Vykdymo procesas: asmenų teisių ir pareigų balansas : monografija

This book is dedicated to enforcement proceedings which are the fundamental part of legal defence. It is also an integral part of the right to a fair trial. Without effective enforcement mechanisms the modern legal system would be illusionary and the rule of law would not be ensured. Since the self-defence of civil rights is strictly limited in the modern society, the state has the duty to establish mechanisms of enforcement which provide effective legal remedies and a fair balance of interests of the participants in these proceedings. The analysis of enforcement proceedings in this book begins with the assessment of the role of enforcement proceedings in the legal system. There are a couple of theories of enforcement proceedings. One theory says that enforcement is an independent legal system, another claims that it is a part of civil proceedings. Also, there a third theory which suggests that enforcement is a part of public law. Though all theories have certain arguments, the authors of this book argue that enforcement in Lithuania is a part of civil proceedings and could be reasonably regarded as “the last stage of civil proceedings”. The also authors focus on the analysis of sources of enforcement proceedings. The authors aim to provide a systematic analysis of enforcement proceedings and legal questions (areas) which are directly related to them, such as insolvency proceedings, the principle of res judicata, certain provisional measures and the problems of the application of the European Convention of Human Rights (Convention) in enforcement proceedings. The authors analyse the impact of commencement of insolvency proceedings of natural persons and enterprises on enforcement proceedings against the debtor and the interplay between these systems. The principle of res judicata is a fundamental aspects of enforcement proceedings since as a general rule only the final court judgment is subject to enforcement proceedings. However, the authors have found certain occasions when the principle of res judicata is limited in enforcement proceedings. The application of the Convention is also particularly important for ensurance of the lawfulness of enforcement proceedings. The authors discuss how the right to a fair trial, 415 right to a private life and right to property are ensured in enforcement proceedings. The systematic analysis of enforcement proceedings in this book in based on the procedural assessment, meaning that the authors analyse enforcement proceedings from beginning to the end of enforcement actions. In enforcement proceedings the fair balance between the rights and duties of its participants should be ensured. The leading position of enforcement proceedings in the modern legal system is based on the search for the balance of these interests. The authors analyse how this balance of interests should be ensured and the most effective way of enforcement should be provided. The rights and duties of participants of enforcement proceedings are assessed. The most significant participant of enforcement proceedings is a bailiff who is responsible for enforcement of enforceable instruments. The role, appointment, liability of a bailiff is analysed in this book. Also, the rights and obligations of participants of enforcement proceedings, other interested parties are assed. A great attention is paid to the actual enforcement actions. The areas of enforcement proceedings which often raises various questions in the judicial practice are claims against deeds of property foreclosure, realisation of debtors’ assets in the auction, property attachment, valuation of attached property. All these aspects of enforcement proceedings and the relevant case law are analysed in this book. Furthermore, the authors focus on the legal remedies in enforcement proceedings. There are few legal remedies in the enforcement proceedings in Lithuania. All the legal remedies form a systematic mechanism of protection of the rights of persons participating in enforcement proceedings. The most common mechanism of protection of rights is lodging an appeal against bailiff’s actions. There is a pre-trial dispute settlement procedure of disputes arising from the enforcement actions which require first to submit a claim to the bailiff and only in case a bailiff fails to satisfy the claim, it can be lodged to the court. The peculiarities of such dispute settlement mechanisms are assessed.