SIGNIFICANCE OF THE DECISION THE UNDISPUTED COMPULSORY ENFORCEMENT OF OBLIGA TIONS AND THE LEGAL CONSEQUENCES THEREOF

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SIGNIFICANCE OF THE DECISION THE UNDISPUTED COMPULSORY ENFORCEMENT OF OBLIGA TIONS AND THE LEGAL CONSEQUENCES THEREOF

Journal Title: Administratīvā un kriminālā justīcija - Year 2016, Vol 4, Issue 77

Abstract

UCEO decision procedural economy value expresses in possibility to enforce it as regular judgment. It is a dispositive principle given effect to use UCEO as an alternative to claim litigation in non-contentious debt recovery cases. For finding procedural simplification tools and judgment acceleration possibilities, it is necessary to value “litigation formalities” given advantages. The potential for procedural economy possibilities mainly gives the necessity only for optimal content of legal facts to ensure administration of justice. One of those optimal legal fact constructions, which give high dynamics of litigation, is court order. In this way V.V. Jarkovs has described UCEO similar proceeding in Russia procedural law. UCEO constricts necessary fact content and creates that minimum of precondition for judgment within simplifying procedural order. Preconditions for reaching UCEO procedural economy aim requires accelerated judgment (S.400 p.1, c.1, 405 p.1, c.3 of the CPL) and judgment on enforcing set amount of money (S. 195 of the CPL) equal legal consequences in law application process. The comprehensive UCEO judgment without enforcing limitations gives base for creditor neutral dispositive choice to select claim litigation or its simplified alternative. Such choice and debtor’s rights’ defence possibility (S. 406 of CPL) brings equal dispositive principle realization values. If the UCEO decision enforcement is limited to choose CPL provided enforcement modes, the mentioned principle balance will be lost and deficient procedural economy as its result will acquire. Concept of claim permanently is related to right protection in fair trial. Rights to bring a claim together realize a person’s constitutional rights for court protection. Litigation initiate rights are not identified as person’s broken subjective rights, but a possibility to get a right to protection in procedural law determined order. This legal science conclusion is consistently valid and reflects claim meaning provided by Section 1 of the CPL. Though in legal relations when a person’s rights have been broken, there exists a possibility for a situation without dispute. A debtor does not perform obligation and does not deny it. Debt acknowledgement itself does not guaranty enforcement, and executive document is required. If contract form is appropriate, these are the cases for UCEO to realize its procedural economy capability. The development of “alternative dispute resolution” demonstrates an official view that civil litigation may actually be unnecessary where nothing but the settlement of the parties’ dispute is in question. Section 400 Paragraph One Clause 1 limitation fully intercepts UCEO aim realization and the functioning of procedural economy mechanism. Judicial practice determines necessity for the additional claim litigation to collect pledge not covered debt, do not relieve but gives extra load to court system. Each UCEO application contains possibility for additional claim litigation. Situation shows courts dictated investigation and distrust to debtor’s dispositive choice not to appeal accelerated judgment. This demonstrates dispositive principle prohibition to arise civil case based on court’s initiative negligence. Dispositive principle disturbance has made a negative influence. Additional process takes place between the same parties, on the same legal facts. This litigation that way does not follow appropriate CPL prohibitions. Moreover, additional proceeding does not help clarify the truth because this process deals with facts already clarified in UCEO judgment and in auction verify decision. Therefore, such litigation is useless. Only civil procedural possibility for fact examination within adversary principle is Section 406 of the CPL provided appeal rights’ realization. Negative consequences are caused by derogation from the principle of disposition when the debtor’s choice to waive the rights to contest the UCEO judgment is not respected as the result of legitimate restricting the adversary principle. The result of the ‘pledge obligation’ is required by the applier of the law recurrent debt recovery between the same parties, the same object and on the same grounds, which constitutes opposite to the procedural economy effect.

Authors and Affiliations

Andris Pešudovs

EP ID EP660158
DOI 10.17770/acj.v4i77.2874
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