Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 68
Enero
Junio
2021
Recibido: 01/07/2020 Aceptado: 01/11/2020.
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 39, Nº 68 (Enero - Junio) 2021, 549-570
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Reections on the respect of the rights
of citizens during judicial decisions
of execution
DOI: https://doi.org/10.46398/cuestpol.3968.35
Nataliia A. Sergiienko *
Volodymyr I. Galagan **
Zhanna V. Udovenko ***
Andriy P. Cherneha ****
Nataliia O. Oblovatska *****
Abstract
The objective of the article was to analyze the problematic
aspects of the judicial executive process, considering its properties
and the classication of its stages. The methodological basis of the
study are the general and special methods of scientic knowledge
(inductive, analytical, hermeneutic, systemic and others). The results of the
study include the analysis of scientic approaches to the essence, properties,
classication of stages of the executive process and argumentation of
theoretical proposals and informed practices. Moreover, the authors’
conclusions on certain topics are set out, a new original denition of «stages
of the executive process” and their original new classication is based. The
practical importance of the results is that the conclusions and proposals
made signicantly enrich procedural science during the implementation
of judicial decisions; it will be useful for the subjects of enforcement
proceedings (implementing agents, parties to enforcement proceedings)
in the exercise of their procedural rights and the performance of their
procedural functions. The conclusions presented based on the analysis can
be used to generalize executive practice.
* PhD in Law, Senior Lecturer at the Department of Public and Private Law, Borys Grinchenko Kyiv
University, Ukraine. ORCID ID: https://orcid.org/0000-0002-6681-5961. Email: n.sergiienko5514@
politechnika.pro
** Full Doctor in Law, Professor at the Department of Criminal Law and Law of Criminal Procedure,
National University of “Kyiv-Mohyla Academy, Ukraine. ORCID ID: https://orcid.org/0000-0001-
8224-0099. Email: galagan@tanu.pro
*** PhD in Law, Assistant Professor at the Department of Criminal Law and Law of Criminal Procedure,
National University of “Kyiv-Mohyla Academy”, Ukraine. ORCID ID: https://orcid.org/0000-0002-
4100-0723. Email: zhudovenko@uohk.com.cn
**** PhD in Law, Assistant Professor at the Department of Public and Private Law, Borys Grinchenko Kyiv
University, Ukraine. ORCID ID: https://orcid.org/0000-0001-5016-6998. Email: a_cherneha@nuos.
pro
***** PhD in Law, Senior Lecturer at the Department of Public and Private Law, Borys Grinchenko Kyiv
University, Ukraine. ORCID ID: https://orcid.org/0000-0002-7405-279X. Email: oblovatska@tanu.
pro
550
Nataliia A. Sergiienko, Volodymyr I. Galagan, Zhanna V. Udovenko, Andriy P. Cherneha y
Nataliia O. Oblovatska
Reections on the respect of the rights of citizens during judicial decisions of execution
Keywords: judicial executive process; stages of the executive process;
attributes of the stages of the executive process; classication
of the stages of the executive process; active citizenship.
Reexiones sobre el respeto de los derechos de
los ciudadanos durante las decisiones judiciales de
ejecución
Resumen
El objetivo del artículo fue analizar los aspectos problemáticos del
proceso ejecutivo judicial, atendiendo sus propiedades y la clasicación de
sus etapas. La base metodológica del estudio son los métodos generales y
especiales del conocimiento cientíco (inductivo, analítico, hermenéutico,
sistémico y otros). Los resultados del estudio incluyen el análisis de
aproximaciones cientícas a la esencia, propiedades, clasicación de etapas
del proceso ejecutivo y argumentación de propuestas teóricas y prácticas
fundamentadas. Por lo demás, se exponen las conclusiones de los autores
sobre ciertos temas, en particular, una nueva denición original de « etapas
del proceso ejecutivo y se fundamenta su nueva clasicación original. La
importancia práctica de los resultados es que las conclusiones y propuestas
formuladas enriquecen signicativamente la ciencia procesal durante la
ejecución de las decisiones judiciales; será de utilidad para los sujetos de
los procedimientos de ejecución (en particular, los agentes de ejecución, las
partes en los procedimientos de ejecución) en el ejercicio de sus derechos
procesales y el desempeño de sus funciones procesales. Las conclusiones
presentadas con base en el análisis se pueden utilizar para generalizar la
práctica ejecutiva.
Palabras clave: proceso ejecutivo judicial; etapas del proceso ejecutivo;
atributos de las etapas del proceso ejecutivo; clasicación
de las etapas del proceso ejecutivo; ciudadanía activa.
Introduction
There are many reforming processes in Ukraine just now. One of them
is the reform of executive process. Introduction the institute of private
executors, improving the procedure of executive process, making this
process clearer are only one of remedies that have already been done
during the transformation of executive process of Ukraine. Is it mean that
Ukrainian executive process has become excellent? Not at all, but just now
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we can see the progress in this sphere. For example, in some cases creditors
can choose the system of compulsory execution: either governmental
system of compulsory execution or private system of compulsory execution.
If the creditor has chosen private system of compulsory execution, he \
she can choose private executor inside the executive district. This factor
stimulates the rivalry between governmental system of compulsory
execution or private system of compulsory execution, telling exactly,
between governmental executors and private executors. This fair rivalry is
determined by The Strategy of Reformation the Judicial System, Judgement
and Adjacent Legal Institutes for 2015-2020 (approved by the Order of the
President of Ukraine № 276/2015 20.05.2015). This remedy is one from
the list of effective remedies for reorganization the system of court decisions
execution and improving the effectiveness of executive process.
