Judicial Enforcement Research Articles

The trials of judge Garzón and the enforceability of decisions by human rights treaty bodies in Spain

ABSTRACT In 2021, the UN Human Rights Committee (HRC) held Spain responsible for violations of Articles 14(1), 14(5) and 15 (1) of the ICCPR in the Garzón v Spain case. The purposes of this article are three-fold. Firstly, it provides an analysis of the ‘Francoism’ case and the ‘Gürtel’ case, the two trials held by the Spanish Supreme Court (SSC) against Judge Garzón, which the HRC declared were ‘arbitrary and did not comply with the principles of judicial independence and impartiality’, and an assessment of their political and legal aftermaths. Secondly, it assesses the dim prospects for Spain complying with the HRC’s views on the Garzón case by providing an updated and comprehensive statistical account of Spain’s extremely low record of compliance with previous HRC’s decisions. Thirdly, it provides an analysis of the new opportunities for judicial enforceability in cases of non-compliance by Spain with the views of the HRC in the wake of the SSC’s landmark judgement on the González Carreño v. Spain case and subsequent case law. The conclusion considers the enhanced potential role of domestic courts in fostering the enforceability of decisions by quasi-adjudicatory human rights bodies both in Spain and in the light of the Spanish experience.

Sprawiedliwość w sądowym prawie egzekucyjnym. Uwagi na tle modelu decyzyjnego procesu stosowania prawa

In the study, which is of a scientific and research nature, the following thesis is adopted: Justice is served in the process of law application but it materializes only at the moment of judgment execution. The article is aimed at answering the question about the understanding of justice in judicial enforcement proceedings (the last stage of the law application process). The subject has not been deeply discussed in the theory of law and, as a result, I believe it is essential to enquire whether the execution of judgment is still an element of justice, while it is a general truth that justice has already been served in the court (court judgment). The thesis presented is corroborated by the European Court of Human Rights decisions, as well as by the Polish Supreme Court case law. Similar conclusions find justification in the European acts of law. Debt repayment is not only a Polish problem, but a problem of many European countries. Certainly, in times of economic crisis and the worldwide problems of inflation, pandemic and wartime, it is more difficult to repay debts, but those simply do not disappear and enforcement is a solution reached for in search of justice.

Means of challenging the description and evaluation of real property in administrative and judicial enforcement proceedings

The article analyses the description and valuation of real estate means of challenge in administrative and judicial enforcement proceedings. In the first mentioned proceeding, this action may be sued by an allegation against description and valuation, not by complaint against an act in enforcement proceedings. However, in enforcement proceedings concerning civil cases, this act may be appealed against with a complaint against bailiff's actions. The level of participants protection in both proceedings is similar. The author proposes legislative changes aimed at replacing the description and valuation means of challenge in administrative enforcement proceedings with a complaint against an enforcement action.

A Positive Approach to the Judicial Enforcement of Economic, Social, and Cultural Rights; Whether a Myth or Reality in Bangladesh

A Positive Approach to the Judicial Enforcement of Economic, Social, and Cultural Rights; Whether a Myth or Reality in Bangladesh

Default and Bankruptcy Resolution in China

In this article, we review the literature on the recent growth of corporate debt in China and present stylized facts on the evolution of debt composition, nonperforming loans, defaults, and bankruptcy filings. We then describe the legal and political institutions that characterize the system for restructuring and liquidating financially distressed firms, including recent reforms of China's bankruptcy law. Finally, we discuss the main challenges faced by China in the implementation of these reforms, including frictions in judicial enforcement. We also propose potential avenues for future research.

