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§ 1.4.2. A parity of concepts "recognition" and "execution" of a foreign judgement.

Along with concept "recognition" of normative acts the term "execution" is used. In the Russian legislation the given concepts are used in various combinations.

So, the Russian Federation and item 241 of agrarian and industrial complex of the Russian Federation speak item 409 GPK about «a recognition and execution» and about «a recognition and a carrying out» foreign judgements.

In turn in item 8 of Kiev agreement [211 [212] [213] [214], item 11 FZ «About final process» and other documents it is underlined execution of foreign judgements. At last, in item 44 of the Contract on legal aid of the Russian Federation-Albania it is mentioned «a feasibility recognition» foreign judgements on civil and family-marriage affairs. In connection with absence of uniformity in use of terms "recognition" and "execution" of a foreign judgement further we will consider the problem on their parity during the various historical periods.

With reference to action of foreign judgements outside of the removal state in the pre-revolutionary doctrine the term "execution" [«execution was mainly used

Foreign judgements »]. However, it is necessary to consider, that the given term was understood by pre-revolutionary authors specifically enough. So, considering a question on phase-out on business by the Russian court in the presence of a foreign judgement (an armour. exceptio rei judicatae), T.M.Jablochkov specified, that in this case it is a question of its execution. [« But it is impossible, that the legislator thought of theoretical distinction auctoritas rei judicatae and decision enforcement. On the contrary, more plausibly, that, speaking about "execution", he in general meant all jurid. Judgement consequences, without distinction of this or that effect »- T.M.Jablochkov].

Let's underline, that in the Russian doctrine of XIX centuries the concept "execution" also was used in relation to the foreign judgements defining the status of the person. Thereupon we will refer to Magazine of the Ministry of Justice № 5 from 1908 in which it was noticed, that the foreign judgements defining the status Russian or the foreign subjects are executed by entering of corresponding record into registers of certificates of registration, and also by delivery

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Certificates on their basis.

Whether one of few exceptions of the considered approach to a parity of concepts "recognition" and "execution" of foreign judgements is B.E.Nolde's work «the bill can be transferred on inscriptions, about collecting on which the decision of foreign court» has taken place. So, the considered author affirmed, that the decision of German court on invalidity of the bill comes under to a recognition in Russian empire, instead of to execution. In a substantiation of the given approach it was specified, that the given judgement owing to the nature does not demand fulfilment of executive actions (i.e. actions on compulsion of the respondent to discharge of duty). From this in turn followed, that the given category of foreign judgements is not covered by the instruction of item 1273 UGS according to which execution of a foreign judgement was supposed only in the presence of the international treaty with the state of its removal. [215 [216]

Initially, in the Soviet doctrine the approach according to which the concept "execution" covers all properties of a foreign judgement which it generates in the state of a site of the debtor also has been supported.

Thereupon we will refer to S.B.Krylov's comment to § 16 Consular contracts between the USSR and Germany from October, 12th, 1925 according to which decisions of vessels concerning personal estate inheritance should to admit mutually the agreeing states. With reference to the given position of the Consular contract by the considered author affirmed, that the concept "recognition" of a foreign judgement should

To be considered in a broad sense, i.e. to include its "execution" [217 [218] [219].

Let's underline, that in the Soviet literature the question on the maintenance of concepts "recognition" and "execution" of foreign judgements and their parity has been in details considered for the first time by L.A.Luntsem. In the textbook «International private law» (1949) it is underlined, that the recognition of a foreign judgement consists in its investment with the same properties which decisions of national vessels possess. [«To recognise a foreign judgement - means to recognise, that it serves as acknowledgement of the civil rights and duties in the same sense, as well as decisions of own vessels» - L.A.Lunts].

Being based on the given definition, L.A.Lunts has spent the following classification of foreign judgements: 1) coming under only to a recognition; 2) coming under to a recognition and compulsory исполнению218. Primenitelno to the second category of foreign judgements of L.A.Luntsem affirmed, that the recognition of a foreign judgement acts as the precondition (a necessary condition) its subsequent enforcement. Most likely, the given thesis has been borrowed M.Volf who also believed, that «enforcement cannot take place without its recognition, but [foreign judicial] the decision can be recognised subjecting to its enforcement» [Confirming to the given thesis we will notice, that L.A.Lunts represented itself as the editor of transfer of work M.Volf in the USSR].

