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FACT TO BE PROVEN IN CASES ON AWARD OF A PENALTY (ASTREINTE)

FACT TO BE PROVEN IN CASES ON AWARD OF A PENALTY

(ASTREINTE)

Yu.Yu. YAKUBYAK,

Lecturer (Assistant) of the Department of Civil Procedural and Business Law

of the Samara University

DOI: 10.24031/2226-0781-2019-9-3-178-191

In the article the question of specialties of proving on such a new category of cases as

exacting of money for nonfulfillment of court decision on making debtor to fulfill obligation

in nature, court decision on a negatory action and court decision that makes a defendant

do certain actions which are not connected with giving property or money has been

concerned. This institute was given the name court forfeit (astreinte). The facts which are

being proved according to the moment of examining the question about awarding of court

forfeit (astreinte) will be different. Examining the question of awarding court forfeit and

on examining claims on the merits at the same time, a claimant has to prove the fact that

the claim has nonmonetary character. If the recovery suit of court forfeit is being examined

separately from claims, it is necessary to prove the fact of nonfulfillment of the court decision

by a debtor. A claimant can prove the fact of nonfulfillment by a debtor the judgment

providing evidences which he has got by himself or with the help of bailiff service. According

to the author in cases on recovery court forfeit (astreinte) applicant (claimant, plaintiff) does

not have to prove the fault of a debtor in nonfulfillment of the court decision. In this case

the fault in a debtor’s actions should be presumed. The burden of proof of the fact that there

is no fault of a debtor in nonfulfillment of the court decision and stating of circumstances

which lead to excluding the recovery of court forfeit have to be put on the debtor.

Keywords: court forfeit; astreinte; nonfulfillment of court decision; subject to be proven;

facts not to be proved; claimant; debtor.

References

Afonina Yu.Yu. Non-Execution of a Court Decision as the Reason for Applying of

Civil Liability Measures. Herald of Civil Procedure, 2018, no. 2. (In Russian)

Degtyarev S.L. Compensation of Damages in Civil and Arbitration Proceedings.

Moscow, 2003. (In Russian)

Fatkullin F.N. General Problems of Procedural Evidence. Kazan, 1973. (In Russian)

Kurylev S.V. Fundamentals of the Theory of Evidence in the Soviet Justice. Minsk,

1969. (In Russian)

Liluashvili T.A. Subject of Proof and Distribution of the Burden of Proof between

the Parties in Soviet Civil Procedure: Synopsis of a Thesis for a Candidate Degree in

Law Sciences. Moscow, 1961. (In Russian)

Reshetnikova I.V. Proving in Civil Proceedings: Educational and Practical Manual.

Moscow, 2011. (In Russian)

Shutin L.Ya. The Subject of Proof in Soviet Civil Procedure. Moscow, 1963. (In Russian)

Treushnikov M.K. Judicial Evidence. 3rd ed. Moscow, 2004. (In Russian)

Vaneeva L.A. Problems of the Theory of Forensic Evidence. In Actual Problems of

the Theory and Practice of Civil Procedure. St. Petersburg, 1979. (In Russian)

Yarkov V.V. Legal Facts in Civil Procedure: Monograph. Moscow, 2012. (In Russian)

Information about the author

Yakubyak Yu.Yu. (Samara, Russia) – Lecturer (Assistant) of the Department of

Civil Procedural and Business Law of the Samara University (1G Academic Pavlov St.,

Samara, 443011, Russia; e-mail: [email protected]).

Recommended citation

Yakubyak Yu.Yu. Fact to Be Proven in Cases on Award of a Penalty (Astreinte). Herald

of Civil Procedure, 2019, vol. 9, no. 3, p. 178–191. (In Russian). https://doi.org/10.24031/

2226-0781-2019-9-3-178-191

Yu.Yu. YAKUBYAK