regarding the institution of sworn appraisers (commissaires-priseurs). - Law of November 12, 1955 regarding interim measures in enforcement proceedings. - Laws of July 13 and September 23, 1967 regarding the suspension of enforcement procedures, even if the right to claim is subject to recovery, in the event that there is a settlement procedure with creditors of an insolvent debtor under the supervision of a court (reglement judiciaire) or proceedings for the liquidation of property in the event of the insolvency of the merchant (liquidation de biens). - Law of July 5, 1972 regarding the astrant institute. - Law of 2 January 1973 regarding the foreclosure of wages. - Law of January 2, 1973 regarding the receipt of maintenance payments from an employer who pays wages to a maintenance payer. - Law of July 11, 1975 regarding the recovery of maintenance payments by judicial means. - Decree of 24 March 1977 regarding movable property that cannot be foreclosed. - Law of December 31, 1989 regarding over-indebtedness (surendettemeni) of individuals and families.

The main reform of civil procedural enforcement, with the revision of the regulation of the procedure for seizing movable property and bringing all acts containing the norms of enforcement proceedings in line with the new provisions, was carried out by the Law of July 9, 1991 (hereinafter referred to as the Law), and by the Decree on the procedure for its application of July 31, 1992 (hereinafter referred to as the Decree). The distribution of the new provisions between the Law and the Decree15 is a consequence of Articles 34-37 of the French Constitution of October 4, 195816. Thus, enforcement proceedings concern the freedoms of citizens, as well as the fundamental principles relating to the right of ownership and the law of obligations, which, by virtue of Art. 34 of the Constitution, are the sphere of regulation of the legislation.

The foreclosure of immovable property (saisie immobiliere) and the procedure for determining the priority of the claims of an insolvent debtor's creditors (procedure d ordre) have not changed: they will be subject to subsequent reform. 3) Judicial practice as a source of enforcement proceedings

The jurisprudence, the second source of law in France after the law, played a significant role in the development of the law of enforcement during the 19th and 20th centuries. However, it should be noted that in matters of enforcement proceedings arbitrage practice is not numerous, and only the foreclosure of real estate causes great controversy. Attachment of movable property is rarely a problem; most of the decisions made on this issue, coming from the lower judiciaries, are no longer published in the current journals. However, as you can see, over the course of several years, the Court of Cassation confirms decisions to seize the debtor's property held by third parties (saisie-arret). Since there are few rulings in the field of movable property, one can use the decisions of the judiciary on the application of new laws, the meaning of which is sometimes not clear (for example, the Decree of 24 March 1977 amending article 592 of the CPC of France and limiting the possibility of seizure). The application of the provisions of the new legislation, no doubt, served as an impetus for the birth of a new legal practice that clarifies the existing one.

The concept of enforcement measures

According to the definition of enforcement proceedings given by the authors fundamental research beginning of the 20th century,194 “the rules relating to enforcement include a combination of ways (iyoies) and ways (moyens) by which one person can compel another to perform his duties, confirmed by a court decision, or oblige him in other forms to fulfill his duties.”

Such methods of forcing the debtor to fulfill his obligations to the creditor (collector) are measures of execution (mesures d execution), which include the actual enforcement measures (mesures d execution forcee) and security measures in enforcement proceedings (mesures conservatoire). These measures are established in Article 1 of the Law of July 9, 1991, and have different goals: the first ones are aimed at fulfilling the claims of the recoverer, which are confirmed in the manner prescribed by law, and the second ones are established in order to protect the rights of the creditor (or, if he has an executive document, - claimant).

However, before talking about enforcement measures, it must be recalled that both doctrine and practice, and, as a result, legislation in France are focused on the voluntary performance of the debtor's obligations, outside the enforcement proceedings. And only in the absence of voluntary execution of the requirements of the exactor, the requirements for the enforcement of acts of jurisdictional bodies come into force.

Enforcement measures are closely related to the principles of enforcement proceedings in France. So, according to Art. 2092 of the French Civil Code "whoever is obliged to personally fulfill his obligation is obliged to fulfill it with all his property, movable and immovable, present or future"; Art. 2093 of the French Civil Code: "the debtor's property is a common pledge for his creditors." From these provisions follows the possibility of compulsory satisfaction of the claims of claimants at the expense of the debtor's property, if the latter does not voluntarily comply with the requirements of the executive document. In addition, it must be remembered that enforcement in respect of the debtor's property is possible only if there is no immunity to recovery in respect of this property.

