1.1. Bench warrant in the roman and medieval European law

The history of the institute injunction in civil proceedings is durable enough. He was known as the Roman law and jurisprudence of the middle Ages.

Simplified methods of resolving civil legal col-manifolds have been developed as a result of a long historical development. In ancient Rome, along with the usual civil procedural procedures used special forms of legal protection of the violated right, is a modification of the administrative and legal action. One of these forms was the interdict, in other words, consular or praetor orders by which the state power to intervene in civil matters.

Consul (Pretoria) conducted a special investigation, referred to as «causae cognitio», and if admitted, that there is any violation, order the offender to follow the imperative unconditional requirement[3].

Initially, the praetor gave the interdict after investigating the facts, and therefore interdict was an absolute and categorical order. But as the number of cases began to give praetor interdict without checking the facts, in the form of conditional orders. Thus, they began to have effect only when confirmed by the facts referred to by the applicant. Interdiction can be challenged. If the person, against whom the interdict was issued in the comfort of Pretoria, disputed the interdict and demanded appointment of a judge, this requirement is satisfied. The trial could lead to confirmation or interdict (and then he turned from a conditional order in unconditional), or to justify the defendant[4].

Medieval European law was characterized by simplified administration of justice, arising, probably due to the influence of Roman law, on the other hand, since the objective is a necessity to save time and money. К.И. Малышев said: «Already the medieval trading cities of Italy had to develop their special forms of abbreviated procedure for matters of trade, to collect on promissory notes and other indisputable documents for the arrest of debt penalties, etc. This division process in normal and reduced penetrated and then in other European countries, and in the subsequent history can be seen a constant desire to generalize the reduced form, and to accelerate the entire production. It often happened that the short form was introduced into the law as an exception, but in practice it became the rule, but on the contrary, the ordinary legal proceedings – exception»[5].

The development of capitalist relations has caused the improvement of legislation, more and more detailed development of various legal institutions. In the 19th century in the procedural law of some European countries there are institutions on the undisputed foreclosure documents similar to writ proceedings. Considering the system of court orders and remind production in the Western European legislation, К.И. Малышев singled out executive orders or unconditional (applied in the enforcement process – a writ of execution and summons of the performance) and conditional orders or reminders (served for the preparation of an order by a reminder). Issuance of these and other orders permitted by unilateral request of an applicant, without calling the defendant and without hearing his explanations. As a consequence, unconditional order could be issued only on the basis of acts that are enforceable or apply to the executive production, and conditional order, as a simple reminder to the debtor of the need to satisfy the requirements issued on all debts, regardless of the strength of the executive acts to which they are based.

A conditional order is an alternative command to the court that the defendant or performed some action, for example, paid the debt collector or, if there were any objections, said to them. If at a certain time of the dispute is not stated, the order addressed to enforcement. Conditional orders served to verify the indisputable duty and allowed to quickly restore the violated right, while avoiding the numerous stages of manufacture of claim.

In an all-German during the proceedings in the case of procrastination indisputable claimants were overcome by the use of so-called summary proceedings. «The combined processes – said I.E. Engelmann, – meet the needs of accelerating recovery that, in contrast to the usual, decision or order of payment, under penalty of causative execution, decides on the basis of the presented document without exporting and listening to a debtor who is granted only to defend themselves clear evidence of payment or proof of the spuriousness of the document». Thus, the decision could be made only on the basis of written documents, reliability is presumed[6].

In England, the procedure of Summary in a civil suit was covered by the Rules of the Supreme Court. Such production existed in the framework of claim and could be applied where the plaintiff urged the court to the fact that, firstly, the cause of action cannot be refuted by the defendant, and, secondly, the claim by the defendant cannot be challenged. Between the parties should not be any significant dispute about the actual circumstances of the case or the legal. The plaintiff presents the court a written statement which justifies his belief that the defendant cannot challenge presented demands, presents arguments proving grounds the suit and the amount of money it requires recovering, asking for the lawsuit in a simplified manner. A copy of the incoming application is sent to the defendant, who may challenge him to prove that he has to challenge himself brought by the suit.

Writ as a specific judicial action existed and exists in many countries (in Germany – Mahnverfahren, in Austria-Hungary – Mandatverfahren, Italy – Mandatum cum clausal; in England – Summons in a special form, in France – la procedure d'injonction[7]) and the essence of it in different countries interpreted differently.

The system of orders and production in the Western European remain legislation, К.И. Малышев singled out executive orders or unconditional and conditional orders or reminders. First used in the enforcement process. These included a writ of execution and summons of the performance. The latter served to remind the debtor of the debt and the recovery of the latter.

Issuance and conditional and unconditional place on a similar procedure, but an unconditional order could be issued only on the basis of acts that are enforceable or apply to the executive production, and the conditional order, as a simple reminder to the debtor to satisfy the requirements issued on all debts, regardless of executive force acts on which they are based. A conditional order was a so-called alternative court order the debtor to pay the debt collector or, if there were any objections, said to them. If at a certain time of the dispute is not stated, the order addressed to enforcement[8]. The Hungarian Justice writ is treated quite differently and is a special sanction in the event of non-defendant's first trial. This, in essence, an analogue of extrajudicial charges and is characteristic of many systems of justice in the middle Ages. As the В.И. Решетняк, a form of court adjudication exempt from the duty to expose to scrutiny the arguments of the applicant (creditor), call for evidence, examine them to make efforts to establish the actual circumstances of the case[9].

Foreign practice has developed, at least three approaches to understanding the essence of judicial orders: as an executive document (an unconditional order), as a reminder to the debtor of its obligations to the lender (conditional orders), as a sanction for failure to appear at the hearing.

Writ in the Russian civil process has features of both conditional and unconditional order. On the orders of his conditional combines a relatively simple procedure cancellation, but with the absolute – that the court order is also the executive document.

But the characterization of the injunction as soon as the dual unity reminder to the debtor's obligation and the agenda of its enforcement cannot reveal his identity. Entity may be disclosed only in case when you consider its dual nature as a court of first instance in which it is allowed on the merits, and as an executive document, on which is punishment in the manner prescribed for the execution of judgments.

