In the case of making a number of decisions on a single debtor, enforcement proceedings must be combined in one. However, this is not foreseen if one collector appeals to a public executive and the other to a private one. Therefore, it is likely that it will get more persistent, and not the one who has more rights.
Legislation gives private executors widespread powers to check the property status of the debtor, for other acts of coercive nature in relation to him. At the same time, private artist Katerina Schmidt notes, the legal field contains certain gaps.
Among the problems she mentioned, in particular, the possibility of simultaneous introduction of enforcement proceedings in respect of one debtor by the bodies of the state executive service and a private executor. Previously, state executives combined production or created joint working groups. Today, there is no mechanism for cooperation between ICAs and private executives in similar cases.
In addition, the representative of the new profession drew attention to the very narrow powers of the assistant to the private performer. According to the law, the person who enforces execution must enter a resolution on the seizure of funds in the banks on their own. And the powers of the assistant "are reduced exclusively to the functions of the clerk".
At the same time, sometimes it will be necessary to impose arrest on 10 accounts of the debtor in various banks. Moreover, it is advisable not to send the relevant decrees by mail, but to bring them on their own. And it is desirable to do it at the end of the day, so that the financial institution did not have time to warn the debtor about the arrest.
The extension of the powers of the assistants is appropriate and for another reason. Deputy Minister of Justice on Issues of the Executive Service Sergei Shklyar drew attention to the experience of Bulgaria, where one private executor conducts 60 thousand Manufacturing. And it has a staff of 90 people.
That is, the lawyer created jobs, employees pay taxes, and so on.
And we, as the powers of assistants are limited, such a situation is hardly possible. In addition, today in the Ministry of Justice there is a lack of people who want to become a private performer. Consequently, the problem could at least partly be solved due to the effectiveness of the assistants.
Counselor, supervisor of enforcement proceedings at Spenser & Kauffmann, Aleksey Solomko, has expanded the problem of productions from different performers to one debtor. Several executive documents may be issued by one court decision, when it concerns different collectors. Or there may be several court decisions on one debtor.
Similar problems in state executors arose even earlier. Although it was assumed that criminal proceedings against a single debtor should be merged into consolidated production. However, sometimes in practice there was no proper coordination in such matters.
Article 30 of the current law "On Enforcement Proceedings" dated 2.06.2016 № 1404-VIII stipulates that execution of several decisions on recovery of funds from one debtor is carried out by the state executor who opened the first production, within the framework of the consolidated enforcement proceedings. And then it is indicated that the execution of several decisions is carried out by a private executor within the framework of the consolidated enforcement proceedings.
"Hence the conclusion: production can not be reduced between state and private performers", - summed up O. Solomko.
There are other points that require clarification. In particular, the article referred to the merger of the decisions. And it is not formally possible to apply the combined production, when several executive documents are issued by one court decision. Moreover, according to the expert, the state executors have already encountered this problem.
It is not known how to determine who first opened the proceedings, there is no mechanism for transferring production for registration in a consolidated, no terms of association, and, at last, it is unknown what to do if the head refused in such association. Therefore, according to the lawyer, it is necessary to make appropriate changes to the standard law.
There are other issues that can be expected by private executives in practice. For example, it is not possible to deduct your remuneration independently, there are restrictions on private enforcement in the amount of collection. Pioneers of the profession also complain about the inequality of requirements for them in comparison with the state executors, etc.
The Ministry of Justice promises that soon the "second package of changes" will be introduced into the law, in particular regarding guarantees of the independence of private performers. There are relevant developments in the parliament as well. However, the first representatives of the profession is scary. First of all, due to public resonance, the Government limited remuneration to state executives. Now privately fear that on the wave of populism legislators can restrict payments to them.
Meanwhile, the authors of the reform say that there must be healthy competition between state and private performers. However, she may have a disease of growth.
Oleksiy Solomko, advisor, executive director of the enforcement proceedings at Spenser & Kauffmann:
The issue of harmonizing the actions of the performers needs to be regulated at the legislative level. They can coordinate actions with the help of an automated system of executive proceedings.
It is possible to assume the joint activity of several private executives in relation to one debtor. Since the collector should have the right to work with the person with whom he is more comfortable, and not with the one who opened the proceedings first. At the same time, it is necessary to resolve the issue of distribution of funds.
Another option is to coordinate actions without legislative changes. Have to negotiate. Or initiate bankruptcy of the debtor. However, this is not a very promising option.
(translated using google translate)