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Чтение книги "The implementation of the economic cycle: freedom, trust, duty" (страница 17)

   2.3. Claim based on a protest of a bill

   Paper circulation in Russia is regulated by the Civil Code, the Federal Law «On Bills and Notes» on March 11, 1997, the Regulation on Bills and Notes from the August 7, 1937, approved by the CEC and the CPC of the USSR № 104/134.
   An instrument according to Art. 143 and 815 of the Civil Code – this is a security certifying compliance with the established form and obligatory requisites, property rights, the exercise or transfer of which is possible only upon its presentation. With the passing of a bill become certified by all of them right in the aggregate. Bill – a kind of promissory note, drawn up in a strict form, which gives an indisputable right to demand payment of the amounts designated in the bill at the end of the term for which he was discharged. Bill – this is a simple and unconditional financial obligation, as an order to pay for and a commitment to pay cannot be restricted by any conditions[181].
   Payment of a bill prior to the drawer drawer appeal with the requirement to accept the payment and specify the date. At full or partial payment or rejection of his dating of this fact shall be certified by a notary – a protest of a bill for non-acceptance or non-acceptance of dating. If the payer has accepted the bill, but it evades the payment, waiver of payment should also be recorded.
   The protest of bills is a means of protecting the rights of subjects of legal relations bill[182]. Protest of a bill is a notarial act, officially confirming the facts with which the Bills of Exchange Act binds the occurrence of certain legal consequences, drawing up an act of protest is made and has to ensure the protection of interests of the promissory note obligation. Provided protest non-payment of a bill, the protest is not dating the acceptance and protest dishonored. There is a complete or partial denial of the acceptance. The latter means that the payer has limited the acceptance of its responsibility part of the bill amount. Refusal of acceptance may look like a direct opposition to accept the silence obligated to accept the person, the inability to find a payer in a specified place in the bill.
   In an act of protest of a bill shall include: date of the protest, the notary's surname and initials, the name of the notary's office, the name of the legitimate holder of a bill, details of bills, payment term, the amount by which the bill is issued, the name of the acceptor or payer, an indication of the presentation of bills for payment (acceptance) and the non-receipt of payment (acceptance), the place of protest; number registry mark or state tax collection rate, as well as the signature and seal affixed the notary.
   According to Art. 5 of the Federal Law of March 11, 1997 № 48-FZ «On Bills and Notes» for claims based on non-payment of bills in protest, non-acceptance and acceptance of dating, committed by a notary in respect of an individual, entity or individual entrepreneur shall be issued a judicial order and made pursuant to the rules stipulated by the Russian Federation Code of Civil Procedure.
   Orders are issued only to dishonored bill. The application for a court order must be accompanied by an act of protest, drawn up by a notary and protested bill.
   Taking an application for an injunction on the bill protested, the judge must check:
   – Whether the claimed requirement based on the protest of a bill in the non-payment, non-acceptance and acceptance of dating, committed by a notary;
   – Observing the requirements of the law notary in the commission of a protest of a bill.

