The Performance Fee Purpose Modernization: on the Way from a Coercion Measure to a Liability Measure

Abstract

Introduction: The article examines the formation of key approaches to the performance fee purpose, tracing its evolution from a coercion measure to a public-law (administrative) liability measure within domestic legislation and law enforcement practice. Emphasis is placed on the fact that law enforcers are moving away from assigning the enforcement fee a stimulating function and rarely perceive it as a means prompting debtors towards lawful behavior.Methodology and materials: A complex of scientific cognition methods was employed, including the formal legal, historical legal, comparative legal methods, as well as the method of systems analysis and analysis of judicial practice. Using techniques of analysis and synthesis, doctrinal approaches to the legal nature of the enforcement fee were systematized, and the author’s original conception of this institution as a unique one, with features inherent only to it, was developed.The purpose of the article is to trace the evolution of approaches to imposing the enforcement fee, identify the reasons for the shift of focus from its stimulating function to its punitive function, and propose a comprehensive perspective on its legal nature.Results and discussion: Based on the analysis of the constitutive properties of direct and indirect coercive measures used in enforcement proceedings, the untenability of equating the performance fee with direct coercive measures and the ambiguity of its assimilation to indirect coercive measures are demonstrated. The judgment is advanced that the performance fee aligns with measures of administrative coercion due to the presence of identical characteristics and the public-law foundations of its legal nature.Conclusion: The performance fee combines characteristics of both an indirect, administrative coercive measure and a measure of liability. This duality of features is present at the stage of enforcement proceedings, with the predominance of one or the other depending on the actuality or potentiality of collecting the performance fee. It is substantiated that the enforcement fee gravitates towards being a complex legal category endowed with the features of adaptability, accessory nature, dependence on the initial claim, and the debtor’s behavior.