Глава 1.1. Поняття порядок, способи і строки виконання ухвал та рішень в цивільному та виконавчому процесі

Abstract

The scientific work formulates a doctrinal approach regarding the need to separate executive proceedings from the passport of specialty 12.00.03, in particular, from such a research area as civil process and substantiates the need to give the executive process the status of an independent branch of legal science, taking into account the changes that have taken place in the organizational structure of law enforcement agencies implementation and availability of scientific works on this topic. Emphasis is placed on the conceptual apparatus that relates to the enforcement of court decisions in such fields of science as civil and executive proceedings, the need for its coordination, based on the analysis of inter-branch relations. The relevance of this problem is demonstrated by the example of the need for legislative regulation of the procedure, methods and terms of enforcement of a court decision both in civil proceedings and at the stage of executive proceedings. The authors defined the content of the main concepts «method» and «procedure» of execution of a court decisionin the legislation on executive proceedings and in the civil procedural legislation. It was clarified that these concepts should be demarcated and fixed at the legislative level, that the procedure for the execution of the decision is established by the Law of Ukraine «On Executive Proceedings», and the method of execution of the decision is the court. Therefore, the meaning of the application of such a concept as «method of execution of the decision» will be that it should be different from all the proceduresestablished in the Law, that is, it should be reflected in the court decision.If we recognize the terms «method» and «procedure» as independent and related to a certain legal meaning, then in order to distinguish between the concepts of «method» and «procedure» of execution of a decision, the term «method» of application of a certain court-established procedure for the execution of a court decision should be recognized, which has no analogues in the Law, while the term «order» will mean the rules of execution of the decision established in the Law.Problematic aspects of postponement and postponement of the execution of a court decision are revealed: inter-branch connections of civil justice with executive proceedings and the justified expediency of unifying these terms in the Code of Criminal Procedure and the Law of Ukraine «On Executive Proceedings». «Delay of execution of a decision» means postponement of the execution of a decision under certain conditions. Depending on the time at which the court sets the postponement of the execution of the decision, completely different legal consequences may occur. In this case, by time, the authors mean the stage of consideration of the case, since in order to reflect in the court’s decision the provision on delaying the execution of the decision, the relevant request (statement) must be submitted by the debtor during the consideration of the case. There are two legal ways out of this situation, when the court cancels the postponement of execution of the decision, it can: 1) establish that the court decision is subject to enforcement; 2) if it is established in the courtdecision that the postponement is canceled, then the enforcement of the decision must be carried out by foreclosing on the debtor’s property. In the first case, when the court establishes installments in the court decision, the subsequent execution of the decision will refer to Section IX of the enforcement of the debtor’s salary, pension, stipend and other income. When the installment was established by the court after the decision on the basis of Art. 435 of the Code of Civil Procedure, then the executorwill first apply for the recovery of the debtor’s property, and after the court establishes a postponement, the proceedings must be reclassified to the procedure for the recovery of wages, pensions, scholarships and other income of the debtor. But in the latter case, the costs of enforcement proceedings should be added to the amount of the debt.An important issue regarding the essence of «claim security» and its distinction from «judgment enforcement» was also analyzed. Any security of the claim must be reflected in the court decision, but it should already be about ensuring the execution of the decision, therefore the concept of «security of the claim» should be transformed into the concept of «security of the execution of the decision».A thorough analysis of current issues of immediate implementation is provided judicial decision in practice, theoretical approaches and the need for proper legislative regulation both in the Code of Civil Procedure and in the Law of Ukraine «On Executive Proceedings» are formulated, in particular, generalized conclusions and proposals on the need to regulate inter-branch relations between the civil and executive process.