1.2. Evolution of mandative process in Russia

History of development of analogues of writ of production in Russia dates back to the adoption in 1864 of the Charter of Civil Procedure. But when it comes to simplifying the process of Russian civil law in a broader sense, we should mention the earlier period – 14th and 15th century, when the desire for opportunities to simplify the process led to the emergence of so-called extrajudicial Institute of ratification. Simplification was that in the adversarial process that begins on the complaint of the plaintiff (the petition), in certain situations, the case could be resolved on the merits without a special act of the judicial process, evidence and trial. The function of such an act performed without trial diploma. Information about it is found in Pskov and Novgorod Judgment charters in 1497 and Court book 1550 and other acts of the era.

In the literature, acknowledged that extrajudicial charter was a court decision handed down without trial on the defendant's failure to appear at the hearing and stated the loss of the case by the defendant. The plaintiff claimed the right as if the court had taken place.

В.Н. Татищев comment Text Court book 1550, noted that the issue of extrajudicial consequences of ratification was that the plaintiff received a letter the defendant had «the power thereof, everywhere catch before the court and submit to «правежа» and punishment» and «beat him at ease and rob, kill not only the house and not destroy». The last statement is, in fact, expressed in an archaic form of the right to enforce the debtor, the state provides to the creditor at last granted extrajudicial literacy.

The so-called «extrajudicial accusation» and called for the Cathedral Code of 1649, the rules which determine in more detail the conditions under which could be issued without trial and indicate that the extrajudicial could be issued and the defendant fails to appear at a hearing of the plaintiff.

Condemnation without trial, executed without trial in the charters, is the first step of the Russian legislator towards the creation of special rules of procedure – and reduced cost compared with the general rules. The next step was taken in the second half of the 19th century.

The Charter of Civil Procedure (GHS) in 1864 included reduced production of indisputable rules of affairs in the manner which necessarily dealt with the matter:

– on claims made on credit products and supplies, hiring of houses, apartments and all kinds of facilities, hiring servants at all production work artisans, craftsmen, day laborers and the like;

– at the request of the performance of contracts and obligations;

– claims about giving and receiving to save money and other property;

– claims for compensation for damages, losses and «самоуправное» occupation, when they do not involve disputes over the ownership of real property;

– disputes and requests that arise during the implementation of decisions;

– disputes about the privileges;

– in actions for compensation of victims of accidents and office workers in the factories and their families;

– disputes and complaints for enforcement.

In order to be considered in short all things at all, if it is agreed by the court and have not seen this particular obstacle. By order of the rules of the reduced characteristic in common, but with few exceptions, which were limited primarily to shorten the proceedings and the obligations of the parties to immediately submit the documents on which they base their rights: the plaintiff – if the lawsuit petition, the defendant – not later than the first meeting in the case.

Reduced production order has been unsatisfactory and too difficult in practice to speed up the proceedings on the undisputed liens. Measures were taken to remedy the situation. December 29, 1889 has been published rules for the production of rural chiefs and municipal judges. Earthen chiefs and municipal judges granted the right to manufacture their powers, to pay to perform acts without judicial review.

Causative execution subject to:

– acts of the serfs and notary, the acts of the payment of money or the return of things and other movable property;

– the employment contracts of real estate, certified or committed by the same procedure.

Recovery of the causative procedures on these matters was allowed only in cases where:

– acts on which it is based, committed or witnessed by the established order;

– the performance on them was not delivered in the very act in reliance on such conditions, the occurrence of which must be proved previously by the applicant, that is, if an act is beyond question.

In 1912, the rules of the causative version were introduced in the GHS. Chapter 15 GHS «On the performance of the causative acts» was developed based on standards set forth in the Rules for the production of rural chiefs and municipal judges. Commenting on the GHS, К.П. Змирлов noted on the causative form of enforcement of acts: «A distinguishing feature of the cases, so-called undisputed penalties is that the production of them between the parties as there was no dispute, and they are conducted solely for the receipt of the order of the causative performance of an obligation by the defendant. Under such conditions, in view of simplicity and clarity of the legal relationship of the parties, subject to strict procedural forms established in order to protect the interests of the plaintiff and defendant, it is unnecessary and not only needlessly alienates period of performance, but in vain, and both the claimant's burden, as well, and bona fide defendant. From this point of view of the above categories exclude cases from the trial, with the replacement of the last direct appeal expired liabilities to the causative enforceable in all respects to be preferred. In the same example and persuade Western Europe, where it started successfully applied almost everywhere, as well as some experience and national legislation, since the implementation of the causative execution of acts of «земскими» precinct chiefs and city judges does not cause any complaints by whom»[10].

By execution of CSA causative acts was «the judge's ruling, without calling and listening to explanations of the defendant, the immediate execution of taken over the defendant in the act of commitment, time of execution of to whom has come» and subject to the execution of the CSA:

– serfs, notary and certified by the rules of a notary of the acts of the payment of money or the return of things, or other movable property, if the execution of the aforesaid obligations in these acts were not made subject to such conditions, the occurrence of which was to be pre-proved by the plaintiff;

– committed or witnessed in the same order of real estate employment contracts in relation to the obligation to clear the employer or rent property consisting of hiring due to the expiration of employment and the obligation of payment of wage money;

– protested bills;

– Acts of agreements certified under the special rules on compensation of victims of accidents due to the workers and employees, as well as their families.

The desire for simplification of the civil procedural form was characteristic of the Russian civil process after 1864 and led to the beginning of the 20th century to the emergence of legislation governing the protection of the rights detailed in a simplified form.