Презумпция в пользу устойчивого развития: эколого-правовой аспект

Introduction. The 2030 Agenda for Sustainable Development is aimed at minimizing modern threats to the universe, the natural environment, and man. The mobilization of financial resources, public administration, and environmental institutions for sustainable development should eliminate the consumer attitude of man toward nature and meet human needs in the context of rational use of natural resources, ensuring ecological balance for future generations. Instrumentally and meaningfully, such tasks are fixed by the principles of sustainable development, which regulate the principles, beliefs, and rules for action, predicting the provisions of sustainable development. The purpose of the study is to reveal the concept and meaning of the presumption in favor of sustainable development and the features of its implementation. Methods. The methods used in the research are analysis (allowed to determine the signs and the fundamental features of the concept of “presumption”), synthesis (used to generalize the typological features of presumptions), and the method of analogies (the identification of the meaning of “presumptions” from the study of legal relations, including examples of judicial enforcement). The comparative legal method of the study provided an analysis of the presumption in favor of sustainable development, regulated by the legislation of the United Kingdom, as well as the search for similar features in the Russian legislation. The formal legal method made it possible to identify the features and specifics of normative regulation and the implementation of presumption as a means of ensuring sustainable development. Results. Presumptions (refutable and irrefutable) as means of legal regulation and the implementation of environmental legislation represent an inference (argument, conclusion) from a specific fact in the form of a rational assumption in accordance with the principles and goals of sustainable development, through legislative consolidation or enforcement. Presumptions in favor of sustainable development are aimed at resolving socio-economic problems, problems of preserving a favorable environment, and natural resource potential in order to meet the needs of current and future generations of people; they ensure sustainable development in a three-dimensional interdependent dimension: social, economic, and environmental. The emphasizing of the “economic” component in decision-making in the field of social development is unacceptable and is not aimed at the implementation of environmental objectives that form the basis of sustainable development policy. Conclusions. The significance of the presumption in favor of sustainable development lies in the fact that sustainable development can be achieved through growth in its three-sided socioeconomic and environmental dimensions, with an emphasis on the environmental component. Another meaning of the presumption in favor of sustainable development, implemented in legal practice, is that it is not aimed at sustainable development in its traditional environmental purpose.

Международная научно-практическая конференция «Актуальные проблемы уголовно-исполнительного права и исполнения наказаний» памяти профессоров Н. А. Стручкова и М. П. Мелентьева по вопросам назначения, исполнения и досрочного освобождения от уголовных наказаний в экстремальных (чрезвычайных) условиях (тематическое заседание, посвященное проблемам регулирования обращения с осужденными военнопленными, 14 апреля 2023 года)

On April 14, 2023, on the basis of the Academy of the Federal Penitentiary Service of Russia, an international scientific and practical conference “Actual problems of penal enforcement law and execution of punishments” was held in memory of professors N. A. Struchkov and M. P. Melentyev on the appointment, execution and early release from criminal penalties in extreme (emergency) conditions (thematic session dedicated to the problems of regulation of the treatment of convicted prisoners of war). The co- organizers of this event, in addition to the Department of Penal Enforcement Law of the Academy of the Federal Penitentiary Service of Russia, were the St. Petersburg Academy of the Investigative Committee of the Russian Federation, the Institute of Judicial Enforcement Service of the University of Internal Affairs of Mongolia, as well as the Union of Criminologists and Criminologists. The conference was the first of its kind and identified areas for further improvement of theory, legislation and practice in the field of execution of punishments in extreme (emergency) conditions, including the regime of special conditions in institutions of the penal system, as well as correctional and preventive measures against convicted prisoners of war.

Firearm restrictions in domestic violence protection orders: Implementation, vetting, compliance, and enforcement

AbstractResearch SummaryWe quantified the implementation of WA state's domestic violence (DV)‐related firearm prohibitions (RCW9.41.800) by the courts and the Regional Domestic Violence Firearms Enforcement Unit (RDVFEU), a regional approach to compliance promotion. We measured implementation, vetting, compliance, and enforcement of firearm prohibitions before (2014–2016) and after (2018–2020) the RDVFEU was implemented using a 55% random sample of granted domestic violence protection orders (DVPOs) in King County, WA (n = 3543). We evaluated differences in judicial orders to surrender firearms and other dangerous weapons (OTSWs), respondent documented compliance, and respondent weapon and/or firearm relinquishment before and after implementation. Compared to DVPOs granted prior to RDVFEU implementation, granted DVPOs after RDVFEU implementation were at least 4.5 times more likely to include an OTSW. RDVFEU implementation was also associated with at least 3.4 times the odds of respondent documented compliance and at least 3.3 times the odds of respondent relinquishment of at least one firearm and/or other dangerous weapon. These findings demonstrate RDVFEU implementation was associated with benefits at each stage of the protection order process with improvements in both judicial enforcement and respondent compliance. Overall, RDVFEU implementation was associated with improvements in granted orders to surrender weapons, respondent compliance, and relinquishment.Policy ImplicationsDV‐related firearm prohibitions can be supported by interdisciplinary teams within the legal system to promote respondent compliance and enhance safety planning for DV victim–survivors.