Among these remedies also as follows: assembling solid mechanism
of functioning the system of compulsory execution bodies; development
of private executors institute, especially because of stating gradual
system of self-government, the mechanism of entering the profession;
implementation the system of control under the activity of private executors,
implementation the insurance of professional civil responsibility of private
executors; abidance the balance between the competence of governmental
executors and private executors; revision of the mechanism of forming the
remuneration of executors for stimulating rising the real execution of court
decision; optimization of stages of executive process and terms of making
executive acts etc.
The effectiveness of the protection of violated rights, freedoms, interests
of persons mediated by the decision of the relevant jurisdiction is directly
related to its implementation. In the vast majority of cases, these are court
decisions, most of which involve enforcement. In particular, under Part 2
of Article 21 of the Criminal Procedure Code of Ukraine, a sentence and
court decision that have entered into force in the manner prescribed by
this Code are binding and subject to unconditional execution throughout
Ukraine. Other procedural codes are also binding on the court. Meanwhile,
the adoption of a court decision and its further implementation is carried
out by different entities (respectively – the court and the executors), not
subordinate to each other, moreover – it happens in different jurisdictions
(for example, a court decision can be made in civil, criminal, administrative,
commercial litigation, and its implementation – within the enforcement
proceedings). The actual and direct restoration of violated rights, freedoms,
interests is connected with the execution of a court decision, so it is difcult
to overestimate its signicance in the mechanism of their restoration (The
case of Hornsby v. Greece, 1997; The case of Romashov v. Ukraine, 2004;
The case of Yuriy Mykolayovych Ivanov v. Ukraine, 2009).
552
Nataliia A. Sergiienko, Volodymyr I. Galagan, Zhanna V. Udovenko, Andriy P. Cherneha y
Nataliia O. Oblovatska
Reections on the respect of the rights of citizens during judicial decisions of execution
As a jurisdictional process, the enforcement process has its stages. At
the same time, in the scientic and methodological literature the term
“stage” is mostly used for procedural branches (criminal procedural, civil
procedural, economic procedural, etc.) usually associated with the term
“process”, in particular, civil process stages, economic process stages (Fursa
et al., 2008). It is difcult to talk about the relevant jurisdictional process,
bypassing its stages. This appears to be related to temporal (temporal)
and substantive unity and the simultaneous differentiation of the relevant
jurisdictional process. Procedural stages are, according to Shcherbak
(2011), a characteristic of the dynamics of the legal process. Stages of
enforcement proceedings, continues this author, form a structurally
determined sequence of enforcement actions, which reects the progress
of the requirements of the enforcement document, and the separation of
logically related stages.
Of course, staging is closely related to a certain sequence of actions, so
it is a question of a certain chronology of actions – which action follows.
However, it would be premature to ignore the fact that staginess, in addition
to the temporal dimension, also has a substantive dimension – the content
of the acts themselves that must / may be committed during enforcement,
and the vector dimension – the commission of such acts has a specic
direction, and it is to achieve the solution of certain tasks in the appropriate
time (for example, sending the executor requests for the presence of the
debtor’s property is aimed at solving the problem of nding such property,
which will later be able to recover).
1. Methods
The methodological basis of the study is a system of general and
unique methods of scientic knowledge, which allowed to fully and
comprehensively explore the topic of the article, to achieve the goal of this
study. The inductive method allowed to separate the main issues of the
topic from the array of discussion aspects of the modern executive process.
With the help of this method of scientic knowledge, the main scientic
works of legal scholars who study this issue were selected. The analytical
method allowed to identify the state of scientic development of the topic,
the main scientic approaches to the concept of stages of the executive
process, their properties, classication. The method of analysis revealed the
most substantiated theses in the scientic developments of legal scholars
who study the problems of the executive process, which was laid in the
theoretical basis of this scientic article.
The analysis of scientic works, which cover the topics of the executive
process, allowed to have a reasoned scientic discussion during the writing
of the work – taking into account existing developments to formulate their
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conclusions and judgments on this issue. Also, the method of analysis
allowed to identify the properties of the stages of the executive process. The
hermeneutic method of scientic cognition made it possible to comprehend
the prescriptions of the main legal acts, judicial practice on the subject of
the stages of the executive process. With the help of this method, the main
gaps in the legislation governing the scope of the enforcement process were
identied.
The systematic method of scientic cognition was used in interpreting
the provisions of regulations governing the stages of the executive process,
forming comments on the wording of such regulations and proposals to
improve the legal regulation of the stages of the executive process. With the
application of the systematic method of scientic cognition, conicts were
revealed in the normative-legal regulation of the sphere of the executive
process, in particular, its stages. This method made it possible to formulate
the conclusions of scientic work, in particular, in the context of the
proposed author’s classication of stages of the executive process.
The comparative method of scientic knowledge was used in elaborating
the views of legal scholars on the concept of stages of the executive process
and its classications. The method of synthesis made it possible to generalize
the most common in the science of the executive process approaches to
determining the stages of the executive process, their classication. In
particular, with the help of this method, it was summarized that the most
common classications of stages of the executive process are classications
with four elements of such stages. The modelling method was used in
the formation of its concept of classication of stages of the executive
process. This method allowed to form the author’s model of classication
of stages of the executive process: with its division into contextual stages,
substantiation of the separateness of each stage, and, at the same time, with
substantiation of close inseparable connection of all stages of the executive
process reecting internal integrity and dynamism of executive process as
phenomena. The application of this method made it possible to propose
a new original author’s model of classications of stages of the executive
process.
