State Executive Service Research Articles

Some features of performing executive proceedings during the period of the legal regime of martial state

The full-scale war in Ukraine was the cause of many social and political changes. As the research showed, the system of executive proceedings was not an exception. Since appropriate reactions to the realities of war were necessary, with the beginning of the war, the work of the state executive service (hereinafter referred to as the State Executive Service) and private contractors was effectively blocked. The reason for this was the stoppage of the automated system of executive proceedings, which made it impossible to actually carry out executive actions. Thus, it was established that changes in the mechanisms of enforcement of executive documents occurred even earlier, since the Russian Federation began to occupy our lands back in 2014, but with the beginning of a full-scale invasion, the legislation began to change and improve. Such changes also affected the ban on opening enforcement proceedings in potentially dangerous and occupied territories, which obviously violated the rights of debt collectors, and as it was established during the research, in some places such legal prohibitions became a reason for public or private enforcement officers to abuse their powers, refusing to open enforcement proceedings and returning the executive document to the debt collector without execution. In this context, the practice of the Supreme Court has become useful, which in its conclusions confirmed that regardless of the registration of the location of the debtor, the body of the state executive service must open proceedings and take measures to search for the debtor’s property throughout the territory of Ukraine, or apply restrictive measures that will force the debtor to fulfill his obligations, provided that such a debtor has entered the legal field of Ukraine. Also, from the conducted research, it can be seen that the legislative changes affected certain procedural issues and the work of private executors, however, the issue of alimony collection remained a priority and was not actually affected by the legislative changes. Even for military personnel, the duty to support their children remains a priority.

Peculiarities of the appointment of employees of the state executive service

The article examines the peculiarities of the appointment of employees of the state executive service bodies, who are empowered with state-authority and who are authorized to represent the interests of the state in the field of executive proceedings. Since the full-scale Russian invasion and the introduction of martial law fundamentally changed the situation in the country, particularly in the system of enforcement of court decisions. At the most difficult moment, ancient systemic problems fully manifested themselves. The problem of the quality and professional competence of civil service personnel, including employees of state executive service bodies, has become acute.
 Having analyzed the normative legal acts in the researched area, it was concluded that the Laws of Ukraine "On Enforcement Proceedings" and "On Bodies and Persons Carrying Out Enforcement of Court Decisions and Decisions of Other Bodies" adopted in 2016 have lost the system of norms characteristic of the previous ones normative legal acts that regulated the activities of state executive service bodies. In the current laws, the norms regulating the activities of private executors have superseded the norms regulating the activities of state executors in Ukraine to other laws and subordinate legal acts. Therefore, supporting the positions of other researchers of this issue, the activities of employees of the state executive service should receive decent legal regulation at the level of law, and taking into account the accumulation of a critical mass of legal norms regulating executive proceedings at the level of codified law – the Executive Code. Also, taking into account the appointment of persons to positions in the civil service, including bodies of the state executive service, during martial law without competitive selection, tests should be established for all persons appointed to positions in the civil service. Therefore, the provisions of Art. 35 of the Law of Ukraine "On Civil Service" should apply to all civil servants.

To the issue of the labor legal status of an employee of a state executive service body

The task of this article is to study the labor legal status of employees of the state executive service, in particular civil servants. Since the study of the legal status allows to determine all the subjective legal rights, freedoms and obligations belonging to the citizen, which determine his legal position in society, enshrined in the current legislation, as well as the system of guarantees for ensuring such rights and freedoms. It is noted that when characterizing the legal status of a civil servant of a state executive service body, it is necessary to pay attention to the organizational and legal aspect of power. In this sense, it is defined as a way to impose one's will on other subjects and direct their behavior and actions in the direction determined in accordance with legal norms. Summarizing what was stated in the article, it was concluded that the state executor is an official who is endowed with state-authority powers and is authorized to represent the interests of the state in the sphere of execution of decisions of courts and other bodies (officials). The legislator grants employees of the state executive service a special legal status, which determines the peculiarities of their legal position among other persons, and is endowed with a special legal personality, specific additional rights and obligations, and responsibility. It was concluded that a civil servant of a state executive service body as a subject of labor law is the bearer of labor law status, i.e. a set of rights, obligations, guarantees, restrictions, as well as other legally significant properties that characterize the level of possible and necessary behavior of a civil servant as an employee, reflect the benefits and privileges due to him, necessary to ensure the normal performance by him of his job functions and duties due to his position.

