Writ as a simplified form of civil procedure. Writ of execution

On the one hand, the writ is similar in its essence a judicial decision, because in this and in another case, eliminated the existing dispute. After the judgment and injunction, perhaps, their enforcement. However, on the other hand, between these acts, there are serious differences. Issuance of the injunction is not preceded by consideration of the merits of the case, the judge shall issue an order based on the study of written documents. For this reason, the writ proceedings became known as «undisputed». Content of court order is also different from the content of the solution.[20]

Characteristic features of writ of production are:

1) A simplified in comparison with the lawsuit, civil proceedings in the Court of First Instance, which includes the stage of filing a creditor (recovered) application for an injunction, a court order by the judge, the debtor notice of the court order, the abolition of the writ.

2) The specific form of protection of the rights and interests of the creditor, as a person, based on written evidence with high degree of confidence, against the party failing to fulfill obligations.

3) Is used to resolve disputes in a simplified manner on the law arising from a number of relationships that develop over liabilities, or movable property. With the help of a court order cannot be recovered property.

4) Has a mechanism to ensure the enforcement of obligations, reliably supporting documents, and thus protect the rights and lawful interests of individuals. Evidentiary effect of written evidence is determined by its objective form, accessible to direct perception, as well as information that it contains, and legal expertise which is not to judge the difficulty.

5) Is due to the legal nature of the substantive requirements to be protected.

6) The prerequisites for determining the possibility of resolving the contentious relationship are the special nature of the requirements, the availability of the lender written evidence of high probative value, the agreement of the parties to the dispute in the order of writ of production.

7) The parties are the claimant (creditor) and the debtor.

8) Is characterized by lack of:

– Call of the parties and hearing their explanations;

– Legal proceedings;

– Logging proceedings.

9) The writ proceedings are an alternative of claim proceedings. The choice of production, which will be allowed to work (clerks, or claim) is the exclusive right of a person who goes to court to protect their rights.

1.4. Bench warrant as variety of court decision

The court order – order made by a single judge on an application for the recovery of sums of money, or the taking of personal property from the debtor for the well-defined requirements.

As a final court order, court order shall be made on behalf of the state as an act of individual control, which affects the specific rights and responsibilities of various stakeholders. This act gives the court rule of law as an abstract ought specific expression, thus stabilizing the relationship of the parties. In this regard, a court orders applicable requirements of legality and propriety, as to the judgment[21]. And if the validity of a court order is necessary to understand the certified convincing evidence of actual compliance with a valid reason to order the circumstances of the case[22], it is responsible for the legitimacy of the legal component of the issue. Legality is determined as follows:

When a court orders need to adhere to the rules of jurisdiction[23], that is, the magistrate, to whom jurisdiction over cases related to the imposition of the injunction, the right to decide named act of only the requirements specified in Art.122 Code of Civil Procedure of the Russian Federation, should perform remedial order granting the injunction, and it must match the details described in the article.127 Code of Civil Procedure of the Russian Federation.

The court order, as a procedural document, the content is different from the judgment. Thus, due to the specifics, it contains only the introductory and the operative part and the descriptive part of the argument, and no[24]. Guided by Art. 127 Code of Civil Procedure of the Russian Federation, the court in the introductory part shall set forth the following information: number and production date of the writ, the court name, last name, first name and patronymic of the judge, the name, place of residence or location of the creditor and the debtor.

The operative part – about the amount of money, to be recoverable, or the property to be of a claim (and its value) indicates the size of the penalty, if penalty is provided by federal law or contract, as well as the size of the penalties, if any due, as well as the amount of state tax to be collected from the debtor in favor of the claimant or the income of the relevant budget.

Special requirements apply to a court order for alimony for minor children. Besides all the above-defined data, it shows the date and place of birth of the debtor's place of work, name and date of birth of each minor child, the contents of which are awarded alimony, the amount of payments levied on a monthly basis, and their term of punishment[25]. Additional information shall be made for the effective execution of a court order bailiff.

The court order signed by a judge, official seal and certified in accordance with Art. 12 of the Federal Law «On Enforcement Proceedings» dated October 2, 2007 № 229-FZ, no need to issue a writ of execution, because he belongs to the executive documents, and for claims for alimony and the payment of employee wages court order shall take effect immediately. There is only one exception, under which the collection of state tax revenue in the state court order is supported by the writ of execution.