Moreover, the word "execute" (executor) means forcing the debtor by the power of authorized bodies to pay what he owes, by the following means: - either by exercising against the debtor effective means impact (astrant, interim measures in enforcement proceedings); - either by imposing an arrest on the funds possessed by the debtors of the main debtor in relation to him (foreclosure on receivables); - either by forcing the debtor to sell his property in order to subsequently distribute the amount from the sale of property among the claimants (arrest-sale, foreclosure on real estate); - either directly obliging the debtor to return the thing he owes (seizure-withholding). Enforcement in Russia is carried out by applying compulsory enforcement measures to the debtor, which are established only at the legislative level, since they contain government regulations obliging the debtor to suffer a certain kind of property deprivation due to failure to voluntarily fulfill the duties assigned to him.

The grounds for the application and types of enforcement measures in the Russian Federation are listed in Art. 44 and 45 of the Federal Law "On Enforcement Proceedings". There is no need to dwell on them in detail. We only note that all enforcement measures can be applied in the implementation of enforcement actions against the debtor, both independently and in aggregate. For example, initially, recovery may be levied on the debtor's funds, but due to their deficiency, it is possible to levy execution on other property belonging to the debtor.

Enforcement measures in the Russian Federation are closely related to the methods of protecting civil rights specified in Art. 12 PS of Russia. Since the list of enforcement measures in the legislation of the Russian Federation is not exhaustive, as enforcement measures, one can, for example, consider the restoration of the situation that existed before the violation of the right, the application of the consequences of the invalidity of a voidable or void transaction (restitution, compensation for real damage), in kind (transfer goods, provide services), compensation for losses (both actual damage and lost profits), etc. Everything will depend on what method of execution is provided for in the court decision. If any of the ways to protect civil rights is provided by the court in the operative part of the decision, the bailiff will require the obligated person to commit the specified actions or refuse to commit them. Thus, enforcement measures in the Russian Federation reflect in their content ways to protect civil rights.

The most common enforcement measure in Russia is foreclosure on the debtor's property. In France, whose legislation contains neither the concept, nor the basis for the application, nor the types of enforcement measures, foreclosure on the debtor's property in the form of seizure (saisie) is the main enforcement measure. Other ways of coercing the debtor to fulfill his obligations (astrante, provisional measures in enforcement proceedings) are not compulsory enforcement measures in France. These are other methods of coercion for the purpose of execution, through which a certain pressure is exerted, an impact on the debtor in order to induce him to voluntarily fulfill his obligations.

On the other hand, in French enforcement proceedings, the concept of “foreclosure” (saisie) is understood more broadly than in Russian. In particular, it covers the methods of execution existing in Russian enforcement proceedings.

Some similarities and differences between enforcement measures in Russia and in France can be noted. As in Russia, in France enforcement measures (methods of enforcement) are also provided for at the level of law. But there is neither a clear definition of such methods, nor an enumeration of these measures, nor the grounds for their occurrence. Although it is not explicitly stated, it can be concluded that enforcement measures in France basically consist of some form of foreclosure on the debtor's property where the debtor fails to comply either with the requirements of the jurisdictional act or with its obligations to the recoverer(s). Consequently, the basis for the emergence of enforcement measures in France is, unlike Russia, not the commission of procedural actions by the recoverer, the bailiff and the debtor’s failure to comply with the requirements of these persons, but the debtor’s simple failure to comply with the requirements of the recoverer, as a result of which the latter can levy execution (of course, in compliance with the requirements of the law, in a certain procedural form) on the property of the debtor.

Place of the issue of recognition and enforcement of foreign judgments in the system of law

First of all, it should be noted that when considering the issues of recognition and enforcement of foreign jurisdictional acts, we will only talk about acts of judicial bodies issued in the territory of another state, the recognition or enforcement of which in the territory of another state is necessary. In addition, such acts will be understood as decisions of foreign courts adopted in civil cases, leaving tax, customs and other administrative disputes without consideration, since the issue of enforcement in Russia of decisions on public law disputes is complex and can be an object for independent research. Recognition and enforcement of arbitral awards (arbitral tribunals) also remains without attention. This chapter will provide a basis for further research of these problems within the framework of national and international civil procedural law.

