THE PRINCIPLE OF VOLUNTARINESS AS THE BASIS FOR IMPROVING THE PROCEDURE FOR THE ENFORCEMENT OF FOREIGN COURT JUDGMENTS

Abstract

The article examines the problems of enforcing foreign court judgments in Ukraine that stem from the use of coercion as the fundamental element of the national enforcement system. The authors reveal the shortcomings of the compulsory enforcement concept and provide statistical data confirming them, in particular the World Bank indicators of regulatory quality and the rule of law. It is established that the introduction of the institute of private enforcement officers has not eliminated the principal defect of the system, since the higher performance of private enforcement officers is achieved through the uneven distribution of enforcement proceedings rather than through a change in the enforcement model itself. As an alternative to coercion, the authors propose a two-element system for the enforcement of foreign court judgments, comprising the debtor's opportunity to enforce the judgment voluntarily and the application of coercion in the event of non-performance. The authors emphasise the need to introduce the principle of voluntary enforcement of a foreign court judgment as the basis for further reform of the entire institute of enforcement of foreign judgments. The principle of voluntariness is regarded as a factor that should be enshrined at the legislative level in order to encourage debtors to discharge their obligations towards the creditor under a court judgment. It is stated that the current provisions of the Civil Procedure Code of Ukraine and the Law of Ukraine "On Enforcement Proceedings" do not provide for such a possibility. The procedure of voluntary enforcement should be an extrajudicial instrument applied before the commencement of compulsory enforcement. In the authors' opinion, the economic advantage of being exempt from the enforcement fee of 10% of the amount recovered should encourage the debtor to enforce the judgment voluntarily. Conversely, in the event of refusal to enforce the judgment voluntarily, the authors propose an increased enforcement fee of 20% of the amount recovered. As an additional argument in favour of this model, the authors refer to the practice of European states and the standards of the European Commission for the Efficiency of Justice.