According to L.A.Luntsa, "recognition" of a foreign judgement consists in investment with its property of exclusiveness (in L.A.Luntsa's work - exceptio rei judicatae) [with reference to the decisions demanding enforcement]. As an example of a recognition of a foreign judgement the author resulted a situation when manufacture on business stops national court for the reason that the foreign court had been took earlier out the judgement of nonsuit on similar делу220 («the Affirmative answer would mean, that the British court should recognise a foreign judgement» - L.A.Lunts).

In the third edition of considered work of L.A.Luntsa (together with N.I.Maryshevoj) also it is underlined, that the recognition of foreign judgements includes investment with a binding force of foreign judgements and the administrative acts defining the status of the person [220 [221] [222]

221

(I.e. about missing, special disability, etc.). At

It discriminating feature of a recognition of foreign judgements consisted that it did not demand the special permission from Soviet суда222. [The Recognition of the foreign certificate does not demand any decision or the order from the Soviet court or the Soviet executive organ...].

Let's notice, that unlike a recognition enforcement of a foreign judgement, according to L.A.Luntsa, could take place exclusively owing to the special permission of national court. From the given statement followed, that the recognition of a foreign judgement acts «as the precondition (a necessary condition) it

Enforcement, but for the last [i.e. executions] are usually established additionals, over what are necessary for a recognition »[with reference to the foreign judgements demanding enforcement].

Let's notice, that the thesis stated above about interrelation between a recognition of a foreign judgement and its enforcement is represented to us not quite correct. It is obvious, that under the term «the additionals necessary for enforcement of a foreign judgement», L.A.Lunts meant reception of the permission to enforcement of a foreign judgement from a national court according to the Decree of Presidium VS of the USSR from 12.09.1958. As for a recognition [223 [224] [225] [226] foreign judgements of the similar permission it was not required, it could not act as condition precedent in any way (an armour. conditio sine qua non) without which enforcement foreign is impossible

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Judgement.

pocherknem also, that L.A.Luntsa's sights at the recognition and execution nature and a parity of the given concepts have undergone certain evolution. So, in the first edition of considered work (1949) it is underlined, that the foreign judgement gets a binding force in that degree in what the legislation of the state of a site of the debtor supposes it признание116. In turn in the third edition of the given work (1976) (together with N.I.Maryshevoj) it is underlined, that the foreign judgement gets a binding force in that degree in what the legislation of the state of a site of the debtor supposes a recognition or execution of foreign judgements [227 [228] [229].

Stated above allows to draw a conclusion that the concept "recognition" of a foreign judgement was used by L.A.Luntsem in various values. So, in the first edition of considered work (1949) concept the recognition was used for a designation of a consensus of the state by that foreign judicial is capable to generate decisions in the same legal effects, as the decision of national court (in the given aspect the concept "recognition" included concept "enforcement" of a foreign judgement) [230]. In turn in the third edition (1976) The concept "recognition" was used for a designation of the consent of the state with investment of the foreign judgements demanding enforcement, property of exclusiveness (an armour. exceptio rei judicatae), and also with investment with a binding force of foreign judgements on the status of the physical person, not demanding enforcement [231 [232] [233] (i.e. in the given aspect the concept "recognition" of a foreign judgement was contrasted it

Л1Л

To "execution").

In turn D.D.Averin characterises "recognition" of a foreign judgement as the juridical act in which force the state recognises property of compulsion behind the foreign decision, sufficient for its execution. At the same time the specified author identifies «execution of judgement with voluntary following by the debtor to court orders (« execution by behaviour »- on D.D.Averin's expression). Being based on the given thesis, D.D.Averin comes to conclusion that the recognition of a foreign judgement does not find the expression in the remedial form (i.e. in this case it is not required the special permission from the Soviet court).

In turn enforcement of a foreign judgement, under D.D.Averin's statement, can take place only owing to prior permission from a national court. Thereby, the considered author characterises a recognition of a foreign judgement as the juridical act of the [Soviet] court, in which force the lawful

Force of a foreign judgement extends on territory

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The given state.

In our opinion, D.D Averin also mixes "recognition" of a foreign judgement as a consensus of the state with action of a foreign judgement and the form of expression of the given consent (i.e. a recognition without the further manufacture).

