Astrent ( fr. L'astreinte ; from lat. Adstringere - coercion) - a type of monetary fine , determined by the court, in case of default by the debtor of the obligation established by a court decision . It is an additional financial measure to stimulate the enforceability of judicial acts.
Astrent as a legal institution first appeared in France at the end of the 19th century as a result of judicial practice and ex officio activities of French judges. At first, this institute did not have any legal fix at all and was applied solely on the basis of judicial discretion in accordance with the principles of justice and civil liability; subsequently, the astrant received his legal fixation in the norms of the French Civil Procedure Code [1] .
Unlike a standard court fine for non-enforcement of a court decision as a measure of public liability , an astrant is a compensation payment for the delay in the execution of a court decision, which is paid directly to the person in whose favor the court decision was made, and not to the state treasury [2] .
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Astrant in French Law
In French law, astrant for a long time in judicial practice was perceived as a measure of punishment, while not a single legal norm establishing it existed. In 1972 , when the relevant article 491 was introduced in the Code of Civil Procedure of France, and later Russian in the Code of Enforcement Procedure of France (norms of Art. L131-1-L131-4), this institution received its official confirmation at the legislative level and was defined as a fine, and not as losses [1] [3] .
According to French law, astrant can be preliminary ( French astreinte provisoire ) and final ( French astreinte definitive ). The first is immediately established by the judge as a possible threat to the debtor in order to induce him to execute the decision immediately, but is not exacted. The final astrant is recovered from the debtor after the untimely execution of the decision by him or, if it is not executed at all, taking into account the fault of the debtor and the reasons for such non-execution. In this case, a separate hearing is held [1] .
In France, unlike other countries, judges have the right to impose an astent on their own discretion ( sua sponte ), even if the plaintiff does not ask for it [1] . In addition, astrant can be used not only to induce the execution of a court decision, but also as a measure of coercion against a party to a dispute in a court proceeding, for example, when a court requires any documents or evidence from a certain person.
Astrent in Italian law
Astrant was introduced into the Italian legal system in 2009 , which, like France, is considered a sanction (article 614A of the Italian Civil Procedure Code) [1] .
In Italy, astrant is determined by the court only in the form of final sanction when a court decision is made, and its size and term of application are immediately established. Judges may impose this measure only at the request of the plaintiff [1] .
Astrent in Russian law
Astrent has a long history in the judicial practice of developed countries, but appeared in Russian law from June 1, 2015, when article 308.3 appeared in the Civil Code of the Russian Federation . Clause 1 of this article provides that in the event of a non-enforcement of a court decision satisfying a creditor’s claim to fulfill an obligation in kind, the court is entitled to establish a cash payment in favor of the creditor.
This article deals exclusively with a non-monetary obligation, since only with respect to such an obligation can a decision be made on the award of performance in kind. The rules for calculating the amount of astrant are referred to the provisions of Article 330 of the Civil Code of the Russian Federation , that is, to forfeit .
Notes
- ↑ 1 2 3 4 5 6 Christian Di Mauro, Christelle Coslin. New Italian rules governing financial sanctions for enforcing judicial decisions: Similarities and differences with the legal regime in France // Paris International Judicial Bulletin.
- ↑ Ostanina E.A., Taradanov R.A. Problems and prospects of reception of the astrant institute by the Russian legal system // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2013. - No. 6.
- ↑ ASTRENT IN RUSSIAN LAW // MAGAZINE “LAW”. - 2012. - No. 4.