Description of the presentation Enforcement proceedings in foreign countries France Vaud by slides

France Historically, a system of private enforcement has developed in France, when the powers of compulsory enforcement are performed not by civil servants, but by persons who have received a license from the state for this activity and carry out it independently. The profession of a bailiff was regulated by various royal ordinances adopted in 1556, 1667 and in 1813 under the Emperor Napoleon. At present, the legal status of a bailiff is determined by the Ordinance of November 2, 1945. Certain changes in the system of enforcement proceedings in France took place in 1992.

A compulsory enforcement officer in France is an official associated with the administration of justice, but acting at the same time as a person of a free (or, as they say in France, liberal) profession. In this regard, a compulsory enforcement officer is a free professional to whom the state has delegated the functions of executing decisions in civil cases rendered by various courts. At the same time, a compulsory enforcement agent is an official, since he receives his powers from the state and has a certain monopoly on a number of legal actions, in particular: execution of a court decision; delivery of summons, notifications; drawing up acts of evidentiary value and others. A compulsory enforcement agent in France is also an assistant to the judiciary, in connection with which he is endowed with a monopoly function of notification of acts, along with the actionists, he enjoys a monopoly on public auctions (auctions) of movable property, carries out amicable or judicial collection of debt obligations, according to At the request of private individuals, it performs actions to secure evidence, may represent the parties in some courts. The compulsory enforcement officer also participates in court hearings, ensuring, under the supervision of the judge, the observance of internal order in the courtroom.

Requirements 1. Diploma of legal education; 2. Passing a two-year internship; 3. Passing the state qualification exam.

Appointment Representation as successor Opinion of the Prosecutor's Office and the Chamber of Compulsory Enforcement Officers of the Department Order of the Minister of Justice of France. Oath before the court

Rights and obligations The right to: 1. Notice of acts; 2. Holding public auctions (auctions) of movable property; 3. Execution of the judgment; 4. Delivery of summons and notices; 5. Actions to secure evidence; 6. Conducting legal advice

Due to the public law nature of the activity, the compulsory executor is obliged to: 1. Provide services as many times as there is a need for them; 2. To keep a professional secret about the content of the documents handed over to them, the initiated executive procedures; 3. Compliance with internal order in the courtroom.

Compulsory enforcement officers practically do not work one at a time, but are united in a bureau, consisting of several executors, as well as employees who ensure their work. Compulsory enforcement officers are required to work on weekends, in connection with which one bailiff from the bureau must work on weekends in order, for example, to comply with a court order to seize a newspaper's circulation. It is interesting that the bulk of the execution falls on the unemployed debtors, small entrepreneurs who took out loans and now cannot pay off them. Compulsory enforcement officers in each department are organized into departmental chambers, tasked with representing the profession before the courts and administration, and ensuring discipline and professional ethics. Therefore, such department chambers are vested with the disciplinary powers they exercise against the enforcement officers of their department. Compulsory enforcement officers in the department chamber are represented by their elected members of the chamber, who, in turn, elect the chairman of the said chamber.

The number of compulsory enforcement posts is limited and regulated by the French Ministry of Justice. At the same time, a compulsory enforcer is a member of the liberal professions and carries out his activities either individually as an individual, or collectively, joining an association of persons of free professions, endowed with the rights legal entity... Compulsory enforcement officers do not receive wages from the state, but collect payments for exercising the powers delegated to them by the state, according to tariffs established by the state. For example, the service of documents as part of the compulsory execution procedure is charged by the state and is paid at the expense of the debtor. In the event that a compulsory enforcement officer provides legal services that can be equally provided by other representatives of the legal profession, i.e., they are not of a monopoly nature (for example, consultations that can also be provided by lawyers, notaries), his remuneration is of a contractual nature and paid by the applicant. Exercising his professional duties on behalf of the state, the compulsory enforcement officer bears at the same time personal responsibility for the legal consequences of his actions. Thus, a compulsory enforcement officer can be brought to civil liability for negligence in the delivery of procedural documents later than the established deadline, to criminal liability - in the case of theft of clients' funds and other cases of violation of their duties. The property risks of the profession are covered by insurance. In addition to civil and criminal liability, it is also possible to bring to professional (in the Armenian sense of disciplinary) liability for failure to comply with the rules of professional responsibility and ethics. The initiative in this can come both from the disciplinary commission at the department chamber of compulsory enforcement officers, and from the Ministry of Justice of France and its bodies.

Some features An interesting feature of the modern system of enforcement proceedings in France is also the presence of other, specially organized (liberal in the nature of their activities) professions, whose representatives participate in enforcement procedures. So, among them are commissioners, prize-winners as officials, endowed with a monopoly on holding public auctions for the sale of movable property. Prize-winning commissioners receive powers on behalf of the state, they are organized into communities at all levels (from local to national), and their remuneration is tariffed by the state. It should be noted and common feature competence of compulsory enforcement officers of France. The French legal system is built on the division of law into private and public, respectively, the judicial organization is distinguished by the separation of courts in civil and criminal cases, as well as judges of administrative justice, which are combined into various judicial systems... Accordingly, the compulsory enforcement officer does not execute decisions in favor of the state and, in general, acts adopted by administrative courts. For these purposes, there is a special system of bailiffs of the state treasury, who are civil servants.

Organizational structure of US enforcement agencies 1. Sheriffs and their deputies; 2. Marshal service; 3. Private legal (collection) agencies.

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 who report to the United States Attorney General through the United States Department of Justice. Each of them is appointed for 4 years by the President and approved by the Senate and performs their functions within the federal judicial district in the United States, thus, there are 94 US marshals with subordinate staff of more than 4,000 people (more than 3 thousand "Contractors" from security firms). The headquarters for all US marshals is the U. S. Marshals Service, part of the US Department of Justice. The United States Marshall Service is directed by a director appointed by the President. U.S. Marshals perform tasks that are critical to the smooth and effective functioning of the federal justice system. However, it should be noted that the public authorities responsible for enforcement are used where there is a risk of physical conflict or unrest. In this regard, much of the work of enforcement in the United States by Private is done by collection agencies, thereby freeing up government agencies to work on more serious cases. This allows government enforcement agencies to prioritize more difficult or potentially contentious cases where government agencies are most needed and effective. The way private collection agencies operate varies from location to location, 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 was duly registered with the court in which the judgment was made. In this regard, all rights of the creditor are transferred to the collection agent, and the creditor receives an 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. US enforcement procedures are governed by state laws and state-specific civil procedures.

Functions of the Marshal Service In addition to enforcement, the US Marshall Service is charged with the following functions: - Providing security for federal courts, including ensuring the security of court buildings and federal judges and magistrates, as well as participants in proceedings such as jurors and representatives of the parties; - Ensuring order in the courtroom and escorting the accused in custody; - search and arrest of persons hiding from federal justice; - Implementation of a federal program to ensure the safety of prosecution witnesses (especially in cases of organized crime) who are at risk of reprisals from criminal elements; - detention and transportation of prisoners; - execution of court orders for arrests and searches; - seizure, disposal and sale of property confiscated in favor of the state from drug dealers and other criminals, and the implementation of the US Department of Justice's national program for the seizure of assets and confiscation of property; - involvement of foreign statesmen who are on an official visit to the United States in protection measures; - ensuring the protection of nuclear weapons during their transportation across the territory of the country; - response to emergencies, including riots, terrorist acts and other crisis situations, by using a special task force and restoring order; - sale of confiscated property; - assists the Defense Ministry and the US Air Force in transporting tactical missile warheads to US military bases. The US Marshal Service includes assignment units, modern weapons, special equipment, transports of various types, etc.

Imprisonment In the United States, in some states, a debtor who avoids paying child support, if there is confidence in his ability to pay, may be subject to such a measure as imprisonment. In addition, such a method is used to force citizens to fulfill their duty to children as monthly access of the guardianship and guardianship authorities to information about new bank accounts opened in financial institutions - thereby identifying the debtor.

Legalization of a court decision In the United States, regulation of enforcement proceedings is carried out at the state level, and therefore, court decisions made in one state must be legalized in another state, for which the necessary legal procedures have been established. In some states, such legalization takes place through the filing of a claim against the decision, and in others - the registration procedure. The basis for enforcement actions is a writ of execution, which is issued by a clerk in court or in a number of states by an attorney authorized by the sheriff.

Disclosure by the debtor of information about the property In the United States, if the creditor is not aware of the ownership of the debtor, the debtor may be summoned to court for the purpose of additional disclosure of evidence. The court has the right to demand from the debtor to disclose information about the property he has with the purpose of subsequent levy on him. If the debtor fails to appear on a court summons or refuses to disclose information about the presence of property and its location, the debtor may be imprisoned for contempt of court.

Tracing the debtor's property In the United States, the search for the debtor's assets is carried out by the recoverer's lawyers, who use both formal (for example, through a request through the court, credit agencies) and informal (for example, through private detectives) ways to search for property. The collector can also resort to the services of special debt collection agencies.

Foreclosure on the debtor's property To impose a foreclosure on the debtor's property, the recoverer sends a writ of execution to the US Marshal (or sheriff). At the same time, he prepares for the enforcement services in advance. The claimant has the right to choose which property to foreclose.

Levy of execution on the debtor's funds held in banks or other credit organizations The creditor, in order to collect funds from the debtor's bank accounts, must inform the court in which bank the debtor's account is located (and the location of the deposit safe, if necessary), although some jurisdictions require more accurate information (for example, account number). The creditor then receives a writ of execution from the court and engages an employee of the sheriff's office to conduct bank procedures, who must provide the assets to the creditor or official custodian prior to transferring the assets to the creditor, depending on the applicable law. Certain funds are exempt from confiscation even from bank accounts. Rules vary from state to state, but generally social benefits, including disability benefits (even those received from private sources), veteran benefits, childcare, or child support, are excluded from penalties. If the debtor claims that the confiscated funds fall under the exclusion category, then various states have legal procedures for the return of such funds by an authorized person (there is a legal period between the confiscation of funds and the return to the creditor) or the creditor, according to the rules established by the court.

Keeping the seized property of the debtor The creditor may obtain a writ of execution from the court so that the sheriff with the appropriate territorial jurisdiction where the property of the debtor is located will deliver an order to the third party that owns the property of the debtor to transfer this property to the sheriff. The property is then put up for auction, and the proceeds first cover the sheriff's services, and then the creditor's claim.

Realization of the debtor's property Interesting is the experience of the United States on the procedure for storing cars, depending on their value. Cars priced at more than $ 10,000 are stored in internal parking lots. For more expensive cars, the rules of their maintenance are also required: every month the car must be started and it must drive two meters back and forth. The requirement to inspect the cars is caused by the need to secure the marshal service from the claims of the owners of these cars. Seized vehicles worth up to $ 500 must be scrapped.

Sale of the debtor's property The process of selling the seized property on behalf of the US Marshals Service is carried out by competitively selected and licensed corporations. Information about the auctions is pre-published in periodicals, primarily in newspapers or magazines with a high rating.

Bailiff: Requirements, Appointment An unconvicted citizen of the Federal Republic of Germany, aged at least 23 and not more than 39 years old, with a secondary legal education and an impeccable reputation can be appointed to the position of a bailiff.

Judicial act as the main enforcement document The legal basis for initiating enforcement proceedings is an official copy of the decision, on which the enforcement inscription is made, issued to an employee of the office of the court that issued the judicial act. The writ of execution is the wording of the following content indicated by the employee of the court office on the copy of the judicial act: "a certified copy of the superior document is issued by (names of the parties) for the purpose of compulsory execution."

Types of executive inscriptions 1. Simple executive inscription; 2. Complementary executive inscription; 3. By means of a changing (transmitting) executive inscription; 4. Mixed (partial) inscription.

The executive inscription can be of two types: simple or qualified, the latter can be supplementary to the title or changing the executive title. Depending on the type of inscription, the procedure for issuing it is also different. A simple executive inscription is made by officials of the court office. A simple executive title is issued by the competent authority in the event that the content of the executive title does not require change or if the appeal to execution is not associated with the occurrence of a certain event (expiration of the term, counter security). Such an inscription has a formal, declarative meaning. The supplementary executive notation establishes restrictive conditions or terms of performance. In this case, the claimant is obliged to prove the occurrence of certain events. If the burden of proof of such facts lies with the debtor, then a simple writ of execution is issued. By means of a changing (transmitting) executive inscription, it is possible to replace the parties in executive titles in the event of procedural succession.

