1.3. Гарантії захисту прав осіб у виконавчому провадженні
Authors: Верба Ольга Богданівна , Гайченко Андрій Віталійович 
Published: June 2023

The part of a monograph is devoted to the principles of enforcement proceedings analysis, established under the Law of Ukraine «On Execution Procedure» and «On Bodies and Persons Engagedin the Execution of Judgments and The Other Jurisdictional Bodies Decisions». An excursion of the researches in the field of general theory of law positions concerning the notion, value, classificationof the principles of law has been carried out and these developments has been extrapolated on the system of enforcement proceedings principles and the organization and practice of executors principles.From the analysis of articles texts, which lists enforcement proceedings principles and the organization and practice of the State executive service and private executors principles, it follows that the legislaturemainly duplicates general (constitutional), interbranch principles of law, failing to formulate principles inherent exactly the institution of jurisdictional bodies decisions enforcement. It has been concludedthat there is no necessity in such duplication, because these principles have already been objectified in other legal acts in the form of separate articles (directly) or follow from logical, lexical analysis and so from their contents (indirectly). Based on the main purpose for legislative confirmation of law principles list, which is to facilitate filling the gaps in the legal regulation by applying the analogy of law, the authorsconsider that the legislative confirmation of only the principles of integrated interdisciplinary institute of enforcement proceedings would be more effective.The legal nature and subject, respectively, of judicial and departmental control over the actions of private executors are studied.Methods (forms) of judicial control over the actions of executors in the course of decisions of courts and other jurisdictional bodies enforcement contained in the procedural legislation are identified: Section VII of the Civil Procedural Code of Ukraine, Section VI of the Commercial Procedural Code of Ukraine, Art. 287 and Section IV of the Code of Administrative Procedure of Ukraine.It is concluded that procedural actions (decisions, actions or omissions) of a private executor, committed during the enforcement of the decision as the final stage of the legal process in accordance with theLaw of Ukraine «On Enforcement Proceedings», are subject to judicial control, with only the court checking the legality of procedural actions of private executors only if the parties (participants) of enforcement proceedings receive complaints, ie, court control is neither periodic or current, nor planned or unscheduled, etc., in contrast to departmental control; the court checks the legality of the executor’s actions, not their expediency; court control is exercised within the procedural form.The court establishes the facts of violations (or their absence) in the procedural actions of private executors; the court restores the violated rights of the complainant by revoking (changing) the procedural decision of the private executor or his obligation to take appropriate procedural actions.It is stated that the institute of a separate decision can be applied by the court in relation to illegal actions of executors. Unlike the judiciary, the Ministry of Justice monitors the activities of a private executor byconducting scheduled and unscheduled inspections.The grounds, procedures and consequences of bringing private and public executors to justice have been studied, which have many differences, as the legal nature of the status of public and privateexecutors differs significantly. Such legislation is discriminatory against private executors compared to public executors.Based on the statutory principle of dispositive enforcement proceedings, the Ministry of Justice has no right to inspect procedural decisions, actions or inaction of a private executor on its own initiativewithout a complaint (administrative claim) of the participant in enforcement proceedings (and only after a court decision on this issue).Instead, written appeals of participants in enforcement proceedings regarding the actions of a private executor as a basis for unscheduled inspections of private executors, should be considered in the mannerprescribed by Art. 3 of the Law of Ukraine «On Citizens’ Appeals».The actions of a private executor as a subject of a written appeal of participants to the Ministry of Justice may not be related to the procedural activities of a private executor during the enforcement proceedings and must have signs of disciplinary misconduct.It is concluded that the subject of departmental control of the Ministry of Justice of Ukraine is the sphere of organization of private executors – powers under the Law of Ukraine «On bodies and personsenforcing court decisions and decisions of other bodies», and not their procedural actions during enforcement proceedings.