The Complaint of the Procedural Actions of Bailiff
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Abstract
The Civil Procedure Code of the Republic of Lithuania provides several ways to defend the infringed rights. One of them is to hear the civil case by summary trial. Judicial proceedings of civil cases in summary trial are performed following simplified procedural requirements; the court plays an active role during such procedure, and hearing of such cases usually takes less time than procedure by litigation. Actions of bailiff can be complained using summary proceeding.
Procedure of submission of complaints for bailiff’s actions is regulated by articles 510-513 of the Civil Procedure Code of the Republic of Lithuania. Noncomprehensive legal regulation brings a lot of problems to judicial practice.
In this article the authors analyse subjects of a plaint for bailiff’s actions as well as objects of the plaint. In Lithuania, bailiff’s activity is divided into functions that bailiff performs and services that he provides.
A bailiff performs his functions executing legal executive documents, by the order of court fixing actual circumstances or passing and handing over documents to persons and entities situated in Lithuania, performing other functions provided in legal acts. A bailiff provides services saving (administrating) property in execution process, fixing actual circumstances in absence of court order, passing and handing over documents to persons and entities situated in Lithuania in absence of court order, providing legal consultancy, selling movable pro- perty at pawn at an auction, mediating in execution of obligations. The authors of the article draw the conclusion that only bailiff’s actions performed as a function of bailiff can be complained by the procedure provided in the article 510 of the Civil Process Code.
The Civil Process Code does not provide with a range of subjects that can submit a plaint for bailiff’s actions.
A plaint for bailiff’s actions can be submitted by a person directly participating in execution process whose rights or legal interests are infringed by a bailiff performing or non-performing procedural actions during an execution of judicial decision. Such a person may be an executor, a debtor, a provider of gage, a person participating in auction, an employer of the debtor executing bailiff’s order concerning attachment of earning etc. A plaint can be submitted only for procedural actions performed by bailiff or rejection to perform procedural actions. On the ground of judicial practice, the authors make a conclusion that any form of execution of bailiff’s procedural action can be complained. The Civil Process Code provides that it is possible to complain a rejection to perform procedural actions. Rejection to perform procedural actions shall be considered not inactivity but an active operation.
Insufficiently clear regulation of territorial and dispositional jurisdiction of complaints for bailiff’s actions as well as period for submission of the plaint aggravate a defence of infringed rights. The authors analyse the Civil Procedure Code, Instruction of execution of judicial decision, and judicial practice, regulating territorial jurisdiction. It is concluded in the article that following the principles of dispositional jurisdiction cases for plaints for bailiff’s actions shall be heard by courts of common law. However procedure of execution of nonpecuniary administrative cases should be controlled by administrative courts and within this category of cases plaints for bailiff’s actions should be accredited to them.
In practice, there arises a problem how to detect a moment until which a complaint for bailiff actions can be submitted. After evaluation of legal regulation and judicial practice it is concluded in the article that a complaint can be submitted before the execution actions are completed. In that cases, infringed rights can be defended by submitting a plaint for litigation trial.
Procedure of submission of complaints for bailiff’s actions is regulated by articles 510-513 of the Civil Procedure Code of the Republic of Lithuania. Noncomprehensive legal regulation brings a lot of problems to judicial practice.
In this article the authors analyse subjects of a plaint for bailiff’s actions as well as objects of the plaint. In Lithuania, bailiff’s activity is divided into functions that bailiff performs and services that he provides.
A bailiff performs his functions executing legal executive documents, by the order of court fixing actual circumstances or passing and handing over documents to persons and entities situated in Lithuania, performing other functions provided in legal acts. A bailiff provides services saving (administrating) property in execution process, fixing actual circumstances in absence of court order, passing and handing over documents to persons and entities situated in Lithuania in absence of court order, providing legal consultancy, selling movable pro- perty at pawn at an auction, mediating in execution of obligations. The authors of the article draw the conclusion that only bailiff’s actions performed as a function of bailiff can be complained by the procedure provided in the article 510 of the Civil Process Code.
The Civil Process Code does not provide with a range of subjects that can submit a plaint for bailiff’s actions.
A plaint for bailiff’s actions can be submitted by a person directly participating in execution process whose rights or legal interests are infringed by a bailiff performing or non-performing procedural actions during an execution of judicial decision. Such a person may be an executor, a debtor, a provider of gage, a person participating in auction, an employer of the debtor executing bailiff’s order concerning attachment of earning etc. A plaint can be submitted only for procedural actions performed by bailiff or rejection to perform procedural actions. On the ground of judicial practice, the authors make a conclusion that any form of execution of bailiff’s procedural action can be complained. The Civil Process Code provides that it is possible to complain a rejection to perform procedural actions. Rejection to perform procedural actions shall be considered not inactivity but an active operation.
Insufficiently clear regulation of territorial and dispositional jurisdiction of complaints for bailiff’s actions as well as period for submission of the plaint aggravate a defence of infringed rights. The authors analyse the Civil Procedure Code, Instruction of execution of judicial decision, and judicial practice, regulating territorial jurisdiction. It is concluded in the article that following the principles of dispositional jurisdiction cases for plaints for bailiff’s actions shall be heard by courts of common law. However procedure of execution of nonpecuniary administrative cases should be controlled by administrative courts and within this category of cases plaints for bailiff’s actions should be accredited to them.
In practice, there arises a problem how to detect a moment until which a complaint for bailiff actions can be submitted. After evaluation of legal regulation and judicial practice it is concluded in the article that a complaint can be submitted before the execution actions are completed. In that cases, infringed rights can be defended by submitting a plaint for litigation trial.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