Presentation of the Executive inscription can be of two types: simple or qualified, the latter can be supplementary to the title or changing the executive title. Depending on the type of inscription, the procedure for issuing it is also different. A simple executive inscription is made by officials of the court office. A simple executive title is issued by the competent authority in the event that the content of the executive title does not require change or if the appeal to execution is not associated with the occurrence of a certain event (expiration of the term, counter security). Such an inscription has a formal, declarative meaning. The supplementary executive notation establishes restrictive conditions or terms of performance. In this case, the claimant is obliged to prove the occurrence of certain events. If the burden of proving such facts lies with the debtor, then a simple writ of execution is issued. By means of a changing (transmitting) executive inscription, it is possible to replace the parties in executive titles in the event of procedural succession.

Electronic auction In Germany, the sale of property in electronic auctions has been carried out for several years. The electronic trading system covers almost the entire country and works very efficiently. For example, an item listed for sale with a price of € 1 was sold for € 370. That is, thanks to the use of electronic trading, the price of the property put up for sale was increased by 370 times. Achievement of such results is facilitated by the used procedure for determining the initial sale price of property put up for electronic auction, which cannot be less than 50% of the market value. The use of this measure allows at the initial stage to increase the attractiveness of the subject of the auction and, accordingly, to attract the maximum possible number of potential buyers to participate in the auction. Electronic trading is carried out in a predetermined time period (for example, within two weeks), which creates the most favorable conditions for a potential buyer, since it allows him to make a price offer at any time convenient for him before the end of the auction. The use of the electronic trading system for the sale of property minimizes corruption risks, since the implementation procedure is carried out in automatic mode software and hardware of the electronic trading platform, which excludes direct contact between the seller and buyers. Under these conditions, buyers who have a real interest in purchasing the subject of the auction, which, of course, affects the effectiveness of the sale of the debtors' property, take part in the auction. The proceeds from the sale of the property owned by the debtor are transferred to the creditor to repay the debt.

Compulsory property management allows you to satisfy the claims of the claimant at the expense of current receipts from the property. Forced sale terms and conditions apply, with some exceptions. After the issuance of the arrest order real estate and making an appropriate entry in the land registry, the enforcement court shall notify the parties of the establishment of compulsory administration. As a result of the arrest of property within the framework of this enforcement measure, the debtor is deprived of the rights to own and use the property, which is transferred by a court ruling to the compulsory administrator. He is obliged to take the necessary steps to preserve the property in its economic purpose and use it to meet the claims of the claimant. The manager is liable to the parties for deliberate actions that have caused them harm. The activities of the trustee are supervised by the enforcement court. After satisfying the claims of the recoverer and covering all expenses from the management's income, the enforcement court, by its ruling, cancels the decision on compulsory management and returns the plot to the debtor's use.

An assurance replacing an oath is a public announcement to the bailiff by the debtor about his property and property rights. This measure is applied in cases where a) the foreclosure did not lead to full satisfaction of the creditor's claims, or b) the creditor has proven the predominant likelihood that, as a result of the foreclosure, he cannot receive full satisfaction of his claims, or c) the debtor has refused to conduct a search , or d) the bailiff did not find the debtor in his home after he notified about the execution at least two weeks in advance. Acceptance of the assurance replacing the oath is within the competence of the bailiff, to whom the debtor is obliged to submit an inventory of his property, as well as the grounds and means of proving his claims. The inventory of property must also indicate the assurances made during the last two years before giving the assurance, the paid alienation of the debtor to close persons, and the gratuitous performances made by the debtor during the last four years before the giving of the assurance. The accepted assurance replacing the oath, the bailiff immediately submits to the court, and sends a copy to the creditor

Oath of Oath Cases when it is possible to take an oath: 1. Arrest of movable property; 2. When arresting and transferring the right of claim, when the debtor is obliged to provide the recoverer with the information necessary for the presentation of the claim in the form of testimony equivalent to an oath; 3. If the thing has not been discovered and the debtor is forced to surrender the thing.

Acceptance of testimony equivalent to sworn testimony is carried out by a bailiff at the district court, in the district of which the debtor resides at the time of filing the application. If the debtor fails to appear before the bailiff to give an assurance replacing the oath, or refuses to give such an assurance, the court shall issue an order for him to be taken into custody for up to six months. At the same time, taking into custody does not relieve the debtor from the obligation to give the appropriate assurance and does not exclude the possibility of repeated application of the measure in the form of detention to the debtor in case of refusal of such assurance. If the debtor has made an assurance replacing the oath, his name is entered in the list of debtors maintained by the court. Being on the list of debtors significantly limits the economic rights of the debtor, since it entails the refusal of credit organizations to provide loans to the debtor and open an account. The entry on registration in the register of debtors is canceled three years after the end of the year in which the corresponding assurance was given, the order of detention was issued, or the six-month period of detention in custody has expired.

Certain Enforcement Methods Securities can be enforced without any registration. The claimant, in order to avoid the sale of securities belonging to the debtor, may serve the partnership with a document indicating the amount of the debt and a request to prevent the sale of the debtor's shares. Such a document is called "stop notice" (stop notice). The company receiving such a document must not authorize the transfer of shares without giving notice to the creditor. The Lender applies to the Chancery Office for an order prohibiting the transfer. After six months from the date of the order, the creditor may initiate a process to implement the order for collection.

Method of "fair execution" In accordance with the Rules, the claimant can use the "equitable execution" method, which means that the court, at the request of the claimant, appoints a person as the "recipient". The recipient exercises control over all income, profits of the debtor and submits invoices to the court for authorizing payments to the recoverer. For the performance of this work, he is entitled to remuneration in the amount established by the court.

Sequestration means that the court instructs four or more persons to seize all movable and personal property from the debtor, and keep it until the debtor has complied with the court decision. Most often, sequestration is used when the debtor is a corporation. In this case, a sequestration subpoena can be used against the property of any director or other official of the corporation.

Submission of ownership This is the most common way. A notice of land ownership is sent to the sheriff with permission to "enter and occupy the land" of the debtor, having previously summoned the claimant to "own it." The summons cannot be written out without the special permission of the court. The court can resolve this issue positively if it is sure that the debtor has received notice of the process. This is necessary to guarantee the protection of the debtor. Upon receipt of the notification, the debtor has the right to submit objections to the court that may make it impossible to apply the subpoena.

Yarkov V.V., Doctor of Law, Professor, Head of the Department of Civil Procedure of the Ural State Law Academy.

Introductory provisions<1>... The systems of enforcement agencies and enforcement proceedings themselves are national in nature, developing in each country under the influence of various factors. In our opinion, there are two main classifications of the world's enforcement systems. We emphasize right away that these author's classifications, like any others, are not completely legally pure, but at the same time they make it possible to better understand the content of a particular system of enforcement proceedings that exists in a particular country.

<1>The article uses materials that were prepared by the author when performing work on the project "Analysis of the activities of the Federal Bailiff Service through a review of media materials, conducting surveys and a series of interviews with representatives of the external and internal environment as part of the implementation of the Federal Target Program" Development of the Judicial System of the Russian Federation for 2007 - 2011 ", to assess the feasibility and possibility of introducing the institution of private bailiffs in Russia, carried out under the leadership of the author in 2007 at the Ural State Law Academy by order of the Ministry of Justice of Russia.

Classification of enforcement systems by the way the profession is organized. The first classification is based on the method of organizing the profession of a bailiff (bailiff, bailiff, huissiers de justice - there are many options for the name), as well as the possibilities and limits of participation of non-governmental organizations in enforcement proceedings. Historically, according to this criterion, several basic models of enforcement proceedings have developed: public law, non-budgetary (private law) and mixed model - public law with admission to varying degrees of private law initiative.<1>.

<1>For the first time this classification was proposed for discussion in the works: Yarkov V.V., Ustyantsev S.E. The concept of development of the system of executive legislation and the bailiff service of the Russian Federation (brief theses) // Arbitration and civil process. 2001. No. 8, pp. 29-40; V.V. Yarkov The concept of development of the system of executive legislation and the Bailiff Service of the Russian Federation (main theses) // Problems of protecting the rights and legitimate interests of citizens and organizations: Materials of the International Scientific and Practical Conference. Part 1. Sochi, 2002.S. 118 - 144.

Terminology. It is hardly appropriate and accurate to use the term "private bailiff", as some experts do.<1>, because as a result the essence of the organization of the profession is distorted. In the system of compulsory enforcement, organized either on the status of a bailiff as a civil servant or working on a self-financing basis, there is nothing private, since in the states of the non-budgetary (private) enforcement system, the bailiff also receives powers on behalf of the state, works within the framework of procedures established by law, the system of payment is also determined according to the general rule by the state, whereby the "private" element consists only in the method of financing and in individual elements of the organization of the profession.

<1>See, for example: Isaenkova O.V. Problems of executive law in civil jurisdiction. Saratov, 2002.S. 182 - 186; Reshetnikova I.V. Conceptual approaches to the development of enforcement proceedings // Zakon. 2007. N 5.S. 60.

Here, an analogy with the institution of notaries in Russia, included in the system of the Latin notary, is appropriate, since here only financing at the expense of persons who applied for a notarial act is "private", but otherwise the notary performs public law functions delegated to him by the state under the control of the justice authorities ...

The public-law (completely state in form) organization of enforcement proceedings developed in the USSR, when both the bailiff and employees of all organizations involved in the execution process (trade, appraisal specialists, and others) were in the civil service. Accordingly, the public-law organization of enforcement proceedings is characterized by the complete nationalization of all its parties, the absence of private initiative in the performance of certain types of enforcement actions. At present, such an organization may have survived in North Korea, in Cuba, but, unfortunately, it is rather difficult to collect reliable material on this score.

The non-budgetary (private law) organization of enforcement proceedings is characterized by the fact that the profession of a bailiff is organized on a liberal basis, a bailiff is a free professional who independently organizes his activities and is fully responsible for the results of his work. Thus, the system of compulsory enforcement was organized in France, Belgium, Luxembourg, the Netherlands, Italy, Greece and a number of other countries, which followed the French Civil Code of the French system of organizing liberal legal professions. The UK also has off-budget bailiffs alongside government bailiffs.<1>.

<1>For more details see: S.I. Gladyshev. Execution proceedings in England. M .: Lex-Kniga, 2002.

At the same time, it should be borne in mind that the bailiff even in the private law organization of his work is not independent in the sense that he acts at his own discretion when carrying out the execution. He receives powers on behalf of the state, since he is appointed to office by the Ministry of Justice and acts within the framework of the current legislation that determines the content and nature of enforcement procedures. Other legal professions in enforcement proceedings related to the sale of property are also carried out, for example in France, on a private basis. This liberal system of organizing enforcement proceedings was recently introduced by a number of newly independent states, in particular Lithuania, Latvia and Slovenia.

The convenience of this system for the state is as follows. It does not in any way finance the activities of bailiffs; on the contrary, it imposes on the bailiffs themselves the burden of self-financing costs and full property liability to clients. Since the payment of a bailiff in a private law organization of the profession depends on the results of his work, the bailiff is interested in the maximum efficiency of his activities. At the same time, bailiffs are free to manage their affairs.

A mixed model of organization of enforcement proceedings is more common in our modern legal systems, when, in the public-law organization of the profession of a bailiff-executor, organizations operating on a different organizational and legal basis, in particular those specializing in tracing debtors and their property, are equally allowed in the enforcement process. , assessment, storage and sale of the debtor's property. At the same time, depending on the country, the degree of "privatization" of the execution process is different. For example, in Germany, the bailiff, although he is an official of the judicial system, receives part of the money paid for the exercise of his functions<1>.

<1>See: Chugunova E.I., Eremenko M.S. Efficiency of execution of court decisions in civil cases // Problems of protecting the rights and legitimate interests of citizens and organizations: Materials of the International Scientific and Practical Conference. Part 1. Sochi, 2002.

A public law organization for the profession of a bailiff exists in the Nordic countries (for example, Sweden, Finland, Denmark), Germany, the USA, and a number of other states. In the United States, the search for the debtor's assets is carried out by the recoverer's lawyers, who use both formal (for example, through a request through the court, credit agencies) and informal (for example, through private detectives) ways to search for property. The collector can also resort to the services of special debt collection agencies.<1>.

<1>See: U. Burnham, I.V. Reshetnikova. Enforcement proceedings in the USA // Judicial reform: problems of civil jurisdiction. Ekaterinburg, 1996.S. 139 - 148.

