Кодификация исполнительного права в России: современное состояние и перспективы развития.
Исаенкова, Оксана Владимировна
Демичев, Алексей Андреевич
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The article deals with the project of code enforcement in Russia, its criticism and the prospects of its development. The theories of law enforcement in Russian jurisprudence arc described. The opinion that the law enforcement is just the institution of civil proceedings and could not be singled out as an independent branch of law is expressed and criticized. Contrary to the opinion that the Supreme Court due to the legal practice can settle the process of enforcement and amend its legal loopholes, the authors try to prove the necessity of legal ground and suggest the way of arranging laws in a system - codification. According to the authors, the increase in the efficiency of enforcement is possible while establishing a united system of law enforcement as a separate branch of law, without leaving enforcement rules scattered throughout many different branches of law. The authors of the article criticize the opinions that suggest stiffening the responsibility for noncompliance with the decisions because of the debtor’s contradictions with the personal immunity principle in the process of enforcement, and at the same time the minimum legal security guarantees are violated by the parties of enforcement. The article indicates that in the legal acts of 1997, which regulate the bailiffs’ actions, the bailiffs’ independence was considered to be positive. The present law-making trials due to the regulation of relations in the process of enforcement arc confronted with these contradictions: on one hand. the execu¬tion of court decisions cannot be equalled only by the administration of justice, on the other hand, the execution of court decisions cannot be separated from the administration of justice, because it is considered to be its continuation. The authors emphasize the reasons for the absence of the united law-making procedure. In their opinion, the reason for the absence of the united law-making strategy in law enforcement is that different branches oflaw in Russia arc contending for the regulation of the executive documents. The attitude to the law enforcement as a part of the civil (arbitration) proceedings is described too. The idea that the legal relations of enforcement are attributed to the category of administrative legal relations has been brought out into the open recently. The seconders of administrative conception enforcement suggest developing law-making in accordance with technical rules of administrative law-making. The modern prospects of development in law-making of law enforcement should be based on the proportion of enforcement to the civil proceedings as a proportion originated from outcomes and reasons, but not as the one originated from the part and the whole. The authors draw a conclusion that the independence and particularity of law enforcement are indicated by its regulation: firstly, it is not the consequence of the obligatory civil or administrative proceedings, secondly, the common ground of its origin can be the documents received in the non-procedural way. On the analogy of standard structure, law enforcement can be considered as a particular sanction tell’ the other branches of law - civil and administrative one. If the legal rule of the civil proceedings is intended to establish the enforcement order of substantial rule, the procedural rules of enforcement distinguish between the procedural and substantial sanctions. Such an interpretation of law enforcement should be the pivot on which the first code of enforcement of Russia revolves. According to the authors, codification is the most promising and expedient way to develop the branch of law enforcement and the legislation of code enforcement will increase the efficiency of enforcement institutes.
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