At last, P.N.Yevseyev specified, that «the recognition and execution» foreign judgements consists in a recognition behind them those qualities which decisions of national vessels possess. Thereupon the considered author noticed, that the recognition of a foreign judgement is shown in various forms: 1) in case of need its enforcement; 2) in a case when on a foreign judgement refer confirming to the certain [subjective] right; 3) when on the basis of a foreign judgement it is necessary to bring record in the official register. Stated above gives the basis to believe, that the concept "recognition" of a foreign judgement was used by P.N.Yevseyev in wide value of the given term - for a designation of the relation of the law and order to a foreign judgement (i.e. in the same value, as in L.A.Luntsa's work of 1949) . In the given aspect the concept "recognition" of a foreign judgement covered itself its enforcement.

pocherknem, that in a modern Russian science the thesis that the recognition of a foreign judgement acts as the precondition (condition precedent) of its enforcement as a whole has prevailed. In particular, R.V.Zajtsevym affirms, that the recognition of a foreign judgement represents a necessary condition [234 [235]

For its subsequent enforcement. Similarly, in L.P.Anufrievoj's work it is noticed, that «the recognition of a foreign judgement is the necessary precondition of its enforcement». At the same time, according to L.P.Anufrievoj, "recognition" and "execution" of a foreign judgement are represented by two parties of the same medal, however is distinct raznjashchiesja.

In connection with stated above, we will address to positions of the operating Russian legislation for the answer to a question on a parity of concepts "recognition" and "execution" of a foreign judgement.

So, it agree ch. 5 items 13 GPK the Russian Federation a recognition and execution of foreign judgements [on civil and to family proceedings] are defined by international treaties with participation of the Russian Federation, and also positions of the given Code. It thus agree ch. 1 items 409 GPK the Russian Federation decisions of foreign vessels admit and executed, under a condition if it is provided by the international treaty of the Russian Federation. In the event that the foreign judgement, does not demand enforcement owing to the maintenance it comes under to a recognition as item 413-415 GPK the Russian Federation («a recognition without the further manufacture»).

With reference to item 409-412 GPK the Russian Federation we will notice, that the concept "recognition" of a foreign judgement is used in them all the unique time (ch. 1 items 409 GPK the Russian Federation). So, according to item 411 GPK the Russian Federation vzyskatel addresses with the petition for enforcement of a foreign judgement in the republic Supreme Court (similar court of the given level of the judiciary of the Russian Federation). In item 412 GPK the Russian Federation is established the list of the bases to refusal in enforcement of a foreign judgement. By results of consideration of the given [236 [237] petitions definition about enforcement or about refusal in enforcement of a foreign judgement is taken out. Stated above, in our opinion, testifies that for a recognition of a foreign judgement [demanding enforcement] is not required removal of definition from the Russian court [238 [239] [240].

Confirming to the given thesis we will refer to item 406 GPK the Russian Federation according to which the Russian court should give up in acceptance of the statement of claim or cease manufacture on business if the foreign court had been earlier passed earlier the decision under the identical claim in the presence of the international treaty with the awarding judgement state. We will underline, that in this case international treaty presence acts as that only stipulation with which investment of the foreign judgement demanding enforcement communicates, property of exclusiveness. We will notice, that the similar approach of the Russian legislator coincides with definition of "recognition" of the foreign judgement offered by L.A.Luntsem. [Whether «Can B result objections about already taken place decision (exceptio rei judicatae). The affirmative answer would mean, that the British court should recognise a foreign judgement»]. Thereupon we believe, that in the item 406 GPK the Russian Federation is a question of a recognition of the foreign judgement demanding enforcement.

Let's in passing notice, that current edition ch. 1 item 406 GPK the Russian Federation possesses a number of essential lacks. So, from its close interpretation follows, that in the presence of the international treaty the Russian court is obliged to cease manufacture on business in the presence of the international treaty in spite of the fact that the foreign judgement can be enacted with remedial infringements (i.e. to mismatch item 412 GPK the Russian Federation). As an example we will refer to a situation when the foreign court does not inform the Russian claimant therefore the judgement on non-suit is enacted. From close interpretation of item 412 GPK the Russian Federation follows, that the Russian claimant has not the right to refer that the foreign judgement mismatches recognition conditions (item 412 GPK the Russian Federation) as the similar basis is not provided by current edition of item 406 GPK the Russian Federation. Being based on the above-stated, we believe expedient to formulate ch. 1 items 406 GPK the Russian Federation in such a manner that trial in the Russian court comes under to the termination in the event that the foreign court had been passed the decision on dispute between the same parties, about the same subject and on the same bases, coming under to a recognition or execution in the Russian Federation. [The similar formulation is used now in ch. 2 items 406 GPK the Russian Federation with reference to a situation when in the foreign state litigation] has been earlier initiated.