러시아연방의 민사소송에서 보전처분과 집행에 관한 연구

The Russian Federation is a geographically neighbor country of the Republic of Korea, but it is a country with little sense of distance due to its history, culture and national system. After the collapse of the Soviet Union, Korea established diplomatic relations with the Soviet Union on September 30, 1990 due to Korea's northern policy and given that the volume of trade between Korea and Russia has been steadily increasing over the past 33 years, the volume of trade in human and material between Korea and Russia will continue to increase in the future.
 Until now, comparative legal exchanges in the legal aspect of Russia in Korea have been insignificant, so Russian law in Korea is a very unfamiliar area in comparative law studies. This paper will explain how the Russian Federation has reorganized legal system for civil litigation through system transition after the collapse of the Soviet Union.
 Today, in the Russian Federation, civil and commercial litigation are concepts of distinction rather than subsidiarity, and both have different applicable laws and exclusive jurisdiction of the courts regarding the litigation procedure. Therefore, the current litigation system for judicial disputes in the Russian Federation is divided into a civil litigation system and a commercial litigation system under a dual system (dualism), and in each area, civil litigation legal relations and commercial litigation legal relations arise according to the relevant laws governing the matters concerning the procedures for disputes to be resolved through courts. The system of provisional disposition and enforcement in civil and commercial proceedings in the Russian Federation is based on the judicial acts of the courts, and there are court decisions (Определе ние суда) and court judgments (Судебный вердикт) as types of judicial acts of the courts regarding the provisional dispositions and enforcement systems. In the case of the preservative disposition system, it is based on a court decision, and the enforcement system is based on a court order or execution judgment of the court.
 Execution in civil and commercial proceedings in the Russian Federation is classified into immediate execution (Немедленное исп олнение) and compulsory execution. In the system of compulsory execution, the institution that actually implements compulsory execution is the Judicial Execution Service, which is an administrative body separate from the courts, under the Ministry of Justice of the Russian Federation. In case of immediate execution in civil and commercial cases, it can be executed by the judicial act of the court according to the related litigation law, whereas compulsory execution is a system that is operated completely separate from the jurisdiction of the court and the litigation law. Therefore, in the remedy of rights related to compulsory execution, the judicial enforcement agency is the actual party as the collector, the person to be collected, and the implementer of the actual compulsory execution. The object of execution and all acts related to compulsory execution by the judicial enforcement agency are separated, and the former must proceed with a lawsuit for the return of unjust enrichment against the object of excessive execution through a civil or commercial lawsuit. In the case of infringement of rights infringed by the illegal compulsory execution of the judicial enforcement agency, a lawsuit for compensation for damages (state compensation) for the illegal acts of the judicial enforcement agency must be carried out through administrative litigation.

Legal regulation of the automation of judicial enforcement proceedings: International experience

The purpose of the article was to offer ways to improve the legislation regulating the field of automation of judicial enforcement proceedings, in order to guarantee the rights of the executing entities. The research methodology is based on the application of the following methods of scientific cognition: analytical, comparative, legal, hermeneutic and synthesis. Gaps in the legal regulation of automation of court enforcement proceedings in Ukraine were identified and ways to eliminate them were suggested. The authors have offered amendments to legislative acts with respect to: granting the right to the parties to enforcement proceedings to apply through the enforcement officer to the State Enterprise “National Information Systems” to further solve problems of removing obstacles to access to the Automated System of Court Enforcement Proceedings. It is concluded that, it can be stated that the automation of court enforcement proceedings is a significant achievement of the national system of court enforcement proceedings. However, in order to improve the legislation on the automation of judicial enforcement procedures and the practice of its implementation, a set of institutional reforms must be carried out.