The system of executive process science: current issues

This scientific article is devoted to issues of the executive process science system. In particular, attention was drawn to the need to systematize information into two blocks, which concerns the organization of enforcement bodies and procedural activities of the state and private executor. Concepts and components of the system of the science of the executive process are formulated and emphasis is placed on the fact that when systematizing information about the enforcement of decisions of courts and other bodies (officials), it is essential to decide the question for whom this information should be used. In particular, for scientists in the research field, for students in the educational process, for practicing specialists and ordinary citizens who are users of enforcement services. Speaking about the system of science, the authors drew attention to the scientific works of scientists who are engaged in researching issues of executive proceedings, but noted that the approaches to this jurisdictional activity of persons authorized by the state are different, which significantly affects the educational process, the practice of enforcement of decisions, and especially legislative activity regarding the preparation of a new version of the law on bodies that carry out enforcement of decisions and the procedure of executive proceedings itself The proper systematization of information by scientists regarding executive proceedings will significantly affect the improvement of relevant legislation and the streamlining of the procedural activities of executors at various stages of executive proceedings, which will contribute to the implementation of the main task facing the enforcement bodies of the full, timely and objective execution of the decision and the restoration of violated rights subjects of civil and other relations. Various sources of information on enforcement proceedings were analyzed, in particular, the websites of the Ministry of Justice of Ukraine, bodies of the state executive service, private executors, which should also be taken into account by scientists, summarized, analyzed in order to solve those problematic situations that occur in this area of ​​jurisdictional activity and improving the state of enforcement of decisions.

The state executor - as a guarantor of the execution of a court decision that has entered into force

The article is devoted to the study of the issue of execution of court decisions by the state executor, which is relevant both in Ukraine and abroad. The authors considered and argued the main features of the powers of the state executor as a guarantor of the execution of court decisions. The article analyzes the place and role of the state executor in the system of control and supervision of administrative coercion. The issue of the legal status of the state executor is considered. An analysis of the requirements of current regulations that define the rights and responsibilities of state executors.
 The main problems that arise during the performance of public duties by the state executive are summarized. Emphasis is placed on the practice of the state executive service on the execution of court decisions that have entered into force. In addition, the activities of private performers are considered for a more in-depth analysis of the differences between the activities of public and private performers. The main differences and similarities between the activities of these performers are highlighted. The main tasks of the state executive service, state executors and private executors are generalized.
 The legal status of the state executor in Ukraine is considered, attention is paid to the legal regulation of the process of execution of a court decision. The bills, laws and other normative-legal acts regulating this sphere are characterized. A study was conducted on the basis of which executive documents are subject to enforcement of decisions by state executors and considered their features.
 The conclusion is made about the tasks and issues related to the execution of court decisions, as well as the role of the state executor in this process in comparison with the private executor. Considerable attention is paid to the study of social and legal security of citizens who became participants in enforcement proceedings.
 The issue of legal responsibility of a state executor as a civil servant of Ukraine in the field of official activity and professional activity related to the provision of public services is analyzed and researched.