The dialectical method of scientic cognition was used, most of all, in the
study of classications of stages of the executive process. It allowed to study
the structure of each stage of the executive process in its unity with the
task of the corresponding stage and its inseparable connection with other
stages of the executive process. The application of the dialectical method of
scientic cognition was reected, inter alia, in the study of the stages of the
executive process as a dynamic and multifaceted legal phenomenon. This
method was used in the study of the properties of the stages of the executive
process and made it possible to explore and propose a new conceptual view
of their structural and elemental composition.
554
Nataliia A. Sergiienko, Volodymyr I. Galagan, Zhanna V. Udovenko, Andriy P. Cherneha y
Nataliia O. Oblovatska
Reections on the respect of the rights of citizens during judicial decisions of execution
2. Results and Discussion
2.1 The concept of “stage of the executive process”
Examining the concept of “stage of enforcement proceedings”, it should
be noted that the term “enforcement proceedings” and its categorical
apparatus are currently in the process of formation. Ihonin (2007) under
the stage of enforcement proceedings understands a set of interdependent
procedural actions of the subjects of enforcement proceedings aimed at
achieving a certain stage goal regarding the enforcement of enforcement
documents. It is worth agreeing with the position of this scientist on
the essential reduction of the stages of enforcement proceedings to
the procedural actions of its subjects. Instead, the statement that such
actions are interdependent is subject to critical consideration, because 1)
the legislation on enforcement proceedings does not always prerequisite
the performance of the relevant enforcement proceedings by a particular
subject of enforcement proceedings another enforcement action of
the same or another subject of the process; 2) a signicant number of
such actions may or may not be committed at the will of the subjects of
enforcement proceedings, as they are related to the exercise of their rights.
For example, the claimant has the right to submit a written request for the
return of the enforcement document without enforcement, exercising his
right without prior correlation with the procedural actions of other subjects
of enforcement proceedings. These actions and decisions can be fully
considered as a manifestation of dispositiveness in the executive process.
For these reasons, the proposal of S. Fursa and S. Shcherbak to
consider the stages of enforcement proceedings through a set of actions of
certain entities, according to which the stage of enforcement proceedings
should be understood as a set of procedural actions of the state executor,
other subjects of enforcement proceedings aimed at achieving a certain
procedural goal (Fursa and Shcherbak, 2002). However, if the substantive
component of the stages of the enforcement process, which is formed by
certain actions of its respective subjects aimed at achieving the relevant
goal, is properly reected in the above denition, then to fully understand
the concept of stages of enforcement proceedings their chronological aspect
is the sequence of such actions in time.
The executive stages of this, writes Makushev (2017), are certain
internal results, but they always remain their own, separated by one of the
simultaneous decisions that adhere to a certain set, which is implemented,
and have to adhere to important results. If suggested, on the other hand,
this study very aptly emphasized that the stages were performed by the
power of a certain known one of the other, which is constantly changing
in the process. The language can be solved by publishing a written letter (a
decision conrming the decision made by conrming the text is recorded
in the paper), as the decision is not formally used (required to address the
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need for making records for a variety of property on the jacket an arrest
must be made, and he considers that the legislation that is not used has
been complied with in the relevant documents).
At the same time, from the aspect of the criminal process, it is necessary
to ask the question about the most common term “stage”, which is
performed during the work, which is exposed to itself, when it is necessary
to make a separate stage during the analysis. In particular, in the legislation
of Ukraine and the theory of criminal procedural law, the term “stadium”
exists only concrete and detailed: it is a select place that has to be used by
inherent users and they serve known prices and used tomorrow criminal
trust (Tatsii et al., 2013); using only those that, also, are different stages
of criminal proceedings, adhering to trusted actions, specialized circles of
subjects who must comply with the form and summarizing the decision
(Kovalenko et al., 2013).
To address the relationship between the concepts of “stage” and “stage”,
it is advisable to be guided by their content load. In the Great Explanatory
Dictionary of the modern Ukrainian language, the concept of “stage” is
dened as a certain moment, period, stage in life, development, which have
qualitative features (Busel, 2003). One of the meanings of the term “stage”
is a separate part of something (Busel, 2003). Therefore, we believe that it
is appropriate to dene the stage as a separate period of proceedings, which
includes the execution of court decisions. Instead, certain areas of such
enforcement should be dened as stages aimed at achieving the objectives of
enforcement proceedings. However, in the science of the executive process,
civil, administrative processes is more commonly used to apply the concept
of stages of these processes. Because of the above, we propose to continue
to talk about the stages of the executive process. Given the above, it seems
reasonable to dene the concept of “stage of the executive process” as a
set of procedural actions of the subjects of the executive process (subject
aspect), aimed at performing certain (certain) situational (situational)
tasks (tasks) within the executive process (vector aspect), occurring in the
appropriate sequence (time aspect).
2.2 Properties of stages of the executive process
In essence, the stages of the enforcement process consist of procedural
actions of its subjects, which have / can be committed during the enforcement
of decisions. In dening them, the vast majority of scholars reduce them
to the actions of the subjects of enforcement proceedings. Of course, their
actions meaningfully ll each of the areas of this activity. However, an
important component is the inaction of their subjects in accordance with
the requirements of the law on enforcement proceedings. For example, the
unconditional obligation of the debtor to refrain from actions that make it
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Nataliia A. Sergiienko, Volodymyr I. Galagan, Zhanna V. Udovenko, Andriy P. Cherneha y
Nataliia O. Oblovatska
Reections on the respect of the rights of citizens during judicial decisions of execution
impossible or difcult to enforce the decision (paragraph 1 of part 5 of Article
19 of the Law of Ukraine “On Enforcement Proceedings” (On Enforcement
Proceedings, 2016) will be inherent in the direct enforcement of property
(e.g., property search – no to hide property, not to destroy it, etc.; similarly,
during its description and arrest – not to damage such property, etc.). If
we analyse the whole procedure of enforcement of decisions, we can nd
that in general it is built on the principle of its observance by all parties,
which implies that they do not take action to violate it. And in case such a
violation still took place (inaction is not observed), the law provides for a
compensatory mechanism.
