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§ 2. Powers of court on assistance rendering at a stage Final process and their form of realisation

In the domestic remedial literature the term "assistance" in relation to final process was not applied earlier. All powers of court in civil process at a final process stage were traditionally investigated within powers of court on control and self-checking.

Nevertheless, by the legislation are provided as well other powers of court at a final stage of legal proceedings which considerably differ on a special-purpose designation from control and self-control powers of court.

Within the limits of the present scientific research it is offered to allocate earlier the powers of court not investigated in the legal literature on assistance rendering for final process stages.

Necessity of assistance of court at a final process stage arises in cases when without court participation there is inconvenient an effective execution, and also in cases when there is a necessity of realisation of the specific powers inherent in court.

Before to pass to research of powers of court on rendering of assistance and their remedial forms to final process stages, it is necessary to open the maintenance of concept "assistance" in Russian and legal science.

In S.I.Ozhegova and N.J.Shvedovoj's explanatory dictionary concept assistance is defined as «active participation in someone's affairs on purpose to facilitate, help; support in any activity» [205].

«The help - assistance to somebody in something, participation in something, bringing simplification» [206].

Thus, the term "assistance" and the term "help" are used in Russian as synonyms.

Effective international cooperation is meant the international assistance in the field of human rights [207 [208].

Function of assistance and protection function in civil law of China

4

Are used as identical.

In the criminal trial assistance assumes the legal aid directly rendered from bodies of the judicial authority, federal public authorities and their officials, with a view of protection and protection of the rights and legitimate interests of participants of criminal trial. [209]

A.N.Averyanov suggests to understand such kind of interaction at which two and more co-operating systems promote mutual preservation [210] as assistance.

In civil process at legislative level powers of court on rendering of assistance in the relation of the arbitration courts (chapter 47.1 GPK the Russian Federation, chapter 30 of agrarian and industrial complex of the Russian Federation), however legitimate concept "assistance" of the remedial legislation still not are fixed

Contains.

Thus the legislator differentiates the powers of court connected with performance by vessels of functions of assistance and control functions concerning the arbitration court, including concerning execution.

S.V.Nikoljukin, opening concept of assistance of the relation of the arbitration courts, specifies, that the named function is realised through rendering by the state vessels of the help, both to contending parties, and the international commercial arbitration [211 [212].

Plenum VS the Russian Federation also suggests to apply the term "assistance" when the court takes measures for reconciliation of the parties, and at legislative level to fix the specified term in GPK the Russian Federation in chapter 141 Conciliation procedures.

World соглашение.4

Before to pass to definition of essence of concept of assistance to final process stages, it is represented expedient

Revealing of signs of powers of court on rendering of assistance and their differences from similar powers of court at a final stage of legal proceedings.

First of all, it is necessary to notice, that realisation by court of powers on assistance rendering does not influence directly a final process course, and only allows to provide safety of procedure ispolnogo manufactures in an original form, providing its effective execution.

In spite of the fact that the court ruling which has been taken out by results of consideration of the corresponding statement, will be obligatory for all participants of final process, that is the court actually realises imperious powers, on a special-purpose designation such activity of court will not concern the control. Court activity on assistance rendering does not influence terms, does not change an order and ways of execution, and only promotes operative execution of the judicial certificate by the removal of obstacles, arising in the course of enforcement or stimulation of the debtor to timely execution of the judicial certificate. In that case such activity of court is directed on rendering assistance to the applicant in effective and timely execution of the judicial certificate by means of consideration of corresponding references, that in itself is capable to provide achievements of an ultimate goal of legal proceedings - restoration of the broken rights.

Allocation of powers of court on assistance rendering in independent group of the powers realised by court at a stage of final process, corresponds both to the purposes and legal proceedings problems as a whole, and final process in particular. Such necessity arises in connection with presence of essential differences from other powers of court traditionally allocated in the literature with reference to a stage of final process.

So, unlike the control, the court, assisting, does not carry out the control over final process, also such actions are not capable to change process of execution cardinally. Such powers of court fall outside the limits supervising activity of court. With assistance the court only creates favorable conditions for execution.