Traditionally, the issue of recognition and enforcement of foreign judgments in civil cases belongs to the branch of international civil procedure, which is a set of procedural rules applied by the court when considering disputes in which there is a foreign element191. International civil procedure, in turn, is part of private international law. However, many researchers make reservations that the international civil procedure is not included in the branch of private international law, being part of the national civil procedural law: “The problems of international civil procedure relate to civil procedure as a branch of law”292. And all issues raised in the framework of the international civil process (for example, on international jurisdiction in civil cases, on the civil procedural status of foreign citizens and legal entities, on judicial evidence in civil cases with a foreign element, on the recognition and enforcement of foreign judgments, and others ), are “separate special issues isolated from the composition of the civil process as a branch of law on the basis of their connection with cases arising in the conditions of international circulation”293.

In other words, in scientific terms, the international civil process is considered within the framework of private international law, and as a branch of law it is defined as a set of special rules of the national civil process. This is the traditional approach to the question of the place of the international civil process in the system of law294. In particular, among the scientists who relate the international civil procedure to the national civil procedural law as a branch of law, the following can be mentioned: I.A. Gringolts, V.P. Zvekov, S.N. Lebedev, L.A. Luntz, B.C. Pozdnyakov, M.G. Rosenberg, O.N. Sadikov and others. However, not all specialists accept such a “dual” nature of the norms of international civil procedure. In particular, M.N. Kuznetsov295. His argument is the argument about the illogicality of qualifying international civil procedural relations as a subject of national civil process as a branch of law and, at the same time, attributing problems and questions that arise when resolving cases with a foreign element to the science of private international law. MM. Boguslavsky also speaks of the need to consider the international civil process as an integral part, as a branch of private international law. L.P. Anufrieva, in turn, writes about the artificiality of dividing the international civil process into “two “diverse” in their affiliation ... parts”297. As a result, both sciences - private international law and national civil procedure - study emerging issues as "their own", with their own specific approaches. This leads to the one-sidedness of studying the problems of international civil procedure within the framework of these sciences due to the use in the research methodology different means. Thus, in private international law, the role of comparative law and system analysis is strong. Civil procedural law explores these issues with its own methods. As a result, the author emphasizes that the unification of the relevant social relations will occur within the framework of one branch - private international law - according to the criterion of the object's commonality, that is, those relations that legally manifest their connection with the legal orders of various states. The choice will be made not between substantive or procedural norms or laws, but between legal orders (jurisdictions), when the election of a judicial or other body within a certain legal order will cause an appeal to the procedural law of a given state.

Therefore, L.P. Anufrieva, proceeding from the idea of ​​abandoning the unilateral division of the international civil process into two parts different in terms of industry, nevertheless comes to the conclusion about the need for a unilateral approach to solving all issues and problems in the field of international civil process through the tools of private international law, in fact ignoring the ideas and achievements of the science of domestic civil process.

Professor X. Shak examines the issues of recognition and enforcement of foreign judgments in the framework of international civil procedural law. Moreover, on the issue of the relationship between international civil procedure and private international law, he explains that the former should in no case be considered as an “appendage” of the latter299. International civil procedural and international private law are not an application, but a complement to each other, which is due to the following: firstly, both branches provide specific interests; secondly, the structure of both industries allows for parallels, since both are aware of really conflict of laws and substantive law rules designed to regulate relations with the participation of a foreign element; thirdly, both branches partially use the same points of contact, "often with the aim of achieving a parallel movement of jurisdiction and applicable law", and so on300.

Undoubtedly, this point of view, which is trying in a certain way to reconcile the branches of international civil procedural law and private international law, to the greatest extent meets the needs of the development of science and practice of law enforcement, since all emerging issues are not considered unilaterally, but within the framework of the system of relationships between these branches of law.

In the doctrine, there are various classifications of systems of enforcement proceedings, depending on the characteristics of the national legislation of a particular state. In particular, they are analyzed by V.

V. Yarkov.

By the number of bodies that carry out these functions of enforcement, the systems of enforcement proceedings are divided into:

On centralized, when there is a single body that performs the execution (Russia, Armenia, Azerbaijan, Finland, Spain);

Decentralized, when there are various bodies that are divided according to the signs of territoriality (its own system of bodies in each territory), competences (different enforcement bodies for economic, civil, administrative cases) (Belarus, Sweden, USA, Canada, France).