The Institute for Exemplary Cases as a Procedural Tool to Ensure the Unity of Judicial Practice

The presented research is devoted to the theoretically and practically relevant issue of consideration of exemplary cases by the Supreme Court as a separate procedural tool for ensuring the unity of judicial practice. The purpose of the article is to develop the existing doctrinal views on the problems of functioning of the outlined institute and search for ways to improve the relevant procedures within the national procedural system. Achieving the set goal became possible thanks to the use of a complex of scientific research methods, in particular, dialectical, analysis and synthesis, structural-functional, formal-legal, formal-logical, comparative-legal, etc. Along with the analysis of the legislative categories "typical case" and "exemplary case", the features of such cases, a thorough description of the procedure for consideration of exemplary cases within the special administrative proceedings. The following stages of exemplary proceedings are distinguished as: submission of the case as exemplary; opening proceedings in a exemplary case and publication of a relevant announcement; consideration of the case and adoption of a exemplary decision; review of a exemplary decision. It is argued that the Supreme Court's decision in an exemplary case is the primary goal of ensuring predictability, consistency and uniformity of judicial enforcement in disputes of the same type. In addition, the need to distinguish between the legal opinions of the Supreme Court, formulated in the exemplary decisions and the legal opinions of the Supreme Court, formulated in the decisions on the results of cassation review of court cases, as having a different nature. Special attention is paid to the discussion of the possibility of implementing the institution of exemplary cases in other procedural orders, in particular, civil and economic proceedings. Based on the results of the research, the opinion is supported that despite the existing skepticism among scientists and the fundamental differences in the mechanism of legal regulation of public and private relations, the specificity of some types of private relations, which are characterized by mass, and disputes within the boundaries of which become the subject of judicial proceedings, allows to single out specific typological features of the relevant cases, and therefore, there is a possibility of their exemplary consideration according to the rules of civil procedure. This primarily concerns disputes in the field of consumer protection and tort disputes. In the aspect of the latter, as one of the catalysts for the introduction of the institute under study in civil proceedings, it may be necessary to address the issue of operational protection of civil rights of victims of Russian armed aggression against Ukraine.

Odmowa wszczęcia egzekucji po nowelizacji k.p.c. z 9 marca 2023 r. – zagadnienia wybrane

This article is an analysis of the institution of refusal to initiate judicial enforcement as provided for by the Act of July 4, 2019 amending the Act – Code of Civil Procedure and certain other acts (Journal of Laws, item 1469, as amended) against the background of discontinuation of enforcement proceedings, which is a typical way of terminating these proceedings without achieving their purpose. The conducted research leads the author to a critical assessment of the introduced solutions from the point of view of their technical-legislative correctness, intra-system consistency, as well as protection of the rights of the creditor pursuing vis-avis the debtor coercive satisfaction of the debt covered by the enforcement title.

Influencing Enforcement: The Application of International Law in Independent Judiciaries—The Case of the Alien Tort Statute

What explains the variation in the interpretation and enforcement of international law by domestic judges? Can independent judiciaries control the enforcement of countries’ commitments to international law? In this paper, we leverage a unique source of data—cases related to the Alien Tort Statute—to investigate how independent judges might be able to enforce international commitments to human rights without concern for whether the state (here the United States) has opted into the commitments in the first place. We show that behavioral factors in judicial decision making, and particularly those related to judicial ideological preferences, are potent predictors of judicial enforcement of international law. This implies that states with highly independent judiciaries are right to be worried about their abilities to control enforcement domestically, although we also find evidence that the U.S. government get a special degree of deference in these cases.

Automated system of court enforcement proceedings as element of information provision for compulsory enforcement of decisions

The aim of the article was to suggest ways to improve the legislation regulating the scope of operation of the automated system of judicial enforcement proceedings, in order to increase the effectiveness of enforced execution of decisions while respecting human rights. The methodology of the article was based on the application of the following methods of scientific cognition: analytical, deductive, hermeneutic, comparative and synthesis. In addition, the authors analyze the legal regulation of the operation of the automated system of execution of court judgments, as an element of information provision for the forced execution of resolutions and, at the same time, have revealed the gaps in its legal regulation and, consequently, have suggested the ways to eliminate them. It was definitely established that there was no need to amend the legislation concerning the distribution of enforcement documents among private enforcement officers within their districts of jurisdiction. In the conclusions it was offered to improve certain provisions of the Ukrainian legislation regulating the provision of information on compulsory enforcement of decisions, in particular, to give the prosecutor access to information on judicial enforcement proceedings on an equal footing with the parties.