In case of loss of a court order the person in whose favor it was imposed, may apply to a magistrate with an application for a duplicate.

Speaking of common features of a court order to other court orders, and, in particular, with the judgment, В.И. Решетняк, notes that the court order is:

– A type of court orders;

– Act bearable special government body in which it expressed the power of judgment and expression;

– Resolution, which is due to the imposition of certain conditions, precisely defined by law;

– The act of protecting civil rights and interests protected by law;

– A procedural document[26].

But at the same time with similar features writ contains a number of fundamental differences from the judgment. These differences in the scientific literature drew attention to В.И. Решетняк:

– The solution can be decided by the court in any civil case, it can be stated authoritative judgment of the court of any claimed by the plaintiff or a defendant demand. In order to produce clerk, the court permitted a well-defined range of requirements.

– Resolved by the court the decision as a result of competition of the parties under the public hearing, during which the parties argue, designed to prove them right, to refute the arguments of the opposing party. The court order is issued without a trial without calling the debtor and the creditor in the trial, without hearing their explanations.

– The solution is based on the explanations of the parties, the evidence presented by the parties, examined during the trial. The order of the court based on the documents submitted by the applicant, reported on their arguments designed to convince the court that the cause of action cannot be refuted by the defendant and the defendant challenged the claim cannot be, as well as having a value of procedural fact of non-objection by the defendant, or to appear in court when summoned.

– The court's decision is motivated. The court must specify in its judgment the circumstances that he found, and that influenced his decision, explain the reasons why they were not taken into account other circumstances (in the event that a claim by the defendant in the reasoning part can be specified only for the recognition and acceptance of the claim by a court). The court order does not motivated by other than the court orders the person obligated to perform certain actions, it does not contain any disclosures.

– The procedure for making decisions and details are regulated by law. Resolved by the court the decision in the retiring room, secretly, for a court order of law is not so categorical.

– These institutions have different subject composition. In writ proceedings involving the plaintiff and the defendant did not, and the creditor (claimant) – a person who has requested the court and the debtor – the person with whom the lender requests a penalty. At the same time the order is based always on the requirements set forth the court only financially interested person.

– Judgment and a writ of appeal procedures differ. The decision may be appealed on the grounds in the manner provided by law. The order can also be challenged only, after which it is subject to mandatory withdrawal. That does not preclude further movement of the case, so the legislation does not provide for the possibility of its appeal[27]. The dispute is considered by the general rules of claim proceedings.

– The judgment and writ of execution of different procedures. The decision is subject to execution only after its entry into force, except as to reduce him to immediate execution. The grounds for execution of the writ are issued on the basis of the decision. The court order itself is an executive document, no other documents for its implementation is not required[28]. Of Art. 12 of the Federal Law on October 2, 2007 № 229-FZ «On Enforcement Proceedings» includes a list of orders in the execution of documents. All the executive documents can be divided into three types:

– executive documents issued by the courts;

– non-judicial enforcement documents as listed in the Federal Law «On Enforcement Proceedings»;

– non-judicial enforcement documents not mentioned in the Federal Law «On Enforcement Proceedings», but provided by other Federal laws (eg, executive notary (Article 35 Principles of Legislation on Notaries Code).

The list of documents writ of execution has a special place[29]. The executive documents issued by courts of general jurisdiction are divided into two groups:

– writs of execution issued by the courts on the basis of: they have taken judicial acts, decisions of the International Commercial Arbitration and other arbitration tribunals, decisions of foreign courts or tribunals; making interstate agencies for the protection of human rights and freedoms;

– orders.

First, the court order is the executive documents to be submitted directly to the court. But on the other executive documents submitted by the court, the order is different in that it is the decision of the Court of First Instance, shall be executed immediately. All other judicial enforcement documents submitted pursuant to other acts, either judicial decisions or decisions of various courts of arbitration, arbitration, international bodies to protect human rights and freedoms.

Secondly, the requirements for court orders differ from the requirements for other executive documents. Contents of the writ of the Russian Federation are determined by the Code of Civil Procedure, and the content of other court orders – rules of art.13 of the Federal Law «On Enforcement Proceedings».

The court order can be called only by a court order, which is a connecting link between the civil process and enforcement proceedings, as the court order, in contrast to all other legal acts shall be executed without the «intermediates» – writs of execution[30].