Depending on the affiliation of enforcement bodies, systems can be oriented towards enforcement through:

A bailiff, when a special body (private or public) is engaged in execution;

Court, when enforcement is carried out by judicial authorities (Austria, Spain, Denmark);

Administrative bodies, when the execution is carried out by general police bodies;

mixed systems.

According to the degree of accounting for the private law element of the system of enforcement proceedings, they are divided into:

On state, when all executive actions are carried out only by state bodies (Sweden, Finland, USA);

Non-budgetary (private), when all executive actions are carried out by private individuals, if necessary, having the appropriate licenses or other permits (Belgium, Luxembourg, the Netherlands, Italy, Greece);

Mixed, when actions are performed by both public servants and private individuals (for example, in Russia enforcement proceedings are conducted by a bailiff, but private individuals carry out the assessment, storage and sale of property).

Enforcement proceedings in each of the individual countries are also of interest for their originality.

At the federal level in the United States, enforcement proceedings are governed by the Federal Rules of Civil Procedure, but the bulk of them relate to state law.

In practice, there is an acute issue of recognition and enforcement of decisions of one state in relation to persons and property located in another state (either through recognition or summary proceedings).

A writ of execution may be issued by a court clerk or an attorney authorized by the sheriff to confiscate property.

Sheriffs, marshals, constables are directly involved in enforcement. There are also collection agencies and licensed private investigators.

When a writ of execution is sent to the person carrying out the execution, it is accompanied by a check covering future expenses, as well as instructions from the creditor on the procedure for execution (when the creditor, according to a decision or law, has the right to choose the method of execution).

The time limit for voluntary enforcement is at the discretion of the enforcer, as long as the debtor is presumed to be aware of the judgment.

The inventory of property is accompanied by an arrest order, which, as a rule, is made in proportion to the amount of debt.

Property appraisal is carried out by two disinterested permanent residents of the state, who take an oath to that effect. In the future, the property is sold through auctions.

If it is impossible to discover the property of the debtor during enforcement proceedings, at the request of the recoverer, the court may apply the “procedure for additional disclosure of evidence”, when the debtor is summoned to court and is obliged to disclose information about his property (in case of refusal, liability in the form of imprisonment, until the debtor provides relevant information).

The maximum amount of deductions when foreclosing on the income of a debtor-citizen is 25 percent.

When executing executive documents of a non-property nature, as measures to stimulate the debtor, it is possible to collect a fine (in favor of the recoverer) or imprisonment until execution.

A possible way to influence the debtor is to report his non-payment to the Credit Information Agency (without information from which credit cards and loans are not issued), which negatively affects the credit history ( credit rating) of the debtor.

In the United Kingdom of Great Britain, in order to facilitate the further search for the debtor's property, at the beginning of the trial, he may be presented with an affidavit (a written explanation given under oath), in which he will provide all the necessary information (place of work, sources of income, availability of bank accounts, availability of property) .

Enforcement bodies exist in the county courts and in the High Court. In the county courts, enforcement costs less and the funds are transferred directly to the claimant. Execution is carried out by bailiffs who are part of the judicial system. They are controlled by bailiffs who exercise supervision. The bailiffs are managed by the senior clerk of the county court, and the registrar of the court is responsible for their activities. In general, the responsibility for the activities of the executors lies with the Lord Chancellor.

In the High Court, execution is more expensive and the money is first transferred by the debtor to the court, and then the court issues them to the claimant. Execution is carried out by high sheriffs, appointed annually by the Queen for each county. In fact, their functions are performed by subordinate sheriffs (who are ordinary soloists) and sheriff's officers. These individuals are not part of the judiciary.

In this case, the following enforcement measures exist:

a) Warning of execution (analogue of arrest) with further foreclosure on property, but due to the peculiarities of English property law, it usually does not work. As a rule, a warning is sufficient. There is also a list of property that cannot be seized.

b) "Debt transfer" (garnishee proceedings) resembles the seizure of receivables, when the debtor's debtors in enforcement proceedings fulfill their obligations directly to the recoverer. Usually accompanied by the procedure of indisputable write-off from the bank accounts of the debtor's debtors, associated with the blocking of funds on them.

c) Foreclosure on the debtor's income. Applied by decision of the registrar of the court. There is a concept of a "normal deduction rate" and a "protected deduction rate" determined by the registrar.

