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COMPARATIVE LEGAL ANALYSIS OF THE PROCEDURAL ARRANGEMENTS FOR ATTACHMENT OF EARNINGS OF A DEBTOR IN THE LAW OF THE RUSSIAN FEDERATION AND CHINA

 

Ekaterina Rusakova1*, Evgenia Frolova2, Ekaterina Kupchina3, and Anton Koshelev4

1PhD in Law, Associate professor, RUDN University, RUSSIA, rusakova-ep@rudn.ru 

2Professor in Law, RUSSIA, Institute of Legislation and Comparative Law under the Government of the Russian Federation, RUSSIA, frolevgevg@mail.ru;

 3Associate professor, RUDN University, RUSSIA, belousova-ev@rudn.ru

4Posgraduate, RUDN University, RUSSIA, 1032133321@rudn.ru 

*Corresponding Author

 

Abstract

Enforcement proceedings in any country of the world are the most important institution of civil legal relations and, in most cases is the final stage of the settlement of disagreements between the disputing parties. Forcible withdrawal of another's property based on court decisions restores the violated rights of parties and establishes the primacy of law in modern society.

The organization of the enforcement proceedings, its internal structure, as well as the powers of the executive bodies in each country,  is regulated based on the current needs of society, the legal system, and historical background. The similarities of executive legislation of different countries are the instruments of enforcement bodies, acting on the debtor in order to force him to perform the court decision in full.

One of these tools, widely used by the bailiffs of the Russian Federation, is the foreclosure on the income of a debtor. The relatively simple enforcement procedure in the legislation of the Russian Federation related to the foreclosure by bailiffs leads to the law of the country, which is the leader in dispute resolution in the Asia-Pacific region, namely, the law of China, in order to compare the relevant procedural rules and determine potential opportunities for improvement of legal mechanisms governing the considered method of enforcement proceedings.

This article provides a comparative analysis of the procedural rules governing the garnishment of wages and other income of a debtor in China and the Russian Federation. The result of the study is to identify the advantages and disadvantages of the process of implementing this method of enforcement proceedings and develop recommendations for further improvement of the legislation in the countries under consideration.

The following tasks are defined to achieve this goal:

- To identify and analyze procedural legislation governing the process of foreclosure on the income of a debtor in Russia and China in enforcement proceedings;

- To identify the trends in the reform of procedural legislation on the enforcement proceedings of the Russian Federation and China;

- To develop recommendations for the implementation of the right to enforcement proceedings in these countries.

The methodological basis of the study consists of general scientific methods of cognition, including systemic, formal-logical, structural-functional analysis, as well as specific legal methods: comparative legal and formal legal. The scientific novelty of the study is a comprehensive study of enforcement proceedings and consideration of the possibility of borrowing the approach of China into enforcement proceedings in the Russian Federation.

A comparative analysis of the legislation on enforcement proceedings of the Russian Federation and China, governing the foreclosure on the debtor income, was carried out using methods of logical and statistical analysis, general scientific and specific oriented methodology.

The results of this study can be used in the development of legal acts, regulating enforcement proceedings, as well as to improve the legislation of the countries in question. The authors do not object if the conclusions and materials of this article are used in research activities, law enforcement practice, teaching, during lectures and seminars on the civil process and private international law.

Keywords: enforcement proceedings, execution creditor, debtor, salary, income, arrest, marshal, bailiff.


FULL TEXT FILE

DOI: https://doi.org/10.18769/ijasos.616012

IJASOS International e-Journal of Advances in Social Sciences, Peer-reviewed international Academic Journal, ISSN: 2411-183X

Vol. VI, ISSUE:16; April 2020

Publication date: 30.04.2020