Michael Galperin

Does Independent Liability Exist in Court Enforcement Proceedings?

2015. No. 2. P. 202–225 [issue contents]
In the article, the author criticizes the “divisional” approach to the classification of legal liability, demonstrates its theoretical inconsistency using the liability in the court enforcement proceeding as an example. The paper recognizes that the “divisional” approach lacks objective criteria, as well as practicalvalue for the development of legislation. Having considered the positions of the authors who usethe divisional approach, object and method of law as the criteria for classifying liability, we came to the conclusion that such positions are controversial as they are based on the subjective scientific views.Object and method of law in their traditional interpretation could not be considered individually as the basis for independent liability in particular sphere. It is essential to analyze a specific legal regime of applying sanctions based on the aims and principles of regulation. To summarize the analysis of the scientists’ positions regarding the independence of the court enforcement proceeding and enforcement liability, which mostly reflects the general discussion on the division of law, it is stated by the author that scholastic speculations often distract researchers from the current problems of liability in court enforcement proceedings. To demonstrate it, the author lists the examples of duplication of the sanctions, their transformation, which leads to the reduction of the level of legal guarantees for subjects, other problems of developing the modern and effective system of court enforcement proceedings. Instead ofthe permanent expansion of sanction with regard to the debtor, which does not bring any positive effect, it is suggested to harmonize the existing sanctions, to set up their priority and mechanism of application,which will be in consistent with principles of adequacy, justice and constitutional provisions. In the author’s opinion, today not just quantitative, but qualitative approach is required for improving legislation, regulating the court enforcement. The article is based not only on the analysis of the positions inlegal literature, but on particular examples from legislation and current court practice, analysis of the mechanisms of civil, administrative, procedural, criminal liability in the sphere of the court enforcement.
Citation: Galperin M. (2015) O «samostoyatel'noy» otvetstvennosti v ispolnitel'nom proizvodstve? [Does Independent Liability Exist in Court Enforcement Proceedings?]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 202-225 (in Russian)
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