High level of development of the theory simplify the civil procedural form was in the works of pre-revolutionary scientists-procedure causative and effective execution of acts determined the binding of a similar institution in the first Soviet of the RSFSR Code of Civil Procedure 1923. It was first introduced the term «court order». In the explanatory memorandum to the draft Code stated: «Art. 210 of the Draft Code of Civil Procedure allow a special procedure for consideration in the form of so-called issue of writs for the simplest cases, based on fixed and not subject to appeal documents. Issuance of orders made without summoning the parties and without a public affairs individually parse the people's judge, which is sufficient to produce an authentic document». According to Art. 210 orders were used to collect the money or the requirements for the return or transfer of property-based:

– for contested bills;

– the acts for which you have the mandatory notarial certification or order the commission, subject to compliance;

– the global transactions of any kind committed by judicial order;

– agreements on the amount of content to children and spouse entered into in accordance with the Code of Civil Status;

– on pay-books on wages.

However, beginning development of the institute writ of production in the Soviet civil trial was not as successful as the development of simplified forms of judicial procedure in pre-revolutionary Russia. Following the publication in 1926 of the provisions of Notary Public number of documents on which the writs were issued, declined and later Chapter 24 «On the issue of writs for the acts» were completely excluded from the Code of Civil Procedure of the RSFSR.

The Institute was transferred to the jurisdiction of notaries, which was transformed into Institute executive inscriptions – a notarial act, aimed at giving the executive power, and debt payment documents. This institution exists to this day. The order of the executive commission of the inscriptions is regulated by the Fundamentals of Legislation on Notaries.

Soviet jurists recognized the commonality of the legal nature of the legal institutions of the writ and writ of execution, and noted that notaries in the commission of the inscriptions were guided by the executive regulations for the extradition orders set out earlier in the Code of Civil Procedure.

In the legal literature has raised the question of the causes that led to the transformation of the institute injunction.

Н.Н. Масленникова, notes that the reduction of the practical value of the injunction and its subsequent clotting contributed to «a departure procedure law of Soviet Russia from discretionary, and competition began, the shift to state court procedural activity, the desire for strict regulation of all the really important things in public circulation»[11]. В.И. Решетняк believes that this institution, «focused on the functioning mainly in a market economy», could not be used «in the Russian reality, 30s – 50s of the 20th century, with its totalitarian regimentation of all spheres of civil turnover. Because of this, he had no place in the Code of Civil Procedure in 1964, and he was unreasonably long forgotten domestic legislation»[12].

In the mid-80s. in domestic law clerk appeared analog output. Decree of the Presidium of the Supreme Soviet of the RSFSR of 20 February 1985 «On some changes in the order of recovery of maintenance for minor children»[13] in the judicial practice was introduced by the simplified production of the recovery of maintenance for minor children.

In the legal literature have been formulated following criteria to determine a simplified production of alimony:

– First, the national jurisdiction of a judge alone the next category of civil cases – alimony;

– Second, the child support collected in a simplified manner only for minor children, child support for parents, incapacitated spouse, adult children are collected in the manner of claim;

– Third, the national judge may consider an application for alimony only in the absence of dispute.

This means that if the debtor objects to the collection of alimony, or when he has recovered from the child support for other children, or manufactured holding other writs of execution, the statement of claim must be considered in order. In the absence of consent of the person obliged to pay alimony, the national judge no later than the date of receipt of the application shall notify him of the applications and invites him to a term not exceeding 10 days, if he and the applicant reside in the same town or area and in other cases – in a period not exceeding 20 days, – to indicate their consent to the collection of child support or object to a claim. Upon receiving the consent of the person obliged to pay child support or non-receipt of the due date of his objection to the national judge no later than the date of his ruling for alimony. The case is considered in the claim procedure if the debtor has objected to the recovery of maintenance[14].

The situation is completely changed with the reform of political and economic life in the country, the adoption of the 1993 Constitution and updates all legislation governing the protection of civil rights. November 30, 1995 passed a law «On Amendments and Additions to the Code of Civil Procedure of the RSFSR», supplemented the Code Chapter 11-1 «Court order», which consisted of ten articles, which provided an opportunity to simplify and expedite the consideration of cases where the creditor allegedly indisputable that is, the debtor is unlikely to have substantive objections[15].

The new Code of Civil Procedure of the Russian Federation entered into force February 1, 2003, preserved and refined in the light of the practice of debt collection mechanism is simplified, and included provisions for the injunction in Section II «Manufacturing in the court of first instance», Subpart I «Writ proceedings», the Head of 11 «The court order». Thus, the writ proceeding is now an independent kind of civil proceedings, along with the lawsuit and other industries.

1.3. Modern concept and characteristic of mandative process

For a variety of substantive requirements is quite obvious their formal incontestability, the applicant's claim is justified and documented, and there possible person cannot put up any objections on the merits. However, the need to give the executive power relations between the parties set in motion a mechanism for forced collection, because it’s obvious the debtor does not fulfill the obligation. In such cases, in order to simplify court proceedings debt collection be permitted by the order – a judicial act to protect the right, based on a documented set of legal facts. The design of the production clerk in the Civil Procedure Code of the Russian Federation is based on the idea of presumed validity requirements imposed[16].

A simplified production process of law to issue a court order (writ proceedings) is entirely due to the nature of the substantive requirements to be protected. You can define it as a specific form of protection of the rights and interests of the creditor as a person, based on undisputed documents against the party failing to fulfill obligations. In other words, the production of documentary[17].

Writ proceedings can be defined as a simplified and reduced in comparison with the lawsuit, the alternative claim, based on credible written evidence, proceedings in the court of first instance, aiming at protecting the rights and legitimate interests by ensuring the enforceability of a number of obligations and due to the legal nature of the substantive requirements specified in the law, which may be issued a writ[18].

In the literature, the production is determined by the clerks, for example, as «a simplified production process of law to issue the writ»[19]. This definition is not too full and does not give an idea of the specific characteristic features of the writ of production, distinguishing it from other types of civil proceedings.

