THE ENFORCEMENT PROCEDURE – A STAGE OF THE CIVIL PROCEDURE OR THE INDEPENDENT PROCESS?
Mindaugas Žolynas
Advokatas
Vilniaus universiteto Teisės fakulteto
Civilinės teisės ir civilinio proceso katedros doktorantas
Saulėtekio al. 9, I rūmai, LT-10222 Vilnius
Tel. (+370 5) 236 61 70
El. paštas: mindaugas.zolynas@lawin.lt
SUMMARY
According to the Code on Civil Procedure of the Republic of Lithuania, the enforcement procedure is considered as a stage of the civil procedure. This is a classic and most popular opinion with respect to enforcement procedure. However, the science of law knows more opinions with regard to the concept of the enforcement procedure.
The opinion that the enforcement procedure is a stage of the civil procedure has great number of supporters. Professor V. Mikelėnas, Professor S. Vėlyvis, Russian legal scientist M. S. Šakarian and others declare that the justice without the enforcement and factual restoration of infringed rights and interests can not exist and is not possible. This opinion is grounded by a statement that the justice can be reached only through the enforcement of respective court decision, but not just by the adoption of such court decision.
The authors, who oppose to the above described classic opinion regarding the enforcement procedure, say that the enforcement procedure is not a part of the civil procedure. According to them, the enforcement of the court decisions does not fall under the competence of the courts; the enforcement of the court decisions is a subject matter of independent branch of law – the enforcement law.
In fact, the main difference between above described opinions is the different approach to the enforcement procedure. According to the supporters of the first concept (the enforcement as the stage of civil procedure), the enforcement procedure coincides with the list of enforceable documents provided for in the Code of Civil Procedure. In opposite, the supporters of the second opinion (the enforcement as the separate branch of law) narrow the enforcement procedure down to the decisions, rulings, resolutions and orders of the court.
Furthermore, in addition to the above described opinions regarding the enforcement procedure, there could be distinguished the third one, which states that the enforcement procedure is a part of the administrative law. According to Russian scientist J. F. Farchtdinov, the supporter of this opinion, the enforcement of the court decisions is a subject matter of the activities of the bailiffs, which belong to the system of administrative institutions. However, the grounds of this opinion are closely related to the specificity of regulation of the Russian laws – in the Federation of Russia the bailiffs, who are vested with the authorities to enforce the court decisions, belong to the system of administrative (executive) institutions.