Judgment Debtor Research Articles

The Phenomenon of Difficult Enforcement in the Circuit Trial System in China from the Perspective of Power Operation

The phenomenon of "difficulty in enforcement" is prevalent in the judicial practice of China and poses similar challenges to circuit trials. This paper, based on Su Li's premise of the shifting local power dynamics in rural China, utilizes Foucault's theory of micro-power and Geertz's theory of local knowledge to explore how these misalignments in local power relationships affect the enforcement work in circuit trials in China, and provides suggestions on how to alleviate this issue. In the power relationship of enforcement within circuit trials, the relatively weaker state power struggles to support the compulsory execution of judgments, while the relatively stronger individual power resists the enforcement of judgments. This leads to a reliance on the recognition and cooperation of the judgment debtor, as well as the assistance of local power as a third party. However, the lack of local knowledge among judges makes it difficult for "legally sound but unreasonable" judgments to gain the recognition and cooperation of the parties involved, resulting in challenges to enforcement. Therefore, it is necessary to strengthen cooperation with local powers and other state agencies, seeking a multi-faceted approach.

Korean Judicial Decision

Abstract The Judgment Debtor shall submit a property catalog stating the status of the property on the date for specification of property due to the Ex officio Judgment on the Legality of the Application for Compulsory Execution.

Fedezetcsere az adóvégrehajtásban

The Act of the tax debt execution is maybe the most disputed administrative measure in the system of law because in this case the power of state intervenes in the personal intimate zone limiting the title of ownership. Respecting the final decision or judgement just as important in the Basic Law relating the constitutional order, however at least as important is the protection of the debtor’s rights and legitimate interests. In the proceeding of tax debt execution rights of the tax authority and the debts face to face requires sufficient balancing rules which is part of the debtor’s rights. By the law upon the judgment debtor’s application to be submitted before the auction is scheduled at the latest, in respect of the judgment debtor’s circumstances meriting particular treatment, the court may release the seized movable property from the attachment if the recovery of the debt is secured even after the release and/or if the judgment debtor offers an asset as a cover for the debt with a market value reaching or exceeding that of the asset requested to be released. This essay tries to trying to present the legal institution of the exchange of covers in enforcement proceedings in the tax debt execution. It should be empasized that the tax execution is a coercive procedure because of the tax enforcement so taking considerations because of reasons of equity is possible between strict rules.

Examining the Propriety of Section 84(1) of the Sheriffs and Civil Process Act of Nigeria from the Lens of the Supreme Court’s Decision in Central Bank of Nigeria V Insterstella Com Ltd

Where a person has litigated a case against anybody or the government and judgment is given in monetary value, where the judgment debtor fails to voluntarily settle the judgment sum, the judgment creditor must enforce the judgment. In enforcing the judgment which is usually via garnishee proceedings, the Sheriff and Civil Process Act (SCPA) provides that the consent of the Attorney General (AG) must be sought and obtained once the funds to be used in satisfying the judgment are in the possession of the public officer. This paper, while underscoring the rationale for this prerequisite, examines its propriety vis-à-vis the finality of a court judgment, by adopting doctrinal methodology. It raises the question that since the AG’s consent is to be sought and same can be denied, what option, if any, is open to a person after such denial? Can a mandamus be used to compel the AG to consent, seeing that the giving of consent is not a duty to be performed but a discretion? The paper argues that this practice amounts to subjugating the implementation of Court’s determination/decision to the discretion of the AG which is inimical to the smooth delivery of justice. It may undermine the sanctity of court’s pronouncements as well as democracy. Therefore, the paper calls for the abolition of this practice as way forward.

Analyse Comparative / Comparative Perspectives

The public policy defence in Greece is widely considered as the last resort for the judgment debtor. It is hardly ever the case that an appeal against the judgment granting recognition and/or exequatur omits a reference to the public policy defence. The prospects of success are nevertheless minimal. The purpose of this article is to give a comprehensive view of the Greek case law in the field. This will be examined in two parts. Following a brief introduction (Section I), the first part of the article will elaborate on domestic law and bilateral conventions, featuring the general aspects of the public policy clause, and a case law classification (Section II). Following the same pattern, the second part of the article will explore the field of EU law, focusing on EU Regulations (Section III). Finally, the findings of the court practice in Greece and the future perspectives will be presented (Section IV).