For example, the law does not contain an obligation for the debt
collector not to interfere with the enforcement agent in carrying out
enforcement actions. However, the provisions of paragraph 4 of part 1 of
Article 47 of the Law of Ukraine “On Enforcement Proceedings” determine
that if the claimant still commits such actions, the executor will return
the enforcement document without execution. Therefore, throughout the
enforcement proceedings, the claimant has, in effect, a duty of inaction
to prevent the enforcement agent from carrying out enforcement actions.
Similarly, it is possible to speak if the debtor interferes with the execution
of the decision on his eviction – the state executor imposes a ne on him
in the manner prescribed by part 6 of Article 66 of the Law of Ukraine “On
Enforcement Proceedings” (here the compensatory mechanism is just such
a ne). Actions that are the subject of the relevant stage of the enforcement
process are characterized by the fact that they: a) must be performed by the
relevant subjects in terms of performance of procedural duties); or b) may be
committed at one time or another during the enforcement of decisions (it is
a question of realization of the corresponding procedural rights by separate
subjects of executive proceedings), or c) essentially provide inaction.
Within the stages of the enforcement process perform certain situational
tasks, to achieve which the subjects of enforcement proceedings take
appropriate actions / refrain from them. Thus, the implementation of such
tasks is a kind of vector of action of these actors (vector aspect of the stages
of the executive process). Subject aspects of the stages of the executive
process are determined by the tasks to be performed on the timeline of the
executive process. The situational of the tasks is that they are relevant to
the solution for the appropriate stage of the executive process. This can
be illustrated by the following example. Before initiating enforcement
proceedings, it is rst necessary to decide whether such a process will be
initiated at all: whether there are factual and legal grounds for enforcement
of a particular decision by the authorized entity to which it is enforced, or
whether there are obstacles. The solution of the specied task is actual at
the presentation of the executive document to compulsory execution.
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After establishing that the executive document meets all the requirements
specied by law, the decision based on which it was issued, is enforceable
and has entered into force, there are no obstacles to enforcement (for
example, no delay), the executive document submitted by the subject,
authorized to present it for enforcement, the executive document presented
in compliance with the requirements of the law for the enforcement of the
entity authorized to carry out such enforcement, the executor will open
enforcement proceedings. However, it may also be established that the
factual and / or legal grounds for the enforcement of a particular decision
by the entity to which it is presented for enforcement are absent or there are
obstacles to enforcement.
If the enforcement document is presented for enforcement, does not meet
the requirements of the law for enforcement documents or enforcement of
the decision does not provide for enforcement measures, the enforcement
document will be returned to the claimant without acceptance for
enforcement, and enforcement proceedings will not be opened. However,
even in this case, there is a legal relationship of enforcement proceedings
between the executor and the applicant. Given the above, the rst stage of
the enforcement process is to determine the presence of the enforcement
document for enforcement, as the opening of enforcement proceedings
may not occur after the presentation of the enforcement document for
implementation (the enforcement document may be returned to the
claimant without acceptance).
The stages of the executive process are characterized by a certain time
sequence. This is due, rstly, to the fact that the procedure for enforcement
proceedings is determined by law, and secondly, the time sequence of
actions by the subjects of enforcement proceedings is characterized by logic
(for example, rst you should open enforcement proceedings, and then
directly enforce decisions; you need to nd the property and then evaluate
it). The temporal measurement of the stages of the executive process is the
sequence of performance of the relevant actions by the authorized subjects
of the executive process, therefore, it is a question of a certain chronology of
actions and determination of the procedure for carrying out the necessary
actions.
2.3 Classication of stages of the executive process
Examining this question, Shcherbak (2011) notes that there are two
grounds for classifying the stages of the legal process: functional and logical.
According to the functional classication, it distinguishes the stages of
violation of the legal process, preparation for consideration, consideration
of the case and decision-making based on the results of consideration of
the case. The logical classication of stages plays a similar functional but
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Nataliia O. Oblovatska
Reections on the respect of the rights of citizens during judicial decisions of execution
slightly different role and traditionally has the following stages: clarication
of the facts of the case; clarication and determination of the rule of law
to be applied; making a decision based on the results of these two stages
(Shcherbak 2011). The application of such a classication seems justied to
the stages of the executive process. However, they are characterized by both
functional (demonstrates the movement of the process from its beginning
to completion) and logical (shows the rationale for the content of each
component of enforcement proceedings) classication.
In the legal literature, the most common classications of stages of
enforcement proceedings are four-component classications. Fursa
and Shcherbak distinguish among them: the opening of enforcement
proceedings, preparation for execution, taking enforcement measures
against the debtor, the nal (Fursa and Shcherbak, 2002). Similarly,
Bilousov (2005) also notes the four components of the levels of enforcement
proceedings: the opening of enforcement proceedings, preparation
for enforcement, taking measures to enforce the decision, the end of
enforcement proceedings. Sometimes you can nd another classication:
1) the opening of enforcement proceedings.
2) enforcement proceedings.
3) completion of enforcement proceedings.
4) appeal against decisions, actions, or inaction of ofcials of the State
Executive Service (Kalinin, 2013). It seems that the latter component
should be considered rather as a complication in the legal relationship
of enforcement proceedings, as an appeal can take place at any stage
of the enforcement process as a guarantee of the rule of law and
legality of enforcement proceedings.