Thus, the essence of the court order is defined in the literature as follows. В.И. Решетняк defines the writ as «unmotivated judgment, an action taken on behalf of the state in cases prescribed by law, the person obligated certain behaviors in order to restore or protect the violated civil rights and interests protected by law, based on documents submitted by the applicant and the importance of having a procedural fact there were no objections from the debtor»[31]. М.А. Черемин defines in greater detail, emphasizing the dual nature of the injunction as a court order while an executive of the document: «The court order can be defined as an unexplained ruling of the judge of first instance rendered by the rules of writ proceedings on application of a creditor to collect money or for the recovery of personal property from the debtor, based on written evidence submitted by the lender and has the power of the executive document, on which the penalty is made in the manner prescribed for the execution of judicial decisions»[32].

1.5. Guaranty of human rights in mandative process

In fact, this simplified form of the proceedings[33], as a consequence of the legislation provides additional safeguards to protect the rights of the debtor and the creditor. As you know, the court may use any of the following potential legal structures, either on the merits of the claimed requirement to issue a writ, or to refuse adopted statement for a court order.

A creditor who has been denied a court order, does not lose the possibility of judicial protection of violated or disputed right treatment option because there is a statement of claim nature will be removed if the barriers to such treatment, although the right of it to the person concerned is not reported as an indication of proper in Art. 125 Code of Civil Procedure no. Paid state tax returns to the claimant on the basis of Art. 93 Code of Civil Procedure of the Russian Federation. The debtor may, within ten days of receipt of a copy of the writ to challenge itself is not a substantive claim of the creditor, and to submit objections to the execution of Court Act, which authorized the issue of state rights and responsibilities of individuals united by a common legal relationship. If any objections received to the magistrate, the court's own definition overrides issued a writ at the same time explaining to the claimant that his claim may be examined using a more complex procedure of limitation. Copies of the determinations on the abolition of a court order directed the parties not later than three days from the date of issuance. Skipping the debtor ten days is a kind of signal to the court on the debtor's consent to the presentation of the claim that, in turn, gives the claimant the right to enforce the court order. At the same time those involved in the case, and other persons, if their rights and interests are violated by court order, may within one year from the date of the judgment into legal force, timely direct appeal to the Court of supervisory authority. In particular, came into force supervisory writ filed a complaint in the court of the Presidium of the subject of the Russian Federation (Article 377 Code of Civil Procedure Code).

Deserves special attention to ensure court orders. The above practice is in its infancy and therefore requires further formation[34], it would be advisable to introduce in the writ proceedings of the Institute to ensure the substantive requirements of the lender because the detected cases of misconduct of the debtor, such as concealment of property as a result of forced execution of the order of the court order was made impossible. Indeed, the legislation significantly improved the production of the clerks, informing the debtor a copy of the writ of the presence of a unilateral right to claim. Meanwhile, the debtor is able to fully use the ten-day period provided for lodging an objection to it, in order to commit actions aimed at preventing the further implementation of the judgment. Due to the fullest guarantees of the rights claimant with a court order would have extended the measures set out in Art. 140 Code of Civil Procedure of the Russian Federation concerning the maintenance of the claim, and in the writ proceedings. The need for such measures is indicated in the literature[35].

Chapter 2

Grounds of mandative process

The court order in accordance with Art. 122 Code of Civil Procedure of the Russian Federation issued if:

– claim is based notarized transaction;

– requirement is based on a transaction made in writing;

– claim is based on the perfect notary protest notes in default, non-acceptance and acceptance of dating;

– is requesting alimony for minor children not related to the establishment of paternity, paternity (maternity), or the need to involve other stakeholders;

– stated the requirement to collect debts from citizens for taxes, fees and other obligatory payments;

– stated requirement for the recovery of accrued but unpaid employee wages;

– authority of the Interior announced the requirement to recover costs incurred in connection with the search of the defendant or the debtor, or the child selected by the debtor by the court.

All requirements listed in Art. 122 Code of Civil Procedure of the Russian Federation, based on written material. A writ proceeding is a simplified procedure for the protection of rights based on undisputed evidence[36]. The court order shall be made without holding a hearing, without having to call the plaintiff and defendant, in connection with whom the list of requirements on which the writ shall be made, is limited.