On the one hand, the writ is similar in its essence a judicial decision, because in this and in another case, eliminated the existing dispute. After the judgment and injunction, perhaps, their enforcement. However, on the other hand, between these acts, there are serious differences. Issuance of the injunction is not preceded by consideration of the merits of the case, the judge shall issue an order based on the study of written documents. For this reason, the writ proceedings became known as «undisputed». Content of court order is also different from the content of the solution.[20]

Characteristic features of writ of production are:

1) A simplified in comparison with the lawsuit, civil proceedings in the Court of First Instance, which includes the stage of filing a creditor (recovered) application for an injunction, a court order by the judge, the debtor notice of the court order, the abolition of the writ.

2) The specific form of protection of the rights and interests of the creditor, as a person, based on written evidence with high degree of confidence, against the party failing to fulfill obligations.

3) Is used to resolve disputes in a simplified manner on the law arising from a number of relationships that develop over liabilities, or movable property. With the help of a court order cannot be recovered property.

4) Has a mechanism to ensure the enforcement of obligations, reliably supporting documents, and thus protect the rights and lawful interests of individuals. Evidentiary effect of written evidence is determined by its objective form, accessible to direct perception, as well as information that it contains, and legal expertise which is not to judge the difficulty.

5) Is due to the legal nature of the substantive requirements to be protected.

6) The prerequisites for determining the possibility of resolving the contentious relationship are the special nature of the requirements, the availability of the lender written evidence of high probative value, the agreement of the parties to the dispute in the order of writ of production.

7) The parties are the claimant (creditor) and the debtor.

8) Is characterized by lack of:

– Call of the parties and hearing their explanations;

– Legal proceedings;

– Logging proceedings.

9) The writ proceedings are an alternative of claim proceedings. The choice of production, which will be allowed to work (clerks, or claim) is the exclusive right of a person who goes to court to protect their rights.

1.4. Bench warrant as variety of court decision

The court order – order made by a single judge on an application for the recovery of sums of money, or the taking of personal property from the debtor for the well-defined requirements.

As a final court order, court order shall be made on behalf of the state as an act of individual control, which affects the specific rights and responsibilities of various stakeholders. This act gives the court rule of law as an abstract ought specific expression, thus stabilizing the relationship of the parties. In this regard, a court orders applicable requirements of legality and propriety, as to the judgment[21]. And if the validity of a court order is necessary to understand the certified convincing evidence of actual compliance with a valid reason to order the circumstances of the case[22], it is responsible for the legitimacy of the legal component of the issue. Legality is determined as follows:

When a court orders need to adhere to the rules of jurisdiction[23], that is, the magistrate, to whom jurisdiction over cases related to the imposition of the injunction, the right to decide named act of only the requirements specified in Art.122 Code of Civil Procedure of the Russian Federation, should perform remedial order granting the injunction, and it must match the details described in the article.127 Code of Civil Procedure of the Russian Federation.

The court order, as a procedural document, the content is different from the judgment. Thus, due to the specifics, it contains only the introductory and the operative part and the descriptive part of the argument, and no[24]. Guided by Art. 127 Code of Civil Procedure of the Russian Federation, the court in the introductory part shall set forth the following information: number and production date of the writ, the court name, last name, first name and patronymic of the judge, the name, place of residence or location of the creditor and the debtor.

The operative part – about the amount of money, to be recoverable, or the property to be of a claim (and its value) indicates the size of the penalty, if penalty is provided by federal law or contract, as well as the size of the penalties, if any due, as well as the amount of state tax to be collected from the debtor in favor of the claimant or the income of the relevant budget.

Special requirements apply to a court order for alimony for minor children. Besides all the above-defined data, it shows the date and place of birth of the debtor's place of work, name and date of birth of each minor child, the contents of which are awarded alimony, the amount of payments levied on a monthly basis, and their term of punishment[25]. Additional information shall be made for the effective execution of a court order bailiff.

The court order signed by a judge, official seal and certified in accordance with Art. 12 of the Federal Law «On Enforcement Proceedings» dated October 2, 2007 № 229-FZ, no need to issue a writ of execution, because he belongs to the executive documents, and for claims for alimony and the payment of employee wages court order shall take effect immediately. There is only one exception, under which the collection of state tax revenue in the state court order is supported by the writ of execution.

In case of loss of a court order the person in whose favor it was imposed, may apply to a magistrate with an application for a duplicate.

Speaking of common features of a court order to other court orders, and, in particular, with the judgment, В.И. Решетняк, notes that the court order is:

– A type of court orders;

– Act bearable special government body in which it expressed the power of judgment and expression;

– Resolution, which is due to the imposition of certain conditions, precisely defined by law;

– The act of protecting civil rights and interests protected by law;

– A procedural document[26].

But at the same time with similar features writ contains a number of fundamental differences from the judgment. These differences in the scientific literature drew attention to В.И. Решетняк:

– The solution can be decided by the court in any civil case, it can be stated authoritative judgment of the court of any claimed by the plaintiff or a defendant demand. In order to produce clerk, the court permitted a well-defined range of requirements.

– Resolved by the court the decision as a result of competition of the parties under the public hearing, during which the parties argue, designed to prove them right, to refute the arguments of the opposing party. The court order is issued without a trial without calling the debtor and the creditor in the trial, without hearing their explanations.

– The solution is based on the explanations of the parties, the evidence presented by the parties, examined during the trial. The order of the court based on the documents submitted by the applicant, reported on their arguments designed to convince the court that the cause of action cannot be refuted by the defendant and the defendant challenged the claim cannot be, as well as having a value of procedural fact of non-objection by the defendant, or to appear in court when summoned.

– The court's decision is motivated. The court must specify in its judgment the circumstances that he found, and that influenced his decision, explain the reasons why they were not taken into account other circumstances (in the event that a claim by the defendant in the reasoning part can be specified only for the recognition and acceptance of the claim by a court). The court order does not motivated by other than the court orders the person obligated to perform certain actions, it does not contain any disclosures.

– The procedure for making decisions and details are regulated by law. Resolved by the court the decision in the retiring room, secretly, for a court order of law is not so categorical.

– These institutions have different subject composition. In writ proceedings involving the plaintiff and the defendant did not, and the creditor (claimant) – a person who has requested the court and the debtor – the person with whom the lender requests a penalty. At the same time the order is based always on the requirements set forth the court only financially interested person.