The Russian system of compulsory enforcement, based on the framework of the above classification, can be attributed to a mixed model, in which, given the public-legal status of the bailiff service, the participation of organizations of various organizational and legal forms is allowed in the course of compulsory enforcement. The bailiff service in our country is a state one, and bailiffs are civil servants. At the same time, in comparison with the previous legislation, taking into account the new socio-economic realities, the procedure for the sale of property and related other actions has been changed. So, according to Art. 400 - 403 of the Code of Civil Procedure of the RSFSR, the sale of residential buildings was carried out at a public auction by a bailiff, and in accordance with Art. 398 of the Code of Civil Procedure of the RSFSR, the sale of other seized property was carried out by selling on a commission basis through state and cooperative stores.

Currently, according to Art. 54 FZIP the sale of the debtor's property is carried out by specialized organizations that can be formed on a different organizational and legal basis and form of ownership. Most of these specialized organizations are privately owned. In addition, the appraisal of property in accordance with Art. 52 of the FZIP and the Federal Law "On Appraisal Activity in the Russian Federation" should be carried out by professional appraisers, while the appraisal activity itself is a kind of entrepreneurial activity. Organizations of various forms of ownership can also be involved in the storage of seized property.

Thus, in the sphere of enforcement proceedings in Russia, a certain "privatization" took place, when a number of necessary functions for the execution are carried out by organizations and persons that are not part of the system of state bodies and local self-government bodies. Such a combination of public law and private law principles in enforcement proceedings allows state bodies - the bailiff service to focus on public law functions, namely, enforcement, involving commercial organizations in this area, which ultimately also work under the control of the state, since those interested persons always have the right to file a claim with a court.

Comparative analysis. Which system is better - a system based on the status of a bailiff as a free professional or his status as a civil servant?

Each of them has advantages and disadvantages, and its existence is explained by the peculiarities of the judicial organization, historical traditions and many other factors.

In a system based on the liberal organization of the profession, its advantages lie in the greater efficiency and effectiveness of this work, since the payment of the bailiff depends on the volume and quality of the executed enforcement actions. In addition, as already indicated, the bailiff himself bears property responsibility for errors of the bailiff (through collective insurance, general guarantee funds, etc.), and public control is ensured, firstly, by legislation and the justice authorities and, secondly, by self-organization in within professional associations of bailiffs.

The status of a civil servant provides a bailiff with the opportunity to vest public authority and powers, access to classified information, as well as interaction in the process of working with other state bodies. At the conference of European ministers of justice in October 2001, representatives of many countries emphasized the advantages of the state organization of the enforcement system, for example, Germany, Denmark, Sweden, Finland. Thus, the Ministers of Justice of Finland and Sweden emphasized such an advantage of a bailiff as a civil servant, as the universality of his competence, which allows him to execute acts in the field of both civil circulation and public law, in particular tax levies.<1>.

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Classification of systems of compulsory execution according to the place of bodies and officials. The second classification is based on the location of enforcement agencies and officials - they most often work either within the judiciary, as officials of the judiciary, or in the executive, as a rule, under the justice authorities<1>.

<1>Some experts also distinguish three systems of organization of the profession. See: Yessiu-Faltsi P. European writ of execution and the consequences of its introduction for the executive law of Europe // Russian Yearbook of Civil and Arbitration Proceedings. 2002 - 2003. N 2.SPb .: Publishing house. house of the St. Petersburg state. University, 2004. S. 351 - 353. See also: Kennett W.A. Enforcement of Judgments in Europe. Oxford: Oxford University Press, 2000. P. 75 - 94.

Forensic model. In the first case, when working with the judiciary, bailiffs are officials at the courts, or the functions of compulsory enforcement are vested in the courts. These include, for example, Germany, Denmark, Spain, Cyprus. For example, in Spain according to Art. 117.3 of the Spanish Constitution, judicial power in any form is exercised exclusively by courts and tribunals; in accordance with the same article, the content of this power extends not only to the administration of justice, but also to the execution of judicial acts. This is explained, as noted in the report of the Minister of Justice of Spain at a conference in Moscow in October 2001, by the fact that the power of public power is used in the sphere of enforcement proceedings, and its implementation is possible only on the basis of the principles of independence, impartiality and objectivity, to the maximum extent inherent in courts.

Court clerks and court agents play an important role in the enforcement process on behalf of the court. As civil servants, court secretaries carry out, among others, the task of documenting and officially recording court actions taken in their presence. For their part, judicial agents are responsible for the physical and material implementation of certain enforcement measures, such as the seizure of property and its seizure. The legality of their actions is subject to judicial review<1>.

<1>Material on Spain is presented under the article: Chugunova E.I., Eremenko M.S. Decree. op.

Work under the executive authorities. In other countries, enforcement bodies are part of the executive branch, as a rule, of the justice authorities, in particular in all countries where the profession of a bailiff is liberal, as well as in Albania, Slovenia, Turkey, Croatia, Sweden, and most of the CIS countries.

In a number of countries, certain functions of execution are entrusted to notaries, in particular in Albania, Croatia, Spain and Estonia. In Spain, the enforcement of the rights of the pledgee in the foreclosure of the pledged property is carried out by a notary, not a judge, with the preservation of the possibility of judicial review. In France, Germany, Estonia, Albania and a number of other countries, a significant part of executive documents are notarized agreements; in Croatia, notaries have the right to take certain actions when levying execution on shares<1>.

<1>See: Chugunova E.I., Eremenko M.S. Decree. cit .; Piepu J.-F., Jagr J. Professional notarial law. M .: Jurist, 2001.S. 144 - 147.

Russian model. In Russia, the 1997 reform led to the segregation of the enforcement authorities within the framework of the judiciary; judges of courts of general jurisdiction ceased to exercise current organizational control over bailiffs-executors. At present, the Federal Bailiff Service of the Russian Federation is part of the system of the Ministry of Justice.

Ultimately, when assessing the effectiveness of a particular enforcement system in this aspect, it is necessary to approach taking into account the historical traditions and characteristics of the judicial organization, constitutional provisions. In this sense, each state has its own historically developed system of organization - under the justice authorities or under the courts. It is rather difficult to talk about the greater or lesser effectiveness of a particular system, since, ultimately, the legal system of each country is unique in its own way.

Possibilities and limits of unification in the field of international enforcement proceedings: general trends. Attention to the issues of international enforcement proceedings and its unification is very great. This is due to the general trends in the development of procedural law. Thus, at the pan-European colloquium on civil procedure in Brussels in October 2001, one of the sections was devoted entirely to issues of enforcement within the European Union as one of the most important issues of ensuring economic efficiency.

Thus, the main speaker, W. Kenneth, devoted her report to the characteristics of the systems of enforcement proceedings that have developed in different countries Europe, the organization of the profession of bailiff and the prospects for the harmonization and unification of law in this area. She linked the free movement of court documents to the single market, freedom of movement within the European Community of goods. Just as the free movement of goods is subject to certain rules in order to protect the public interest, so the mutual recognition of decisions must meet certain legal standards. In 1968, the Brussels Convention established such a minimum of standards, but later, including after the decision of the Court of Justice of the European Communities N 120/78, the trend towards harmonization became predominant.<1>.

<1>Kennett W. Enforcement: General Report // Procedural Law in Europe. Towards Harmonization. Antwerp-Apeldoorn. Maklu, 2003. P. 81-111.

The question of unification of national systems of enforcement proceedings was also raised at the 24th conference of European ministers of justice on October 4-5, 2001 in Moscow. In particular, the Minister of Justice of Russia proposed to develop a European Code of Enforcement Proceedings and a Code of Conduct for Bailiffs. However, representatives of many countries reacted to this idea rather critically (Austria, Finland, Denmark, Sweden, Great Britain, etc.), based, in particular, on the fact that the powers of the enforcement authorities are connected with national judicial systems, which in each country historically are unique, associated with the difference in legal systems and principles of their organization. For example The Minister of Justice of Sweden rightly noted that the execution procedure is often deeply rooted in the legal and administrative systems of the state and depends on a number of interrelated factors.<1>... Therefore, the expansion of opportunities for mutual recognition and enforcement of judgments is more significant than the unification of national executive legislation.

<1>See: Chugunova E.I., Eremenko M.S. Decree. op.

Minimum Enforcement Standards. More interesting, in our opinion, is the development of certain minimum standards of enforcement proceedings related to ensuring access to the enforcement system, minimum guarantees of the rights of the parties, remedies, types of property and a minimum of funds that cannot be subject to collection, etc. , linking them with the provisions of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights. This approach fits well into the framework of the unification of the rules of civil circulation and civil procedure and can be implemented within the framework of both the CIS and the unions of other states. At the same time, of course, it is important to keep in mind the differences in the system of guarantees for the implementation of the right to judicial protection, where the most important is the right to be heard, and rights in the field of enforcement proceedings, when the dispute has already been resolved and the debtor's task is to execute it.

There are already first proposals on this score. Thus, at the aforementioned conference of European Ministers of Justice, the Austrian Minister of Justice proposed that the Council of Europe adopt minimum standards in the field of enforcement of civil judgments, which would guide the member states when changing and improving relevant laws. In particular, he highlighted the following main provisions:

1. Enforcement should lead to the economic implementation of the judgment, maintaining a fair balance between the interests of the creditor and the debtor.
2. There should be a necessary minimum of protection for the debtor (for example, when foreclosure is applied to wages, the debtor should be left with a minimum amount to finance (within reasonable, modest limits) living expenses).
3. There should be means used to prevent the debtor's illegal behavior, especially with regard to his concealment of his property.
4. In the enforcement of enforcement, the bailiff must have sufficient discretion to choose the most appropriate and cost-effective way to enforce a judgment. The applicable law must provide adequate standards; in addition to these standardized rules, the creditor should have the right to require the bailiff to take special measures, if necessary in a particular case. The court should have only supervisory and control functions.
5. When searching for property (real estate, wages) of the debtor, the bailiff must have access to the relevant computer databases (including the register of land plots, the register of employees submitted by the debtor's employer, etc.)<1>.

<1>See: Chugunova E.I., Eremenko M.S. Decree. op.

It is possible that in the future, the first steps will also be taken in this direction. However, in the end, we will emphasize once again that the most important thing in the field of international enforcement proceedings is not the unification of its internal institutions, but above all the harmonization of interacting institutions, namely in the field of mutual recognition and execution of both judicial and non-judicial acts that have compulsory force (in particular, in addition to decisions of courts and arbitration tribunals, also court orders, notarial agreements on the collection of funds, etc.), as well as providing access to public registers of information for enforcement purposes.

International Organization of Bailiffs. There is an international association of enforcement professionals called the Union Internationale des Huissiers de Justice et Officiers Judiciaires.<1>... The International Union was formed in 1952 at the first congress in Paris of the National Chambers of Bailiffs of France, Belgium, the Netherlands, Luxembourg, Italy and Greece, i.e. countries in which the profession of a bailiff is liberal. Subsequently, it was joined by Quebec, Austria, Germany, Poland, a number of African countries, Lithuania, Latvia, etc. At present, it has representatives, including observers and co-opted members, from more than 60 countries on four continents. In the future, it is possible for our country to join the international union, provided that the National Chamber of Bailiffs of Russia is created and the activity of bailiffs-executors is transferred to a non-budgetary basis.

<1>The material is presented on the basis of the manual "Bailiff", prepared by the International Union of bailiffs and employees.

The International Union has the status of a non-governmental organization. The main tasks of the Union are: strengthening professional ties between bailiffs of all countries; conducting a comparative analysis of the legislation of different countries on the status of the profession and facilitating contacts by maintaining constant contacts and exchange of documentation; drawing the attention of state bodies to the absolute necessity of the presence of a bailiff in the proceedings.

The Union periodically holds international congresses at which topical issues of the organization of the profession and enforcement proceedings are discussed. The Union participates in the preparation of international conventions on the mutual transfer of documents and notification on judicial and non-judicial matters, on mutual recognition and enforcement of decisions on the territories of other states. One of the latest and most important initiatives of the International Union is the substantiation of the need for a European Enforcement Order, which will facilitate the execution procedure on the territory of both the countries of the European Union and other countries. Ultimately, this work was crowned with success and the adoption of European Union Regulation No 805/2004 of April 21, 2004, establishing a European enforcement order for undisputed claims<1>.

<1>This Regulation in translation and with a commentary by Cand. jurid. D.V. Litvinsky, see: Russian Yearbook of Civil and Arbitration Procedure. 2005. N 4.SPb., 2006.S. 614 - 665.

Features of national systems of compulsory execution: a comparative legal aspect. Modern foreign systems of compulsory execution are characterized by a number of essential features, the development of which can be traced to one degree or another in Russia.<1>... These include the public-legal nature of activities for the compulsory implementation of judicial and other acts, state control over the system of enforcement proceedings, in some cases, a broader focus on private-law enforcement methods and liberal methods of its organization can be noted.

