The Competition between the Overturning the Execution of Judgment and the Lawsuit

Abstract

The author justifies the position that the defendant’s claim to the plaintiff to recovery of the fungible things (e. g. money) can be carried out exclusively through the procedure of the overturning the execution of judgment. From a material point of view, such a claim is a claim for payment for the unjust enrichment (a way of protecting the right), regardless of the procedural form in which it is implemented (lawsuit or overturning the execution of judgment).
At the same time the author criticizes the courts approach (Decision of the Presidium of the Supreme Arbitration (Commercial) Court of the Russian Federation of December 14, 2010 № 3809/07) according to which the defendant has the right to choose how to protect his right – by the overturning the execution of judgment or through a lawsuit. The enforcer confuses the way of protecting the right and the remedy. Parties have the right to choose the way of protecting the right, but not the remedy that fall within the categories of public law. The claim is an improper remedy because it violates the principle of equality of the parties, the defendant unduly bears the burden of proving the circumstances that are presumed in overturning the execution of judgment. The application of the claim greatly complicates the procedure for both parties and makes it more expensive compared to the overturning the execution of judgment. The simultaneous using both of the remedies creates a risk of two different court orders.