It should be emphasized that the listing requirements of the debt recovery of money or the use of the property, as disputes on the basis of other requirements (for recognition of the transaction null and void, and the application of the consequences of its invalidity, etc.) are treated according to the rules of action proceedings.

2.1. Claim based on a notarized transaction

Notarization of the transaction is carried out by the commission on a document that meets the requirements of Art. 160 of the Civil Code, the notary certifying text (or other official having the right to perform a notarial act). Notarization of transactions required: in the cases specified in the law, as well as in the cases provided by agreement between the parties, at least according to the law for transactions of this type of this form is not required.

Notarization required by law for wills, marriage contract, annuity contract, the contract of real estate collateral (mortgage).

The practice of the courts in sentencing orders should use the experience of notary offices, offering the protection of the interests of creditors in similar cases by the commission on the bond paper executive endorsement. Based on the List of documents for which debt collection is indisputably on the basis of the inscriptions of the executive organs, performing notarial acts performed by notaries’ executive inscription on notarized transactions relating to the receipt of money, the implementation of the refund or transfer of property. This requires the lender to provide a notarized original copy of the transaction.

In many other sections of the List case of debts arising from contracts concluded in written form (credit and settlement, employment and non-residential premises, the sale, mortgage, etc.). In each case lists the documents on which the inscription is accomplished executive and debt collection.

The experience of notaries is important to make orders in the first place because of the Russian Federation Code of Civil Procedure does not contain any references to the documents that must be submitted in support of their demands in dealing with the application for a court order. It appears that similar lender must submit the original of the notarized transaction.

There is a question of the relationship between the judicial and notarial authority. Fundamentals of Russian Federation legislation on notaries establish that the transactions specified by a notary public has the right to recover sums of money or the delivery of the property from the debtor to make a label executive, is the executive instrument. Executive sign the notary for a long time seen as a means to combat unscrupulous debtor.

As the civil circulation, increasing the number of participants, complexity of the structure of banks and other market institutions, notaries began to experience difficulty in making inscriptions on executive contracts on mortgage and credit agreements other than its own special legal nature, complex formulations. The cases of violations of notary rights and legitimate interests of debtors, which led to the appeal of the executive inscriptions of the court, and entailed a trial, additional material costs and red tape. Therefore, the notarial form of protection of subjective rights in some cases was ineffective, even useless[37]. Indeed, to determine on the basis of the credit agreement and a certified statement from the recovered of the debtor's account showing the amount of debt outstanding incontestability under modern conditions, characterized by a developed structure of the banking and credit institutions, is problematic[38].

In science, there is a twofold opinion on the writ of execution. For example, some authors like В.И. Решетняк, И.И. Черных, argue that the executive inscription can be made by a notary public only if the parties at the conclusion or performance of the contract have agreed that an action against the debtor may be made on its basis and that no one shall be deprived of his possessions except, by a court decision, that is, the executive commission of the inscription and its enforcement without the consent of the debtor does not comply with constitutional provisions. A writ issued by a judge as a person exercising judicial power, is a kind of judgment, which is why the foreclosure on the property or money of the debtor is fully consistent with constitutional norms[39].

Other authors, such as В.Н. Аргунов believe that the established relationship between the judicial and notary jurisdiction where any notarial act may be appealed to the court, and the dispute which has arisen on the basis of a notarized transaction may be subject to judicial review, the executive, the inscription can be saved[40].

At this stage, the question still remains open. But maybe in the future practice of how court orders and executive endorsement will identify the need for conservation, or writ of execution, or replace it completely by court order.

The position of the RF Constitution: «No one shall be deprived of his possessions except by court order» (Part 3 of Art 35). Is the current practice, as the court shall issue a writ, and this act is a kind of court order.

2.2. Claim based on a transaction made in writing

According to Art. 161 of the Civil Code of the transaction must be committed in writing, except for transactions requiring notarization:

– transactions between the entities themselves and with citizens;

– transactions between the citizens are in excess of not less than 10 times the statutory minimum wage, and in cases stipulated by law – regardless of the amount of the transaction.

Civil Code provides that a transaction is in writing, must be made by drawing up a document expressing its contents and signed by the person or persons who commit the transaction, or a duly authorized person (st.160 Civil Code).

According to Art. 434 of the Civil Code, a written contract may be concluded by drawing up one document signed by the parties, as well as through the exchange of documents by mail, telegraph, teletype, telephone, electronic or other means of communication, which allows establishing for certain that the document comes from a party to the contract.

