What is lacking to "private traders" to compete with colleagues
Indicators on the performance of private performers are higher than those of the state. However, European partners insist on accelerating the reform by increasing the number of "private traders" and consolidating in the legislation effective instruments for their activities. Domestic specialists suggest to adopt the Civil Code of Conduct.
Little by little I'll go - you'll come down later
More than a year ago, the law "On bodies and persons engaged in enforcement of court decisions and decisions of other bodies" entered into force No. 1403-VIII. This document provides for the launch of a new institution for Ukraine - private executives. According to the plan of the lawmakers, the latter, together with their colleagues from the public sector, had to improve the situation with the implementation of the decisions of the national courts, and later - to compete with the "statesmen". The result of the work of "private traders" was an increase in the share of executed decisions in economic and civil disputes from 6 to 18%.
According to the Ukrainian Bar Association, as set forth in the appeal to the Minister of Justice, since September last year, when private traders began their professional activity, they had about 3.3 thousand executive documents, which required the collection of UAH 710.2 million. At the beginning of March, 269 proceedings were completed, 223 of them in connection with full actual execution.
At the same time, only 100 people succeeded in mastering the profession of a private performer and start professional activities, 33 of them working in Kyiv. And this is clearly not enough for private traders to compete with colleagues.
European partners and experts who took an active part in the elaboration of the Law No. 1403-VIII complain about the slow pace of reform. After all, as Ukrainians began to change, they promised that the process would be faster.
Private executives and officials of the Ministry of Justice could remember student years, because the meeting took place in the audience of the T. Shevchenko National Taras Shevchenko University.
Indicators on the performance of private performers are higher than those of the state. However, European partners insist on accelerating the reform by increasing the number of "private traders" and consolidating in the legislation effective instruments for their activities. Domestic specialists suggest to adopt the Civil Code of Conduct.
Experts discussed the factors that hinder the reform of the executive sphere during the scientific and practical conference "Reform of executive proceedings: present and future" initiated by the Ministry of Justice with the support of domestic and foreign partners.
The problem of inequality
Experts did not hide surprise about the small number of private performers. "Private" from Bulgaria, Katilin Popov, who participated in the elaboration of the draft law, recalled the need for Ukraine to join the circle of states in which only a private executive service operates, or "private traders" and "statesmen" work on equal terms. Let's remind: before the law was passed in the Ministry of Justice, they emphasized that equalization in the powers of Ukrainian performers is a matter of time, and its decision depends on how "private traders" will be able to cope with the volume of work. At present, this issue is not considered, although officials agree with the existence of a conflict of interest in the "state", which carries out proceedings where the debtor is the state.
Another negative point that attracted Bulgarian attention is the excessive overregulation of the specialized law, which contains many procedural terms. In their variety, according to a specialist, the average consumer can easily be confused, and it frustrates those who want to seek help from private performers.
K.Popov also noted the significant "minuses" of the reform of the possibility of the courts to interfere in the enforcement proceedings and the lack of mechanisms for transferring proceedings from "statesmen" to "private traders".
Communication is as old
The list of shortcomings was supplemented by domestic experts. Thus, the scientist and teacher Oleksandr Sidnevich emphasized that the "private trader" was effectively deprived of the opportunity to make real actions for the execution of proceedings. He noticed: when the debtor does not want to voluntarily open the door or ignores the order of eviction, then this is not a problem for the lender, but for the executor. If the latter is invented by a carpenter, who will open the lock on the doors, or strong guys, who will withdraw the debtor from the apartment, the performer may with pure conscience close the proceedings.
In order to remedy the situation, O. Sidnevich proposes to enroll in the Law No. 1403-VIII to extend the powers of "private traders" or to adopt a Civil Codes of Conduct that would address these shortcomings.
Private actors themselves do not see the need for adoption of the code. However, they complain of disorderly state registrations and the inability to promptly receive information from there. So, if the "private investor" will need data on bank accounts of the debtor (an individual), he needs to send a ruling to a dozen banks. The time spent on waiting for answers, say executors, as a rule, is enough for the debtor to raise funds outside the country.
Similar problems arise during the realization of the debtor's property. According to the legislator's intention, the procedure should be fully executed electronically. For this purpose, private cabinets have created electronic cabinets, through which they should send information to the resources intended to carry out electronic trading by the arrested property. However, the offices do not function, so all the documents have to be sent in paper form.
They do not have access to other electronic resources, which slows down their work.
