Theoretical and Practical Problems of Undisputed Enforcement of Obligations Which Are Secured with a Public Pledge. Summary of the Doctoral Thesis

Abstract

This Paper studies regularities of functioning of the procedural procedure for undisputed forced enforcement of obligations provided by Chapter 50 of the Civil Procedure Law. It pays attention to the principle of procedural economy implemented by the legal institution and pre-condition for implementation of such principle - disposivity. The Paper analyses interaction between these legal principles in the procedural procedure, addressing the restricting elements of adversarial proceeding covered by the relevant chapter as well as to be found in the Civil Procedure Law in general, form of expression thereof and consequences of such restriction. The research analyses indications on violation of creditors rights, which serve as important signs of composition of legal facts in the accelerated procedural procedure and which shall be established by the applier of law in order to deliver liabilities of a debtor for undisputed enforcement. Taking into account the meaning of the accelerated proceeding as an alternative court proceeding of the claim, procedurally necessary signs of legal facts for admission of such procedure are specially highlighted. The Paper deals with the means of proof of obligations to be delivered for undisputed forced enforcement. The meaning of the form of a public mortgage as an evidence and limits of such means of proof for determination of legally important facts are substantiated. On the basis of regularities of functioning of the procedural rights for undisputed forced enforcement of obligations and understanding of concepts used by civil law on the basis of the science of law, the Paper provides an assessment of material legal consequences of the pledge right and distribution of such consequences and effect on procedural procedure. The Paper collects opinions of legal scientists on the understanding of civil law concepts pledge right and obligation, and conclusions based on such cognition are opposed to the current argumentation of the case law and science of law, according to which the concept pledge right, covered by Section 400, Paragraph one, sub-paragraph 1 of the Civil Procedure Law, is interpreted as the liability of a pledgor to be responsible in the amount of the pledge - pledge obligation. In general the Paper provides an answer to the question, whether the pledge right, in the perspective of expression of material legal consequences thereof, may serve as a ground for establishment of the creditor’s right of recovery by applying the procedural legal provisions on undisputed forced enforcement of obligations. Contradiction with the legal system in the further development of rights was established in the application of Section 400, Paragraph one, sub-paragraph 1 of the Civil Procedure Law, which has caused unreasonable conflict between objective investigation and principle of disposivity. The Paper analyses the effect of such incompliance with the abilities of the procedural legal institution for undisputed forced enforcement to implement the purpose of procedural economy covered by it. There was also an inconvenient expression of the principle of equality established in the matters of recovery of the balance of a debt after sale of the pledge, which is to be explained by unnecessary competition between the legal provisions governing the court proceedings of the claim provided under the Civil Procedure Law and undisputed forced enforcement of obligations as a result of improper application of Section 400, Paragraph one, sub-paragraph 1 of the CPL.