Читать книгу Writ as a simplified form of civil procedure. Writ of execution - Николай Камзин - Страница 3

History of development of analogues of writ of production in Russia dates back to the adoption in 1864 of the Charter of Civil Procedure. But when it comes to simplifying the process of Russian civil law in a broader sense, we should mention the earlier period – 14th and 15th century, when the desire for opportunities to simplify the process led to the emergence of so-called extrajudicial Institute of ratification. Simplification was that in the adversarial process that begins on the complaint of the plaintiff (the petition), in certain situations, the case could be resolved on the merits without a special act of the judicial process, evidence and trial. The function of such an act performed without trial diploma. Information about it is found in Pskov and Novgorod Judgment charters in 1497 and Court book 1550 and other acts of the era.

In the literature, acknowledged that extrajudicial charter was a court decision handed down without trial on the defendant's failure to appear at the hearing and stated the loss of the case by the defendant. The plaintiff claimed the right as if the court had taken place.

В.Н. Татищев comment Text Court book 1550, noted that the issue of extrajudicial consequences of ratification was that the plaintiff received a letter the defendant had «the power thereof, everywhere catch before the court and submit to «правежа» and punishment» and «beat him at ease and rob, kill not only the house and not destroy». The last statement is, in fact, expressed in an archaic form of the right to enforce the debtor, the state provides to the creditor at last granted extrajudicial literacy.

The so-called «extrajudicial accusation» and called for the Cathedral Code of 1649, the rules which determine in more detail the conditions under which could be issued without trial and indicate that the extrajudicial could be issued and the defendant fails to appear at a hearing of the plaintiff.

Condemnation without trial, executed without trial in the charters, is the first step of the Russian legislator towards the creation of special rules of procedure – and reduced cost compared with the general rules. The next step was taken in the second half of the 19th century.

The Charter of Civil Procedure (GHS) in 1864 included reduced production of indisputable rules of affairs in the manner which necessarily dealt with the matter:

– on claims made on credit products and supplies, hiring of houses, apartments and all kinds of facilities, hiring servants at all production work artisans, craftsmen, day laborers and the like;

– at the request of the performance of contracts and obligations;

– claims about giving and receiving to save money and other property;

– claims for compensation for damages, losses and «самоуправное» occupation, when they do not involve disputes over the ownership of real property;

– disputes and requests that arise during the implementation of decisions;

– disputes about the privileges;

– in actions for compensation of victims of accidents and office workers in the factories and their families;

– disputes and complaints for enforcement.

In order to be considered in short all things at all, if it is agreed by the court and have not seen this particular obstacle. By order of the rules of the reduced characteristic in common, but with few exceptions, which were limited primarily to shorten the proceedings and the obligations of the parties to immediately submit the documents on which they base their rights: the plaintiff – if the lawsuit petition, the defendant – not later than the first meeting in the case.

Reduced production order has been unsatisfactory and too difficult in practice to speed up the proceedings on the undisputed liens. Measures were taken to remedy the situation. December 29, 1889 has been published rules for the production of rural chiefs and municipal judges. Earthen chiefs and municipal judges granted the right to manufacture their powers, to pay to perform acts without judicial review.

Causative execution subject to:

– acts of the serfs and notary, the acts of the payment of money or the return of things and other movable property;

– the employment contracts of real estate, certified or committed by the same procedure.

Recovery of the causative procedures on these matters was allowed only in cases where:

– acts on which it is based, committed or witnessed by the established order;

– the performance on them was not delivered in the very act in reliance on such conditions, the occurrence of which must be proved previously by the applicant, that is, if an act is beyond question.

In 1912, the rules of the causative version were introduced in the GHS. Chapter 15 GHS «On the performance of the causative acts» was developed based on standards set forth in the Rules for the production of rural chiefs and municipal judges. Commenting on the GHS, К.П. Змирлов noted on the causative form of enforcement of acts: «A distinguishing feature of the cases, so-called undisputed penalties is that the production of them between the parties as there was no dispute, and they are conducted solely for the receipt of the order of the causative performance of an obligation by the defendant. Under such conditions, in view of simplicity and clarity of the legal relationship of the parties, subject to strict procedural forms established in order to protect the interests of the plaintiff and defendant, it is unnecessary and not only needlessly alienates period of performance, but in vain, and both the claimant's burden, as well, and bona fide defendant. From this point of view of the above categories exclude cases from the trial, with the replacement of the last direct appeal expired liabilities to the causative enforceable in all respects to be preferred. In the same example and persuade Western Europe, where it started successfully applied almost everywhere, as well as some experience and national legislation, since the implementation of the causative execution of acts of «земскими» precinct chiefs and city judges does not cause any complaints by whom»[10].

By execution of CSA causative acts was «the judge's ruling, without calling and listening to explanations of the defendant, the immediate execution of taken over the defendant in the act of commitment, time of execution of to whom has come» and subject to the execution of the CSA:

– serfs, notary and certified by the rules of a notary of the acts of the payment of money or the return of things, or other movable property, if the execution of the aforesaid obligations in these acts were not made subject to such conditions, the occurrence of which was to be pre-proved by the plaintiff;

– committed or witnessed in the same order of real estate employment contracts in relation to the obligation to clear the employer or rent property consisting of hiring due to the expiration of employment and the obligation of payment of wage money;

– protested bills;

– Acts of agreements certified under the special rules on compensation of victims of accidents due to the workers and employees, as well as their families.