Assistance also cannot be carried and to self-control powers of court. If self-checking is always caused by presence of a miscarriage of justice in the judicial certificate, executory necessity of rendering of assistance does not depend on deficiency of the judicial certificate and arises in cases when process of execution is slowed down without absence on that of lawful basises.

Differences in the subject structure possessing the right to initiate named powers vessels are worthy also. So, unlike self-checking, with a petition about rendering of assistance to execution of the judicial certificate have the right to address: the final process parties; the judicial police officer-executor; other persons promoting execution of requirements, containing in the executive document. It is necessary to notice, that the court does not have possibility independently to initiate assistance, that directly follows from a target orientation of such powers of court.

By results of consideration of such statements by court definition is taken out.

Following basic signs for concept definition «court assistance at a final process stage» are offered:

1. Assistance is initiated exclusively under the statement of the party of final process; the judicial police officer-executor; other persons promoting execution of requirements, containing in the executive document;

2. The court has not the right to initiate assistance independently;

3. The judicial certificate (definition) taken out by court does not influence directly a final process course.

The short analysis of existing approaches to definition of concept "assistance" in various branches of law, and also revealing of the basic criteria of such powers allows to generate concept of powers of court on assistance rendering at a final process stage.

Court assistance at a final process stage - initiated on the basis of the statement of the persons participating in final process, the activity of court which is carried out for rendering assistance to the applicant in effective and timely execution of the judicial certificate.

Certainly, forms of assistance of court at a final process stage will differ from forms of assistance known in civil jurisprudence in the relation of the arbitration courts.

So, proceeding from close interpretation of articles 240.1 of agrarian and industrial complex of the Russian Federation, 427.1 GPK the Russian Federation assistance in the relation of the arbitration courts is carried out by court by means of rendering assistance in formation of structure of the arbitration court.

S.V.Nikoljukin also carries rendering assistance to such powers in reception necessary доказательств1.

Such approach to definition of classification of forms of assistance is not applicable in relation to final process. It is caused, first, by that final process represents a stage, instead of an independent kind of legal proceedings. Secondly, specificity of the legal relations developing in process

Enforcement. As final process by the nature not sostjazatelno the court, realising assistance, does not assist in gathering of proofs, and within the competence helps to restore the broken rights of the applicant.

The general analysis of the current legislation in final process sphere allows to allocate following forms of powers of court on assistance rendering at a final stage of legal proceedings: an explanation of the executive document, an explanation of the judicial certificate;

^nikoljukin S.V.decree. soch. With. 36.

Delivery of the duplicate of the court order; restoration of term for a presentation of the court order; removal of the judicial certificate about replacement of the party of final process; charge of the judicial penalty (astrenta).

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A source: Alimova Elmira Shaukatovna. the court Competence at a final process stage in civil process. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017. 2017

More on topic § 2. Powers of court on assistance rendering at a stage Final process and their form of realisation:

  1. § 1. Powers of court on self-checking realisation at a stage of final process and the form of its display
  2. Chapter 4. OTHER POWERS of COURT AT the FINAL PROCESS STAGE
  3. Chapter 2. POWERS of COURT ON REALIZATION of the DIRECT JUDICIAL REVIEW OVER FINAL PROCESS
  4. Chapter 3. POWERS of COURT ON REALIZATION of the INDIRECT JUDICIAL REVIEW OVER FINAL PROCESS
  5. Chapter 1. SUPERVISING ACTIVITY of COURT AT the FINAL PROCESS STAGE
  6. § 2. An order and forms of realisation of the direct control at a final process stage
  7. Alimov Elmira Shaukatovna. the court Competence at a final process stage in civil process. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017, 2017
  8. § 1. Concept of the judicial review at a final process stage
  9. § 1. The characteristic of legal relations at the direct judicial The control at a final process stage
  10. § 2. Judicial review kinds at a final process stage
  11. § 1. The characteristic of legal relations at the indirect judicial review at a final process stage
  12. Chapter 2. Realisation of powers of court during manufacture of judicial actions of investigatory character
  13. Chapter 2. Powers of the public prosecutor on realisation of kontrolno-supervising activity during preliminary investigation in the form of inquiry
  14. 2. Rendering assistance to citizens at inconvenient or force majeure.
  15. Removal of the judicial certificate about replacement of the party of final process
  16. stay, renewal and the final process termination
  17. § 6.5. Final process