Enforcing outsiders’ rights: seasonal agricultural workers and institutionalised exploitation in the EU

ABSTRACT Enforcement is a crucial aspect for understanding labour market hierarchies in Europe and exploitation of mobile and migrant EU workers. Whereas most literature on intra-EU mobility and enforcement has focused on posted workers, this paper sheds light on enforcement in seasonal agriculture and forestry where posted work is very uncommon yet mobile workers overrepresented. In the EU, enforcement highly depends on Member States’ capacities. Therefore, we explore how labour rights, and specifically wages, are enforced across four EU Member States with different enforcement regimes, namely Austria, Germany, Sweden and the UK. In line with existing research, we expect that enforcement will be more effective also in agriculture/forestry where it is organised mainly through industrial relations, as opposed to administrative or judicial enforcement. Nevertheless, our review of enforcement practices suggests that seasonal agricultural and forestry workers’ rights are neglected across countries, irrespective of enforcement regime. We argue that the scant efforts made to enforce these workers’ rights amounts to institutionalised exploitation of labour market outsiders and that administrative enforcement is necessary to ensure hypermobile workers’ rights. We also draw attention to the contradictory role of the EU and its simultaneous attempt to strengthen and weaken enforcement.

Implementing Rights of Nature: An EU Natureship to Address Anthropocentrism in Environmental Law

Transboundary issues – from (chemical) pollution, land-use change to unsustainable levels of exploitation – have been eroding natural sites across Europe, reducing biodiversity in the process. In light of this, this paper analyses the comprehensiveness of EU environmental law, appraising its underlying ethos in the process. Additionally, it explores whether a Natureship Framework Directive at the European Union (EU) level, which establishes legal personality for natural sites, can deliver a ‘change of course’ with respect to the anthropocentric view underpinning environmental law as a pressing thought experiment. It constructs a (fictive) law which grants natural sites substantive and procedural rights, conceptualising how such an instrument may take shape. One finding is that an EU Natureship may be a robust tool to address flaws within EU environmental law. For example, the attribution of legal personality to natural sites alongside the appointment of formal representatives can significantly relieve the burden for NGOs and the European Commission, which may suffer from limited resources when it comes to judicial enforcement of environmental norms (or, alternatively, ecological rights). Other benefits pertain to nature management, which may be less complex and more politically stable under the approach put forward in this paper. An EU Natureship, therefore, may provide a vehicle to shift EU environmental law from the anthropocentric to the ecocentric.

The role of environmental justice reform in corporate green transformation: Evidence from the establishment of China’s environmental courts

Purpose: The establishment of environmental courts in China provides a good opportunity to explores the economic effects of environmental justice reform. This paper investigates how the environmental justice reform can influence corporate green transformation from the perspective of green technology innovation and explores the potential mechanisms of how the environmental courts affect green technology innovation. The heterogeneous effects of environmental courts are also considered.Methodology: Using the establishment of environmental courts in China as a quasi-natural experiment, this paper adopts a difference-in-difference (DID) method to conduct empirical test based on data on Chinese listed A-shared firms from 2004 to 2019. Moreover, this paper use propensity score matching (PSM), tobit and negative binomial regression method to address possible estimation bias.Findings: The establishment of environmental courts significantly enhances green technology innovation among enterprises. The more effective judicial enforcement and better public awareness of the environment brought by the environmental courts will increase the cost of illegality and external supervision pressure for firms, which will lead firms to innovate in green technology. Furthermore, the positive and significant effect of environmental courts on green technology innovation is more pronounced in state-owned enterprises (SOEs) and enterprises located in regions where local protectionism is more serious or regions with more ideal environmental legal system.