   2.4. Claim about the recovery of maintenance for minor children

   Writ proceedings at the request for alimony for minor children not related to the establishment of paternity, has its prototype alimony People judge by the decree of the Presidium of the Supreme Soviet on February 20, 1985 «On some changes in the order of recovery of maintenance for minor children» according to which in the absence of a statement of the dispute for alimony for minor children, the people considered by the judge without having to bring a civil case.
   The modern civil procedural law provides for two forms of judicial protection of the rights of maintenance obligations in respect of minor children. Existence of a dispute about the subjective right, communication requirements for alimony to the establishment of paternity, paternity (maternity), and the establishment of other circumstances requires consideration of the case by way of action proceedings. If there is no need to involve others in the process and the possibility to collect child support in proportion to wages of the payer, by the writ proceedings[183].
   Terms of collecting child support in the form of an order (paragraph 4 of Art. 122 Code of Civil Procedure Code):
   – alimony under court order may be recovered only for minor children;
   – claim for alimony should not be associated with the establishment of paternity, paternity (maternity), as well as the need to involve in the process of other stakeholders.
   Since the court order shall be made only if the claim for alimony for minors, it is only a minor child may be a party to the proceedings. In defense of the interests of his application for a writ is served:
   – parent with whom the child is abandoned;
   – trustee or guardian of the child;
   – body of trusteeship and guardianship;
   – the prosecutor.
   Code of Civil Procedure Code does not contain instructions on what documents are necessary to make the applicant when applying for alimony in the form of an order. In this situation, you can rely on the rules of the Decree of February 20, 1985, and require the applicant to the application the following documents:
   – duly certified copy of marriage certificate (a copy of the certificate of divorce if the marriage dissolved);
   – duly certified copy of birth certificate of the child for whom child support collected;
   – the instrument of appointment of a guardian or guardian of a minor, if the application is a guardian or trustee;
   – a certificate from the employer of the person obliged to pay alimony, the amount of wages and the presence or absence of a lien on other writs;
   – a certificate of finding the children dependent on the applicant. Litigation on the Application of the Decree of 20 February 1985 shows that child support under the simplified procedure may be levied on the basis of evidence of paternity.
   According to the В.И. Решетняк, presented to the court documents must accurately and indisputably confirm the following facts:
   – the debtor to which the recovered stated requirement is bound to contain a minor child. Such persons include his parents, adoptive parents, and in failing to obtain content from their parents – adult brothers and sisters, grandparents;
   – the child for whom child support collected is a minor;
   – a statement to the court to grant a writ filed with the proper person (legal representative of the child, the guardianship and custody, the prosecutor);
   – place of employment and income of the person obliged to pay alimony for the child;
   – the lack of interested parties, which are made in favor of keeping with the debtor[184].
   According to the norms of the Family Code, child support for minor children may be levied by the court in three forms:
   – on a monthly basis as a proportion of earnings and (or) any other income of the parents (Article 81);
   – a fixed sum (Art. 83);
   – at the same time in fractions of a fixed amount (Article 83).
   The procedure for determining the amount of maintenance as a fraction of the earnings or income is the primary payer and applies in all cases, unless the court finds it necessary to make maintenance payments in hard currency. Size fractions are defined as follows: one child – one quarter, two children – one third in three or more children – half of the earnings or other income of the parents.
   On the basis of a court order cannot be collected child support for minor children as a fixed sum, as the solution to this problem involves the need to verify the presence or absence of circumstances which the law associates with the possibility of such sanctions.
   For the recovery of maintenance for minor children as a fixed sum in accordance with Art. 83 SC Code should take place the following circumstances: the absence of parental agreement on the payment of child support for minor children, irregular, changing earnings and (or) other income parents who receive income is fully or partly in kind or in foreign currency, or lack of income, as well as other cases if the recovery of maintenance in the share of the earnings and (or) other income of the parent is not possible, difficult or substantially violate the interests of the parties. The size of a fixed cash amount determined by the court on the basis of the maximum possible preservation of its previous level of child support, taking into account the financial and marital status of the parties and other relevant circumstances. In determining all of these circumstances, the court may face obstacles that cannot be overcome without additional material on the case without trial. This was the reason that the Plenum of the Supreme Court in the Resolution № 9 dated October 25, 1996 «On application by the courts of the Family Code in proceedings to establish paternity and collecting child support» pointed out that the maintenance for minor children as a fixed sum cannot recoverable under a court order, the judge should refuse to grant the order, and to clarify the applicant's right to sue for the same claim.
   In cases where the judge is not grounds for an application for a court order (for example, if the defendant does not agree with the stated requirement, if the stated requirements for alimony to adult disabled children or other family members or other family members, if the debtor pays child support for court on other persons, or their payments are made to other executive documents), the judge refused to issue an order and explain the applicant's right to sue for the same claim (§ 11 Ruling of the Plenum of the Supreme Court on October 25, 1996).
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