Let's underline, that current edition ch. 1 item 406 GPK the Russian Federation also conflicts to a mode of a recognition of the foreign judgements defining the status of the person which come under to a recognition in the Russian Federation in absence of the international treaty. So, in judiciary practice [241] cases when the Russian court took place, being based on absence of the international treaty (item 406 GPK the Russian Federation), refused to cease manufacture on business in spite of the fact that the foreign judgement came under to a recognition owing to item 415 GPK the Russian Federation. As an example we will refer to Appeal definition of the Moscow city court from 18.09.2012 on business № 11 22322/12 by which the decision of Tagansky regional court of of Moscow [242] has been left without change. Within the limits of the given case the declarant has addressed with the rescissory action of marriage and about definition of a residence of children. As the phase-out basis on business the respondent has referred that marriage between it and the declarant has been terminated earlier the French court. In spite of the fact that in a judgement the reference to item 160 SK the Russian Federation is resulted (a divorce recognition in the foreign state), the court has specified, that according to item 406 GPK the Russian Federation phase-out on business is supposed only in the presence of the international treaty. In a kind of absence of the international treaty about a mutual recognition and execution of judgements between the Russian Federation and France in phase-out on business it has been given up.

A little the question on a parity of a recognition and execution of foreign judgements in agrarian and industrial complex of the Russian Federation is differently settled. So, according to item 241 of agrarian and industrial complex of the Russian Federation foreign judgements come under to a recognition and a carrying out in the Russian Federation in the presence of the international treaty and the federal act. In our opinion, term use «a recognition and a carrying out» in item 241-245 of agrarian and industrial complex of the Russian Federation is caused by that considered instructions of the remedial legislation cover action of foreign arbitration (arbitration) decisions in the Russian Federation. Thereupon we believe, that the Russian legislator had been borrowed the formulation from the New York Convention of 1958 «About a recognition and execution of foreign arbitral awards» (It is concluded in New York in 1958

). [It is represented, that in this case the Russian legislator

Aspired to avoid the contradiction between the text of the Convention and positions of the Russian remedial legislation].

Let's underline, that up to recent time an order of a recognition of foreign judgements on the economic affairs, not demanding owing to the maintenance of enforcement, directly has not been settled by norms of agrarian and industrial complex of the Russian Federation. The given circumstance has given the basis to identify "recognition" with procedure of research of a foreign judgement about observance by foreign court of the requirements provided by item 241 and item 244 of agrarian and industrial complex of the Russian Federation. In this case the concept "recognition" of a foreign judgement (item 241 of agrarian and industrial complex of the Russian Federation) was contrasted with concept «a recognition without the further manufacture», used in item 10 of the Decree of Presidium VS of the USSR from 21.06.1988 N 9131 XI. In turn application of item 10 of the Decree of Presidium VS of the USSR from

21.06.1988 N 9131-XI to foreign judgements on economic disputes it was proved referring to the Federal act about introduction in action of agrarian and industrial complex of the Russian Federation according to which the given Decree came under to application in a part which are not contradicting agrarian and industrial complex of the Russian Federation [243 [244] [245] [246].

In our opinion, application of the Decree of Presidium VS of the USSR from

21.06.1988 N 9131-XI to foreign judgements on economic affairs it was impossible to consider justified when the recognition of a corresponding category of foreign judgements was not covered by the corresponding international treaty. Thereupon it is necessary to consider, that according to item 1 of the Decree the recognition of foreign judgements without the further manufacture was carried out in the cases provided by the international treaty or the Soviet legislation. However the unique Soviet law in which force the recognition of foreign judgements was supposed, the Code of Laws on Marriage and Family of 1969 At the same time was we will underline, that now discussion about applicability of the considered Decree to a recognition of foreign judgements on economic disputes has lost the urgency in connection with introduction in action of item 245.1 of agrarian and industrial complex of the Russian Federation which has completely replaced with itself positions of item 10 of the Decree of Presidium VS of the USSR from

21.06.1988 N 9131-XI [247 [248].

In connection with stated above there is a question on, whether the foreign judgement which is coming under to enforcement is capable, to generate any legal effects in legal system of the Russian Federation for lack of definition of the Russian court which has been taken out as item 242-245 of agrarian and industrial complex of the Russian Federation?