FEATURES OF THE IMPLEMENTATION OF THE PRINCIPLE OF JUSTICE IN THE EXECUTION OF COURT DECISIONS

A fair court decision is the goal of justice. The meaning of justice is achieved only when the court decision is executed. Otherwise, the court decision remains only a sheet of paper. Execution of court decisions is the final stage of the court process, which has as its purpose the implementation of the court decision. That is, in the execution of a court decision, the principle of justice is implemented in practice. The state executive service is responsible for enforcing court decisions. In accordance with the Constitution of Ukraine, the state must ensure the execution of a court decision. In addition to the adoption of an act of justice, courts must exercise appropriate judicial control over its execution. The author also draws attention to the fact that in practice there is often a “formal” execution, as enforcement proceedings are closed for one reason or another, and there is no actual execution of the court decision. The European Court of Human Rights singles out another problematic issue in Ukraine – the long-term non-enforcement of national court decisions. After analyzing the work of the state executive service, the author came to the conclusion that the situation is quite complicated. Compared to European countries, the performance rate is low. Due to the legal nihilism of the citizens of Ukraine, it is quite difficult to enforce court decisions in our country. Since the execution of court decisions is a component of the right to a fair trial, the author summarizes the experience, proposals of state executors and analyzes the relevant problems. Among them there are such as low wages of employees of the state executive service, the lack of proper security for state executors in the execution of court decisions, the need to increase the staff in the state executive service. Proposes to expand the rights of state executors and take active measures to combat corruption in the courts. Inadequate cooperation of banks, police and other bodies with the state executive service is also a big problem in practice, which significantly complicates the work of state executors and slows down the execution of court decisions. Therefore, the author summarizes the proposals of state performers and sets them out in the proposed article. In connection with Ukraine’s desire to become a full member of the European Union, the need to study the experience of leading member states in order to implement it in domestic legislation is emphasized.

Current model of the state executive service in the system of public authorities of Ukraine

The relevance of the problem under study is due to the need for theoretical justification of the place of executive proceedings in the modern legal system of Ukraine and the functions of the state executive service to protect the rights of citizens and legal entities, as well as the interests of the country. The purpose of the article is to develop a modern model of administrative activity of state executive service bodies. The leading research method for this problem is modeling, which allows us to consider this problem as a focused and informed process of reforming the existing system of executive proceedings in Ukraine. The article presents the main causes of problem situations in executive proceedings and offers comprehensive ways to solve them, based on the structure of the modern state executive service, creating the theoretical foundations of executive proceedings and making specific amendments to the current legislation. The article clarifies the principles, functions and powers of the state executive service in Ukraine, as well as defines the functional features of the administrative activities of the state executive service bodies and discloses the contents of the administrative-legal status of the state executor in a mixed decision enforcement system. In Ukraine is not yet comprehensive research on state executive service in Ukraine in a mixed system of decision-making, with emphasis on the peculiarities of its reform in the present period and the formulation of the Concept. This determines the relevance of this study, its scientific and practical value

Some aspects of consideration of cases concerning decisions, actions or inaction of the body of the state executive service body, private executor in administrative proceedings

The article is devoted to some aspects of consideration of cases concerning decisions, actions or inaction of the body of the state executive service, private executor are investigated. Particular attention is paid to the delimitation of jurisdiction and the peculiarities of the procedure. The main problems related to the application of procedural law to decisions, actions or omissions of the state executive service, a private executor in administrative proceedings are highlighted. Attention is focused on the relevance of this topic in the present. The conclusions state that in case of violation of rights, freedoms and interests a person has the right to appeal to the court of first instance to appeal against decisions, actions or omissions of the state executor and other officials of the state executive service, state executive service, private executor. However, in order for the parties, other participants and persons to exercise their above-mentioned rights, the legislator should systematically approach the issue of jurisdiction of this category of disputes in view of the Supreme Court practice, as well as unify the rules of appealing decisions state executive service, private executor, so that the law was as accessible, clear and understandable as possible, including for the average citizen.