– Judgment and a writ of appeal procedures differ. The decision may be appealed on the grounds in the manner provided by law. The order can also be challenged only, after which it is subject to mandatory withdrawal. That does not preclude further movement of the case, so the legislation does not provide for the possibility of its appeal[27]. The dispute is considered by the general rules of claim proceedings.

– The judgment and writ of execution of different procedures. The decision is subject to execution only after its entry into force, except as to reduce him to immediate execution. The grounds for execution of the writ are issued on the basis of the decision. The court order itself is an executive document, no other documents for its implementation is not required[28]. Of Art. 12 of the Federal Law on October 2, 2007 № 229-FZ «On Enforcement Proceedings» includes a list of orders in the execution of documents. All the executive documents can be divided into three types:

– executive documents issued by the courts;

– non-judicial enforcement documents as listed in the Federal Law «On Enforcement Proceedings»;

– non-judicial enforcement documents not mentioned in the Federal Law «On Enforcement Proceedings», but provided by other Federal laws (eg, executive notary (Article 35 Principles of Legislation on Notaries Code).

The list of documents writ of execution has a special place[29]. The executive documents issued by courts of general jurisdiction are divided into two groups:

– writs of execution issued by the courts on the basis of: they have taken judicial acts, decisions of the International Commercial Arbitration and other arbitration tribunals, decisions of foreign courts or tribunals; making interstate agencies for the protection of human rights and freedoms;

– orders.

First, the court order is the executive documents to be submitted directly to the court. But on the other executive documents submitted by the court, the order is different in that it is the decision of the Court of First Instance, shall be executed immediately. All other judicial enforcement documents submitted pursuant to other acts, either judicial decisions or decisions of various courts of arbitration, arbitration, international bodies to protect human rights and freedoms.

Secondly, the requirements for court orders differ from the requirements for other executive documents. Contents of the writ of the Russian Federation are determined by the Code of Civil Procedure, and the content of other court orders – rules of art.13 of the Federal Law «On Enforcement Proceedings».

The court order can be called only by a court order, which is a connecting link between the civil process and enforcement proceedings, as the court order, in contrast to all other legal acts shall be executed without the «intermediates» – writs of execution[30].

Thus, the essence of the court order is defined in the literature as follows. В.И. Решетняк defines the writ as «unmotivated judgment, an action taken on behalf of the state in cases prescribed by law, the person obligated certain behaviors in order to restore or protect the violated civil rights and interests protected by law, based on documents submitted by the applicant and the importance of having a procedural fact there were no objections from the debtor»[31]. М.А. Черемин defines in greater detail, emphasizing the dual nature of the injunction as a court order while an executive of the document: «The court order can be defined as an unexplained ruling of the judge of first instance rendered by the rules of writ proceedings on application of a creditor to collect money or for the recovery of personal property from the debtor, based on written evidence submitted by the lender and has the power of the executive document, on which the penalty is made in the manner prescribed for the execution of judicial decisions»[32].

1.5. Guaranty of human rights in mandative process

In fact, this simplified form of the proceedings[33], as a consequence of the legislation provides additional safeguards to protect the rights of the debtor and the creditor. As you know, the court may use any of the following potential legal structures, either on the merits of the claimed requirement to issue a writ, or to refuse adopted statement for a court order.

A creditor who has been denied a court order, does not lose the possibility of judicial protection of violated or disputed right treatment option because there is a statement of claim nature will be removed if the barriers to such treatment, although the right of it to the person concerned is not reported as an indication of proper in Art. 125 Code of Civil Procedure no. Paid state tax returns to the claimant on the basis of Art. 93 Code of Civil Procedure of the Russian Federation. The debtor may, within ten days of receipt of a copy of the writ to challenge itself is not a substantive claim of the creditor, and to submit objections to the execution of Court Act, which authorized the issue of state rights and responsibilities of individuals united by a common legal relationship. If any objections received to the magistrate, the court's own definition overrides issued a writ at the same time explaining to the claimant that his claim may be examined using a more complex procedure of limitation. Copies of the determinations on the abolition of a court order directed the parties not later than three days from the date of issuance. Skipping the debtor ten days is a kind of signal to the court on the debtor's consent to the presentation of the claim that, in turn, gives the claimant the right to enforce the court order. At the same time those involved in the case, and other persons, if their rights and interests are violated by court order, may within one year from the date of the judgment into legal force, timely direct appeal to the Court of supervisory authority. In particular, came into force supervisory writ filed a complaint in the court of the Presidium of the subject of the Russian Federation (Article 377 Code of Civil Procedure Code).

Deserves special attention to ensure court orders. The above practice is in its infancy and therefore requires further formation[34], it would be advisable to introduce in the writ proceedings of the Institute to ensure the substantive requirements of the lender because the detected cases of misconduct of the debtor, such as concealment of property as a result of forced execution of the order of the court order was made impossible. Indeed, the legislation significantly improved the production of the clerks, informing the debtor a copy of the writ of the presence of a unilateral right to claim. Meanwhile, the debtor is able to fully use the ten-day period provided for lodging an objection to it, in order to commit actions aimed at preventing the further implementation of the judgment. Due to the fullest guarantees of the rights claimant with a court order would have extended the measures set out in Art. 140 Code of Civil Procedure of the Russian Federation concerning the maintenance of the claim, and in the writ proceedings. The need for such measures is indicated in the literature[35].

The court order in accordance with Art. 122 Code of Civil Procedure of the Russian Federation issued if:

– claim is based notarized transaction;

– requirement is based on a transaction made in writing;

– claim is based on the perfect notary protest notes in default, non-acceptance and acceptance of dating;

– is requesting alimony for minor children not related to the establishment of paternity, paternity (maternity), or the need to involve other stakeholders;

– stated the requirement to collect debts from citizens for taxes, fees and other obligatory payments;

– stated requirement for the recovery of accrued but unpaid employee wages;

– authority of the Interior announced the requirement to recover costs incurred in connection with the search of the defendant or the debtor, or the child selected by the debtor by the court.

