Читать книгу Writ as a simplified form of civil procedure. Writ of execution - Николай Камзин - Страница 2

The history of the institute injunction in civil proceedings is durable enough. He was known as the Roman law and jurisprudence of the middle Ages.

Simplified methods of resolving civil legal col-manifolds have been developed as a result of a long historical development. In ancient Rome, along with the usual civil procedural procedures used special forms of legal protection of the violated right, is a modification of the administrative and legal action. One of these forms was the interdict, in other words, consular or praetor orders by which the state power to intervene in civil matters.

Consul (Pretoria) conducted a special investigation, referred to as «causae cognitio», and if admitted, that there is any violation, order the offender to follow the imperative unconditional requirement[3].

Initially, the praetor gave the interdict after investigating the facts, and therefore interdict was an absolute and categorical order. But as the number of cases began to give praetor interdict without checking the facts, in the form of conditional orders. Thus, they began to have effect only when confirmed by the facts referred to by the applicant. Interdiction can be challenged. If the person, against whom the interdict was issued in the comfort of Pretoria, disputed the interdict and demanded appointment of a judge, this requirement is satisfied. The trial could lead to confirmation or interdict (and then he turned from a conditional order in unconditional), or to justify the defendant[4].

Medieval European law was characterized by simplified administration of justice, arising, probably due to the influence of Roman law, on the other hand, since the objective is a necessity to save time and money. К.И. Малышев said: «Already the medieval trading cities of Italy had to develop their special forms of abbreviated procedure for matters of trade, to collect on promissory notes and other indisputable documents for the arrest of debt penalties, etc. This division process in normal and reduced penetrated and then in other European countries, and in the subsequent history can be seen a constant desire to generalize the reduced form, and to accelerate the entire production. It often happened that the short form was introduced into the law as an exception, but in practice it became the rule, but on the contrary, the ordinary legal proceedings – exception»[5].

The development of capitalist relations has caused the improvement of legislation, more and more detailed development of various legal institutions. In the 19th century in the procedural law of some European countries there are institutions on the undisputed foreclosure documents similar to writ proceedings. Considering the system of court orders and remind production in the Western European legislation, К.И. Малышев singled out executive orders or unconditional (applied in the enforcement process – a writ of execution and summons of the performance) and conditional orders or reminders (served for the preparation of an order by a reminder). Issuance of these and other orders permitted by unilateral request of an applicant, without calling the defendant and without hearing his explanations. As a consequence, unconditional order could be issued only on the basis of acts that are enforceable or apply to the executive production, and conditional order, as a simple reminder to the debtor of the need to satisfy the requirements issued on all debts, regardless of the strength of the executive acts to which they are based.

A conditional order is an alternative command to the court that the defendant or performed some action, for example, paid the debt collector or, if there were any objections, said to them. If at a certain time of the dispute is not stated, the order addressed to enforcement. Conditional orders served to verify the indisputable duty and allowed to quickly restore the violated right, while avoiding the numerous stages of manufacture of claim.

In an all-German during the proceedings in the case of procrastination indisputable claimants were overcome by the use of so-called summary proceedings. «The combined processes – said I.E. Engelmann, – meet the needs of accelerating recovery that, in contrast to the usual, decision or order of payment, under penalty of causative execution, decides on the basis of the presented document without exporting and listening to a debtor who is granted only to defend themselves clear evidence of payment or proof of the spuriousness of the document». Thus, the decision could be made only on the basis of written documents, reliability is presumed[6].

In England, the procedure of Summary in a civil suit was covered by the Rules of the Supreme Court. Such production existed in the framework of claim and could be applied where the plaintiff urged the court to the fact that, firstly, the cause of action cannot be refuted by the defendant, and, secondly, the claim by the defendant cannot be challenged. Between the parties should not be any significant dispute about the actual circumstances of the case or the legal. The plaintiff presents the court a written statement which justifies his belief that the defendant cannot challenge presented demands, presents arguments proving grounds the suit and the amount of money it requires recovering, asking for the lawsuit in a simplified manner. A copy of the incoming application is sent to the defendant, who may challenge him to prove that he has to challenge himself brought by the suit.

Writ as a specific judicial action existed and exists in many countries (in Germany – Mahnverfahren, in Austria-Hungary – Mandatverfahren, Italy – Mandatum cum clausal; in England – Summons in a special form, in France – la procédure d'injonction[7]) and the essence of it in different countries interpreted differently.

The system of orders and production in the Western European remain legislation, К.И. Малышев singled out executive orders or unconditional and conditional orders or reminders. First used in the enforcement process. These included a writ of execution and summons of the performance. The latter served to remind the debtor of the debt and the recovery of the latter.

Issuance and conditional and unconditional place on a similar procedure, but an unconditional order could be issued only on the basis of acts that are enforceable or apply to the executive production, and the conditional order, as a simple reminder to the debtor to satisfy the requirements issued on all debts, regardless of executive force acts on which they are based. A conditional order was a so-called alternative court order the debtor to pay the debt collector or, if there were any objections, said to them. If at a certain time of the dispute is not stated, the order addressed to enforcement[8]. The Hungarian Justice writ is treated quite differently and is a special sanction in the event of non-defendant's first trial. This, in essence, an analogue of extrajudicial charges and is characteristic of many systems of justice in the middle Ages. As the В.И. Решетняк, a form of court adjudication exempt from the duty to expose to scrutiny the arguments of the applicant (creditor), call for evidence, examine them to make efforts to establish the actual circumstances of the case[9].

Foreign practice has developed, at least three approaches to understanding the essence of judicial orders: as an executive document (an unconditional order), as a reminder to the debtor of its obligations to the lender (conditional orders), as a sanction for failure to appear at the hearing.

Writ in the Russian civil process has features of both conditional and unconditional order. On the orders of his conditional combines a relatively simple procedure cancellation, but with the absolute – that the court order is also the executive document.

But the characterization of the injunction as soon as the dual unity reminder to the debtor's obligation and the agenda of its enforcement cannot reveal his identity. Entity may be disclosed only in case when you consider its dual nature as a court of first instance in which it is allowed on the merits, and as an executive document, on which is punishment in the manner prescribed for the execution of judgments.