The Requirement of Consent of the Attorney General in the Enforcement of Judgement Under Garnishee Proceedings in Nigeria: An Appraisal

Under section 84 of the Sheriff and Civil Process Act, before a judgment creditor can garnishee money of a judgment debtor that is under the control or custody of a public officer, the consent of the Attorney General must be sought and obtained. The legality of this position of the law vis-vis the constitutional provisions that subject everybody to the judicial powers of the court has been a subject of controversy. Plethora of judicial authorities in this regard has not settled the controversy. This article examines the provisions of the Sheriff and Civil Process Act, judicial authorities in this regard in relation to the Constitutional provisions as to the judicial powers of the court; in order to determine the legality or otherwise of the requirement of consent of the Attorney General before garnishee proceedings can be initiated for the attachment of money under the control or custody of public officer. The article recommends that section 84 of the Sheriff and Civil Process be amended to remove the requirement of consent of the Attorney General before money under the custody or control of a public officer can be attached amongst others. This article used doctrinal method to collate materials . Keywords: Attorney General, Public officer, Judgment Creditor/Debtor, Consent, Enforcement of judgment, Garnishee proceedings, Garnishee DOI: 10.7176/JLPG/125-11 Publication date: October 31 st 2022

Possible impact of the 2019 Hague Convention on the recognition and enforcement of foreign judgments in civil or commercial matters on the grounds of international competence in Ghana

The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is a product of the Judgments Project of the Hague Conference on Private International Law. The Hague Judgment Convention has the advantage of providing business partners with a simple, efficient, and predictable structure with regards to the recognition and enforcement regime; as well as reducing related cost. More specifically, the convention fosters predictability and certainty in international commercial relations by enabling international commercial partners to be precisely informed of the grounds on which the decision of the court of one contracting state will be recognised or enforced in the territory of another contracting state. The Convention offers a wide range of jurisdictional filters for the purposes of recognition and enforcement of judgments from Contracting States. This article discusses the modern and innovative grounds of international competence introduced by the Hague Convention and its potential impact on the grounds of international competence for Ghana if Ghana ratifies the convention. The article recommends the ratification of the 2019 Hague Judgment Convention as it would be of enormous benefit to Ghana whose grounds of international competence when it comes to recognition and enforcement of foreign judgments seems antiquated and confined only to residence, submission and more controversially, the presence of the judgment debtor in the jurisdiction of the foreign court.

An integrated multicriteria group decision making methodology for property concealment risk assessment under Z-number environment

The complexity and opacity of individual property concealment seriously impede the court's judicial execution. Property concealment risk assessment can assist law enforcement officers in predicting the probability of judgment debtor’s concealment behavior in advance and improve enforcement efficiency. However, few studies have explored the property concealment risk assessment from the perspective of qualitative multicriteria decision making, considering the uncertainty of expert’s evaluation and the non-complementarity between assessing criteria. To fill this gap, we propose a novel integrated multicriteria group decision-making methodology (MCGDM) under the Z-numbers environment to rank the concealing risk of judgment debtors. First, Z-numbers are employed to characterize the uncertainty and reliability of cognitive information simultaneously. Next, we present an expert weight determining method based on the degree of group consistency and reliability under the Z-numbers environment (WCRZ). Then, an innovative score function is presented, extending the ELECTRE- III method to Z-number environment to obtain individual outranking relations. Moreover, we develop the weighted Copeland method to aggregate individual rankings and obtain comprehensive risk prioritizations. Finally, an application case in concealing property risk ranking illustrates the proposed method. Results show that the proposed method can be successfully applied to practical complex decision-making problems, and it obtains more reasonable outcomes than conventional methods, with lower computational complexity and higher group consensus. It is the first study to model the concealing risk of judgment debtors, and the proposed method can be employed to address complex, uncertain decision problems in the real world.

Case-Based Reasoning for Hidden Property Analysis of Judgment Debtors

Many judgment debtors try to evade, confront, and delay law enforcement using concealing and transferring their property to resist law enforcement in China. The act of hiding property seriously affects people’s legitimate rights and interests and China’s legal authority. Therefore, it is essential to find an effective method of analyzing whether a judgment debtor hides property. Aiming at the hidden property analysis problem, we propose a case-based reasoning method for the judgment debtor’s hidden property analysis. In the hidden property analysis process, we present the attributes of the enforcement case by crisp symbols, crisp numbers, interval numbers, and fuzzy linguistic variables and develop a hybrid similarity measure between the historical enforcement case and the target enforcement case. The results show that the recommendations obtained with the information and knowledge of similar historical cases are consistent with judicial practice, which can reduce the work pressure of law enforcement officers and improve the efficiency of handling enforcement cases.