Instead, Ihonin (2007) adheres to a three-part structure and notes the
opening of enforcement proceedings; enforcement proceedings; the nal
stage of enforcement proceedings. A signicant number of scholars express
the position that the rst stage of enforcement proceedings is its discovery.
However, this statement cannot be fully accepted for several reasons. First,
as it was substantiated earlier, before initiating enforcement proceedings
it is necessary to apply to the ICE body/person acting in its interests with
a request to initiate enforcement proceedings for enforcement of the
decision, which is the basis for specic procedural legal relations between
such applicant, on the one hand, and the subject of enforcement, on the
other.
Such legal relations are not always transformed into legal relations
between the debt collector and the executor, as enforcement proceedings
may not be opened, in particular, if the enforcement document is returned
to the debt collector without acceptance for execution. Therefore, the initial
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stage of the enforcement process, in our opinion, should be determined by
the presentation of the enforcement document for enforcement, and not
the opening of enforcement proceedings.
Secondly, there are views that the civil process can begin with the
submission of a statement. For example, in the work of Komarov (2011)
and some other scholars gave one of the classications of stages of civil
proceedings, the rst of which is the stage of applying to the court. Here
it is appropriate to conclude Yu. Osipov (1978) that the application of
civil procedural law, as well as the rules of any branch of law, in terms
of the internal logic of this activity, includes three main elements of law
enforcement: establishing the facts of a particular procedural situation,
which allows to apply this or that norm of civil procedural law; selection
and analysis of the applicable law; authoritative decision of the procedural
issue, application of the relevant rule of law and adoption of a judicial act.
Therefore, at any stage of the jurisdictional process, including enforcement,
the relevant subject will establish the facts of the case, which allows the
application of the relevant rules of law, the choice of such rules, their
application and appropriate registration of such application of the law. This
correlates with the logical classication of stages of the legal process, as
discussed earlier.
Third, in the legal literature, the opening of enforcement proceedings
is not always considered solely as a stage of enforcement proceedings.
For example, Krupnova (2017) denes the opening of enforcement
proceedings as an administrative procedure, which itself has its stages.
However, when analysing the ling of an application for the opening of
enforcement proceedings, it would be erroneous to claim that there is a
factual conrmation of the validity of the claims of the debt collector, as
well as the obligations of the debtor (Krupnova, 2017), as the question of
the validity of the claims of the person named as the debt collector in the
enforcement document in respect of the person listed there as a debtor,
arises when making a decision, which should then be enforced.
It seems that when presenting an executive document for enforcement,
the main task is to establish whether there are factual and legal grounds for
enforcement of a particular decision by the entity to which it is addressed.
In the absence of such grounds for enforcement of a particular decision, the
subject to whom it is presented for enforcement, as well as in the presence
of obstacles to enforcement will be grounds for returning the executor of the
executive document without acceptance for execution, the executor makes
a decision. Under such conditions, it is further a question of completion of
enforcement proceedings. On the contrary, in establishing the existence of
factual and legal grounds for enforcement of a particular decision by the
entity to which it is presented for enforcement, the absence of obstacles to
enforcement will be grounds for initiating enforcement proceedings.
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The opening of enforcement proceedings takes place subject to
the establishment of legal and factual grounds for enforcement upon
presentation of the enforcement document for enforcement. Meanwhile,
it would be premature to claim that the stage of the enforcement process
is limited solely by the issuance of the enforcement order to initiate
enforcement proceedings. It should be emphasized that the decision
to initiate enforcement proceedings is both one of the documents that
nalizes the rst stage – the presentation of the enforcement document
for enforcement and begins the next – the actual opening of enforcement
proceedings.
The above characterizes the progressive stages of the enforcement
process and its integrity as a jurisdictional activity. From this moment
the executor necessarily enters in the Automated system of executive
proceedings information on carrying out of all executive actions and
acceptance of procedural decisions as before actually it was a question
of registration in this system of incoming and outgoing correspondence,
and before the opening of executive proceedings it was not known at all.
, whether it will be opened or the executive document will be returned to
the claimant without accepting it for execution (Order Of The Ministry Of
Justice Of Ukraine, 2016).
Characterizing the opening of enforcement proceedings, T. Minka and
several other scholars note that its content is to send the executor of the
relevant resolution on the opening of enforcement proceedings, including
the parties (Minka, 2017). In fact, according to Article 28 of the Law of
Ukraine “On Enforcement Proceedings”, the executor noties the parties
of the decision to initiate enforcement proceedings and takes immediate
priority measures that will make possible / more effective further
enforcement. In particular, it is a question of seizing the debtor’s funds, if
the debtor’s statement indicates the debtor’s accounts in banks and other
nancial institutions; checking in electronic state databases and registers
the existence of property rights or other property rights of the debtor to
the property and seizure of it, if the statement of the collector indicates the
specic property of the debtor (part 7 of Article 26 of the Law of Ukraine
“On Enforcement Proceedings”). It should be noted that until there is a full
search for the debtor’s property, the executor only takes immediate priority
measures for the property, which he was notied by the debt collector,
related to further enabling/increasing the efciency of enforcement
proceedings.
Taken together, it is reasonable to state that during the opening of
enforcement proceedings its main task is to establish an information and
security basis (to inform the parties that the execution of the decision
has already begun, to take immediate measures to ensure it) further
enforcement. However, it is difcult to determine the documents that
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would summarize the results of these actions regarding the commencement
of enforcement proceedings, as there may be many of them depending on
the categories of enforcement proceedings.