<1>For an interesting overview of enforcement systems in selected countries see: Desk book bailiff-executor. 2nd ed. / Ed. V.V. Yarkova. M .: BEK, 2001. S. 663 - 685 (chapter author - I.V. Reshetnikova); separate reviews of England and France were made by S.I. Gladyshev and E.N. Kuznetsova.

The regulation of the activities of judicial enforcement services abroad is carried out both at the national level and at the level of individual regions. For example, in the United States, regulation of the order of execution of judicial acts is carried out at the level of individual states, and in Canada - at the level of individual provinces. The system of organization of enforcement proceedings is also determined in different ways. In our review, we will focus mainly on the regulation of enforcement proceedings in France, Italy and the United States as countries whose law belongs to different legal families - civil and common law. Of course, we will only be able to capture some of the specific characteristics of enforcement systems.

Civil Law Countries Enforcement System: Non-Budgetary Organization. In France, a system of private enforcement has historically developed, when the powers of bailiffs are performed not by civil servants, but by persons who have received a license from the state for this activity and carry out it independently.<1>... The profession of a bailiff was regulated by various royal ordinances adopted in 1556, 1667 and 1813. under Emperor Napoleon I. At present, the legal status of a bailiff is determined by the Ordinance of November 2, 1945, as well as by the French Civil Procedure Code of 1806. Certain changes in the system of enforcement proceedings in France took place in 1992.

<1>An overview of the enforcement system in France based on the materials of the French-Russian Congress of Legal Professions in Real Estate Law (Paris, December 1998), prepared by K. Verbar, Professor of the Faculty of Law at the University of Paris-XII, and the manual "Bailiff" prepared by the International Union of Judicial Officers and employees; Kuznetsov E.N. Execution proceedings in France. SPb., 2005.

It should be noted a common feature of the competence of bailiffs in France. The French legal system is built on the division of positive law into private and public. Accordingly, the judicial organization is distinguished by the separation of courts in civil and criminal cases, as well as judges of administrative justice, which are combined into various systems.<1>... Therefore, the bailiff does not execute decisions in favor of the state and, in general, acts adopted by administrative courts. For these purposes, there is a special system of bailiffs of the state treasury, who are civil servants.

<1>For more details see: N. Eliseev. Civil procedural law of foreign countries. 2nd ed. M .: Prospect, 2004. Ch. 3; Verbar K. Conclusion for the Commission for the Development of a Model Code of Civil Procedure at the Interparliamentary Assembly of the CIS // System of Civil Jurisdiction on the Eve of the XXI Century: Current State and Development Prospects. Ekaterinburg, 2000.S. 213 - 225; I.G. Medvedev Modern problems of civil justice in France // Russian Yearbook of Civil and Arbitration Process. 2001. M .: Norma, 2002.

In addition, in the system of general courts, an execution judge is especially distinguished, who has the right to single-handedly resolve disputes arising in this area, resolve requests for a deferral of execution and resolve a number of other issues. However, this enforcement judge cannot interfere with the actual enforcement actions.

Status. A bailiff in France is an official associated with the administration of justice and acting at the same time as a person of a free (or, as they say in France, liberal) profession. In this regard, a bailiff is a free professional, to whom the state has delegated the functions of executing decisions in civil cases rendered by various civil and criminal courts. At the same time, a bailiff is a public official, since he receives his powers from the state and has a certain monopoly on a number of legal actions, in particular, the execution of a court decision; delivery of summons, notifications; drawing up acts of evidentiary value<1>, and etc.

<1>Such acts are drawn up by bailiffs for the purpose of fixing certain facts and have an authentic force. Here you can draw an analogy with the pre-trial provision of evidence, which, according to Russian law, is dealt with by notaries. The assignment of these functions to the bailiff in France is explained by the fact that such acts are drawn up in case of future litigation, and the notary should not deal with issues that are potentially controversial. For example, bailiffs record "constat adulter" in the protocol of adultery.

A bailiff in France is also a "assistant" of justice, in connection with which he has a monopoly function of notifying about judicial acts; conducts public auctions (auctions) of movable property; carries out collection of debt obligations; at the request of individuals, takes actions to provide evidence; may represent parties in some courts. The bailiff also participates in court hearings, ensuring, under the supervision of the judge, the observance of the internal order in the courtroom.

The acts and activities of the bailiff are of a public law nature, therefore, he is obliged to provide services as many times as the need arises. Therefore, the bailiff does not have the right to choose his clients (since he does not belong to the number of private lawyers). An important part of the profession is the duty to keep professional secrecy regarding the content of the procedural documents handed over to them and the initiated enforcement procedures under the threat of criminal prosecution.

Access to the profession. In order to become a bailiff, you must have a diploma of legal education, pass a two-year internship in the office of a bailiff, successfully pass the state qualification exam. The internship includes practical professional work and the study of theoretical disciplines. The title of bailiff is awarded by the order of the Minister of Justice of France, issued upon receipt of the conclusion of the prosecutor's office of the given territorial district and the chamber of bailiffs of the department. The one who has received the title, within a month after his appointment, must take an oath before the court of the grand instance of the district in which this position is established. At the same time, the appointment is possible only to the position of a bailiff, which already exists or is being created by the state again.

The bailiff enjoys the right to present his successor to the Ministry of Justice in order to obtain consent to his appointment. Thus, no one can be appointed to the position of bailiff unless he was elected by his predecessor in this position and received the consent of the Ministry of Justice for the appointment. The state also controls the financial aspects of the appointment. In practice, the holder of a position, when he introduces his successor, receives remuneration for this service, depending on the economic potential of the position. This cash ransom is called “funding” the position. When appointing, the justice authorities check the ability of the future holder of the position to repay the loan that he had to make in order to pay for the “financing” of the position, based on the volume of its workflow and estimated profit.

Professional organization. Bailiffs practically do not work one at a time, but are united in a bureau, consisting of several executors, as well as employees who ensure their work. Bailiffs are required to work on weekends, in connection with which one bailiff from the bureau must work on weekends in order, for example, to comply with a court order to seize a newspaper's circulation<1>... It is interesting that the bulk of the execution falls on debtors - unemployed, small entrepreneurs who took out loans and now cannot pay off them. Unlike modern Russia, there are practically no debtors in the form of large companies, banks, government organizations in France.

<1>The duty to work on weekends was assigned to bailiffs in the era of President J. Pompidou, when during a visit The Secretary General The Central Committee of the CPSU L.I. Brezhnev to France, one of the newspapers published an anti-Soviet article in the Sunday edition, the court issued an urgent decision to ban the circulation of circulation, but, as it turned out, there was no one to execute this decision on the day off.

Bailiffs in each department are organized into departmental chambers, charged with representing the profession before the courts and administration, and ensuring discipline and professional ethics. Therefore, such department chambers are endowed with the disciplinary powers they exercise against bailiffs in their department. The bailiffs in the departmental chamber are represented by their elected members of the chamber, who in turn elect the chairman of the said chamber.

At the level of each appellate court, in whose jurisdiction there are several departments, bailiffs are united in regional chambers, which represent and protect the interests of bailiffs. In particular, the regional chambers represent bailiffs before the high magistrates of the courts of appeal. Regional chambers are not superior to department chambers, but complement the activities of the latter. The composition of the regional chamber is elected by the bailiffs of each of the departments included in the district of the given court of appeal, in proportion to the number of executors in this department. Among the powers of the regional chambers can be noted the organization of control and audits of accounting in the offices of bailiffs.

At the national level, bailiffs are represented by a National Chamber of 32 members elected by departmental and regional associations. All members of the National Chamber are elected for a 6-year term by an electoral college consisting of elected members of regional and departmental chambers. In the National Chamber of Bailiffs, a bureau is formed, including the President, the Vice-President of the Chamber and the Treasurer. The main functions of the National Chamber of Bailiffs are to ensure the representation of this profession in government and government bodies, other liberal professions (for example, notaries, lawyers), professional training organizations, management of organizations in charge of social and pension issues, organization of the annual congress of bailiffs, etc. ...

Tariffs. Bailiffs do not receive salaries from the state, but collect payment for the exercise of powers delegated to them by the state, according to tariffs established by the state as well. For example, the service of documents within the framework of the compulsory execution procedure is charged by the state and is paid at the expense of the debtor. In the event that the bailiff provides legal services that can be equally provided by other representatives of the legal profession, i.e. are not of a monopoly nature (for example, consultations that can also be provided by lawyers, notaries), its remuneration is of a contractual nature and is paid by the applicant.

A responsibility. Exercising his professional duties on behalf of the state, the bailiff bears at the same time personally liable for the legal consequences of his actions. Thus, a bailiff can be held civilly liable for negligence in serving procedural documents later than the established deadline, and criminally liable in case of embezzlement of clients' funds and other cases of violation of their duties. The property risks of the profession are covered by insurance. In addition to civil and criminal liability, it is also possible to bring to professional (in the Russian sense - disciplinary) liability for failure to comply with the rules of professional discipline and ethics. The initiative in this can come both from the disciplinary commission at the department chamber of bailiffs, and from the Ministry of Justice of France and its bodies.

Forms of enforcement. Astrent. An interesting feature of incentivizing the debtor to fulfill his obligations in France (and a number of other countries) is l "astreinte, which is the obligation of the debtor to pay, in addition to the amount of the principal debt, a penalty interest, the amount of which will increase every day until the full performance of the obligations imposed on the debtor ( progressively increasing interest.) Astrant is additional to the obligation to pay the principal amount of the debt. For example, the party in the process must, within a month, destroy the wall erected in violation of any rules or interests of the other party, under the threat of paying an astrent in the amount of 30 euros for each overdue day in excess of the period established by the judge<1>.

<1>For more details see: E.N. Kuznetsov. Astrent (astreinte) as a way of coercing a debtor in enforcement proceedings in France // Russian Yearbook of Civil and Arbitration Proceedings. 2002 - 2003. N 2.SPb., 2004.S. 430 - 445.

Most often, astrant is a judicial one (Article 11 of the new KGS), it is applied by a judge without reference to a special legal norm. In some cases, it is legal, since its amount is established directly by law, for example, in the field of compensation in case of an industrial accident, in the field of eviction, in the field of violation of the regulation on the issuance of a permit for construction work. Astrent can be applied as a sanction for delayed execution in days, weeks or months. It is calculated in addition to the losses that the claimant may incur due to the delay in execution, and does not cover them.

Along the way, we note that astrent is also used in the legislation of Greece (Art.946 of the Code of Civil Procedure), Poland (Art.1050 of the Code of Civil Procedure), Portugal (Art.829-A of the Civil Code), Germany and a number of other countries<1>... The different order of obtaining it is interesting. If in France astrent goes entirely in favor of the claimant, then in Portugal it is divided in half between the claimant and the state, and in Germany it goes entirely to the state's income.

<1>See: K. Zweigert, H. Ketz. An Introduction to Comparative Jurisprudence in Private Law. T. 2.M .: International relations, 2000.S. 205 - 210.

In Italy, enforcement is mainly regulated by the Code of Civil Procedure. Substantial issues at the stage of execution are resolved by the executive judge, bailiff, justices of the peace. It is interesting that bills of exchange and other securities with equal legal force are also among the executive documents. In the corresponding section of the Italian Civil Procedure Code, enforcement proceedings are regulated in much more detail and in more detail than it was in the RSFSR Code of Civil Procedure, and then in the FZIP. Thus, the third volume of the Italian Civil Procedure Code contains the concept and characteristics of executive documents; expropriation procedures; alienation of movable and immovable property of the debtor; alienation of the debtor's property held by third parties; peculiarities of alienation of indivisible property, etc. The procedure for holding auctions and resolving a number of other compulsory enforcement issues is disclosed in detail.

Among the interesting enforcement measures, one can also note the judicial administration of the alienated property. Such property is transferred to the management of one or more creditors, or an authorized organization, or the debtor himself, subject to the consent of all creditors. The manager is obliged to submit quarterly financial reports on the results of property management, as well as to enter the amounts received as a result of such management in the manner determined by the judge. The proceeds from the management of the property are distributed among the creditors by the decision of the executive judge. At the same time, any of the creditors has the right to demand the appointment of a new auction for the sale of the described property.