All requirements listed in Art. 122 Code of Civil Procedure of the Russian Federation, based on written material. A writ proceeding is a simplified procedure for the protection of rights based on undisputed evidence[36]. The court order shall be made without holding a hearing, without having to call the plaintiff and defendant, in connection with whom the list of requirements on which the writ shall be made, is limited.

It should be emphasized that the listing requirements of the debt recovery of money or the use of the property, as disputes on the basis of other requirements (for recognition of the transaction null and void, and the application of the consequences of its invalidity, etc.) are treated according to the rules of action proceedings.

2.1. Claim based on a notarized transaction

Notarization of the transaction is carried out by the commission on a document that meets the requirements of Art. 160 of the Civil Code, the notary certifying text (or other official having the right to perform a notarial act). Notarization of transactions required: in the cases specified in the law, as well as in the cases provided by agreement between the parties, at least according to the law for transactions of this type of this form is not required.

Notarization required by law for wills, marriage contract, annuity contract, the contract of real estate collateral (mortgage).

The practice of the courts in sentencing orders should use the experience of notary offices, offering the protection of the interests of creditors in similar cases by the commission on the bond paper executive endorsement. Based on the List of documents for which debt collection is indisputably on the basis of the inscriptions of the executive organs, performing notarial acts performed by notaries’ executive inscription on notarized transactions relating to the receipt of money, the implementation of the refund or transfer of property. This requires the lender to provide a notarized original copy of the transaction.

In many other sections of the List case of debts arising from contracts concluded in written form (credit and settlement, employment and non-residential premises, the sale, mortgage, etc.). In each case lists the documents on which the inscription is accomplished executive and debt collection.

The experience of notaries is important to make orders in the first place because of the Russian Federation Code of Civil Procedure does not contain any references to the documents that must be submitted in support of their demands in dealing with the application for a court order. It appears that similar lender must submit the original of the notarized transaction.

There is a question of the relationship between the judicial and notarial authority. Fundamentals of Russian Federation legislation on notaries establish that the transactions specified by a notary public has the right to recover sums of money or the delivery of the property from the debtor to make a label executive, is the executive instrument. Executive sign the notary for a long time seen as a means to combat unscrupulous debtor.

As the civil circulation, increasing the number of participants, complexity of the structure of banks and other market institutions, notaries began to experience difficulty in making inscriptions on executive contracts on mortgage and credit agreements other than its own special legal nature, complex formulations. The cases of violations of notary rights and legitimate interests of debtors, which led to the appeal of the executive inscriptions of the court, and entailed a trial, additional material costs and red tape. Therefore, the notarial form of protection of subjective rights in some cases was ineffective, even useless[37]. Indeed, to determine on the basis of the credit agreement and a certified statement from the recovered of the debtor's account showing the amount of debt outstanding incontestability under modern conditions, characterized by a developed structure of the banking and credit institutions, is problematic[38].

In science, there is a twofold opinion on the writ of execution. For example, some authors like В.И. Решетняк, И.И. Черных, argue that the executive inscription can be made by a notary public only if the parties at the conclusion or performance of the contract have agreed that an action against the debtor may be made on its basis and that no one shall be deprived of his possessions except, by a court decision, that is, the executive commission of the inscription and its enforcement without the consent of the debtor does not comply with constitutional provisions. A writ issued by a judge as a person exercising judicial power, is a kind of judgment, which is why the foreclosure on the property or money of the debtor is fully consistent with constitutional norms[39].

Other authors, such as В.Н. Аргунов believe that the established relationship between the judicial and notary jurisdiction where any notarial act may be appealed to the court, and the dispute which has arisen on the basis of a notarized transaction may be subject to judicial review, the executive, the inscription can be saved[40].

At this stage, the question still remains open. But maybe in the future practice of how court orders and executive endorsement will identify the need for conservation, or writ of execution, or replace it completely by court order.

The position of the RF Constitution: «No one shall be deprived of his possessions except by court order» (Part 3 of Art 35). Is the current practice, as the court shall issue a writ, and this act is a kind of court order.

2.2. Claim based on a transaction made in writing

According to Art. 161 of the Civil Code of the transaction must be committed in writing, except for transactions requiring notarization:

– transactions between the entities themselves and with citizens;

– transactions between the citizens are in excess of not less than 10 times the statutory minimum wage, and in cases stipulated by law – regardless of the amount of the transaction.

Civil Code provides that a transaction is in writing, must be made by drawing up a document expressing its contents and signed by the person or persons who commit the transaction, or a duly authorized person (st.160 Civil Code).

According to Art. 434 of the Civil Code, a written contract may be concluded by drawing up one document signed by the parties, as well as through the exchange of documents by mail, telegraph, teletype, telephone, electronic or other means of communication, which allows establishing for certain that the document comes from a party to the contract.

Law and other legal acts and the agreement of the parties may establish additional requirements that must match the shape of the transaction (the commission on the form of some form of the seal, etc.), and provide for the consequences of non-compliance.

This is the most common form of the transactions in public circulation, and even the modern way to make a deal by the acceptance of the offer and conclusive action in the event a party is not the proper execution of commitments made in the form of a document containing information about the essential terms of the agreement of the parties, which is documentary proof of the creditor claims in the writ production. In particular, in which the lender bases its claim against the debtor, and which gives a magistrate.

2.3. Claim based on a protest of a bill

Paper circulation in Russia is regulated by the Civil Code, the Federal Law «On Bills and Notes» on March 11, 1997, the Regulation on Bills and Notes from the August 7, 1937, approved by the CEC and the CPC of the USSR № 104/134.

An instrument according to Art. 143 and 815 of the Civil Code – this is a security certifying compliance with the established form and obligatory requisites, property rights, the exercise or transfer of which is possible only upon its presentation. With the passing of a bill become certified by all of them right in the aggregate. Bill – a kind of promissory note, drawn up in a strict form, which gives an indisputable right to demand payment of the amounts designated in the bill at the end of the term for which he was discharged. Bill – this is a simple and unconditional financial obligation, as an order to pay for and a commitment to pay cannot be restricted by any conditions[41].