For example, they may be decisions of the executor on the seizure of
the debtor’s property, which was announced by the debt collector in the
application for enforcement proceedings: at the same time, these documents
will be nal for the stage of opening enforcement proceedings and mark the
beginning of the next stage – security. to describe and arrest him. Instead,
in several cases, the legislation does not provide for the execution by the
executor of separate procedural documents to complete the actions aimed
at initiating enforcement proceedings. For example, during the execution
of decisions on eviction of the debtor, the decision to initiate enforcement
proceedings must indicate the need to execute the decision within 10
working days, after which the execution must be veried.
During the precautionary stage of the enforcement process, conditions
should be created for further enforcement, depending on the category
of enforcement proceedings and specic enforcement proceedings. For
example, to ensure further recovery from the debtor in favour of the debt
collector should be carried out: search for the debtor’s property, including his
money, property/money belonging to the debtor from others; determining
whether the foreclosure can be made on this property; valuation of such
property/determination of its value; resolution of other issues on which
further effective enforcement depends (for example, resolution of the issue
of determining the debtor’s share in the property that is jointly owned by the
debtor and other persons), etc. A signicant part of scientists denes these
procedural actions as preparation for enforcement (Fursa and Shcherbak,
2002; Shcherbak, 2011).
For example, Yu. Bilousov (2005) refers to the preparation for the
enforcement of the actions of the state executor, aimed at establishing
the place of residence of the debtor, his work, nding out the amount of
wages, proposals to execute the decision voluntarily, creating conditions
for further execution of the decision, including compulsorily. At the same
time, taking into account the denition of enforcement proceedings given
in Article 1 of the Law of Ukraine “On Enforcement Proceedings” (where
enforcement proceedings are dened in essence as enforcement) and
the provisions of Article 26 of this Law on enforcement, we note that all
enforcement proceedings is a process of enforcement. Therefore, it seems
that the stage of the enforcement process at which the task of ensuring the
implementation of further specic measures to implement the decision,
provided by the executive document, should be called accordingly – security.
After that, it is quite possible to move to the completion of enforcement
proceedings. Such a situation may arise when the debtor has no property
that can be recovered, the measures taken by the executor to search for him
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were ineffective to the debt collector. The nal documents for this stage of
the executive process are quite diverse. For example, they may be: decisions
of the executor on the description and seizure of the debtor’s property, on
the seizure of the debtor’s property, which he found in response to the
competent authorities/persons to the executor’s inquiries regarding the
debtor’s property; resolutions of the state executor, by which he informs
the debtor about the day and time of forced eviction determined by him
(Article 66 of the Law of Ukraine “On Enforcement Proceedings”. Although
the legislative provisions do not mention the need to make a decision forced
eviction, he informs the debtor with the appropriate resolution).
2.4 Formation of a holistic and effective enforcement process
The task of the stage of direct enforcement is to take direct measures to
enforce the decision. It is worth agreeing with the denition of enforcement
measures proposed by I. Zelenkova (2017), which she means the powers of
the executor to enforce the decision provided by law, as well as measures to
inuence the debtor, which should encourage him to enforce the decision
and not create obstacles to it performance. Indeed, on the one hand,
the direction of such measures is clearly dened – enforcement. On the
other – the emphasis is on the fact that it is also a measure of inuence
on the debtor, because sometimes without them it is impossible to talk
about the effectiveness of enforcement. The provisions of Article 10 of the
Law of Ukraine “On Enforcement Proceedings” determine the types of
enforcement measures. However, this list is supplemented by the blanket
norm of paragraph 5 of part 1 of Article 10 of the same Law, which refers to
other forms of the Law of Ukraine “On Enforcement Proceedings”, without
detailing them. Therefore, there is a need to determine whether certain
measures taken by the executor belong to the measures of enforcement of
decisions.
As an example of resolving this issue, we will consider foreclosure
on funds, securities, other property (property rights), corporate rights,
intellectual property rights, objects of intellectual, creative activity, other
property (property rights) of the debtor as enforcement measures. Part 1 of
Article 48 of the Law of Ukraine “On Enforcement Proceedings” stipulates
that such treatment of the debtor’s property consists in his arrest, seizure
(write-off of funds from accounts) and enforcement.
The fact that the seizure of the debtor’s property is dened in the context
of foreclosure, namely foreclosure – as a measure of enforcement, does not
mean that security actions during enforcement proceedings (namely in this
context, property seizures were previously considered) merges with direct
enforcement. First, the seizure of the debtor’s property may be precisely the
measure to be taken in enforcement proceedings, i.e. the direct subject of
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enforcement in the case of enforcement of a court order securing a claim by
seizing the debtor’s property. Secondly, the stages of the executive process
are progressive and form a holistic inseparable process – the end of one
stage at the same time can mean the beginning of the next.
To form a holistic and effective enforcement process, it is possible to
superimpose them on each other, for example, if part of the debtor’s property
has already been found, assessed within the security stage and transferred
for sale (this is direct enforcement), however, it is obvious that due to the
sale of the property it will not be possible to satisfy all the requirements of
the debt collector, to collect the enforcement fee, etc., then there should be
a parallel search for other property of the debtor, assessment of the found
property. Here we see exibility in the question of the unity of the stages
of the enforcement process, which is fully correlated with the need for full,
timely and impartial execution of the court decision.
Withdrawal of property (write-off of funds from accounts), forced sale
of the property is characterized as direct enforcement, in particular, in the
case of execution of decisions to recover in favour of the debt collector from
the debtor: this can happen by writing them off from the debtor’s bank
accounts (if the executor such accounts identied and available funds), and
by seizing the property and transferring it for sale to third parties with the
subsequent direction of proceeds from the sale rst to the account of the
executor / State Enforcement Service, and from him – the collector and the
executor/body of the State executive service.