Probabilistic Linguistic Three-Way Multi-Attibute Decision Making for Hidden Property Evaluation of Judgment Debtor

Most law enforcement cases executed by the courts in China have behaviours of evading, evading, or even violently resisting execution or passively waiting for enforcement, which seriously affects the authority of legal judgments and the judiciary’s credibility. Therefore, we develop a hidden property evaluation model based on the probabilistic linguistic three-way multiattribute decision-making (PL3W-MADM) method. Considering the advantages of probabilistic linguistic term sets (PLTSs) expressing the evaluation information and their probabilities on judgment debtor given by expert judges, we extend the three-way decision method to a probabilistic linguistic environment and develop the strict PL3W-MADM model and flexible PL3W-MADM model. Then, the PL3W-MADM models are used to construct the hidden property evaluation model of judgment debtors. Finally, the developed hidden property evaluation model can quickly and effectively classify the judgment debtors into three categories: hidden behaviour, no hidden behaviour or lack of information, and temporary inability to judge. The results show that the developed model is more suitable for hidden property evaluation than the strict PL3W-MADM model and the flexible PL3W-MADM model.

Characteristic Analysis of Judgment Debtors Based on Hesitant Fuzzy Linguistic Clustering Method

In most law enforcement cases, judgment debtors have behaviors of evading execution in China, which seriously affects the authority of legal judgments and the judiciary’s credibility. Characteristics analysis of judgment debtors plays a vital role in finding out the concealed property and improving efficiency in handling law enforcement cases. Considering the advantages of hesitant fuzzy linguistic term sets (HFLTSs) representing the judgment debtors’ attributes and keeping all the original evaluation information on judgment debtors, we develop a hesitant fuzzy linguistic agglomerative hierarchical clustering (HFL-AHC) method to cluster judgment debtors and analyze the main characteristic of judgment debtors with concealing property. In some situations, the existing HFLTS distance cannot divide the judgment debtors. Therefore, we propose some new distance measures to classify the judgment debtors. The clustering results show that the judgment debtors who hide property have a poor evaluation of trading behavior, work, credibility, and consumption behavior.

Executing a debt against residential property: The potential application of Rule 46A of the Uniform Rules of Court beyond a literal reading of “property of a judgment debtor”

Executing a debt against residential property: The potential application of Rule 46A of the Uniform Rules of Court beyond a literal reading of “property of a judgment debtor”

Hybrid TODIM Method for Law Enforcement Possibility Evaluation of Judgment Debtor

The phenomenon of the judgment debtor evading the execution of legal documents and concealing his property by improper means has become increasingly prominent in China, which seriously affects the realization of the people’s legitimate rights and interests. To protect the legitimate rights and interests of the people, it is necessary to study the law enforcement possibility evaluation of judgment debtors and quickly judge which judgment debtor is likely to complete the legal documents. A novel hybrid TODIM (an acronym in Portuguese for Interative Multi-criteria Decision Making) method for evaluating the law enforcement possibility of judgment debtors is developed. The main idea of the hybrid TODIM method is to obtain the relative possibility value of judgment debtors by comparing the attribute values between two judgment debtors and aggregating all the attributes’ differences. The result shows that the hybrid TODIM method fully considers the psychological and behavioral factors of the law enforcement officers in the evaluation process. The evaluation result is more in line with the law enforcement officers’ experience in handling execution cases. Compared with the hybrid TOPSIS (technique for order preference by similarity to ideal solution) method, the hybrid TODIM method is more suitable for solving the problem.

When considering whether to recognise and enforce a foreign money judgment, why should the domestic court accord the foreign court international jurisdiction on the basis that the judgment debtor was domiciled there? An analysis of the approach taken by courts in the Republic of South Africa

The Roman-Dutch common law of the Republic of South Africa states that a foreign judgment is not directly enforceable there. In order to have a foreign money judgment recognised and enforced, the judgment creditor must, inter alia, demonstrate that the foreign court had jurisdiction to adjudicate the matter (ie that it had “international jurisdiction”). South African courts have held that the judgment debtor’s being domiciled, at the time of commencement of the proceedings, within the territory of the foreign court confers the said international jurisdiction on that foreign court. This position has been criticised. This paper assesses the validity of that criticism.