Thereupon we will notice, that according to item 150 of agrarian and industrial complex of the Russian Federation the Russian court ceases manufacture on business if on dispute between the same persons, about the same subject and on the same bases the competent foreign court it had been took out the foreign judgement which has entered validity («the judicial certificate») unless in its recognition and a carrying out it has been given up. Thus according to item 252 of agrarian and industrial complex of the Russian Federation, manufacture on business should be ceased, if there is a decision which has entered validity of foreign court on dispute between the same persons, about the same subject and on the same bases, under a condition if business is not carried to the exclusive competence of the Russian court or it [the foreign judgement] does not come under to a recognition and a carrying out agrees item 244 of agrarian and industrial complex of the Russian Federation.

With reference to item 252 of agrarian and industrial complex of the Russian Federation in the doctrine it is noticed, that considered remedial consequences of a foreign judgement (i.e. property of exclusiveness) come for lack of definition of the Russian court about a recognition and execution of a foreign judgement. In a substantiation of the given point of view of N.I.Marysheva refers to the formulation «comes under to a recognition and a carrying out» from which follows, that in this case it is enough, that the foreign judgement answered the general terms of a recognition established by item 242 of agrarian and industrial complex of the Russian Federation.

Agreeing with the point of view stated above, we will notice, that the similar approach to interpretation of item 252 of agrarian and industrial complex of the Russian Federation will be adjusted with the nature of "recognition" of a foreign judgement. In this case once again we will refer to L.A.Luntsa by whom "recognition" of the foreign judgement demanding enforcement was noticed, that, consists in investment with its property of exclusiveness (an armour. “exceptio rei judicatae”). Considering, that a foreign judgement on

To economic business it is allocated with property of exclusiveness in absence of definition of the Russian court which has been taken out as item 242-245 of agrarian and industrial complex of the Russian Federation, we believe necessary and expedient to exclude the term "recognition" from positions of item 242-245 of agrarian and industrial complex of the Russian Federation. In the specified positions of agrarian and industrial complex of the Russian Federation the term «the statement (petition) for execution» a foreign judgement on economic business should be used, [249 [250] as it will better be adjusted with doktrinalnym the approach to a parity of concepts "recognition" and "execution" of foreign judgements, and also will allow to eliminate terminological contradictions between item 411412 GPK the Russian Federation and item 242-245 of agrarian and industrial complex of the Russian Federation. In turn in item 409 GPK the Russian Federation and item 241 of agrarian and industrial complex of the Russian Federation we believe expedient to use the term «a recognition or execution» foreign judgements.

As an additional argument in support of offered legislative changes we will notice, that the thesis about absence prichinnosledstvennoj communications between a recognition of a foreign judgement and its enforcement as a whole is supported in the foreign doctrine. So, Greek scientist K.Kerameusom notices, that in the majority of modern legal systems the thesis about fundamental distinction between "recognition" of a foreign judgement and its "enforcement" 149 is supported. In opinion

The considered author, essence of a recognition of a foreign judgement consists in investment with its property of exclusiveness (English “res judicata effect of foreign judgment"). In turn "enforcement" consists in circulation claims to property of the debtor or to its compulsion to discharge of duty. The point of view stated above is divided by the Polish authors S.Frankovskim and A.Bodnarem in which opinion the recognition and execution of foreign judgements represent independent and mutually exclusive concepts.

The thesis about absence of a relationship of cause and effect between a recognition and a foreign judgement and its enforcement proves to be true by the analysis of the remedial legislation of the foreign states (including nadnatsionalnye certificates European [251] [252] the union). So, according to item 36-37 of Regulations of EU 1215/12 from December, 12th, 2012 Bruxelles-Ibis251 the recognition of a foreign judgement consists in the right of the person to refer to it during proceeding (English “a party who wishes to invoke in a Member State a judgment given in another Member State” - Art. 37 (1) Regulation (EU) No 1215/2012). In turn "enforcement" of a foreign judgement consists in fulfilment of executive actions on its basis (item 45-46 of Regulations of EU 1215/12 from December, 12th, 2012) 252.