There are a signicant number of nal documents, depending on the
category and specic enforcement proceedings, that would nalize this
stage of the enforcement process. For example, this may be an act of
electronic bidding on which the property is sold; decision on the transfer of
property to the debt collector to repay the debt and the act of such transfer,
if the debt collector agreed to receive at the expense of debt repayment
property that was not sold in electronic bidding. Based on whether and to
what extent enforcement measures have been taken and their results. The
executor must establish whether direct enforcement of the decision has
been carried out. However, even if for some subjective (for example, the
claimant interferes with the execution of the decision) or objective (when
the enforceable court decision is revoked) reasons for direct enforcement
did not lead to its actual full execution, it is not always appropriate to
continue enforcement proceedings. Therefore, it is worth talking about the
completion of the enforcement process.
According to R. Kalinin (2013), the completion of enforcement
proceedings is the nal stage of enforcement of decisions of jurisdictional
bodies, covering three types of administrative procedures: the procedure
for terminating enforcement proceedings, the procedure for returning the
enforcement document to the court or other body (ofcial) that issued it,
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Reections on the respect of the rights of citizens during judicial decisions of execution
and the procedure of returning the executive document to the collector,
the purpose of which is the adoption of the state executor as a subject of
public administration of an individual administrative act – a resolution to
terminate the enforcement proceedings or return the executive document
(Kalinin, 2013).
The last proposed statement related to the drafting of the relevant
resolution cannot be fully agreed within view of the following. Firstly, the
adoption of the relevant document should be considered as the nalization
of the relevant stage of the executive process, a formal generalization of
the state of achievement of the objectives of each of them. Secondly, the
executor during the enforcement proceedings does not solve the task of
accepting certain documents as an end in itself. Depending on the tasks of
each stage of the enforcement process that need to be solved (for example,
during the direct enforcement – taking measures to enforce the decision),
the nalizing documents summarize the status of their implementation.
Also, the return of an enforcement document without enforcement at
the request of the court or other body (ofcial) that issued it is the basis
for the termination of enforcement proceedings, therefore, should be
considered in this context. In this regard, the provisions of Part 1 of Article
40 of the Law of Ukraine “On Enforcement Proceedings”, which refer to
the termination of enforcement proceedings, and separately – the return
of the enforcement document to the court that issued it, although its return
without execution at the request of the court or other body (ofcial) that
issued the enforcement document is one of the grounds for termination of
enforcement proceedings (paragraph 10 of part 1 of Article 39 of the Law
of Ukraine “On Enforcement Proceedings”). At the nal stage, the executor
decides on the termination of enforcement proceedings depending on the
circumstances of the case (Fursa and Shcherbak, 2002).
It seems that the task of this stage of the enforcement process is
relatively nal establishment of the achievement of the general task set
before the enforcement body / private executor – full, timely, impartial
enforcement of the decision, or impossibility to achieve it for one reason
or another; taking measures related to the completion of enforcement
proceedings (lifting of arrests, etc.). Therefore, we are talking about the
following possible procedural actions:
1. Return of the executive document to the debt collector without
acceptance for execution. This correlates with the rst stage of the
enforcement process, if it was established the absence of factual and
legal grounds for enforcement of a particular decision by the entity
to which it is presented for enforcement, the presence of obstacles
to enforcement (for example, if for objective or objective reasons it
is impossible to initiate enforcement proceedings). The grounds for
returning the executive document to the claimant without acceptance
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for execution are provided by Articles 4, 5 of the Law of Ukraine
“On Enforcement Proceedings”, the executor shall issue a relevant
resolution.
2. Return of the writ of execution to the debt collector takes place if due
to subjective (for example, the debt collector prevents enforcement
actions) or objective (for example, the debtor has no property
specied in the writ of execution, which he must transfer to the debt
collector in-kind) the proceedings can no longer continue, but the
tasks facing the enforcement body – timely, complete, impartial
enforcement of the decision – remained unfullled/incomplete. In
this context, it is correct to note S. Fursa, E. Fursa, S. Shcherbak, that
the collector is returned the executive document, which was accepted
by the state executor for execution, for which the recovery was not
carried out or was carried out in part (Fursa et al., 2008).
Yu. Bilousov (2005) notes that the return of the executive document to
the claimant – a form of termination of enforcement proceedings without
execution of the decision, according to which the recovery was not carried
out or was carried out in part on the initiative of the collector to implement
the principle of dispositiveness. However, this statement cannot be fully
accepted, as the termination of enforcement proceedings is an independent
type of completion of enforcement proceedings, has its grounds, among
which the return of the enforcement document to the claimant is absent. The
grounds for returning the executive document to the claimant are provided
by Article 37 of the Law of Ukraine “On Enforcement Proceedings”, the
executor shall issue a relevant resolution on such a decision.
3. Completion of enforcement proceedings. Although Article 39 of
the Law of Ukraine “On Enforcement Proceedings”, which denes
the grounds for termination of enforcement proceedings, refers
to “termination”, it is worth agreeing with the position of several
scholars proposing to replace the term “termination” with “closure”.
apply terminology that has a wider application in practice and is used
in other similar regulations, such as the Civil Procedure Code (Fursa
et al., 2008).
Not only in the Civil Procedure Code of Ukraine, but also the Commercial
Procedural Code of Ukraine, in the Code of Administrative Procedure of
Ukraine, in the Criminal Procedure Code of Ukraine in this particular case
operate the concept of “closing” proceedings, not “termination”. Bilousov
(2005) denes the termination of enforcement proceedings as an act of the
state executor, which consists in the completion of enforcement actions in a
certain enforcement proceeding, according to a certain executive document.
