A conditional order is an alternative command to the court that the defendant or performed some action, for example, paid the debt collector or, if there were any objections, said to them. If at a certain time of the dispute is not stated, the order addressed to enforcement. Conditional orders served to verify the indisputable duty and allowed to quickly restore the violated right, while avoiding the numerous stages of manufacture of claim.
In an all-German during the proceedings in the case of procrastination indisputable claimants were overcome by the use of so-called summary proceedings. «The combined processes – said I.E. Engelmann, – meet the needs of accelerating recovery that, in contrast to the usual, decision or order of payment, under penalty of causative execution, decides on the basis of the presented document without exporting and listening to a debtor who is granted only to defend themselves clear evidence of payment or proof of the spuriousness of the document». Thus, the decision could be made only on the basis of written documents, reliability is presumed[6].
In England, the procedure of Summary in a civil suit was covered by the Rules of the Supreme Court. Such production existed in the framework of claim and could be applied where the plaintiff urged the court to the fact that, firstly, the cause of action cannot be refuted by the defendant, and, secondly, the claim by the defendant cannot be challenged. Between the parties should not be any significant dispute about the actual circumstances of the case or the legal. The plaintiff presents the court a written statement which justifies his belief that the defendant cannot challenge presented demands, presents arguments proving grounds the suit and the amount of money it requires recovering, asking for the lawsuit in a simplified manner. A copy of the incoming application is sent to the defendant, who may challenge him to prove that he has to challenge himself brought by the suit.
Writ as a specific judicial action existed and exists in many countries (in Germany – Mahnverfahren, in Austria-Hungary – Mandatverfahren, Italy – Mandatum cum clausal; in England – Summons in a special form, in France – la procédure d'injonction[7]) and the essence of it in different countries interpreted differently.
The system of orders and production in the Western European remain legislation, К.И. Малышев singled out executive orders or unconditional and conditional orders or reminders. First used in the enforcement process. These included a writ of execution and summons of the performance. The latter served to remind the debtor of the debt and the recovery of the latter.
Issuance and conditional and unconditional place on a similar procedure, but an unconditional order could be issued only on the basis of acts that are enforceable or apply to the executive production, and the conditional order, as a simple reminder to the debtor to satisfy the requirements issued on all debts, regardless of executive force acts on which they are based. A conditional order was a so-called alternative court order the debtor to pay the debt collector or, if there were any objections, said to them. If at a certain time of the dispute is not stated, the order addressed to enforcement[8]. The Hungarian Justice writ is treated quite differently and is a special sanction in the event of non-defendant's first trial. This, in essence, an analogue of extrajudicial charges and is characteristic of many systems of justice in the middle Ages. As the В.И. Решетняк, a form of court adjudication exempt from the duty to expose to scrutiny the arguments of the applicant (creditor), call for evidence, examine them to make efforts to establish the actual circumstances of the case[9].
Foreign practice has developed, at least three approaches to understanding the essence of judicial orders: as an executive document (an unconditional order), as a reminder to the debtor of its obligations to the lender (conditional orders), as a sanction for failure to appear at the hearing.
Writ in the Russian civil process has features of both conditional and unconditional order. On the orders of his conditional combines a relatively simple procedure cancellation, but with the absolute – that the court order is also the executive document.
But the characterization of the injunction as soon as the dual unity reminder to the debtor's obligation and the agenda of its enforcement cannot reveal his identity. Entity may be disclosed only in case when you consider its dual nature as a court of first instance in which it is allowed on the merits, and as an executive document, on which is punishment in the manner prescribed for the execution of judgments.
1.2. Evolution of mandative process in Russia
History of development of analogues of writ of production in Russia dates back to the adoption in 1864 of the Charter of Civil Procedure. But when it comes to simplifying the process of Russian civil law in a broader sense, we should mention the earlier period – 14th and 15th century, when the desire for opportunities to simplify the process led to the emergence of so-called extrajudicial Institute of ratification. Simplification was that in the adversarial process that begins on the complaint of the plaintiff (the petition), in certain situations, the case could be resolved on the merits without a special act of the judicial process, evidence and trial. The function of such an act performed without trial diploma. Information about it is found in Pskov and Novgorod Judgment charters in 1497 and Court book 1550 and other acts of the era.
In the literature, acknowledged that extrajudicial charter was a court decision handed down without trial on the defendant's failure to appear at the hearing and stated the loss of the case by the defendant. The plaintiff claimed the right as if the court had taken place.
В.Н. Татищев comment Text Court book 1550, noted that the issue of extrajudicial consequences of ratification was that the plaintiff received a letter the defendant had «the power thereof, everywhere catch before the court and submit to «правежа» and punishment» and «beat him at ease and rob, kill not only the house and not destroy». The last statement is, in fact, expressed in an archaic form of the right to enforce the debtor, the state provides to the creditor at last granted extrajudicial literacy.
The so-called «extrajudicial accusation» and called for the Cathedral Code of 1649, the rules which determine in more detail the conditions under which could be issued without trial and indicate that the extrajudicial could be issued and the defendant fails to appear at a hearing of the plaintiff.
Condemnation without trial, executed without trial in the charters, is the first step of the Russian legislator towards the creation of special rules of procedure – and reduced cost compared with the general rules. The next step was taken in the second half of the 19th century.
The Charter of Civil Procedure (GHS) in 1864 included reduced production of indisputable rules of affairs in the manner which necessarily dealt with the matter:
– on claims made on credit products and supplies, hiring of houses, apartments and all kinds of facilities, hiring servants at all production work artisans, craftsmen, day laborers and the like;
– at the request of the performance of contracts and obligations;
– claims about giving and receiving to save money and other property;
– claims for compensation for damages, losses and «самоуправное» occupation, when they do not involve disputes over the ownership of