The similar approach to a parity of concepts "recognition" and "execution" of a foreign judgement also contains in the remedial legislation of Greece (it is quoted according to transfer of the Greek language into English) 253. So, according to item 780 of the Civil code of practice of Greece the recognition of a foreign judgement consists in it inkorporirovanii in the Greek law and order and it is carried out without the further manufacture. In turn execution of a foreign judgement is carried out only on the basis ekzekvatury from the Greek court.

One of few exceptions of the considered approach to a parity of concepts "recognition" and "execution" of foreign judgements are served by the Law of Czechia № 91/2012 from January, 25th, 2012 «About the international private law» 254. So, it agree ch. 1 item 16 of the Law a recognition of the foreign judgement which has been taken out on property affairs [253 [254] [255] [256] (the literal citation), does not demand the special decision from the Czech court. It thus agree ch. 3 items 16 of the Law on the basis of the decision of the foreign court corresponding to conditions of a recognition, can be admitted its enforcement. It is obvious, that in this case conditions of a recognition of a foreign judgement simultaneously represent itself as conditions of its enforcement. However the conclusion that the recognition of a foreign judgement somehow anticipates its enforcement from this cannot follow or acts as condition precedent without which the last cannot take place.

Generalising stated above (taking into account section 1.4.1 positions. Dissertations), we brief, that the concept "recognition" of a foreign judgement is used in two values. In the "wide" value it characterises the general relation of the state to an admissibility of investment of a foreign judgement qualities of the certificate of realisation of justice (properties of validity of a judgement). Differently, it is possible to speak about that, it is supposed or the recognition ("assimilation") of foreign judgements (just as the recognition [non-recognition] rights [257] [258] takes place, foreign diplomas, the divorces made abroad and other phenomena foreign rights) is not supposed by the certain law and order. In the given aspect the concept "recognition" covers (includes) concept "enforcement" of foreign judgements ».

In "narrow" (especially remedial) value the concept "recognition" characterises itself investment of a foreign judgement with property of exclusiveness and in the given aspect it is contrasted enforcement as the recognition does not demand the special permission from a national court.

In end of the present section we will consider the problem on, whether gets a foreign judgement pre-judicial force as a result of the recognition. Thereupon we will notice, that according to item 69 of agrarian and industrial complex of the Russian Federation (item 61 GPK the Russian Federation), the party is released from proving and, thereby, has not the right to challenge the circumstances established, entered validity: 1) the award on dispute between the same persons; 2) the decree of the general jurisdiction concerning the circumstances concerning persons, participating in business; 3) the court sentence on criminal case, of, whether makes by the certain person corresponding actions.

As it is easy for noticing, the foreign judgement is not mentioned among the bases releasing the party from proving of corresponding actual facts. At the same time the Russian judicial-arbitration practice recognises that a recognition of a foreign judgement consists in its full equating with the decision of the Russian court (i.e. in investment with its same properties of validity which decisions of the Russian vessels possess) (Decision FAS [259]

The Moscow district from 24.06.2010 N КГ-А40/5328-10 on business N А40-24334/10-25-170) [260].

Thereupon the Russian courts repeatedly specified, that the actual facts established by foreign court, do not come under to repeated proving if the foreign judgement comes under to a recognition in the Russian Federation. Confirming to the given thesis we will refer to the Decision of Presidium YOU the Russian Federation from 15.10.2013 N 8094/13 in which it was offered to subordinate instances to consider an argument that the agreement on cancellation of the contract of the mortgage of property in territory of the Russian Federation has been nullified on the basis of the decision of the Kazakhstan court [261]. Earlier the thesis about presence at foreign judgements of pre-judicial force has been formulated in the Decision the EXPERT of the Central district by whom certificates of courts below have been cancelled because they had been ignored a conclusion about falsification of the power of attorney on the contract signing, containing in the decision of Shevchenkovsky regional court of of Kiev (Ukraine) [262].