FEATURES OF ENFORCEMENT PROCEEDINGS IN UKRAINE

This scientific article reveals the features of enforcement proceedings as the final stage of the trial. It is noted that enforcement of decisions in Ukraine is entrusted to the state executive service. The main provisions of enforcement proceedings are enshrined in the Law of Ukraine "On Enforcement Proceedings" of June 2, 2016, which provides an exhaustive list of enforcement documents to be executed by the state enforcement service, sets certain requirements for execution of enforcement documents and provides a procedure for adopting enforcement documents, opening of enforcement proceedings and proper and timely execution of decisions of courts or other bodies authorized by law. It has been proved that enforcement proceedings are one of the main stages of litigation because every citizen who appeals to the court or other bodies seeks to establish violated rights and legitimate interests and only through enforcement proceedings, if the debtor is not a law-abiding citizen these rights can be enforced. It is established that the main features of enforcement proceedings are: 1) by its nature is the final stage of the trial; 2) mostly occurs exclusively on the basis of "final" judicial acts (writs of execution, court orders, court rulings, etc.) that have entered into force in law; 3) has a coercive nature of actions that occur only after the expiration of the term for independent execution of the decision by the debtor; 4) enforcement of court decisions and decisions of other bodies (officials) is entrusted to the bodies of the state executive service and in cases specified by the Law of Ukraine "On Enforcement Proceedings" – to private executors. It is investigated that the process of enforcement proceedings consists of a set of successive organizational stages and actions, which are regulated by legal norms established by the legislation of Ukraine. However, in the current legislation the stages of enforcement proceedings are not sufficiently clear, so the legal literature is not unanimous in defining and outlining their system.

The role of the European Court of Human Rights in ensuring appropriate and effective protection of a fair court in Ukraine

The article deals with the study of the practice of the European Court of human rights on liability and control over non-enforcement of court decisions in Ukraine. The study notes the importance of the issue of enforcement of court decisions that have entered into legal force. In particular, it is indicated that such an act falls under the qualification of Article 6 of the convention for the protection of human rights and fundamental freedoms – a violation of the right to a fair trial. The European Court of human rights has repeatedly noted in its decisions the seriousness and scale of this threat to Ukraine. It has been noted that the percentage of enforcement of court decisions has never exceeded 40-45%, and in some years, it has decreased to critical values of 5-10%. The purpose of the article is to analyze the practice of the ECHR on liability and control over non-enforcement of court decisions in Ukraine and provide recommendations for improving this situation. It has been concluded that in Ukraine there is a problem of a persistent recurring nature – excessive length of enforcement or non-enforcement of court decisions, which is a violation of the rights guaranteed by the ECHR to a fair trial and to respect for property. Despite the fact that the ECHR has repeatedly pointed out the execution of a court decision as part of a trial, this position of the ECHR is still not always properly taken into account in Ukraine. Enforcement of a court decision is part of states ' obligations to ensure access to justice under Article 6 of the convention for the protection of human rights and fundamental freedoms. A person who has a court decision against a state or local government body is not required to initiate additional procedures to implement this decision. Unconditional implementation of such a decision should be guaranteed by the state. In order to improve the situation in the area under study, it is advisable to review the current legis-lation that ensures the implementation of court decisions, and continue reforming the civil service. Ap-propriate actions should be carried out in cooperation between the Cabinet of Ministers of Ukraine, the Verkhovna Rada of Ukraine and other responsible executive authorities. It seems appropriate to create a government commission to improve the work of the state executive service.

Елементи адміністративно-правового статусу Державної виконавчої служби України

High-quality execution of court decisions and decisions of other bodies is one of the main priorities of the Ministry of Justice of Ukraine, as the state must not only ensure fair consideration of cases in courts and other bodies, but also guarantee fair, high-quality and fast execution of such decisions. This task is assigned to the bodies of the State Executive Service and private bailiffs.Reform of execution of court decisions in general and the bodies of the State Executive Service in particular is key one both for Ukraine and the Ministry of Justice of Ukraine. The steps already taken in the area of ​​judicial reform and are being implemented today are yielding positive results, but the reform should be continued. In future, it is necessary to ensure the protection of society by ensuring obligatory enforcement of court decisions by modernizing the service of state bailiffs and protecting private bailiffs for the execution of court decisions.Any state body must have a clear legal status in order to function effectively. The current legal status of the State Executive Service of Ukraine is determined by the Constitution of Ukraine, Laws of Ukraine “On Enforcement Proceedings” dated 02.06.2016 № 1404-VIII, “On bodies and persons carrying out enforcement decisions and decisions of other bodies” dated 02.06.2016 № 1403-VIII and other laws, as well as international treaties of Ukraine, the consent to the binding nature of which was given by the Verkhovna Rada of Ukraine and regulations adopted for their implementation.In this article, the elements of the administrative and legal status of the State Executive Service of Ukraine are considered through the prism of the components, in particular: goals, objectives, functions, competence and powers, principles of the State Executive Service of Ukraine. Key words: purpose, tasks, functions, competence, powers, interaction of the State Executive Service of Ukraine.

