The thesis is devoted to theoretical and legal research of the models of judicial enforcement. The work considers the conceptual bases of research of the models of judicial enforcement, classification criteria of its differentiation and dynamic properties.
The evolution of development models of judicial enforcement is explored. For the first time a definition of the concept of «model of judicial enforcement» is proposed as a values-oriented system of the doctrinal and practical approaches that reproduces judicial activity as a series of stages and procedures, its essential features, essential properties, structure, forms of manifestation and dynamism.
It is noted that judicial enforcement should be distinguished from the concepts of «judicial power», «judicial activity», «judicial proceedings» and «justice» since judicial enforcement is a specific type of judicial activity, the content of which is the realization of the right to judicial protection and exercise judicial proceedings in the procedural form prescribed by law, the purpose of which is justice. The author has substantiated that judicial enforcement combines procedural and process forms and judicial proceedings is the procedural basis of judicial enforcement. The procedural form of judicial enforcement provides for recourse to the court, pre-trial preparation, which consists of sequential court actions and enforcement of the judgment. Ascertainment of the facts of a case, legal qualification, adjudication of the case and documentation of court decision is procedural forms of judicial enforcement and the content of the judicial proceedings.
The discussion of the choice of «stages» as a criterion for distinguishing between typical and atypical models of judicial enforcement has been pointed out. A typical model of judicial enforcement is proposed to be defined as a model that exists within a particular legal system and reflects the procedural and process activity of the court, as a series of stages and procedures aimed at adjudicating and enforcing the judgment. The claim of a «typical» model of judicial enforcement for universality or generality is considered inadmissible by the existence of different approaches, stages, and features of judicial proceedings in the modern legal systems.
It is proposed to classify models of judicial enforcement by the following criteria: according to generally accepted standards of judicial proceedings inherent in particular legal families or states – typical and atypical models of judicial enforcement; according to the jurisdiction of courts – models of enforcement of courts of general jurisdiction, the Constitutional Court and the ECHR; according to procedural and process complexity – complex and simplified models of judicial enforcement; according to freedom of judicial interpretation – mechanistic and dynamic models of judicial enforcement.
A comparative legal analysis of models of judicial enforcement in the continental and the Anglo-Saxon legal families has been performed. It is emphasized that the jurisprudence of ECHR has an impact on judicial enforcement in the continental legal family, gradually changing and improving it, developing the practice of national courts by the common European principles and standards. In particular, a comparative analysis of the judicial enforcement models of Ukraine and France revealed that the French judicial system differs from the Ukrainian in that it has branch and number of judicial bodies, specialization, the possibility of involving non-professional judges in judicial enforcement. The model of judicial enforcement in common law countries is casuistic, where judges are the creators of the law, and the normative acts are implemented and become effective only after the approval by the court practice. A comparative analysis of the models of judicial enforcement in the United Kingdom and the US has allowed establishing their common and distinctive features, which does not provide the basis for the conclusion that there is a single model of judicial enforcement of common law countries.
The author has established that there is a debate in legal science regarding the mechanistic and dynamic models of judicial enforcement. The mechanistic manifestations of judicial enforcement apply peremptory norms to a particular case and exclude the dispositive freedom of choice. The dynamic manifestations of judicial enforcement are judicial discretion, judge's inner conviction, judicial interpretation, and judicial law-making.