An Analysis of the Consent Requirement of Section 84 of the Sheriff and Civil Process Act 2004 and the Judgment Enforcement Powers of Courts

One of the methods of enforcing judgments for the payment of money is by way of garnishee proceedings. By garnishee proceedings, the court is empowered to attach monies which a third party called the garnishee owes the judgment debtor in satisfaction of the judgment debt. Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity, Section 84 of the Sheriff and Civil Process Act 2004 requires that the consent of the Attorney-General of the Federation or State be obtained before such attachment may be made. This provision appears to grant the Attorney-General some discretion to determine whether certain judgments of courts may be enforced against monies in custody or control of a public officer. This Paper examines the rationale behind the consent requirement under the Sheriff and Civil Process Act vis-a-vis the judgment enforcement powers of Courts. This paper emphasizes that the consent of the Attorney-General is not a mandatory requirement for attachment of money in the custody or control of a public officer in his official capacity. The Paper concludes that all that is required is that the Attorney-General is duly notified of any such proposed attachment as the Court reserves the power to proceed with garnishee proceedings where the Attorney-General without reasonable excuse refuses and/or neglects to grant consent within a reasonable time.

National Collegiate Student Loan Trust v. Texas Student Borrower: Brief in Support of Defendant's Appeal from a Default Judgment

Under TRAP 11, a friend-of-the-court brief submitted to a Texas appellate court does not require prior consent of the parties, or leave of court, but it must be in the form of a party’s brief. See Tex. R. App. P. 11 (a) (stating that an amicus curiae brief must comply with the briefing rules for parties). Although compliance with this rule in the Courts of Appeal and in the Texas Supreme Court is shoddy (many amici submit letters), the instant brief endeavors to live up to this format rule to the fullest extent possible. The only missing ingredient are the page references to the Clerk’s Record (CR __), which were not available because the author did not have access to the appellate record prepared and paginated by the Harris County Clerk. The author instead relied on the trial court documents available online from the county clerk’s website, some of which are attached to the appellate brief in the book-marked appendix. The former student - now judgment debtor - proceeds pro se and in forma pauperis. He filed an answer in the court below, but did not participate in the trial, which resulted in the entry of a post-answer default judgment for the Trust. The student loan defendant filed a timely notice of appeal.The court of appeals struck his first attempt at a self-authored brief as non-compliant with the Texas Rules of Appellate Procedure (TRAPs), and set a deadline for an amended brief. The author of the amicus brief is a political scientist. The subject matter of the appellate case, and the evidentiary and legal issues addressed in the amicus brief, are part and parcel of one of the author’s current research interests: Litigation stemming from origination and securitization of private educational loans under the National Collegiate Student Loan Trust moniker, with a focus on cases in Texas trial and appellate courts. Also see the following related papers: Hirczy de Mino, Wolfgang, Private Student Loan Origination in Hindsight: What the Litigation Paper Trail (in PDF) and SEC Filings Can Tell Us About the National Collegiate Student Loan Trust Debacle (April 24, 2018). Available at SSRN: https://ssrn.com/abstract=3168268 or http://dx.doi.org/10.2139/ssrn.3168268 Hirczy de Mino, Wolfgang, Houston vs. Indiana in the National Collegiate Trust Liquidation End Game: H-Town Panel of Judges Gives Thumbs-Up to Affidavit of Debt Collector Transworld Systems, Inc. Rejected by Indiana Court of Appeals in Holmes v. National Collegiate as Incompetent. (May 16, 2018). Available at SSRN: https://ssrn.com/abstract=3179746 or http://dx.doi.org/10.2139/ssrn.3179746

Litigating on One's Doorstep: Access to Justice and the Question of Venue

Venue rules govern the location where legal proceedings are commenced and where applications and trials are heard. These rules can hamper litigants from participating in legal proceedings, such as when they require a litigant to travel a significant distance to take part in a hearing or trial. The expense and time required for such travel is prohibitive for some litigants.
 In this article, the author considers the extent to which the venue rules in Alberta hamper defendants from participating in three types of proceedings: mortgage default proceedings, residential eviction proceedings, and enforcement proceedings against a judgment debtor’s real property. The venue rules applicable to these proceedings raise serious access to justice issues because the defendants are commonly self-represented and are at risk of losing their homes.
 This article argues that Alberta venue rules are somewhat responsive to the plight of defendants, but they could be revised to ensure that self-represented litigants, especially those of limited means, can participate in legal proceedings regarding their homes. Changes to the substance of the rules must be matched with changes to the practices by which these rules are invoked, because these practices create additional hurdles for the defendants.