Common law enforcement system. In the United States, the procedure for the execution of judicial acts is carried out in accordance with the laws of individual states<1>... According to Art. 69, "a", of the Federal Civil Procedure Rules, enforcement is carried out in accordance with the practice and procedure of the state in which the federal district court operates.<2>... Since the regulation of enforcement proceedings is carried out at the state level, court decisions made in one state must be legalized in another state, for which the necessary legal procedures have been established. In some states, such legalization takes place through the filing of a claim against the decision, while in others it is through the registration procedure. The basis for enforcement actions is a writ of execution, which is issued by a clerk in court or in a number of states by an attorney authorized by the sheriff.

<1>For more details, see: D. Brown, Enforcement of Judgments in the United States // Foreclosure on Property. Search for the debtor's property: Materials of the seminar. Samara-Moscow, 1999.S. 32 - 42; Schroeder V. Detection of hidden assets // Ibid. S. 42 - 52.
<2>For more details see: Burnham U., Reshetnikova I.V. Enforcement proceedings in the USA // Judicial reform: problems of civil jurisdiction. Ekaterinburg: Publishing house of the Humanitarian University, 1996. P. 139 - 148; Reshetnikova I.V., Yarkov V.V. Civil law and civil procedure in modern Russia. Yekaterinburg-M .: Norma, 1999.S. 197 - 199.

Thus, in contrast to the countries of the continental system, where a unified execution system is mainly formed, there is no such system in the United States. For example, the US Marshall Service is in charge of enforcing confiscation decisions in favor of the US Government. Private lawsuits are decided by sheriffs or other officials in accordance with the laws of a particular state.

The executive procedures are in many respects similar to those in Russia in terms of the sequence of actions, but there are also significant features. For example if the creditor is not aware of the ownership of the debtor, then the debtor may be summoned to court in order to conduct the procedure for additional disclosure of evidence. The court has the right to demand from the debtor to disclose information about the property he has with the purpose of subsequent levy on him. If the debtor fails to appear on a court summons or refuses to disclose information about the presence of property and its location, the debtor may be imprisoned for contempt of court. At the same time, in contrast to criminal penalties, the period of stay in the cell is not determined here. The debtor will be released only when he agrees to disclose the required information.

A significant role in the execution of the decision belongs to the claimant's lawyer, who must engage in practical work to collect the necessary information about the debtor's property. In addition, it is allowed to collect debts without resorting to court procedures.

Conclusions. Thus, enforcement proceedings in different countries (by the example of the considered ones) are characterized by a fairly detailed regulation of the enforcement actions performed, which is justified by virtue of the procedural component of this legislation. This ensures the unity of approaches and legal regulations, reducing the possibility of collisions and contradictions between the actual executive and other legislation. Many positive characteristics and provisions of foreign executive legislation may well be perceived with the subsequent improvement of the rules of enforcement proceedings in Russia.

Organization of compulsory enforcement in the CIS countries. It should be noted that the processes of improving the executive legislation are taking place in the CIS countries. So, in the Republic of Kazakhstan in 1997 two Laws were adopted: "On Enforcement Proceedings and the Status of Bailiffs" and "On Bailiffs". According to the model of legal regulation adopted in Kazakhstan, enforcement proceedings are the jurisdictional activities of the state. Moreover, in contrast to Russian legislation bailiffs form an independent service, are at the courts and are involved in maintaining public order in court sessions, protect courts, judges, assist the court in the performance of procedural actions, control the execution of punishments not related to imprisonment, and also assist bailiffs in the enforcement of enforcement documents of courts and other bodies. Organizational and methodological management of the bailiff service is carried out by the justice bodies of the Republic of Kazakhstan.

Bailiffs are part of the judicial system, subordinate to the Committee on Judicial Administration in the Supreme Court of the Republic of Kazakhstan, are attached to the relevant courts and exercise powers to execute decisions of courts and other bodies<1>... It should be noted that there is a significant similarity between the main components of the legal regulations of Kazakhstan and Russia, which is quite explainable by the common legal roots and opportunities for borrowing positive experience.

<1>For more details see: Z.Kh. Baymoldina. Civil procedural law of the Republic of Kazakhstan: In 2 volumes. Vol. II. Almaty, 2001.S. 398 - 405.

In the Republic of Kyrgyzstan, enforcement proceedings are regulated by the Law "On Enforcement Proceedings and the Status of Bailiffs" dated February 8, 2002. According to this Law, the Director of the Judicial Department is the Chief Bailiff of the Kyrgyz Republic, and the heads of regional departments are the chief bailiffs of the regions. The bailiff service unit is headed by a senior bailiff. The Judicial Department thereby provides the organizational and functional leadership of the enforcement authorities. Of the interesting provisions, we note the right of bailiffs to draw up protocols on administrative offenses in cases provided for by law.

In the Republic of Ukraine, since 1998, the enforcement of decisions of courts and other bodies (officials) within the Ukrainian legal system has been carried out by the State Executive Service (hereinafter - GIS), created in accordance with the Law "On the State Executive Service" of March 24, 1998 No. GIS is in the structure of the Ministry of Justice, since 2005 it is a government body of state administration.

The GIS Law defines, among other things, the qualification requirements for persons filling this position, the system and structure of the executive service and measures of legal and social protection of state executors.

The direct procedure for the execution of decisions, including by compulsion, is determined by the Law of Ukraine "On Enforcement Proceedings", the Instruction of the Ministry of Justice on the performance of enforcement actions of December 15, 1999 No.

The Law on Enforcement Proceedings, which entered into force on July 1, 1994, provided the state executive service with broad powers, but later it was deprived of some of them.

Features of enforcement proceedings in Ukraine are as follows:

a) the legal foundations of enforcement proceedings are enshrined in the Constitution of Ukraine, the Law on the State Executive Service, the Law on Enforcement Proceedings and other laws and by-laws;

b) the enforcement of court decisions is carried out by the GIS, the bodies of the State Treasury of Ukraine (for executions related to budgetary funds). Other bodies executing decisions on the collection of funds (tax authorities, bank institutions, credit and financial institutions) are not recognized as enforcement bodies (Articles 2, 6 of the Law on Enforcement Proceedings).

GIS operates on the basis of subject jurisdiction, according to which the powers to enforce decisions of courts and other bodies (persons) are determined by the subject composition of debtors or the amount of recovery. So, according to Art. 201 of the Law on Enforcement Proceedings of GIS at the regional (oblast) level executes decisions regarding regional state authorities, local self-government bodies, as well as if the amount of recovery is from five to ten million hryvnia (approximately one to two million US dollars). Decisions regarding central government bodies and enforcement proceedings in the amount of more than ten million hryvnias are the powers of the GIS Department;

c) GIS operates in the procedural forms and within the limits established by the Law on Enforcement Proceedings, with the aim of fast, complete and impartial execution of court decisions and acts of non-judicial bodies (Articles 3 and 5 of the Law on Enforcement Proceedings);

d) the parties to the enforcement proceedings and other subjects involved in the sphere of compulsory execution are endowed with a large volume of procedural rights and obligations, which is intended to induce these persons to ensure by their actions the compulsory execution of any court decisions that protect either property rights or personal non-property interests, as well as state and public interests;

e) provides for ways to protect the rights and interests of its participants violated in the course of enforcement proceedings, as well as persons involved in enforcement actions, including by appealing against actions, decisions and inaction of the state executor (Articles 85 and 86 of the Law on Enforcement Proceedings);

f) various sanctions have been established for non-fulfillment or improper fulfillment by participants in enforcement proceedings of their duties (for example, criminal - for non-fulfillment of a court decision, non-fulfillment or improper fulfillment by the custodian of his duties (Articles 197, 382, ​​etc. of the Criminal Code of Ukraine). sanctions that are provided for by the Law on Enforcement Proceedings (Art. 88), but which do not fit into the concept of administrative responsibility, since Art. 188.13 of the Administrative Responsibility Code of Ukraine contains an almost identical list of actions recognized as administrative offenses.

According to Ukrainian legislation, GIS is not directly involved in the sale of seized property. The storage and sale of property is carried out by specialized commercial organizations, the list of which to ensure competition is determined by an annual competition (tender).

In general, the Law of Ukraine on Enforcement Proceedings is similar to the Russian one, but there are some interesting differences. For example, among the decisions that are executed by the State Executive Service, decisions of the European Court of Human Rights, a claim recognized in accordance with the procedure established by law, notaries' executive notices are directly attributed (Article 3 of the Law on Enforcement Proceedings).

Until July 2003, de jure, the grounds for execution included decisions of the Constitutional Court of Ukraine, but were excluded due to the fact that the specifics of the powers of the body of constitutional jurisdiction did not require a separate procedure for execution, including compulsory<1>.

<1>For more details see: Chugunova E.I., Eremenko M.S. Decree. cit .; Tertyshnikov V.I., Tertyshnikov R.V. Law of Ukraine "On Enforcement Proceedings": Scientific and practical commentary. 3rd ed. Kharkov, 2003; Bilousov Yu.V. Vikonavche provadzhennya: Navch. book. К .: Precedent, 2005. The author of this article thanks Cand. jurid. Sci., Associate Professor of Khmelnitsky University of Management and Law Yuri Valerievich Belousov for great help and advice in preparing material on the Republic of Ukraine.

There is currently no single system in the Republic of Belarus - in fact, there are two parallel systems of compulsory execution: at the Supreme Court and the Supreme Economic Court of the Republic of Belarus.<1>.

<1>See: Civil Procedure. Special part / Ed. T.A. Belova, I.N. Kolyadko, N.G. Yurkevich. Minsk, 2002.S. 334 - 336.

In 1999, a reform of the organization of enforcement proceedings took place in Georgia, according to which the enforcement authorities were separated from the judiciary.

Enforcement proceedings in Armenia have been reformed in the same way. Here in 1998 the Laws "On the Compulsory Execution of Judicial Acts" and "On the Service Providing the Compulsory Execution of Judicial Acts" were adopted. An interesting rule is that after the initiation of enforcement proceedings, the compulsory executor (this is the name of this position in Armenia) receives from the debtor a declaration on the number and composition of property and property rights belonging to him by right of ownership in accordance with the procedure established by the Ministry of Justice. The concealment or distortion of the data by the debtor in the declaration on the quantity and composition of the property and property rights belonging to him entails liability.

Thus, in almost all CIS countries, the system of enforcement proceedings is of a state nature, is undergoing a reform process and, to one degree or another, allows the participation of commercial organizations in the process of compulsory enforcement. In many respects, it is based on the principles of the organization of enforcement proceedings adopted within the framework of the USSR.

Research on the non-budgetary execution system in Russia. Since the non-budgetary enforcement system in last years spreads more widely, let's dwell on its characteristics in more detail. She was elected over the past ten years by the Baltic states<1>, Poland, Hungary, Czech Republic, Slovakia and many others. This topic has long been discussed in our doctrine, in particular, it was raised by a number of specialists: A.Kh. Ageev, O.V. Isaenkova, E.N. Kuznetsov, I.V. Reshetnikova, the author of this article, and other specialists.

<1>Our colleagues from the Baltic states assess the experience of the transition to a non-budgetary execution system as a whole as positive. See: V. Nekroshius, Civil Procedure Reform in Lithuania // Russian Yearbook of Civil and Arbitration Procedure. 2002 - 2003. N 2.SPb., 2004. S. 189 - 191; Rosenberg J. Reform of the institution of bailiffs in Latvia // Reform of civil procedure in the court of first instance in the states of the Baltic Sea and Central Europe: Proceedings of the conference. Vilnius, 2005.S. 260 - 266.

The expediency of using elements of an extra-budgetary (private) nature in enforcement proceedings was justified during the period of preparation of the concept of the Executive Code by means of a different organization of the profession of a bailiff as the organizational and legal prerequisites for this matured, to solve the main and still unresolved problem - material incentives for bailiffs-executors in the results their work.

Then this idea was supported by O.V. Isaenkova<1>... In 2004, two dissertations on this topic were defended at the Ural State Law Academy A.Kh. Ageeva<2>and E.N. Kuznetsova<3>... OH. Ageev supported the conclusion about the possibility of introducing in Russia a system of non-state bailiffs and structuring compulsory execution into two sectors: state and private (p. 9 of the abstract). OH. Ageev cited the results of a survey of bailiffs in the Urals Federal District and analyzed the arguments justifying the possibility of introducing a system of non-state bailiffs in Russia (p. 15 of the abstract).

<1>Isaenkova O.V. Problems of executive law in civil jurisdiction. Saratov, 2002.S. 182 - 186.
<2>Ageev A.Kh. Private law and public law principles in enforcement proceedings: Dis. ... Cand. jurid. sciences. Yekaterinburg, 2004.
<3>Kuznetsov E.N. Execution proceedings in France: Dis. ... Cand. jurid. sciences. Yekaterinburg, 2004 (published as a monograph: Kuznetsov E.N. Enforcement proceedings in France. SPb., 2005).