With a view of elimination of contradictions between doktrinalnym the approach to the nature of a recognition of foreign judgements and current regulation of pre-judicial force in the Russian Federation, we believe necessary and expedient to add item 61 GPK the Russian Federation and item 69 of agrarian and industrial complex of the Russian Federation position that the party is released from proving of the circumstances established by a foreign judgement, to coming under recognition or execution in territory of the Russian Federation. In connection with a considered short story we will explain, that the party has the right to refer to the facts established by foreign court, and thus reception of prior permission from the Russian court it is not required. At the same time the remedial opponent has the right to declare, that the foreign judgement mismatches the requirements established by item 412 GPK the Russian Federation or item 244 of agrarian and industrial complex of the Russian Federation and the specified argument comes under to consideration within the limits of the given session of the court. In case of discrepancy of a foreign judgement of item 412 GPK the Russian Federation or the item 244 agrarian and industrial complexes of the Russian Federation corresponding actual facts come under to proving in accordance with general practice.

In end of the present section we will stop on the basic conclusions resulting from it.

The analysis of the Russian doctrine testifies that the concept "recognition" of a foreign judgement is used in two various values. First, it characterises a consensus of the state that the foreign judgement is capable to get in it properties of validity. (In the given value it covers / "absorbs" concept "execution"). Secondly, the given concept is used in "narrow" value, characterising the consent of the state by that the foreign judgement demanding enforcement, gets in it properties of exclusiveness (In the given aspect concept "recognition" is contrasted with "enforcement" of a foreign judgement).

The analysis of the operating Russian legislation testifies that the recognition of a foreign judgement is not «the precondition (necessary) condition» its enforcement. So, according to item 411-412 GPK the Russian Federation enforcement of a foreign judgement is carried out on the basis of definition of the Russian court. At the same time for investment of a foreign judgement with property of exclusiveness (an armour. exceptio rei judicatae) enough only one international treaty with participation of the Russian Federation (i.e. in this case definitions of the Russian court it is not required). Stated above allows to draw a conclusion that the relationship of cause and effect between a recognition of a foreign judgement and its execution is absent. Not casually, in ch. 2 items 406 GPK the Russian Federation are a question of a recognition or about execution of a foreign judgement.

The given conclusion also proves to be true the analysis of item 241-245 of agrarian and industrial complex of the Russian Federation. So, according to item 242 of agrarian and industrial complex of the Russian Federation vzyskatel should address with the petition for a recognition and a ghost in execution of a foreign judgement. At the same time investment of a foreign judgement on economic affairs [demanding enforcement] is carried out by property of exclusiveness for lack of similar definition. So, according to item 252 of agrarian and industrial complex of the Russian Federation (item 150 of agrarian and industrial complex of the Russian Federation) the Russian court ceases manufacture on business in the presence of the foreign judgement which has been taken out under the identical claim, under a condition: 1) if business does not concern the exclusive competence of the Russian vessels; 2) the conditions established by item 244 of agrarian and industrial complex of the Russian Federation are observed. Taking into account the above-stated, we believe possible to exclude concept

"Recognition" of a foreign judgement from positions of item 242-245 of agrarian and industrial complex of the Russian Federation (i.e. in this case the term «the statement for execution of a foreign judgement» should be used).

The doctrine and judiciary practice analysis testifies to presence at a foreign judgement of pre-judicial force. Thereupon it is offered to add item 61 GPK the Russian Federation and item 69 of agrarian and industrial complex of the Russian Federation with position that the party is released from proving of circumstances, before established by foreign court, under a condition if the foreign judgement comes under to a recognition or execution in the Russian Federation. In this case the party has the right to refer to the facts established by foreign court unless the foreign judgement mismatches item 412 GPK the Russian Federation or item 244 of agrarian and industrial complex of the Russian Federation. If the given circumstance is established, the facts containing in a foreign judgement, come under to proving in accordance with general practice.

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A source: Kostin Alexander Alekseevich. «LEGAL GROUNDS of the RECOGNITION And EXECUTION of FOREIGN JUDGEMENTS In the RUSSIAN FEDERATION». The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2018

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  9. § 1. Standard fastening of definition of concepts "interest" and"affilirovannost"
  10. § 1. "State" and "statehood": a problem of a terminological parity and definition
  11. concepts "legalisation" and "washing up" of the Russian criminal law