For example, the protected rate is £80 per week, while the normal rate is £10 per week. If 90 or more pounds is earned, then the penalty is the difference between earned and 80 pounds, and if less than 90 pounds, then no penalty is made.

d) Order regarding the price - when the enforcement authority determines in advance the price of the debtor's land and house at reduced rates. And at the same time, under the threat of losing this property, he pays the debt.

e) Order regarding securities - when the interest income on securities directly goes to the claimant.

The execution of decisions in the French Republic is carried out by the following persons:

bailiffs;

Prosecutors General at the Cassation and Appeal Courts (not to be confused with the Prosecutors of the Republic);

Prosecutors of the Republic;

Commanders and officers of the police forces.

The system of bailiffs in the French Republic presents the following hierarchy:

the National Chamber (composed of delegates from the Departmental Communities and the Regional Chamber);

Regional chambers (united on the basis of each court of appeal);

departmental communities.

Bailiffs are private, but officials acting on behalf of the state (analogous to the Latin notary). Attachment requirements:

legal education;

2-year internship in the office of a bailiff;

Qualifying exam.

In addition, the performer is obliged to insure his liability together with other performers (as well as performers, the French judge also bears personal liability to the state in recourse).

An order of the Minister of Justice shall be issued on the appointment of an executor. The executors are under disciplinary subordination to the prosecutors of the Republic.

In France, there is a system of continuous education of judicial executors - the National School of Judicial Procedure (trains not only executors, but also other persons of legal professions.)

Instead of the procedure for the seizure of property, confiscation of property takes place. Its assessment is carried out by appraisers elected by the parties, and if they fail to reach agreement, by appraisers appointed by the court.

The substantive rules of law are actively used, in particular the institution of sequestration (sometimes in continental law there is a bizarre use of the rules of law, for example, in Spanish law, as an analogue of sequestration, the rules on pledge, and in particular on mortgage, are used, with the further sale of property in favor of the claimant).

In the Italian Republic, enforcement proceedings are an integral part of the civil process. The 3rd volume of the Code of Civil Procedure of Italy is dedicated to him.

When securing a claim in enforcement proceedings, the civil law institution of bail is used.

Compulsory execution is preceded by the announcement of the executive document and notification of the debtor (the notification simultaneously has the force of a decision to arrest and prohibit actions that detract from property).

The term for voluntary execution is no more than 10 days. If, within 90 days from the date of announcement, the contractor does not proceed to take action, the notification becomes invalid.

It is possible to use the property inventory conversion institution, when the debtor asks to replace the inventory and sale of property with the provision of funds (the amount of the debt plus all execution costs), while such a request can only be submitted with the simultaneous payment to the court account of at least 20% of the total debt .

All property of the debtor is divided into three types:

1) which can always be described and arrested;

2) absolute property (cannot be arrested under any circumstances);

3) relative property (it can be seized under certain conditions. For example, movable property intended for processing the debtor's land plot can be seized only if there is no other property).

Enforcement proceedings in the Federal Republic of Germany and Austria are similar. In these countries, enforcement proceedings are a stage of civil proceedings and are regulated in detail by the Code of Civil Procedure.

Enforcement actions are carried out by the registrars of the municipal court where the decision was made. The registrar must have a special certificate giving him the right to execute court decisions.

A special feature is a large number of non-property performances, for example, when instead of recovering damages, it is required to fulfill obligations (“contracts must be performed”).

The distribution of the penalty follows the rules of precedence (unlike, for example, the Hellenic Republic, where there is no precedence rule).

The substantive law of Israel is based on continental law. Civil litigation is based on English jurisprudence, while enforcement proceedings are based on a variety of separate laws. Israeli enforcement proceedings are a fusion of common and Turkish law.

The service of executors is located at the magistrates' courts. The service is headed by a director who is a registrar or judge of the court. The executives report to the directors but are appointed by the Minister of Justice.