E.N. Kuznetsov, based on the study of the French (private law, or non-budgetary) system of compulsory enforcement, came to the conclusion that it is advisable to reform the profession of bailiffs in Russia, to unite them into Chambers (pp. 6, 7 of the abstract), formulated ways of reforming the profession of bailiffs-executors as "liberal", "non-budgetary" profession (pp. 17, 18 of the author's abstract).

The idea of ​​a private system of bailiffs is developed by I.V. Reshetnikov (mainly based on the example of such a system in the Netherlands)<1>... Articles have appeared, revealing the experience of the functioning of this system in Bulgaria.<2>... In connection with the introduction of a non-budgetary execution system in the states of the former USSR, the experience of these states began to be highlighted in special literature, in particular on Lithuania and Latvia.<3>.

<1>Reshetnikova I.V. Private bailiff // EZh-Lawyer. 2006. No. 32; She's the same. Conceptual approaches to the development of enforcement proceedings // Zakon. 2007. N 5.P. 59 - 64.
<2>Tolkunov V.M. Institute of private bailiffs: the experience of European countries and prospects in Russia // Zakon. 2007. N 5.S. 219 - 223.
<3>V. Nekroshius Civil Procedure Reform in Lithuania // Russian Yearbook of Civil and Arbitration Procedure. 2002 - 2003. N 2.SPb., 2004. S. 189 - 191; Rosenberg J. Reform of the institution of bailiffs in Latvia // Reform of civil procedure in the court of first instance in the states of the Baltic Sea and Central Europe: Proceedings of the conference. Vilnius, 2005.S. 260 - 266.

The expediency of introducing the institution of private bailiffs was expressed by the Chairman of the Supreme Arbitration Court of the Russian Federation A.A. Ivanov<1>... At the level of executive power acts, this issue was reflected in the framework of the Federal Target Program "Development of the Russian Judicial System for 2007-2011", according to which it was planned to conduct an analysis of international experience legal regulation non-state forms of enforcement of jurisdictional acts in order to improve enforcement proceedings and study the possibility of creating a system of private bailiffs in Russia.

<1>See, for example: Internet conference of the Chairman of the Supreme Arbitration Court of the Russian Federation A.A. Ivanov dated June 2, 2006 // www.arbitr.ru.

General signs of the profession of a private bailiff. They boil down to the following:

1. A private bailiff receives powers from the state in the person of the justice authorities and acts on behalf of the state, since part of the public authority is delegated to him.
2. Access to the profession is regulated by law and is usually carried out on a competitive basis.
3. Due to the public-law status of the profession, the number of private bailiffs is regulated not by the market, but by the state (the clauses numerous principle).
4. The state regulates the competence of a private bailiff, activity procedures, the amount of tariffs and other remuneration charged as remuneration for the work of a private bailiff. A private bailiff does not have the right to choose clients for himself, since he is obliged to work with all claimants who have applied to him in the manner prescribed by law.
5. A private bailiff bears full property responsibility for his mistakes and damage to the participants in the enforcement proceedings.
6. The state controls the work of a private bailiff through checking professional activities, the possibility of appealing his actions in court, by issuing and revoking a license for the right to operate.
7. A private bailiff is obliged to be a member of the chamber of bailiffs, which performs the functions of control and organization of activities.

Advantages and disadvantages of off-budget (private) execution. Assessment of the pros and cons for Russia. Which system is better: a system based on the status of a bailiff as a free professional or on his status as a civil servant? Each of them has advantages and disadvantages, and its existence is explained by the peculiarities of the judicial organization, historical traditions and many other factors.

In many states of the former USSR, there is a discussion about the choice of options for further development: between the non-budgetary (private law) and mixed systems of enforcement proceedings, with the exception of the Baltic States, where such a choice has already been made in favor of the non-budgetary system. In other states of the former USSR, there is a mixed enforcement organization almost everywhere. Kazakhstan came closest to the creation of a private enforcement system after the Baltic states, where in June 2007 the first congress of bailiffs was held and the Union of bailiffs of the Republic of Kazakhstan was formed, as well as a draft law on the introduction of private bailiffs was prepared.

The discussion is based on the search for the most optimal and effective organization of the profession of a bailiff, which would make it possible to achieve the goals of enforcement proceedings, namely, the protection of the rights of claimants and the actual execution of judicial and other jurisdictional acts.

Key benefits of a non-budget (private) enforcement system.

1. Motivation of the bailiff to work efficiently, since his remuneration under this system is tied to the results of execution. This motivation has been known for a long time and is used in our country. So, in the Soviet period, in accordance with paragraphs 268 - 278 of the Instructions on Enforcement Proceedings (approved by the Ministry of Justice of the USSR on November 15, 1985), rules were established for the payment of bonus remuneration to bailiffs for work on collecting monetary amounts in compensation for damage, and January 1, 2005 Art. 89 of the Federal Law "On Enforcement Proceedings" also provided for the payment of remuneration to the bailiff. Therefore, the off-budget execution system makes full use of this long-known motivation mechanism.
2. Property liability of the bailiff for his own mistakes, since the latter pays for the mistakes of state officials.
3. The state ceases to finance the system of compulsory enforcement bodies, as soon as it operates in a self-financing mode at the expense of the recoverer and the debtor.
4. A private bailiff independently organizes the work of his office, hires employees, purchases the necessary equipment and technical means. The independent organization of the office forces private bailiffs to keep up with the times, spending money on informatization and better organization of their activities, advanced training, the creation of their own research centers, etc.
5. The judicial authorities exercise control over professional activities both directly and through management bodies that are created by private executors themselves - chambers of the national and regional levels.
6. The state receives income from the activities of non-budget executives through the taxes they pay.

The main disadvantages of the off-budget (private) enforcement system.

1. The question will arise about the implementation of coercive measures by private bailiffs, since coercion is a function traditionally inherent and implemented by state officials.
2. The need to resolve the issue of penalties to the state revenue, since public law penalties, as a rule, are carried out through the state system of compulsory execution. So, in France, tax collection takes place with the help of special government officials working in the Ministry of Economy and Finance.<1>.

<1>In the Baltic States, private bailiffs enforce penalties of both private and public law.

1. The need to stimulate private bailiffs to work with penalties for small amounts, since a conflict of interest arises between the desire for more income and the low profitability of many socially significant penalties, for example, alimony.
2. More complex interaction of a non-budgetary bailiff with other legal bodies, necessary to collect information about property, funds, the very location of the debtor, etc. So, in France, it is carried out through the prosecutor, to whom the relevant requests are sent by the bailiff. The status of a civil servant provides a bailiff with the opportunity to vest public authority and powers, access to classified information, as well as interaction in the process of working with other state bodies.
3. Loss of operational control over the activities of private bailiffs, since control can only be exercised through appeals against their actions and periodic inspections of their activities by the chambers of bailiffs and the justice authorities.
4. The need to resolve the issue of "servicing" vast sparsely populated regions, where a private bailiff, most likely, will not be able to work in a self-financing mode.
5. Ultimately, the introduction of a system of private bailiffs may increase the cost of the legal infrastructure in the field of enforcement proceedings for its participants.

Issues that will need to be resolved in Russia when introducing a system of private bailiffs. Since in the literature there are sometimes superficial judgments about the efficiency and effectiveness of the private execution system, let us pay attention to a number of issues that need to be resolved when deciding on the transition to such a system.

1. Let's start, perhaps, with the last, but nevertheless significant issue - the name. As already noted, the term "private" distorts the essence of the profession, while the term "non-budgetary" is more doctrinal in nature. In this regard, the term "jury bailiff" can be chosen, which will be more consistent with the essence of the profession - a bailiff, starting his duties, takes an oath before the state and thereby acquires a new legal status.
2. Due to the public-law nature of the activities of a jury bailiff, he will receive powers on behalf of the Russian Federation, therefore, the law must establish strict rules for access to the profession: having a higher legal education, undergoing an internship for at least two years, passing a qualification exam, obtaining a qualification certificate and passing the competition for the vacant position.
3. The law should also define its competence, monopoly enforcement actions and procedures for the work of a jury bailiff, which will be the same for a state and a jury (private) bailiff. In this regard, the profession of a jury bailiff will retain all the characteristics of a public service, with the exception of a change in its organizational basis and method of financing.

Therefore, it will be important to establish a rule on the equal legal status of state and jury bailiffs, in connection with which the documents drawn up by them and the executed enforcement actions must have equal legal force. The difference in the competence of state and jury bailiffs may lie in the fact that only state bailiffs will have the right to enforce penalties of public law for state revenue and penalties associated with the execution of sentences in terms of property penalties.

1. It is advisable to create a non-budgetary system of execution as an alternative to the state system of execution, they will exist simultaneously, as was the case in the period after the adoption of the Fundamentals of Legislation of the Russian Federation on Notaries, when the systems of state and private notaries still exist simultaneously. The right to move on a competitive basis to the position of a jury bailiff should only have bailiffs with a higher legal education, with work experience in the bailiff service, for example, at least two years, and who had no penalties during this period.
2. The most important principle for determining the number of bailiffs is numerous clauses, meaning the regulation of the number of bailiffs, regardless of whether they are state or jury (private). The number of bailiffs cannot be determined by the "market", since, firstly, they are, in any case, officials of the state, and their number is always regulated, and, secondly, the endless influx into the profession will lead to its decline and the complexity of organizing control over her.

Therefore, it is possible, when the law is enacted, to maintain the total number of bailiffs-executors with the subsequent opening of vacancies within this number for the transition from state to jury bailiffs on a competitive basis, with the reduction of vacated positions of state bailiffs after their transition to non-budgetary work. The number of positions of jury bailiffs within the total number of bailiffs in the state should be regulated by the judicial authorities in conjunction with the chambers of bailiffs.

In this regard, questions may arise related to determining the optimal number of bailiffs. For example, in France for 60 million of the population there are only about 2900 bailiffs (about 1 per 20,000 people), in the Netherlands for 16 million - 350 bailiffs (about 1 per 45,000 people), in Latvia - 1 per 30,000 people. In the CIS states, for example, in Kazakhstan, there are about 1800 bailiffs for 15 million, i.e. 1 by about 8000 people, and in Russia by 142 million - 23,218 bailiffs-executors<1>, i.e. about 1 in 6000 people. Even taking into account the different population density, the size of the territory, the different degree of economic activity, and other factors, it can be said that the "density" of the coverage of the population by state bailiffs in Russia and Kazakhstan is several times higher than in the states where this system is of a non-budgetary nature.

<1>The actual number of bailiffs as of June 30, 2007 (excluding senior bailiffs) was taken from the website of the Federal Bailiffs Service www.fssprus.ru.

1. The state, represented by the bodies of the Ministry of Justice and the FSSP, should have the authority to control the profession, together with the federal chamber of bailiffs, the number of bailiffs, issue them qualification certificates and their administrative recall in case of violation by the executor of the current legislation, rules and professional ethics, with the right appealing these decisions to the court, the possibility of suspending the validity of the certificate, conducting inspections of professional activities and extraordinary certifications.
2. To solve the issues of organization and representation of the profession, it will be necessary to create regional chambers of bailiffs and the Russian federal chamber of bailiffs, which should be not so much a trade union of non-budget executors as an internal control, self-regulation body and organizer of their activities. Chambers of bailiffs, like those of notaries, must be formed on the basis of compulsory membership of bailiffs, they can perform, for example, the function of creating a bank for registering enforcement proceedings in the region to exclude double executions in relation to the same debtor.
3. Since the profession of a jury judicial executor will be of a public nature, then, accordingly, the legal basis for his relations with claimants will not be an agreement, but their appeal to him in accordance with the territory of his activity. Therefore, it will be necessary to introduce the concept of an executive district and an executive section, tied to the administrative-territorial division of our country, within which the bailiff will have the right to carry out his activities. Rules are also needed to replace a temporarily absent jury bailiff.

Since the performing activity is public in nature, the jury bailiff will not have the right to choose clients, he is obliged to accept executive documents from all applicants in accordance with the rules of competence through the concept of the executive district. Once again, we emphasize that here the contract cannot be the basis for the relationship between the bailiff and the claimants, since the enforcement activity is not work within the framework of the assignment contract, as with a lawyer, execution is a public function.

For a better organization of work, the law can introduce the concept of "office of a jury bailiff", as well as requirements for its material and technical parameters, security, location, which can be approved by the justice authorities, since the office will store original documents, there will be archives, employees and etc. It would be correct to stimulate the creation of offices in which several juried bailiffs would work, which could ensure interchangeability in work.

