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

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Yu.Yu. YAKUBYAK

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: afonina-y@list.ru).

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

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Keywords