Features of enforcement proceedings in Israel:

a) if there is an unexecuted decision, the director may prohibit the debtor from traveling abroad;

b) in order to search for property, it is allowed to conduct searches, both at the debtor's, and at third parties who may have the debtor's property;

c) in order to discover the property of the debtor, an investigation may be carried out with interrogations of the debtor and witnesses, under the threat of criminal and administrative liability;

d) imprisonment of the debtor is allowed if he did not pay, but had such an opportunity.

The deadline for the execution of an executive document in Morocco is 30 years from the date of the decision (not to be confused with the deadline for presenting an executive document for collection).

Decisions are executed by an enforcement agent who reports to the president of the court.

Possible preventive seizure of property, or in the case of its hiding - the arrest of the debtor.

Direct and equivalent execution is possible at the discretion of the person carrying out the enforcement (for example, if the enforcement document indicates the recovery of funds, property of equivalent value may be transferred to the recoverer to pay off the debt).

Thus, enforcement proceedings in foreign states are subject to the peculiarities of public procedures provided for by their legislation.

Control questions and tasks

1. Indicate whether the status of foreign citizens (subjects) in Russian enforcement proceedings is equal to the status of citizens of the Russian Federation? Does this rule always apply?

2. Can Russian bailiffs act outside the territory of the Russian Federation?

3. What is an exequatur?

4. Expand the procedure for recognition of a decision of a foreign court by the courts of the Russian Federation.

5. In what cases do Russian courts refuse to recognize a foreign judgment?

6. Expand the classification of systems of enforcement proceedings in foreign countries.

Bibliographic list

Main literature

1. Valeev, D. X. Executive production: textbook. for universities / D. Kh. Valeev. - 2nd ed., add. and reworked. - St. Petersburg. : Peter, 2010. - S. 336-342.

2. civil procedure: studies. / resp. ed. V. V. Yarkov. - 5th ed., revised. and additional - M. : Wolters Kluver, 2005. - S. 584-593.

3. Pilyaeva, VV Executive production: textbook. allowance /

B. V. Pilyaeva. - M. : Knorus, 2008. - S. 94-106.

additional literature

1. Gladyshev, S. I. Enforcement proceedings in England /

S. I. Gladyshev. - M. : Leks-Kn., 2002. - 223 p.

2. Civil process: textbook. / ed. M. K. Treushnikova. - 2nd ed., revised. and additional - M. : Gorodets, 2007. - 784 p.

3. Civil executive law: textbook. / Verkhov. Court Ros. Federation, Higher. arbitrator. court. Ros. Federation, Ros. acad. justice; ed. A. A. Vlasova. - M. : Exam, 2004. - 352 p.

4. Enforcement proceedings: procedural nature and civil foundations / ed. : D. Kh. Valeev, M. Yu. Chelyshev. - M.: Statute, 2007. - 140 p.

5. Karabelnikov, B. R. Execution of decisions of international commercial arbitrations: comments. to New York. conventions of 1958 and chapters 30 and 31 of the APC of the Russian Federation of 2002 / B. R. Karabelnikov. - 2nd ed., revised. and additional - M. : FBK-Press, 2003. - 488 p.

6. Muranov, A. I. Execution of foreign judgments and arbitration decisions: Competence grew. courts / A. I. Muranov. - M. : Yustitsinform, 2002. - 168 p.

7. Neshataeva, T. N. On the recognition and enforcement of foreign judgments and arbitration decisions / T. N. Neshataeva // Arbitration practice. - 2004. - No. 11.

More on the topic § 3. Enforcement proceedings in foreign countries:

1. Participation of Russian and foreign (international) observers in monitoring compliance with the legality of the electoral process
2. § 2. General characteristics of guarantees of the rights of foreign investors
3. § 3 Enforcement proceedings in foreign countries
4. §2. Legislation on foreign investment in developing countries and countries with economies in transition participating in APEC (on the example of China and Russia)
5. § 3. International agreements on the recognition and enforcement of foreign judgments on the recovery of alimony
6. § 2. The legal basis for cross-border cooperation of the territorial bodies of the Ministry of Internal Affairs of Russia with the competent authorities of foreign states in the field of operational-search activities
7. § 3. The current state of cross-border cooperation of the territorial bodies of the Ministry of Internal Affairs of Russia with the competent authorities of foreign states in the field of operational-search activities
8. § 2. Forms of interaction in cross-border cooperation of the territorial bodies of the Ministry of Internal Affairs of Russia with the competent authorities of foreign states in the field of operational-search activities
9. Comparative legal characteristics of measures of administrative coercion applied on a tort basis to foreign citizens and stateless persons, according to the legislation of the Russian Federation and neighboring countries