Indeed, at the end of the enforcement proceedings, the enforcement
actions are completed, but they are also completed when the enforcement
document is returned to the debt collector. It seems that the main difference
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between the return of the writ of execution to the claimant and the end of
the enforcement proceedings, in addition to the various grounds for each of
these types of termination of enforcement proceedings, is as follows.
Upon return of the enforcement document to the claimant, he has the
right to re-submit the enforcement document for execution within the
period of submission of enforcement documents for enforcement, i.e.,
enforcement proceedings may be reopened; Enforcement proceedings,
which were completed by returning the enforcement document to the
debt collector, may be resumed if the executor’s decision to return the
enforcement document to the debt collector is declared illegal by the court
or revoked. Instead, for completed enforcement proceedings, the law does
not provide for the possibility of re-initiating its commencement; completed
enforcement proceedings may be resumed only if the enforcement order
is terminated or annulled by the court (see Articles 37 and 41 of the Law
of Ukraine “On Enforcement Proceedings”), as well as in cases expressly
provided by law. The grounds for termination of enforcement proceedings
are determined by Article 39 of the Law of Ukraine “On Enforcement
Proceedings”, the executor shall issue a relevant resolution.
However, in several cases provided by law, the end of enforcement
proceedings occurs without full actual execution of the decision and contains
a precursor to the possible beginning of another jurisdictional process –
criminal. In particular, the provisions of Article 63 of the Law of Ukraine
“On Enforcement Proceedings” provide for the procedure of execution
of decisions under which the debtor is obliged to take certain actions or
refrain from committing them: the debtor is given a period of execution,
after which the executor checks If the debtor does not execute the decision
without good reason, the executor imposes a ne on the debtor, demands
execution of the decision and warns of criminal liability, after which he re-
checks the state of execution of the decision by the debtor.
In case of repeated non-execution of the decision by the debtor without
valid reasons, if it can be executed without the debtor’s participation, the
executor sends to the pre-trial investigation body notication of the debtor’s
criminal offence and takes enforcement measures provided by the Law of
Ukraine “On Enforcement Proceedings”. In case of non-execution by the
debtor of the decision which cannot be executed without participation of
the debtor, the executor sends to the body of pre-judicial investigation the
notication on commission by the debtor of a criminal offence and decides
on the termination of executive proceedings (paragraphs two, third of part
3 of Article 63).
As mentioned earlier, one of the tasks of this stage of the enforcement
process is to resolve issues related to its completion, including lifting
arrests, excluding information about the debtor from the Unied Register
of Debtors, other actions related to the completion of enforcement (e.g.
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termination of search of vehicles). It is worth agreeing with the position
expressed in the legal literature, according to which the provisions of the
law on the consequences of the completion of enforcement proceedings
should be taken in two areas: legal consequences that arise under objective
conditions and actions of the state executor necessary to complete
enforcement proceedings.
For example, simultaneously with the end of enforcement proceedings
and receipt of the relevant resolution, the debtor, whose property was
described and remained in his custody, is again considered the owner of
such property, and acquires the right to dispose of it in full (Fursa et al.,
2008). Given the above, it seems reasonable that the decision to terminate
the enforcement proceedings should indicate not only the lifting of the
seizure of property (funds), but also the termination of other measures
taken during the enforcement of the decision. If for some reason this
decision was not specied, the executor has the right to issue a decision as a
separate procedural document to terminate the measures taken during the
enforcement of the decision.
General issues of the executive process are considered in the
scientic works of Fursa, Fursa, Shcherbak (Fursa et al., 2008); Ihonin
(2007), Makushev (2017), Bilousov (2005). Some issues of certain stages of
the enforcement process are considered in the works of Kalinin (2013) (in
particular, the completion of enforcement proceedings), Krupnova (2017)
(in particular, the opening of enforcement proceedings). The issues of the
procedure of recovery of the debtor’s property in the enforcement process
were considered by I. Zelenkova (2017). However, some scientic studies
of the stages of the executive process through the context of this concept,
its properties and classication are almost absent. Which determines the
relevance of a scientic article on this topic.
Conclusions
Because of the above, the concept of “stages of the executive process”
can be dened as a set of procedural actions of the subjects of the executive
process (subject aspect of the stages of the executive process) aimed at
performing certain (certain) situational (situational) tasks (tasks) within
the executive process. vector aspect of the stages of the executive process),
occurring in the appropriate sequence (the temporal aspect of the stages of
the executive process). The properties of the stages of the executive process
are that:
1) substantive stages of the executive process consist of procedural
actions of the subjects of the executive process, which have / can
be committed at one time or another during the enforcement of
decisions.
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2) within the stages of the executive process certain situational tasks are
performed.
3) the stages of the executive process are characterized by a certain time
sequence.
Stages of the enforcement process can be classied as follows:
1) presentation of the enforcement document for enforcement.
2) opening of the executive process.
3) the security stage of the executive process.
4) stage of direct enforcement.
5) completion of the enforcement process.
Stages of the executive process play an important role in ensuring its
integrity and effectiveness as a jurisdictional activity, while differentiating
this process structurally. At the same time, the executive process may be
characterized by complications that signicantly affect its dynamics, which
will be noticeable in terms of its stages. The results of the research will be
useful to procedural scholars, in particular those working on the subject of
enforcement proceedings; executors, parties to enforcement proceedings
(debtor, debt collector) during the enforcement of decisions. Analytics
and generalizations can be used in generalizations of executive practice.
The results of the research were tested at law schools, round tables and
conferences, master classes.
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Esta revista fue editada en formato digital y publicada
en enero de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 68
