The seizure of property, depending on the procedure of its imposition, can be divided into three categories:
The arrest imposed by the court as a form of securing the claim (at the request of the plaintiff);
Arrest imposed in the course of execution of enforcement proceedings (imposed by a private or public executor);
Arrest as a measure to ensure criminal proceedings (imposed upon the request of the prosecutor, investigator or civil plaintiff);
In this article we will discuss in detail the very first two types of arrests.
Arrest of property in order to secure a claim
A judgment that can not be performed is not worth the paper on which it was printed. That is why the plaintiff before the application to court should prepare a properly reasoned petition for securing the claim. The most common and effective way of claiming is the imposition of seizure on movable or immovable property or on the accounts of the defendant. Such an event will make it impossible to transfer the arrested property to third parties.
The subject of arrest may be both disputed property and property at the expense of which in the future it is possible to satisfy the claims of the plaintiff.
Example No. 1
In a registered marriage, the spouses acquired an apartment that was the object of joint ownership, but was registered as a spouse. After divorce, his wife decided to divide the apartment in court. In order for a man to not be able to sell or give an apartment, the wife applied for the imposition of the arrest, which was satisfied by the court. Now while the dispute will be considered in court, alienation of the apartment is impossible.
Example No. 2
The person "A" lent to the person "B" 250 000 hryvnias, about which he received the corresponding receipt. After the person "B" has not returned the debt within the established term, the person "A" has decided to apply to the court with a suit on debt collection. The "A" person is aware that the person "B" owns the right to own a car at the expense of which it is possible to repay the debt. After applying for an attachment to a vehicle and the satisfaction of its court, the alienation of the said vehicle is impossible.
It should be noted that information about real estate and vehicles is contained in the relevant state registers. These registers also provide information on the imposition of arrest, which is checked by an authorized person at the time of registration of alienation of property (for example, a notary public).
But can it be possible to arrest property that is not subject to state registration, but which has a high value and at the expense of which it is possible to execute a court decision? Let's try to consider the answer to the question in the example.
Example No. 3
The supplier has put the buyer equipment worth 100 000 hryvnas, but the buyer has not paid the money. After the expiration of some time, the supplier understands that the buyer is not going to pay. The supplier is also aware that the buyer has no other property and funds in the accounts. Therefore, the buyer appeals to the court with a claim on collection of arrears and a petition for the seizure of property (equipment). The court upholds the petition for arrest and notes that the property arrested at the time of the proceedings must be deposited with the supplier.
Now the supplier asks how to execute a similar court order? To do this, he needs to contact a private or public executor who will make a decree to execute, describe and remove the arrested property, as well as transfer it to the supplier for storage.
It is recommended to pay attention that according to Part 1 of Art. 58 of the Law of Ukraine "On Enforcement Proceedings", the property arrested in our example could only be transferred to the supplier if indicated in the court order. Otherwise, the property would be deposited with the buyer, which, in our opinion, is not an effective means of securing the claim. That is why, in the petition for the imposition of arrest, it is necessary, inter alia, to request the court to transfer the arrested property to the plaintiff.
The arrest imposed within the enforcement proceedings
It often happens that the plaintiff receives a positive court decision, but there were no measures to secure the claim, and the defendant refuses to voluntarily enforce the decision. Once in such a situation, the plaintiff must obtain an executive document in court and present it to a private or public executor. It is from this moment that he will receive a new procedural status of the collector, and the defendant - the debtor.
The private or public executor, by sending the relevant requests, establishes the debtor's property, its location and / or its accounts. After that, the property will be arrested and the debtor will not be able to transfer it to third parties. It should be noted that the arrest may be imposed in the amount of the amount of the penalty, taking into account the executive fee, the costs associated with the organization and execution of acts and applied by the public or private executor fines, for all the property of the debtor or for individual items.
The arrest on the debtor's funds may be imposed in the national and / or foreign currency, as indicated by the state or private executor in the resolution. When an executor decides to arrest the debtor's property, the arrest shall extend to all debtor accounts, including those to be opened by the debtor after the execution by the state executive of the arrest warrant.
The procedure for imposition of seizure on securities, approved by the Resolution of the Cabinet of Ministers of Ukraine dated September 22, 1999 No. 1744, regulates the peculiarities of the attachment of securities. In accordance with the above Procedure, the arrest may be imposed on any securities, regardless of their type and form of issue as one owner and several co-owners. The provisions of the aforementioned Order stipulate that in the case of imposition of arrest on registered securities in a documentary form, a copy of the resolution shall be sent to the registrar or the issuer, which maintains the register of holders of registered securities in accordance with the legislation. If the arrest is imposed on securities issued in a non-documentary form, and / or immovable securities - to the custodian, as well as to other persons specified by the law on enforcement. At the same time, registered securities in the documentary form are limited to circulation by their blocking by the register holder on the owner's personal account without delay after receiving a copy of the relevant resolution of the state executor. The blockage is the termination of registration of the transfer of ownership of registered securities encumbered with obligations. Securities issued in a non-documentary form and immobilized securities that are seized are limited to circulation by the custodian of the relevant accounting transaction without delay after receiving a copy of the resolution of the state executor. In this case, part or all of the securities in the account of the owner are limited to circulation by executing the relevant account.