Payment of a bill prior to the drawer drawer appeal with the requirement to accept the payment and specify the date. At full or partial payment or rejection of his dating of this fact shall be certified by a notary – a protest of a bill for non-acceptance or non-acceptance of dating. If the payer has accepted the bill, but it evades the payment, waiver of payment should also be recorded.

The protest of bills is a means of protecting the rights of subjects of legal relations bill[42]. Protest of a bill is a notarial act, officially confirming the facts with which the Bills of Exchange Act binds the occurrence of certain legal consequences, drawing up an act of protest is made and has to ensure the protection of interests of the promissory note obligation. Provided protest non-payment of a bill, the protest is not dating the acceptance and protest dishonored. There is a complete or partial denial of the acceptance. The latter means that the payer has limited the acceptance of its responsibility part of the bill amount. Refusal of acceptance may look like a direct opposition to accept the silence obligated to accept the person, the inability to find a payer in a specified place in the bill.

In an act of protest of a bill shall include: date of the protest, the notary's surname and initials, the name of the notary's office, the name of the legitimate holder of a bill, details of bills, payment term, the amount by which the bill is issued, the name of the acceptor or payer, an indication of the presentation of bills for payment (acceptance) and the non-receipt of payment (acceptance), the place of protest; number registry mark or state tax collection rate, as well as the signature and seal affixed the notary.

According to Art. 5 of the Federal Law of March 11, 1997 № 48-FZ «On Bills and Notes» for claims based on non-payment of bills in protest, non-acceptance and acceptance of dating, committed by a notary in respect of an individual, entity or individual entrepreneur shall be issued a judicial order and made pursuant to the rules stipulated by the Russian Federation Code of Civil Procedure.

Orders are issued only to dishonored bill. The application for a court order must be accompanied by an act of protest, drawn up by a notary and protested bill.

Taking an application for an injunction on the bill protested, the judge must check:

– Whether the claimed requirement based on the protest of a bill in the non-payment, non-acceptance and acceptance of dating, committed by a notary;

– Observing the requirements of the law notary in the commission of a protest of a bill.

2.4. Claim about the recovery of maintenance for minor children

Writ proceedings at the request for alimony for minor children not related to the establishment of paternity, has its prototype alimony People judge by the decree of the Presidium of the Supreme Soviet on February 20, 1985 «On some changes in the order of recovery of maintenance for minor children» according to which in the absence of a statement of the dispute for alimony for minor children, the people considered by the judge without having to bring a civil case.

The modern civil procedural law provides for two forms of judicial protection of the rights of maintenance obligations in respect of minor children. Existence of a dispute about the subjective right, communication requirements for alimony to the establishment of paternity, paternity (maternity), and the establishment of other circumstances requires consideration of the case by way of action proceedings. If there is no need to involve others in the process and the possibility to collect child support in proportion to wages of the payer, by the writ proceedings[43].

Terms of collecting child support in the form of an order (paragraph 4 of Art. 122 Code of Civil Procedure Code):

– alimony under court order may be recovered only for minor children;

– claim for alimony should not be associated with the establishment of paternity, paternity (maternity), as well as the need to involve in the process of other stakeholders.

Since the court order shall be made only if the claim for alimony for minors, it is only a minor child may be a party to the proceedings. In defense of the interests of his application for a writ is served:

– parent with whom the child is abandoned;

– trustee or guardian of the child;

– body of trusteeship and guardianship;

– the prosecutor.

Code of Civil Procedure Code does not contain instructions on what documents are necessary to make the applicant when applying for alimony in the form of an order. In this situation, you can rely on the rules of the Decree of February 20, 1985, and require the applicant to the application the following documents:

– duly certified copy of marriage certificate (a copy of the certificate of divorce if the marriage dissolved);

– duly certified copy of birth certificate of the child for whom child support collected;

– the instrument of appointment of a guardian or guardian of a minor, if the application is a guardian or trustee;

– a certificate from the employer of the person obliged to pay alimony, the amount of wages and the presence or absence of a lien on other writs;

– a certificate of finding the children dependent on the applicant. Litigation on the Application of the Decree of 20 February 1985 shows that child support under the simplified procedure may be levied on the basis of evidence of paternity.

According to the В.И. Решетняк, presented to the court documents must accurately and indisputably confirm the following facts:

– the debtor to which the recovered stated requirement is bound to contain a minor child. Such persons include his parents, adoptive parents, and in failing to obtain content from their parents – adult brothers and sisters, grandparents;

– the child for whom child support collected is a minor;

– a statement to the court to grant a writ filed with the proper person (legal representative of the child, the guardianship and custody, the prosecutor);

– place of employment and income of the person obliged to pay alimony for the child;

– the lack of interested parties, which are made in favor of keeping with the debtor[44].

According to the norms of the Family Code, child support for minor children may be levied by the court in three forms:

– on a monthly basis as a proportion of earnings and (or) any other income of the parents (Article 81);

– a fixed sum (Art. 83);

– at the same time in fractions of a fixed amount (Article 83).

The procedure for determining the amount of maintenance as a fraction of the earnings or income is the primary payer and applies in all cases, unless the court finds it necessary to make maintenance payments in hard currency. Size fractions are defined as follows: one child – one quarter, two children – one third in three or more children – half of the earnings or other income of the parents.

On the basis of a court order cannot be collected child support for minor children as a fixed sum, as the solution to this problem involves the need to verify the presence or absence of circumstances which the law associates with the possibility of such sanctions.