Institutional Provision of Protection of Property Interests of Private Law Subjects during Enforcement of Court Decisions

The necessity of determining a coordinated system of institutional support for the protection of the rights, freedoms and legally protected interests of the participants of personal non-property and property relations is substantiated. The substantiation of the national model of organization of execution of decisions of courts and other bodies as an integral part of the institutional mechanism of protection of property interests of private law was further developed. The classification of various systems of organization of execution of court decisions on various criteria is given: on a way of the organization of a profession of the executor, on a place of bodies and officials of execution, depending on whether bodies of execution are uniform structure, or there are some independent organizations, depending on bodies are empowered to enforce decisions. Based on the analysis of the existing model of organization of execution of court decisions, the need for clear definition of the status of enforcement bodies, separation of their participation from other authorized bodies (persons) that ensure the implementation of court decisions and other bodies, as well as increasing the status of state executor the subject of execution, and not the body of the state executive service. There are arguments that the Ministry of Justice of Ukraine, as a regulator, cannot act as a subject of execution at the same time, as in this way an obvious conflict of interests can be traced. It is concluded that the process of creating an effective and efficient institutional structure for the implementation of decisions of courts and other bodies is not completed, the modern mixed model of enforcement should be considered transitional with the need to develop a capable organizational structure of enforcement bodies. Keywords: enforcement of judicial decisions, organization of enforcement of a decision, enforcement proceedings, state enforcement service, state executor.

Особливості правового статусу органів державної виконавчої служби України

The article provides a thorough analysis of the essence of the concept and structure of the administrative and legal status of the state executive service in Ukraine, which is a complex and multi-stage process, as it provides for the need to highlight the functioning of the state executive service in the legal system of Ukraine. The purpose of the article is a complete study of the administrative and legal status of the state executive service in Ukraine, for which the author analyzed such legal categories as "status", "legal status", "administrative and legal status" and formulated their features. The author's definition of legal status is given as a set of normatively regulated subjective rights, legal obligations and responsibilities of the participants of the relevant legal relations, which formulate the legal status of individuals and legal entities in society. Its features are: the legal status is defined as the presence of rights and obligations only in individuals; ambiguity in the interpretation of legal status and its varieties; is determined by the presence of a legal relationship of the subject of law with other subjects, and also includes the entire range of relations (connections) of the subject of law; formulates individual features of subjects of law and reflects their actual state in the system of relevant relations in certain conditions; endowed with a universal character, covering the various statuses of legal entities, both individual and collective; determines the legal position (position) of the subject of law in the relevant relationship with other entities, which does not depend on the participation of the subject in specific legal relations.

Правове регулювання виконання покарань у виді штрафу

У статті окреслено проблеми виконання покарання у виді штрафу, розстрочки несплаченої суми штрафу чи заміни штрафу покаранням у виді громадських, виправних робіт або позбавленням волі, проаналізовано особливості притягнення до відповідальності за ухилення від покарання. Запропоновано зміни в нормативні акти з метою усунення виявлених колізій та неузгодженостей.

Організаційно-правові засади державного управління у сфері юстиції України

Розглянуто теоретичні підходи до розуміння сутності організаційно-правових засад державного управління у сфері юстиції України. Представлено авторське трактування сутності управління у сфері юстиції. Розглянуто особливі риси юстиції у контексті здійснення управлінських дій та подано їх характеристику. Обґрунтовано, що здійснення управлінських дій у сфері юстиції передбачає виконання їх органами, які уповноважені від імені держави реалізовувати відповідні функції, зважаючи на багатооб’єктність у цій галузі управління, та представлено перелік об’єктів юстиції. Розглянуто взаємозв’язок організаційного та правового аспектів у контексті державного управління у сфері юстиції. Запропоновано пріоритетні напрями розвитку української юстиції на перспективу.