The Extraterritorial Application of Post-Judgment Discovery under the U.S. Foreign Sovereign Immunities Act

미국 외국주권면제법은 외국정부에 대한 주권면제와 주권면제의 적용배제에 대해 규정하고 있다. 주권면제는 미국법원의 관할권으로부터의 면제와 판결집행에 대한 면제가 있다. 그러나 미국 내에 있는 외국정부의 재산이 상업적 활동으로 사용된 경우, 그 재산에 대해 외국정부는 집행에 대한 주권면제를 주장할 수 없다. 2014년 Republic of Argentina v. NML Capital, Ltd. 판결에서 미국 연방대법원은 아르헨티나 정부의 채무불이행 재판에서 승소한 미국 헤지펀드가 아르헨티나 정부의 재산에 대해 집행하기 위해, 아르헨티나 정부의 미국 국내 재산은 물론 국외 재산에 대한 정보를 수집하고자 제3자 은행에게 재산정보를 제공할 것을 요청하는 하급심 법원의 개시절차 소환장을 허가하였다. 외국주권면제법의 해석과 적용에 관한 위 판결은 향후 투자자-국가 분쟁(ISD)에서 만약 외국 투자자가 외국(또는 한국) 정부에 대해 승소하고, 중재판정에 대한 승인 및 집행 판결을 미국 법원에서 결정할 경우, 외국주권면제법에 의해 외국 투자자가 외국(또는 한국) 정부의 국내외 재산에 대한 광범위하게 집행 또는 적어도 재산에 대한 정보를 요구할 수 있음을 시사하는 판결로 향후 이 판결에 대한 평가나 적용이 어떻게 진행되는지 파악하는 것이 필요하다.The United States Foreign Sovereign Immunities Act ( FSIA ) contains provisions of exceptions to jurisdictional and execution immunity of a foreign state. In Republic of Argentina v. NML Capital, Ltd., the United States Supreme Court interpreted the immunity exceptions under the FSIA broadly and even applied extraterritorially. The Court in NML did not limit power of the U.S. court to order post-judgment discovery to search for the assets around the world of the judgment debtor, Argentina. The decision in NML may significantly affect later FSIA cases to enforce the judgment of a court in the U.S. against a foreign state because this case approved the broad discovery order of the U.S. court to enforce judgment execution of judgment creditors on the property of judgment debtors, in the United States or abroad. The judgment execution on the assets abroad under the FSIA expands the scope of the Act extraterritorially. To grasp the rules on execution under the FSIA, this paper reviews the FSIA s execution immunity and its exceptions, focusing on issues related to judgment execution against a foreign state. The paper analyzes the rationale of the Court in NML to find out how the judgment execution and its exception under the FSIA had been applied. Although the NML Court discussed the questions on discovery in the post-judgment discovery proceedings, it can be a good reference to see how the execution exceptions under the FSIA to judgment execution in the future will be interpreted, especially in any recognition and enforcement judgment related to the Investor-State Disputes in the U.S. court.

A Study on the Registration System of Judgment Debtor

A Study on the Registration System of Judgment Debtor

English Worldwide Freezing Orders in Europe

A judgment creditor who obtains a freezing order in one EU Member State may seek to enforce it in another Member State. When judgment creditors seek to enforce such orders, the judgment debtors may appeal against the enforcement orders. This article examines how protective measures can be guaranteed pending such enforcement appeals under the Brussels legal regime. Relevant legal provisions and the case law of the Court of Justice are considered. There is also an examination of the recent English response to the Brussels legal regime and an argument that the judgment creditor is entitled to protective measures. Drawing support from public policy and mutual trust considerations, this article concludes that exercising judicial discretion in granting protective measures pending appeals undermines legal certainty.