Law and other legal acts and the agreement of the parties may establish additional requirements that must match the shape of the transaction (the commission on the form of some form of the seal, etc.), and provide for the consequences of non-compliance.

This is the most common form of the transactions in public circulation, and even the modern way to make a deal by the acceptance of the offer and conclusive action in the event a party is not the proper execution of commitments made in the form of a document containing information about the essential terms of the agreement of the parties, which is documentary proof of the creditor claims in the writ production. In particular, in which the lender bases its claim against the debtor, and which gives a magistrate.

2.3. Claim based on a protest of a bill

Paper circulation in Russia is regulated by the Civil Code, the Federal Law «On Bills and Notes» on March 11, 1997, the Regulation on Bills and Notes from the August 7, 1937, approved by the CEC and the CPC of the USSR № 104/134.

An instrument according to Art. 143 and 815 of the Civil Code – this is a security certifying compliance with the established form and obligatory requisites, property rights, the exercise or transfer of which is possible only upon its presentation. With the passing of a bill become certified by all of them right in the aggregate. Bill – a kind of promissory note, drawn up in a strict form, which gives an indisputable right to demand payment of the amounts designated in the bill at the end of the term for which he was discharged. Bill – this is a simple and unconditional financial obligation, as an order to pay for and a commitment to pay cannot be restricted by any conditions[41].

Payment of a bill prior to the drawer drawer appeal with the requirement to accept the payment and specify the date. At full or partial payment or rejection of his dating of this fact shall be certified by a notary – a protest of a bill for non-acceptance or non-acceptance of dating. If the payer has accepted the bill, but it evades the payment, waiver of payment should also be recorded.

The protest of bills is a means of protecting the rights of subjects of legal relations bill[42]. Protest of a bill is a notarial act, officially confirming the facts with which the Bills of Exchange Act binds the occurrence of certain legal consequences, drawing up an act of protest is made and has to ensure the protection of interests of the promissory note obligation. Provided protest non-payment of a bill, the protest is not dating the acceptance and protest dishonored. There is a complete or partial denial of the acceptance. The latter means that the payer has limited the acceptance of its responsibility part of the bill amount. Refusal of acceptance may look like a direct opposition to accept the silence obligated to accept the person, the inability to find a payer in a specified place in the bill.

In an act of protest of a bill shall include: date of the protest, the notary's surname and initials, the name of the notary's office, the name of the legitimate holder of a bill, details of bills, payment term, the amount by which the bill is issued, the name of the acceptor or payer, an indication of the presentation of bills for payment (acceptance) and the non-receipt of payment (acceptance), the place of protest; number registry mark or state tax collection rate, as well as the signature and seal affixed the notary.

According to Art. 5 of the Federal Law of March 11, 1997 № 48-FZ «On Bills and Notes» for claims based on non-payment of bills in protest, non-acceptance and acceptance of dating, committed by a notary in respect of an individual, entity or individual entrepreneur shall be issued a judicial order and made pursuant to the rules stipulated by the Russian Federation Code of Civil Procedure.

Orders are issued only to dishonored bill. The application for a court order must be accompanied by an act of protest, drawn up by a notary and protested bill.

Taking an application for an injunction on the bill protested, the judge must check:

– Whether the claimed requirement based on the protest of a bill in the non-payment, non-acceptance and acceptance of dating, committed by a notary;

– Observing the requirements of the law notary in the commission of a protest of a bill.

2.4. Claim about the recovery of maintenance for minor children

Writ proceedings at the request for alimony for minor children not related to the establishment of paternity, has its prototype alimony People judge by the decree of the Presidium of the Supreme Soviet on February 20, 1985 «On some changes in the order of recovery of maintenance for minor children» according to which in the absence of a statement of the dispute for alimony for minor children, the people considered by the judge without having to bring a civil case.

The modern civil procedural law provides for two forms of judicial protection of the rights of maintenance obligations in respect of minor children. Existence of a dispute about the subjective right, communication requirements for alimony to the establishment of paternity, paternity (maternity), and the establishment of other circumstances requires consideration of the case by way of action proceedings. If there is no need to involve others in the process and the possibility to collect child support in proportion to wages of the payer, by the writ proceedings[43].