1. An extremely significant issue is the regulation of tariffs for enforcement actions and other work performed by a bailiff. The activity of a non-budget (private) bailiff is based on the principle of self-financing, when the office and employees of the office of a private bailiff are maintained at the expense of tariffs for certain enforcement actions and remuneration received at the end of enforcement proceedings. When setting tariffs, the following questions are important: how to determine tariffs (regulation or market), what do they include and who sets them?

When answering the first question, it is important to take into account the fact that low tariffs will not allow the system to develop, and high tariffs will become an unnecessary burden on the parties to enforcement proceedings, since the cost of the legal infrastructure has grown significantly over the years of reforms. Due to the public-legal status of non-budget (private) execution, there is, as a general rule, no free pricing, and tariffs are regulated by the state<1>.

<1>In a number of states, for example in France, it is allowed to establish the payment of a bailiff by agreement of the parties for actions not related to monopoly competence.

Tariffs can be of two kinds: firstly, tariffs in a fixed amount for individual enforcement actions, for example, sending a request, seizing and compiling an inventory of property, and, secondly, remuneration based on the results of enforcement proceedings: for property penalties, as a rule, on a regressive scale, decreasing as the amount recovered increases, and for non-property penalties - in a fixed amount. At the same time, remuneration rates should ensure social equilibrium: higher rates for one executive documents should be balanced by low rates for socially significant penalties, for example, alimony payments, compensation for damage caused to health, etc.

At the same time, the tariffs for the performance of certain enforcement actions, as a general rule, should be advanced by the recoverer with the subsequent recovery of the costs incurred from the debtor in favor of the recoverer, and the remuneration based on the results of the enforcement proceedings shall be recovered from the debtor. In my opinion, it would be justified to preserve for claimants the benefits that they have as plaintiffs in civil and arbitration proceedings, for example, for alimony payments, etc.

Thus, when calculating the amounts of tariffs, it will be necessary to ensure the interest of the bailiff in the execution of penalties for small amounts, for example, alimony, fines, etc., since the execution here can be laborious, but unprofitable. Otherwise, it will be more interesting for a private bailiff to work with a large mortgage bank, ensuring the collection of mortgage loans issued to them, than to engage in collection of small amounts. In this regard, it is necessary to take into account the experience of the notary system in order to reimburse the unreceived tariffs for socially significant penalties, where the unreceived tariffs, until recently, were included in the notary's expenses, reduced taxable income and thereby stimulated the notary to perform notarial actions free of charge for applicants. Another option may be the compensation by the state of these amounts to the bailiff, as is currently done when remuneration of a criminal defense lawyer by appointment.

It will also be important to resolve the issue of the ability of bailiffs' offices to self-finance in rural areas, where the main debtors - agricultural cooperatives - have immunities from collection. The same applies to small towns with little business activity.

The funds received by the bailiff from debtors and claimants should be kept separate from other funds of the bailiff, in connection with which the concept of a deposit account, separate from the current account, should be kept separate from the current account for conducting business operations to maintain the office.

The question, who sets the tariffs, has a variety of answers. Tariffs can be set in legislative acts, for example, for notaries in our country - in the Tax Code and the Fundamentals of Legislation of the Russian Federation on Notaries, in acts of executive authorities, for example, in France - by the Ministry of Justice. The best option at this stage would be to establish tariffs in legislative acts, which would ensure their greater stability.

1. One of the advantages of off-budget execution is the full property responsibility of the bailiff himself for his mistakes and damage caused by his actions. In practice, the property liability of a bailiff is guaranteed by collective and individual insurance of professional liability, by the creation of special funds at the national chambers of bailiffs, outside of which the bailiff is responsible for his personally owned property. At the same time, it is possible to introduce a restriction prohibiting the execution of an enforcement action by a bailiff for an amount greater than the amount of his property liability covered by insurance and a guarantee fund.

Estimates and recommendations of international organizations. The non-budgetary enforcement system has spread across the planet in recent years and is one example of the general approach of common and civil law systems to the organization of enforcement. Here, the assessments of experts from the world's major institutions coincide.

European Commission and Council of Europe. In October 2004, experts from the European Commission and the Council of Europe held a seminar at the Ministry of Justice of Russia "Enforcement of court decisions in civil and arbitration cases"<1>... Many expert recommendations are interesting and deserve attention, for example, the introduction of astrent as a sanction in enforcement proceedings<2>, reform of the system of remuneration of bailiffs-executors, sale of property through a bailiff-executor, insurance of his liability, etc. All this is aimed at increasing the independence and status of the bailiff-executor, his powers. However, these proposals can only be implemented through a non-budgetary execution system.

<1>For more details see: V.V. Yarkov. Council of Europe recommendations: a ready-made recipe for Russia? // EZh-Lawyer. 2005. N 38.S. 11.
<2>For more details see: E.N. Kuznetsov. Astrent (astreinte) as a way of coercing a debtor in enforcement proceedings in France // Russian Yearbook of Civil and Arbitration Proceedings. 2002 - 2003. SPb .: Publishing house of the St. Petersburg State. University, 2004.S. 430 - 445.

The World Bank, in its annual Doing business reports, for example 2005 and 2006, notes the importance of changing the execution system. Thus, the 2006 report noted that The best way accelerate the collection of overdue debts - create competition with the state system for the enforcement of court decisions by eliminating the state monopoly on the enforcement of court decisions, through the organization of a private enforcement system<1>.

<1>The text of the report is available on the website: www.worldbank.org.

The Association of Friends of French Legal Culture named after Henri Captain, which quite rightly criticizes the World Bank reports based on the idea of ​​common law as a better system of law, also notes in its alternative report "Civilian Legal Traditions in Question" that the French organization of liberal legal professions, including and bailiff, the most effective, meets the needs of modern civil circulation<1>.

<1>The text of the report is available on the website: www.henricapitant.org. For translation into Russian, see: Civilistic legal traditions in question. Regarding the Doing Business reports of the World Bank. T. 1 / Per. with fr. A.V. Gryadova. M .: Wolters Kluwer, 2007.

Assessment of the possibilities and limits of the FSSP impact on the factors hampering the activities of the bailiff service and the exercise of its powers.

The main socially significant goal of the activity of the bailiff service is the fullest possible execution of the executive documents received by it in compliance with the rights of participants in this area of ​​legal activity. Therefore, it is necessary to assess the possibilities and limits of impact on the negative factors that impede the activities of the bailiff service.

1. A number of organizational and legal issues can be removed by amending the current legislation, by strengthening organizational interaction within the executive authorities and the service itself. In this regard, the application of the new edition of the Federal Law "On Enforcement Proceedings" will have a positive impact on the enforcement process.
2. Another part of the problems can be solved by attracting material resources (increasing the number of staff, increasing wages, equipping with equipment, developing a system of training and advanced training).
3. Many problems (first of all, an increase in the percentage of enforceability of enforcement documents in relation to commercial organizations) can be resolved only gradually, as the society and economy of the country develop, when public opinion becomes more intolerant of persons who violate the requirements of laws and do not obey the requirements of enforcement documents, will change the economic situation in the country, the banking system will start working, not only the executive, but also currency, banking, civil and other legislation will be changed, a unified (all-Russian) register of real estate will be created, the cash turnover will be reduced, etc.

Execution of decisions in relation to public law entities (Russian Federation, constituent entities of the Federation, municipalities) and their institutions depends on funding from the respective budgets.

1. Many problems of compulsory execution in modern Russia are not so much of a legal nature as of an economic and political nature and do not have a purely legal solution. Russian law, including executive legislation, is powerless to solve problems that are mainly of an economic nature and are generated by defects in the economic and political mechanism of power in the state.

One should not expect that new legal solutions will give any significant result without improving the general economic situation and achieving legal stability. However, the main task of the bailiff service is to ensure the inevitability of property and other liability of debtors in civil circulation, without which it is impossible to solve a significant part of the economic problems of modern Russia.

1. The question arises: what to take as a criterion for assessing the effectiveness of the service? Achieving one hundred percent real fulfillment of the requirements of all executive documents? But does it depend only on the activities of the bailiff service, as already noted? It should be borne in mind that in the modern period it is impossible to achieve one hundred percent execution of executive documents in Russia, since the reality of execution depends on a variety of factors and in the absence or insufficiency of the debtor's property, as well as when the debtor uses outwardly legal methods of concealing his property, the execution is virtually impossible. Therefore, the negative result of enforcement proceedings cannot in all cases be blamed on the bailiff.

Recommendations and conclusions for Russia. Which system is more rational and profitable? The non-budgetary system is more effective in the direction of creating motivation for the bailiff, since it solves one of the main issues that interferes with the effective work of the bailiff-bailiff - his material interest in the results of the work. It is convenient for the state, since it frees it from the need to maintain the enforcement system and, ultimately, is more convenient for the claimant, since it motivates the bailiff to work more efficiently. At the same time, the non-budgetary system requires ensuring and maintaining state control over the system of compulsory execution, over the work of private bailiffs. Its creation raises a number of new questions, which were discussed earlier.

In addition, the effectiveness of execution significantly depends on other components: the solution of significant legal, organizational and economic issues, the impact on which is generally outside the FSSP or is very limited. Therefore, all the elements that ensure the effectiveness of enforcement are in need of improvement.

At the moment, the introduction of a private enforcement system can be viewed as premature, in connection with which it is necessary to continue studying the experience of states in this area where such a transition took place recently (the states of the former Soviet Baltic states) or is planned in the relatively near future (Kazakhstan).

The reasons for this are as follows:

1. All elements of the infrastructure that have an impact on the effectiveness of execution need to be improved.
2. The introduction of a private execution system at the present stage can increase motivation in work, however, it will cause a number of other problems that will need to be addressed: recruitment, control over the private execution system, determination of mechanisms for interaction with other parts of the law enforcement system, the problem of using "force" powers by private bailiffs and others indicated above.
3. The experience of introducing the institution of a private notary can be useful, however, unlike a notary, a bailiff is endowed with real "power" powers under imperious coercion, which traditionally can only be exercised by state officials. There will be a question about stimulating a private bailiff to execute orders of execution for small amounts, alimony payments, etc., since there will be a conflict of interest - the desire for maximum earnings and the need to perform state and social functions.
4. The motivation of the bailiff-executor for successful and effective work can also be resolved within the framework of mixed systems of organization of compulsory enforcement, as evidenced by international experience, as well as the experience of the enforcement system in the Soviet and Russian periods, associated with the payment of remuneration based on the results of individual enforcement proceedings ...

(Probe! Modern Russian legislation materials of the I All-Russian scientific-practical conference (Irkutsk, October 18, 2012) at 2 o'clock RIA of the Ministry of Justice of Russia Irkut legal institute (f-ch) M, Irkutsk, 2012 Part I C 169-173)

The author comes to the conclusion that it is advisable to use, along with the concept of a system of compulsory execution, the concept of a model of enforcement proceedings, dividing the corresponding models into administrative and procedural. It is proposed to establish the institution of private judicial executors. subordinate to the arbitration) court

According to Professor V.V. Yarkov, the following models of enforcement proceedings have developed in the world by the way of organizing the profession of a bailiff, the possibilities and limits of participation of non-governmental organizations in enforcement proceedings: public law (USSR); private law, otherwise called non-budgetary (France, Benelux, Greece, etc.); mixed (Germany, USA, Russia) 51. The public-legal system, as V.V. Yarkov points out, is characterized by the fact that both the bailiff and employees of all organizations involved in the execution process (trade, appraisers, etc.) are in the public service. For publicly 1 Yarkov VV The main world systems of compulsory execution // Universities) KOBi notes Ukraine Khmelnitsky, 2006 №2 (18) C 84-86

the legal organization of compulsory execution, according to Professor V.V. Yarkov, is characterized by the complete nationalization of all its parties, the absence of private initiative in the performance of certain types of enforcement actions. Dividing enforcement systems into public, private and mixed. Professor V.V. Yarkov emphasizes that this classification is not completely legally pure, but allows a better understanding of the content of the compulsory enforcement system in a particular country. Indeed, from a legal point of view, it is difficult to say that there was no private initiative in the performance of certain types of enforcement actions in the Soviet system of compulsory enforcement. In particular, on the initiative of the claimant, a court order was returned to him, according to which collection was not carried out or was carried out incompletely (paragraph 42 of the Instructions on enforcement proceedings, approved by order of the Ministry of Justice of the USSR No. 22 dated November 15, 1985). It cannot be argued that employees of all organizations involved in the Soviet enforcement process were de jure in the civil service. For example, collective farms and other cooperative organizations could act as agents of execution. Clauses 105-118 of the aforementioned instruction regulated the fulfillment of the obligation of collective farms and cooperative organizations to withhold money from wages and income for labor, including cash and in-kind payments. Members of collective farms and other cooperative organizations who acted in enforcement proceedings on behalf of collective farms and cooperatives were not civil servants. Nevertheless, one should agree with the characterization of the system of compulsory execution that existed in the USSR as a public system. Agree not because the entire social infrastructure (system) serving the enforcement was state, but because bailiffs, as well as executors of other departments (not to be identified with enforcement agents), were civil servants and received a salary (salary, allowance, maintenance) from the state budget. At present, we believe that enforcement proceedings of the Republic of Beryus and the Russian Federation should be classified as public systems.