- Copyright - Advocacy - Administrative law - Administrative process - Antimonopoly and competition law - Arbitration (economic) process - Audit - Banking system - Banking law - Business -

In the world there are different views on the system of both public and private enforcement of judgments. So, Harry Becker and George Stigler in their work consider the distribution to be the best private system in those areas of law where the state system is mainly used. Their main argument is that state system enforcement is a false (wrong) system of rewards.

According to the rules of the private enforcement system, a bailiff is a free professional, independently organizes his activities and who bears full financial responsibility for the results of his work. A private enforcement agent receives powers from the state represented by the justice authorities and acts on behalf of the state. Admission to this position is regulated by law and is carried out, as a rule, on a competitive basis. The state regulates the competence of a private bailiff, the procedures of activity, the amount of tariffs and other remunerations collected 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 for the right to operate.

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

France

The French system for the execution of acts of courts and other bodies of civil jurisdiction developed in the 19th century and differs significantly from other systems. Enforcement rules in this system have existed since the beginning of the 19th century. For two centuries, the rules have 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 model of implementation. In parallel with them, representatives of the Netherlands argue that the basis of 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 of the execution systems of many countries of Eastern Europe and the Baltic countries: Poland, Hungary, Slovakia, Lithuania, etc.

Based on the world experience in the enforcement of decisions of courts and other bodies, two main structures 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 license. The management of bailiffs is carried out by regional and national chambers of bailiffs with the status of self-government.

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, elements of an independent practitioner and a civil servant are characteristic in the legal status of bailiffs. Strict requirements are imposed on candidates for bailiffs: the presence of a legal education, the successful completion of a two-year internship in the office of a bailiff, the preparation of a state qualification exam.

Thus, the judicial organization of the French system is distinguished by the separation of courts for civil and criminal cases, as well as judges of administrative justice, which are combined into various judicial systems. The legal system of the country is built on the division of law into private and public. According to these norms, a private executor does not execute a decision in favor of the state and, in general, acts adopted by administrative courts. To do this, there is a special system of bailiffs of the state treasury, who are civil servants.

Within the framework of the general courts, a special one is the enforcement judge, who has the right to single-handedly resolve disputes arising from the expression of disagreement or obstruction of the execution of a judgment, consider a request for a stay of execution and resolve other issues. Along with this, the enforcement judge cannot interfere with enforcement actions.

To become a bailiff, you must have a diploma of legal education, complete a two-year internship in the office of a bailiff, 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 Minister of Justice of France, which is issued after receiving the conclusion of the prosecutor's office of a particular territorial district and the Chamber of Compulsory Executors of the department.

As official compulsory executor delivers subpoenas, executes judgments on behalf of the state, while simultaneously resorting to state coercion. A compulsory enforcement agent 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 a bailiff are of a public law nature, therefore, he is obliged to provide services as many times as necessary. A compulsory enforcement officer does not have the right to choose his clients, since he is not a private lawyer.

Netherlands

In the Netherlands, bailiffs unite in their functional duties public and private features. They have the right to engage in private practice for the recovery of debts by mutual agreement of the parties, giving legal advice, being attorneys in court and building their activities on the basis of an approved business plan. Having such a plan is a must. Such a plan should contain provisions on the cost recovery of bailiffs, an indication of potential clients, etc.

Luxembourg

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

Slovenia

On the territory of Slovenia, the implementation of compulsory proceedings is entrusted to the district (district) court. Bailiffs - persons who directly conduct 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 particular bailiff himself. 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 the bailiffs carry out autonomously. Thus, bailiffs are personally liable for any damage caused in the exercise of their powers and insured event for their actions or omissions in the execution of court orders. In case of sufficiently significant violations, bailiffs may be removed from their duties by the Minister of Justice.

The enforcement document may be presented personally 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 when the creditor independently resolves all issues of enforcement, he must pay for the personal presentation of documents, as well as for the court decision in a particular case. If the debtor acts through a lawyer, he must also pay for the services of a lawyer.

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