The desire for simplification of the civil procedural form was characteristic of the Russian civil process after 1864 and led to the beginning of the 20th century to the emergence of legislation governing the protection of the rights detailed in a simplified form.

High level of development of the theory simplify the civil procedural form was in the works of pre-revolutionary scientists-procedure causative and effective execution of acts determined the binding of a similar institution in the first Soviet of the RSFSR Code of Civil Procedure 1923. It was first introduced the term «court order». In the explanatory memorandum to the draft Code stated: «Art. 210 of the Draft Code of Civil Procedure allow a special procedure for consideration in the form of so-called issue of writs for the simplest cases, based on fixed and not subject to appeal documents. Issuance of orders made without summoning the parties and without a public affairs individually parse the people's judge, which is sufficient to produce an authentic document». According to Art. 210 orders were used to collect the money or the requirements for the return or transfer of property-based:

– for contested bills;

– the acts for which you have the mandatory notarial certification or order the commission, subject to compliance;

– the global transactions of any kind committed by judicial order;

– agreements on the amount of content to children and spouse entered into in accordance with the Code of Civil Status;

– on pay-books on wages.

However, beginning development of the institute writ of production in the Soviet civil trial was not as successful as the development of simplified forms of judicial procedure in pre-revolutionary Russia. Following the publication in 1926 of the provisions of Notary Public number of documents on which the writs were issued, declined and later Chapter 24 «On the issue of writs for the acts» were completely excluded from the Code of Civil Procedure of the RSFSR.

The Institute was transferred to the jurisdiction of notaries, which was transformed into Institute executive inscriptions – a notarial act, aimed at giving the executive power, and debt payment documents. This institution exists to this day. The order of the executive commission of the inscriptions is regulated by the Fundamentals of Legislation on Notaries.

Soviet jurists recognized the commonality of the legal nature of the legal institutions of the writ and writ of execution, and noted that notaries in the commission of the inscriptions were guided by the executive regulations for the extradition orders set out earlier in the Code of Civil Procedure.

In the legal literature has raised the question of the causes that led to the transformation of the institute injunction.

Н.Н. Масленникова, notes that the reduction of the practical value of the injunction and its subsequent clotting contributed to «a departure procedure law of Soviet Russia from discretionary, and competition began, the shift to state court procedural activity, the desire for strict regulation of all the really important things in public circulation»[11]. В.И. Решетняк believes that this institution, «focused on the functioning mainly in a market economy», could not be used «in the Russian reality, 30s – 50s of the 20th century, with its totalitarian regimentation of all spheres of civil turnover. Because of this, he had no place in the Code of Civil Procedure in 1964, and he was unreasonably long forgotten domestic legislation»[12].

In the mid-80s. in domestic law clerk appeared analog output. Decree of the Presidium of the Supreme Soviet of the RSFSR of 20 February 1985 «On some changes in the order of recovery of maintenance for minor children»[13] in the judicial practice was introduced by the simplified production of the recovery of maintenance for minor children.

In the legal literature have been formulated following criteria to determine a simplified production of alimony:

– First, the national jurisdiction of a judge alone the next category of civil cases – alimony;

– Second, the child support collected in a simplified manner only for minor children, child support for parents, incapacitated spouse, adult children are collected in the manner of claim;

– Third, the national judge may consider an application for alimony only in the absence of dispute.

This means that if the debtor objects to the collection of alimony, or when he has recovered from the child support for other children, or manufactured holding other writs of execution, the statement of claim must be considered in order. In the absence of consent of the person obliged to pay alimony, the national judge no later than the date of receipt of the application shall notify him of the applications and invites him to a term not exceeding 10 days, if he and the applicant reside in the same town or area and in other cases – in a period not exceeding 20 days, – to indicate their consent to the collection of child support or object to a claim. Upon receiving the consent of the person obliged to pay child support or non-receipt of the due date of his objection to the national judge no later than the date of his ruling for alimony. The case is considered in the claim procedure if the debtor has objected to the recovery of maintenance[14].

The situation is completely changed with the reform of political and economic life in the country, the adoption of the 1993 Constitution and updates all legislation governing the protection of civil rights. November 30, 1995 passed a law «On Amendments and Additions to the Code of Civil Procedure of the RSFSR», supplemented the Code Chapter 11-1 «Court order», which consisted of ten articles, which provided an opportunity to simplify and expedite the consideration of cases where the creditor allegedly indisputable that is, the debtor is unlikely to have substantive objections[15].

The new Code of Civil Procedure of the Russian Federation entered into force February 1, 2003, preserved and refined in the light of the practice of debt collection mechanism is simplified, and included provisions for the injunction in Section II «Manufacturing in the court of first instance», Subpart I «Writ proceedings», the Head of 11 «The court order». Thus, the writ proceeding is now an independent kind of civil proceedings, along with the lawsuit and other industries.