Private (non-budgetary) systems of compulsory execution, according to Professor V.V. Yarkov, are characterized by the fact that the state does not finance the activities of bailiffs, but imposes on them the costs of self-financing and the burden of full property responsibility to clients-claimants. In this case, the bailiff receives powers from the state and is appointed by the state to the position. Thus, a non-budgetary system can be called private only conditionally, a private bailiff is a public person, an assistant to justice, and not a collector (private debt collector). At the same time, the presence of a non-budgetary system does not exclude a public (budgetary) system. In France, along with private bailiffs ((huissier de justice), enforcement is carried out by bailiffs of the state treasury, who are civil servants. The mixed system, Professor V.V.Yarkov calls it a model, is characterized by the fact that organizations of various organizational and legal forms specializing in tracing debtors and their property, appraising, storing and selling seized property. , receives part of the money paid by the party to the enforcement proceedings for the performance of the bailiff's functions.) Here we should recall that according to the no longer valid Federal Law of July 21, 1997 No. 119-FZ "On Enforcement Proceedings" the client could receive remuneration in the amount of at least five percent of the collected money or the value of the property, but not more than ten times the minimum wage (Art. 89).

The subdivision of enforcement systems into private, public and mixed systems is not based on clear criteria. Depending on the design of the classifier, the same system is called public, private or mixed. If we want to say that in the USSR it was difficult or impossible for a private person who came into contact with the sphere of enforcement proceedings, or a bailiff to make money legally, then we refer the Soviet enforcement proceedings to public systems. If it is necessary to emphasize that in Germany, where even the thought of private bailiffs is not allowed, the executor is given a legal opportunity to receive a modest "weld" to his salary. then we will classify German enforcement proceedings as mixed systems. It is more correct to talk not about the system of enforcement proceedings, which is understood as the entire set of legal forms of economic ties in the field of compulsory enforcement and around it, the entire infrastructure providing enforcement services (assessment, storage, representation, organization of tenders, etc.), but about the model of compulsory execution. We are afraid to talk about systems, since all systems are enforced, either public or mixed, depending on the goals of the classifier. It would not be a mistake to talk about the publicity of even ancient or medieval systems, in which the claimant could legally resort to coercive measures on his own. In those days, a collector who considered it unreasonable to use his own strength often conspired with financial officials that tax collectors, royal guards, bailiffs, would collect not only taxes, but also private debts (for a fee, of course).

Unlike the compulsory enforcement system, its model is determined by a clear criterion: the procedure according to the rules of which a complaint against acts (action, inaction) of a bailiff is considered. If the complaint is being reviewed by general rules proceedings on cases from administrative and other public legal relations, we have before us an administrative model of enforcement proceedings. In modern Russia, enforcement proceedings are organized according to the administrative model. Statements about that. that the Russian enforcement proceedings are part of the process, are fair, but only in relation to the ideal civil (arbitration) process, ideas about which exist only in legal consciousness, but not in legislation. For a Russian court, a bailiff is not an assistant to justice, but an official of an outside agency, whose acts can be challenged on an equal footing with acts of other public bodies and their officials, in contrast to, say, judicial or investigative acts. If the complaint is against the actions of the bailiff. his delay or refusal to perform actions (acts) is considered in a special order, in which the presumption of the legality of the actions (inaction) of the performer is valid, we have before us a procedural model of enforcement proceedings. This model includes the enforcement of the Soviet Union, the Republic of Belarus and the Republic of Kazakhstan. At the same time, it does not matter in principle whether or not the bailiff is in the states of the judicial department. Enforcement units may be subordinate to the courts, as is the case in the economic courts of the Republic of Belarus, be in double subordination to the Ministry of Justice and the court (Soviet Union, courts of general jurisdiction of the Republic of Belarus), be structural parts (subdivisions) of a special administrative body, subordinate to the Ministry of Justice (Kazakhstan). Departmental affiliation does not matter. The main thing is different, namely, whether the court treats the bailiff as one of their own, in the same way as they treat the investigator or the prosecutor, or as someone else's, since today they treat the bailiff in the Russian court. If as to their own - they consider complaints in a special order, if as someone else's - they consider complaints in a general manner on an equal basis with complaints against the actions of other officials of state and municipal bodies. We believe it will be good luck to combine the experience of Belarus, where state bailiffs are subordinate to economic courts, with the experience of Kazakhstan, where the institution of private bailiffs has been introduced, and to provide arbitration courts with staffs of private (non-budgetary) bailiffs. Arbitration courts may consider complaints against the actions of their private enforcement agents in the order in which they consider complaints against bankruptcy commissioners.

It should be noted that the systems of enforcement bodies of different states are of a national nature and are formed in each country under the influence of various factors. Compulsory enforcement systems are divided into: state, private and mixed.

State system of compulsory execution

Countries such as Belarus, Germany, Denmark, Israel, USA, Finland, Sweden have a state system of compulsory enforcement.

The status of a civil servant provides a bailiff with the opportunity to vest public authority and powers, access to classified information, as well as interaction in the process of working with other state bodies. As a rule, the functions of enforcement are assigned to officials working in the judiciary, being officials of the judicial system, or in the executive branch, as a rule, in the judicial authorities.

In Russia, the USA, Finland, enforcement agencies are part of the executive branch.

In the Republic of Belarus, Germany, Israel, the Republic of Kazakhstan, compulsory enforcement is imposed on officials at the courts.

Private enforcement system

The private system of compulsory enforcement is characterized by the fact that the bailiff is a free professional who independently organizes his activities and is fully responsible for the results of his work. A private bailiff receives powers from the state in the person of the justice authorities and acts on behalf of the state. Access to the profession is regulated by law and is usually carried out on a competitive basis. The state regulates the competence of a private bailiff, activity procedures, the amount of tariffs and other remuneration charged as remuneration for the work of a private bailiff. The state controls the work of a private bailiff, carries out inspections of professional activities, and also issues and revokes licenses for the right to operate.

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

Mixed enforcement system

The mixed system of compulsory execution is characterized for states as: Belgium, Bulgaria, Great Britain (England, Wales, Scotland), Kazakhstan, Canada.

Belgium

In the Belgian system, a bailiff cannot act freely. The Royal Decree of Appointment determines the area in which the bailiff will operate. The bailiff is not allowed to have more than one office, which must be located in a city designated by the Ministry of Justice.

Bulgaria

In Bulgaria, a mixed system of enforcement of judicial acts has developed, in which both state and private bailiffs operate.

In accordance with the law on private bailiffs, a private bailiff is a person who is entrusted by the state to enforce private property claims. At the same time, the law allows that the state can entrust to private bailiffs the execution in favor of the state.

All state bodies, officials and organizations should provide assistance in the performance of a private bailiff of their functions.

The institution of private bailiffs in Bulgaria functions quite effectively, as evidenced by the fact that the vast majority of enforcement documents are being executed by private bailiffs, and not by state ones. This is primarily facilitated by the wide range of powers granted by the law to private bailiffs and the established acceptable fees (fees) for their services, which stimulate a private bailiff to work more efficiently.

In addition to state and private bailiffs in Bulgaria, the collection is carried out by the so-called "public bailiffs", who are responsible for collecting tax arrears, fines and other penalties in favor of the state.

Kazakhstan

The system of enforcement proceedings in the Republic of Kazakhstan is part of the judicial branch of government.

In the Republic of Kazakhstan, a mixed system of compulsory execution began to operate in 2010, the enforcement functions are assigned to both private and state bailiffs.

It should be noted that enforcement documents cannot be accepted for execution by private bailiffs, according to which the state acts as one of the parties.

A license to a bailiff is issued by an authorized body on the basis of a decision of the qualification commission. The authorized body maintains the State register of licenses for the right to engage in activities for the execution of executive documents.

Canada

Canada does not have a centralized federal enforcement system, and as a result, there is no uniform regulation of enforcement. The regulation of the procedure for the execution of judicial acts is carried out at the level of individual provinces.

Enforcement in Canada is carried out by sheriffs (sheriffs) in the public service, as well as by private bailiffs (bailiffs) or specialized firms providing commercial law enforcement services in civil cases, which are licensed and carried out by the government for this activity. 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 responsibilities.

The Canadian model of enforcement proceedings is characterized by the existence of a system of private enforcement of judgments, when the powers of compulsory enforcement officers (first of all, enforcement measures such as foreclosure on the debtor's property and funds) are performed not by government officials, but by private individuals or specialized firms.

In recent years, there has been a trend in Canada to transfer powers in the area of ​​civil enforcement from government departments to private agencies.

In the world, there are different views on the system of both state and private enforcement of court decisions. Thus, Harry Becker and George Stigler, in their work, consider it best to extend the private system to those areas of law where the state system is mainly used. Their main argument is that the state system of compulsory execution is based on a false (incorrect) system of rewards.

According to the rules of the private enforcement system, the bailiff is a free professional, independently organizes his activities and who bears full property responsibility for the results of his work. A private bailiff receives powers from the state in the person of the justice authorities and acts on behalf of the state. Enrollment for 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, activity procedures, the amount of tariffs and other fees charged 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 a 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 back in the 19th century and differs significantly from other systems. Compulsory enforcement rules in this system have existed since the beginning of the 19th century. Over the course of 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 French society that show the viability and effectiveness of legal norms, institutions and the entire branch of executive 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 implementation model. In parallel with them, the representatives of the Netherlands argue that 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 for the execution systems of many states. of Eastern Europe and the Baltic countries: Poland, Hungary, Slovakia, Lithuania, etc.

Based on the international experience of 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 of the continental European countries - in the aforementioned French Republic, Belgium and Luxembourg, where bailiffs are not civil servants, but are private individuals working under license. The administration 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 attorneys 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. Candidates for executors are subject to strict requirements: having a legal education, successfully completing a two-year internship in the office of a bailiff, drawing up a state qualification exam.

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

Within the framework of general courts, a special emphasis is placed on the execution judge, who has the right to single-handedly resolve disputes arising from the expression of disagreement or obstructing the execution of a judgment, consider a motion for an adjournment of execution, and resolve other issues. Along with this, the execution judge cannot interfere with the enforcement actions.

To become a performer, you must have a law degree, undergo a two-year internship at 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 awarded by order of the Minister of Justice of France, which is issued after receiving the opinion of the prosecutor's office of a particular territorial district and the Chamber of Compulsory Enforcement Officers of the department.

In his capacity as an official, a compulsory executor shall serve summons, execute court decisions on behalf of the state, simultaneously resorting to state coercion. The compulsory enforcement officer 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 the bailiff are of a public nature, therefore, he is obliged to provide services as many times as necessary. The compulsory enforcement officer does not have the right to choose his clients, since he does not belong to the number of private lawyers.

Netherlands

In the Netherlands, bailiffs combine the features of a public and private person in their functional duties. They have the right to engage in private practice for debt recovery by mutual agreement of the parties, giving legal advice, being attorney 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 payback of bailiffs' costs, an indication of potential clients, etc.

Luxembourg

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

Slovenia

On the territory of Slovenia, the execution of compulsory proceedings is entrusted to the district (district) court. Bailiffs are persons who directly carry out enforcement actions. The bailiffs are appointed by the Minister of Justice within the territory of their district (territorial) courts. In special cases, bailiffs are appointed by a court order, just as the creditor himself has the right to choose a specific bailiff. 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 autonomously. Thus, the bailiffs are personally liable for any damage caused during the exercise of their powers and in the event of an insured event for their actions or inaction in the execution of court orders. In case of sufficiently significant violations, the bailiffs can be removed from their duties by the Minister of Justice.

The enforcement document can be submitted in person 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 event that the creditor independently resolves all issues of compulsory execution, he must pay for the personal presentation of documents, as well as for the court's decision in a specific case. If the debtor is acting 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 fall on problem debtors - 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.