After the execution by the executor of the decision on the imposition of the arrest, copies of it shall be sent not later than the next working day after its issue to the debtor and banks or other financial institutions and bodies that register the property or keep a register of prohibition on its alienation, as well as conduct the State Register of encumbrances of movable property.
A public or private executor is required to withdraw the arrest from the debtor's account no later than the next business day from the date of receipt from the bank of documents confirming that the funds held in the account are prohibited from collecting a penalty in accordance with the law.
In addition, the possibility of arrest is also foreseen in the case of a written opinion of an expert, a subject of valuation activity, a business entity, regarding the impossibility or impossibility of realizing the debtor's property in connection with a significant degree of its wear, damage or, if the costs associated with applying for such property of collection exceed the amount for which it may be realized, the arrest of the debtor's property may be withdrawn by order of a public or private executor. Copies of the decision to withdraw the arrest from property shall be sent not later than the next working day after its issue to the parties and the appropriate body for arrest.
The grounds for arrest include the expiry of enforcement proceedings, the return of the enforcement order to a court or other authority that issued it.
In accordance with the provisions of Art. 49 of the Law of Ukraine "On Enforcement Proceedings", enforcement proceedings shall be terminated in case of:
- recognition by the court of the refusal of the payer from the enforcement of the court decision;
- recognition by the court of a settlement agreement between the payer and the debtor in the course of execution;
- the death or declaration of the deceased debtor or debtor, the recognition of the missing debtor or the debtor, the liquidation of the legal entity - the party to enforcement proceedings, if the performance of their duties or requirements in the enforcement proceedings does not allow succession;
- adoption by the National Bank of Ukraine of a decision on withdrawal of a banking license and liquidation of a debtor bank;
- the cancellation of a decision of a court or other authority on the basis of which an executive document was issued or the court's recognition of an enforceable instrument in a non-enforceable manner;
- a written refusal of the collector from the receipt of items withdrawn from the debtor during the execution of the decision to transfer them to the collector, or the destruction of things to be transferred to the payer in kind;
- the expiration of the period prescribed by law for the corresponding type of enforcement;
- recognition of the debtor bankrupt;
- the actual execution of a full decision in accordance with the executive document;
- return of the executive document without execution at the request of the court or other authority that issued the executive document;
- sending an executive document for belonging to another department of the state executive service; - return of the enforcement document to a court or other authority that issued it, in the case provided for in Part 3 of Art. 75 of this Law;
- if the decision is actually executed in the course of execution of the decision of the European Court of Human Rights;
- non-presentation of the executive document for the restored enforcement proceedings within the established time frame;
- write-off in accordance with the Law of Ukraine "On certain issues of arrears for consumed natural gas and electric energy" of arrears established by a court decision, which was subject to execution on the basis of an executive document; - the abolition of a decision of a court or other authority on the basis of which issued an executive document, or the recognition by the court of an enforceable instrument that is not enforceable.
The return of the enforcement document to the collector does not deprive him of the right to re-submit the execution document for execution within the statutory time limits. For example, executive documents on the execution of court decisions may be brought to execution by the state executive service or a private executor for a year the next day after the decision on the validity or termination of the term established in case of postponement or installment of execution of the decision, and in case if the court decision is subject to immediate execution, from the next day after its decision.
In Art. Article 50 of the Law of Ukraine "On Enforcement Proceedings" provides that in the event of the expiry of the enforcement proceedings, the return of the enforcement order to a court or other authority (official) who issued it, the arrest imposed on the debtor's property, is removed, other state or private executors enforcement measures, as well as other actions required in connection with the completion of enforcement proceedings.
In all other cases of incomplete enforcement, the arrest of property or funds may be canceled by a court order. The decision of the state or private executor on arrest of funds or property of the debtor may be appealed within 10 days before the court. In addition, Art. 60 of the Law of Ukraine "On Enforcement Proceedings" stipulates that a person who considers that the property on which arrest is owned belongs to her, and not to the debtor, may apply to the court with a claim on the recognition of the property right to this property and on the withdrawal from his arrest .
If the court decides to withdraw the arrest from the property, the arrest of the property shall be canceled by a decision of the state or private executor no later than the day following the day when he became aware of such circumstances. At the same time, a copy of the decision to withdraw the arrest from the property is sent to the debtor and the body to which was sent to execute the order to impose the seizure on the debtor's property.
(translated using google translate)