Адміністративно-правовий статус державної виконавчої служби в Україні: про-блеми вдосконалення

Адміністративно-правовий статус державної виконавчої служби в Україні: про-блеми вдосконалення

Reform of enforcement system: preconditions and perspectives of development

This article deals with problems of enforcement effectiveness and searches of optimal models of enforcement proceedings developing. The author analyzes the present state of enforcement proceedings developing in Ukraine, studies the main stories of legislation in enforcement of judgments in civil justice of Ukraine, changes in the organization of the work of the state executive service bodies, introduction of foreign access and adaptation of the procedure of enforcement of judgments to European standards that affect on the interaction between judicial authorities and authorities of enforcement of judgments. The stories of the civil procedural legislation in the enforcement proceedings are considered in connection with the entry into force of anew Criminal Code of Ukraine, the Law of Ukraine On Enforcement Proceedings, On the and persons engaged in the enforcement of judgments and decisions of other bodies and other legislative documents in the framework of judicial reform. The positive assessment of the introduction of the private performers’ institution and recommendations on the effectiveness of the new legislation realization in enforcement of judgments in civil justice are given. The purpose and objectives of the study is an analysis of the application effectiveness of normative principles in enforcement proceedings; study of stories, advantages and disadvantages of the institute functioning of enforcement proceedings in Ukraine; justification of theoretical-methodological models of enforcement proceedings as a procedure of the civilization process; improvement of civil legal regulation mechanism in enforcement of judgments. The object of the study is the novations of the enforcement of judgments institute in Ukraine, their features and ways of improvement. The subject of the study is certain aspects of the mechanism of the enforcement of judgments, ensuring proper protection of the rights, freedoms and legitimate interests of the enforcement proceedings participants, stories of enforcement proceedings and their implementation in practice.

State-level management of interaction of bodies of state executive service and private bailiffs: the international experience

State-level management of interaction of bodies of state executive service and private bailiffs: the international experience

ОСОБЛИВОСТІ АДМІНІСТРАТИВНО-ПРАВОВОГО РЕГУЛЮВАННЯ ОРГАНІВ ДЕРЖАВНОЇ ВИКОНАВЧОЇ СЛУЖБИ

ОСОБЛИВОСТІ АДМІНІСТРАТИВНО-ПРАВОВОГО РЕГУЛЮВАННЯ ОРГАНІВ ДЕРЖАВНОЇ ВИКОНАВЧОЇ СЛУЖБИ

ПРОБЛЕМНІ АСПЕКТИ РЕАЛІЗАЦІЇ АДМІНІСТРАТИВНОЇ ВІДПОВІДАЛЬНОСТІ ЗА НЕСПЛАТУ АЛІМЕНТІВ НА УТРИМАННЯ ДИТИНИ

The article is devoted to the consideration of problematic aspects of the implementation of administrative responsibility for non-payment of child support, is used in the form of socially useful work. In particular, the essence of this type of administrative penalty is revealed. The study focuses on the problematic issues that arise in the implementation of the imposed administrative responsibility in the form of socially useful work. A number of problems concerning the legal application of Article 183-1 of the Code of Ukraine on Administrative Offenses (hereinafter – the Code of Administrative Offenses) and ways of their solution have been outlined. Amendments to the current legislation of Ukraine are proposed in order to improve the implementation of resolutions in cases of administrative offenses. In particular, it is proposed to monitor the workload of the staff of the territorial bodies of the State Executive Service in Ukraine and analyze their staffing standards and functional responsibilities for the preparation of materials under Article 183-1 of the Code of Administrative Offenses. In addition, it was proposed to improve the organization of the performance of socially useful work by local governments by conducting appropriate explanatory work and methodological assistance to local governments in organizing the solution of this issue. The article proposes to transfer control functions to the executive body, and to improve the duty imposed on local governments to provide socially useful work is to improve, including amendments to the labor legislation of Ukraine. It is noted that when drawing up an administrative offense or making a decision in the case, it is necessary to find out the presence or absence of circumstances that for good reasons made it impossible for the debtor to pay child support, or the existing alimony arrears for the past period. The expediency of development of methodical recommendations for local self-government bodies concerning the order of definition and performance of socially useful works is substantiated.