For the recovery of maintenance for minor children as a fixed sum in accordance with Art. 83 SC Code should take place the following circumstances: the absence of parental agreement on the payment of child support for minor children, irregular, changing earnings and (or) other income parents who receive income is fully or partly in kind or in foreign currency, or lack of income, as well as other cases if the recovery of maintenance in the share of the earnings and (or) other income of the parent is not possible, difficult or substantially violate the interests of the parties. The size of a fixed cash amount determined by the court on the basis of the maximum possible preservation of its previous level of child support, taking into account the financial and marital status of the parties and other relevant circumstances. In determining all of these circumstances, the court may face obstacles that cannot be overcome without additional material on the case without trial. This was the reason that the Plenum of the Supreme Court in the Resolution № 9 dated October 25, 1996 «On application by the courts of the Family Code in proceedings to establish paternity and collecting child support» pointed out that the maintenance for minor children as a fixed sum cannot recoverable under a court order, the judge should refuse to grant the order, and to clarify the applicant's right to sue for the same claim.

In cases where the judge is not grounds for an application for a court order (for example, if the defendant does not agree with the stated requirement, if the stated requirements for alimony to adult disabled children or other family members or other family members, if the debtor pays child support for court on other persons, or their payments are made to other executive documents), the judge refused to issue an order and explain the applicant's right to sue for the same claim (§ 11 Ruling of the Plenum of the Supreme Court on October 25, 1996).

2.5. Claim about the recovery of arrears of mandatory contributions

Code of Civil Procedure of the Russian Federation took the case on recovery of tax arrears to the writ proceedings (paragraph 6 of Article. 122)[45]. Application for issuance of a writ to recover debts from citizens for taxes, fees and other mandatory payments presented to the tax authorities. If the debtor declares an objection to the issuance of the order, the case will be treated according to the rules of claim process[46].

However, according to Art. 48 of the Tax Code in the event of default by the taxpayer – a natural person who is not a private entrepreneur in due time the obligation to pay tax authorities (customs authorities) may apply to court to collect taxes from the property, including cash balances with the Bank and cash, the taxpayer within the amounts specified in the request for payment of tax. Thus, in accordance with the Tax Code of the Russian Federation tax authorities filed a lawsuit against the debtor. The Code does not provide for filing the tax authorities the application for an injunction in connection with which this provision is not actually valid. It seems that it is necessary to make the Tax Code accordingly.

In any case, taking the statement, the judge must check the following circumstances: if the law provided for this type of payment, whether there are legitimate reasons for citizen involvement to this payment, whether the agency complied with penalties prescribed by law for public involvement for payment; taken into account by a penalty benefits if the law has the right to them.

2.6. Claim about the recovery of wages

Delayed payment of wages was the disease that undermines healthy labor relations. The reasons for this disease are many, but one of them – not the speed existed a general claim about permission essentially undisputed cases and delays in connection with the real protection of the rights of workers and employees[47].

Ability to collect the debt accrued, but unpaid wages in the order of writ of production, of course, does not allow all the problems associated with delays in salary payments. However, in cases where the forgone opportunity to claim money from the employer's real, writ proceedings because of its simplicity, more preferably, rather than a suit.

Referring to the court to grant the injunction, claimant must submit documents proving undeniably outstanding employer. These may include:

– a certificate issued by the employer and confirming that the debt to the employee, as well as indicating the size of the debt;

– a copy of the employment agreement between employer and employee;

– for employees who are paid piece rates, so the document can serve as a design book, which is kept by the employee and the administration of the enterprise is to record the payroll for the markers of change in working conditions.

According to Art. 136 of the Labor Code of the Russian Federation to the payment of wages the employer shall notify in writing to the employee about the constituent parts of the wages owed him for the new appropriate IRS, the amount of deductions made by the major, as well as the total cash sums to be paid. Issued to the employee a written notice is usually referred to as the «settlement sheet». Form approved by the employer, taking into account the views of the representative body of employees (Part 2 of Art. 136 Labor Code). That this document should have the magistrate in deciding whether to grant the injunction.

The employee is, whose rights have been violated is not payment of wages, as a rule, cannot recover from the employer's calculation of the accrued but not paid his wages (employers simply ignore such requests of the employee). Without this calculation, the appeal to the court to grant the injunction is meaningless. Indeed, in failing to provide the court payroll, issued by the employer, the employee has to ask the court to ask for help in gathering evidence. And such a request is associated with the need to have recourse to the courts in the manner of action proceedings[48].

The prosecutor of authority may recover from the debtor (in this case – the employer) «settlement sheet», confirm the amount of accrued but not paid to the employee's salary, which you can then apply to the court to grant the injunction.

Under the gross wage refers to the payment holiday, severance payments and other payments for work due to the employee. If the employer breaches of the payment of wages and other payments to the employer is obliged to pay them with interest at a rate of not less than 1/300 operating at this time of the refinancing rate of the Central Bank of the outstanding loan amount for each day of delay from the day after the due date of payment the day of actual payment, inclusive. The specific amount of compensation paid or determined by the collective labor contract. These payments must also be credited to the employee and may be recovered in the writ proceedings.

2.7. Claim about the recovery costs

Such claims may be brought against the person sought, the debtor, who is wanted by the child or whose property has been in storage. In accordance with Art. 120 CCP RF judge must issue a ruling declaring the defendant only by tracing the requirements to protect the interests of the Russian Federation, the RF subjects and municipalities, as well as for claims for alimony, compensation for harm caused injury, other health impairment, or the death of a breadwinner. At the same search performed by the budget. In other cases, the plaintiff wanted the defendant made at his expense, and further costs are recovered from the losing party.

List of requirements on which the writ is issued, is exhaustive and is not subject to broad interpretation. Despite this, the broad interpretation of the requirements of the list still has a place in the jurisprudence. Thus, М.А. Черемин mentions that there are cases where court orders were issued on an application for recovery of arrears of child benefits and the application for the recovery of severance pay, which cannot be attributed to wages.

According to М.А. Черемин, the fact that a judge is ordered according to the requirements not provided for by law «should signal the legislator and the science of civil procedural law of the need to raise the issue of additions to the list»[49].

Self М.А. Черемин offered to complete the list of requirements on which the writ shall be made to include a claim for damages in favor of the individual, if the earlier decision was made on the suit to protect the rights of an indefinite number of persons, as well as the above requirements to collect severance pay and child benefits.