Is a right to health a means to protect public health? South Africa as a model for a communitarian interpretation of the right to health for the promotion of public health

ABSTRACT The right to health has primarily been developed and understood as an individualistic right and framed in terms of healthcare services. Public health and disease prevention have become increasingly important, particularly with the increasing occurrence of novel pandemics. The ability of the traditional framing of the right to health is less helpful in contexts where one seeks to apply a human rights-based approach to public health interventions. Though it has been posited that this may be remedied through the introduction of a collective right to public health, the South African experience illustrates the potential of the existing right to health to support public health efforts. Drawing on the African concept of ‘ubuntu’, one can adopt a communitarian approach to the right to health to enforce and protect the right, even where identifying discrete rights-holders and beneficiaries is challenging. This paper further argues that this communitarian approach to the right to health can ameliorate some difficulties experienced with judicialisation of health in other jurisdictions. The South African experience of judicial enforcement of the right to healthcare is used to illustrate the potential value of utilising a communitarian approach to the development of the right to health to include public health.

Bureaucracy in the Service of Law: Holding Chinese Controlling Shareholders Accountable

Common law style fiduciary duty has existed in Chinese Company Law as a statutory matter since 2006 and, by at least one account, far longer in practice. But most of the literature has pronounced it a failure, or, at best, a slowly developing doctrine. All of this literature deals with fiduciary duty in privately-held companies, because that is where virtually all of the cases take place. Yet proposed amendments to the China Company Law double down on fiduciary duty.Company Law also provides for controlling shareholder liability, but cases are few and far between, and virtually non-existent in listed State-Owned Enterprises.How can fiduciary duty be adapted to Chinese institutions in order for it to succeed? My research finds that recent judicial enforcement of fiduciary duty is quite healthy in privately-held companies, at least in Shanghai. Although doctrinal analysis is almost non-existent, Shanghai judges know a fiduciary breach when they see one and possess the statutory means to redress it.Matters are also well when it comes to holding controlling shareholders accountable in privately-held companies. Although the controlling shareholder statute is rarely used, it is the case that virtually all of the defendants in fiduciary duty cases – directors, officers, and senior managers – are almost always shareholders in these companies, if not controlling shareholders, so the effect of liability, disgorgement, and damages is largely the same as if they had been sued as shareholders.The real problem is the virtually non-existent legal accountability of controlling shareholders in mixed ownership enterprises and especially listed SOEs. The problem is institutional. This article proposes a way to situate fiduciary enforcement within the appropriate and suitable Chinese bureaucratic tradition rather than to continue to try to force adjudicative methods where they have failed and will continue to fail because of structural, political, and cultural impediments, thus creating a uniquely Chinese way of controlling shareholder fiduciary enforcement.

Czy dłużnikom żyje się dzisiaj lepiej niż żyło im się za PRL? Uwagi na tle zmian przepisów Kodeksu postępowania cywilnego dotyczących przedmiotowych ograniczeń egzekucji

The paper aims to show what changes have taken place in the Polish civil procedure with regard to the so-called subjective limitations on judicial enforcement, and how these changes have affected the way enforcement proceedings are conducted and how they affected the passive party to the enforcement proceedings – the debtor. The paper presents the origin of the introduction of subjective limitations on judicial enforcement to the Polish civil procedure, which occurred in 1932 within the scope of the Ordinance of the President of the Republic of Poland of 27 October 1932 – the Law on Judicial Enforcement Proceedings, and then discusses the evolution of these regulations that took place during the existence of the People's Republic of Poland. In the final part of the paper the historical legal status is compared with the currently binding provisions, which made it possible to formulate conclusions allowing for an answer to the question raised in the title of the paper. The analysis takes into account the arguments of a structural nature, which made it possible to formulate a thesis that the scope of the enforcement limitations in question has significantly increased since 1932, and a certain “inflation” of the provisions in question results from the progressing development of the level of social life. Sources which made it possible to answer the question posed in the title of this article include the materials of the Codification Commission of the Second Polish Republic, commentaries to the Code of Civil Procedure of 1930, commentaries to the Code of Civil Procedure of 1964, jurisprudence of the Supreme Court and other materials such as scientific monographs or scientific articles on enforcement proceedings and the subject limitations of judicial enforcement.