How much to wait for the promised?
The Ministry of Justice promises to solve the problem in the near future. For this purpose, officials actively take foreign experience by visiting states that have already developed algorithms for the cooperation of performers with other actors in electronic mode. The Ukrainian delegation recently visited Croatia and Portugal. In these countries there is a mechanism for electronic arrest of funds of debtors - individuals placed on bank accounts. Banks themselves form a database of depositors, and access to it by executors is obtained through the central banking institution, which is the holder of the system and the guarantor of its operation.
Officials assure that the outcome of their travels should be the development of legislative changes.
In addition, by 2020, the ministry hopes that the number of "private traders" will increase to meet the expectations of European partners and to supply Ukrainians with their services.
However, it would be a good thing if the agency was set to bring the voluntary execution of the court decision to such an extent that Ukrainians would be as rarely faced with the performers.
COMMENT FOR "ZIB"
European experts, who are tied to the creation of a private-funded institution, complain about the slow pace of reform. Domestic experts are convinced that the proper work of "private traders" will promote changes to the law, and perhaps the adoption of the next code. What reformers and private executives think about it, tried to find out "ZiB".
"When a state executor pays a debt from the state from which he receives wages, there is a conflict of interests"
Sergey Shklar,
Deputy Minister of Justice for the executive service:
- Now, in the direction of the reform of enforcement proceedings, there is a certain critique. Are there really any shortcomings that require urgent changes?
- It is necessary to improve the procedure for enforcement in the part concerning joint proceedings involving both private and state executives. The project with these changes is being prepared by the Ministry and will be submitted to the Parliament for consideration in the near future.
The activities of private executives in the ministry are evaluated quite positively. Of course, so far we do not see them unloading the state executive service, because there are few of them. But now, the performance of private performers, as we anticipated, is higher than in public. The reasons for this, among other things, are lower workload and higher motivation for private performers. While the number of private performers will increase, the positive effect of reform will become more pronounced. However, for this number of private performers should reach 1,5-2 thousand
- When will this amount reach the desired level?
- Before the Cabinet, the ministry has pledged to project 800 people. By 2020 their number should reach 2 thousand.
- And will the question of equalizing the powers of state and private performers be considered?
- To implement these changes, a draft law is required. I believe that this will happen, and the question is only when - when. Maybe it will not be soon. After all, we have to make sure that the profession of private performer came not casual people, but highly skilled specialists. Certain categories of enforcement proceedings have been left to state executives because of fears over unfair behavior of private traders with regard to state-owned enterprises. Although in other countries where private operators operate, it is they who levy debts from state-owned enterprises. The logic is that there is no conflict of interest. After all, when a state executor pays a debt from the state from which he receives wages, there is a conflict of interests.
- You are talking about plans for 2020. And is there any fear that the reform of the executive service may slow down with the election of a new head of state?
- The reform has passed its "point of non-return". It attracted the attention of society. She was taken by the judiciary. Institutes of higher education began to prepare performers, which had never been before. I believe that private executives will be able to compete effectively with the state somewhere in 3-5 years. So talking about slowing down the changes is inappropriate.
"Participants of the dispute saw that the court decision can indeed be executed"
Zoryan MAKOVETSKY,
private executor:
- What are the disadvantages of the reform of the executive realm prevent a private performer?
- Disadvantages are not only in the system of private performers. The gaps also contain the law on executive proceedings in general. In particular, it concerns the impossibility of automatic arrest of accounts, the lack of electronic exchange of information between private performers and other actors involved in implementation, etc. In general, private enforcement act within the law, and therefore faces the same problems as the state. However, the private performer has more time and better motivation, which increases his capabilities and improves performance.
- Is there a public inquiry into the activities of private performers?
- Of course. After the parties to the dispute began to appeal to private performers, they saw that the court decision could indeed be fulfilled.
- And is it enough for a private executor to have procedural opportunities for effective execution? Ie, does he not encounter obstacles, say, during the eviction of a person?
- A private performer, as well as a state, is a separate procedural figure who is responsible for his actions committed within the law. To resolve such issues as, say, forced entry / eviction, one should be approached as much as possible, since forced execution always takes place in a conflict situation. And, in order not to aggravate this situation, it is necessary to act extremely well.
- And do you need the Civil Codes of Conduct?
- Sufficiently effective enforcement law. If we get such a law, there will be no need for an additional code.
Source: zib.com.ua
(translated using google translate)