LEGAL STATUS OF THE PRIVATE ENFORCEMENT OFFICER AS A SUBJECT OF ENFORCEMENT PROCESS AND TRANSNATIONAL ENFORCEMENT PROCESS
Journal Title: «Приватне та публічне право» - Year 2018, Vol 1, Issue
Abstract
The article provides analysis of the legal and procedural status of private enforcement officers as the subjects of enforcement process in general and transnational enforcement process in particular. The research is mainly based on the study of relevant legal regulations governing the functions, rights and obligations of private enforcement officers, peculiarities of exercising of their powers as well as comparative analysis of such powers with powers of state enforcement officer. The article also analyses the legal studies dedicated to the status of the private enforcement officers in Ukraine, however due to the fact that the institute of the private enforcement is newly introduced in Ukrainian legal system, the legal doctrine lacks comprehensive studies of the matter. It shall be mentioned that amended legislation governing the enforcement process rather sufficiently defines the legal status of both private and state enforcement officers as well as differences of such. In general the private enforcement officers are entitled to enforce all decisions, except those which are limited to the scope of the sole competence of the state enforcement service. Legal status of the private enforcement officers might be also compared to the status of private notaries who conduct the state registration as entities of private law acting on commercial basis with special status and powers granted by the state. As the results of the research it is suggested to determine the private enforcement officer as a separate entity with a special status in the system of enforcement process, which, together with the state enforcement officer, belongs to the category of authorities and persons who perform enforcement of decisions. The rapid growth of the global markets and policies leads to the necessity of development of transnational litigation and enforcement, which shall include improvement of the regulation of the powers, rights and obligations of the entities authorized to conduct such enforcement which has a foreign element (transnational enforcement). Inappropriately, the current legislation governing enforcement of the court decisions and other acts does not regulate the transnational enforcement process, thus, related procedures remain unclear at the legislative level. The status of a private enforcement officer in transnational process is also not clearly defined. Nevertheless, careful study of the Law of Ukraine On Enforcement Proceeding allows to detect certain limitations of involvement of private enforcement officer to the transnational enforcement, such as prohibition of enforcement of the ECHR decisions and decision against Ukraine, state bodies or enterprises. Such limitations basically exclude decisions of international investment arbitration and large range of decisions of international commercial arbitration institutions from the sphere of the private enforcement. Further researches shall be focused on the issue whether it is expedient to restrict the enforcement of a number of decisions of foreign judicial or international arbitration institutions involving the state interest by private enforcement officers. Given the international element of such proceedings, it is inadmissible to delay or demonstrate insufficient quality of the enforcement, but at the same time such enforcement proceedings should be subject of supervision by the state.
Authors and Affiliations
М. М. Мальський
Keywords
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