LHS listeners analyzed the work of public and private performers through the prism of judicial practice
Andriy Chekhonadsky, a lawyer, said the head of the group of claims and litigation at PJSC "Retail Group", about the nuances of work with the state executive service and private performers listening to the Legal High School.
The lecturer presented a selection of interesting court decisions taken in the light of the new version of the Law of Ukraine "On Enforcement Proceedings", which came into force in early October 2016. Ukrainian courts, in particular the Supreme Court (Supreme Court), sometimes they generate such legal positions, which, to put it mildly, amaze, Mr. Chekhonadsky admits. As one example, he cites the "fresh" decision of the Supreme Court, adopted on May 7, 2008, in which the highest court in the system of the court system of Ukraine expressed an opinion on what legal consequences come to the executor in the event that a copy of the decision to open the executive proceedings. "If the debtor does not receive a copy of the resolution on the opening of enforcement proceedings, the state executor shall not have the right to execute enforcement actions", - voiced the legal position expressed by the Sun, the lecturer. Given that the notion of "executive action" can be interpreted very widely (virtually all actions performed by the executor in the context of a specific proceeding), and if the specified legal position of the Armed Forces will not be clarified, debtors will massively appeal against the decision to arrest the property, motivating is the fact that they did not receive a copy of the resolution on the opening of enforcement proceedings, predicts Andriy Chekhonadsky. And such cases the courts have already begun to consider.
Problem questions (especially for the courts of first instance!), According to the speaker, remains to appeal the decisions of the state executive on the collection of executive fees and the cost of enforcement. Despite the fact that such decisions, in accordance with part 2 of Article 74 of the new wording of the Law of Ukraine "On Enforcement Proceedings", can be appealed by the parties, other participants and persons in the relevant administrative court, in accordance with the Code of Administrative Legal Proceedings of Ukraine, that on this issue of jurisdictional jurisdiction has already expressed its position the Great House of Arbitrators, during the consideration of such a category of cases, errors are still admitted.
Problematic issues of consolidated executive proceedings - in the focus of attention of LHS listeners
Problematic issues of consolidated executive proceedings in the context of the functioning of a mixed system of judicial decisions through the prism of judicial practice were analyzed by the lecturer Legal High School - Chairman of the Board of NGO "Private Operators Bureau" ALTERNATIVE Maxim Seleznev. Such a theme of the lecture, in recognition of the speaker, was chosen not by chance, because, as you know, already in August this year will be exactly one year since the first private artists started working in our country. According to him, today in Ukraine there are 125 offices of private performers: for example, only 45 such in Kiev.
Mr. Seleznev emphasized the attention of LHS listeners on the benefits of the Institute for Private Decision-Making and outlined the range of issues related to the activities of new legal entities. Among them, the lecturer singled out the issues of consolidated executive proceedings. He noted that in practice, situations often arise when several executive proceedings (in the ICE and private enforcement agencies) are opened against the same debtor. At the same time, the speaker emphasized: there is no imperative prescription regarding the necessity of consolidating executive proceedings, which are in the bodies of ICE and private executives, do not contain provisions of Article 30 of the Law of Ukraine "On Enforcement Proceedings". "Ambiguous interpretation of the provisions of Articles 5, 25, 30 of the Law of Ukraine" On Enforcement Proceedings ", the provisions of paragraphs 7, 14, 15 of the Instruction on the organization of enforcement of decisions, as well as paragraph 1 of section 4, paragraphs 3-6 of section 5 of the said Instruction, led to the emergence of contradictory jurisprudence. It arose from the results of the consideration of debtors' complaints regarding the failure of the private enforcement agencies to submit materials to the internal affairs bodies, where the relevant executive acts are already in effect, "the speaker stated, citing examples of concrete court decisions indicating the plurality of opinions among the judiciary regarding these issues.
There are two ways to solve the problem issues of the consolidated executive proceedings, according to Maksym Seleznev. The first depends on legislators, who must implement integrated structural changes in a timely manner, consolidate the legal acts and eliminate legal conflicts. The second is from the Supreme Court, whose key function is to ensure the unity of judicial practice.
The LHS listeners learned about the practical aspects of arresting a debtor's property
The second day of the block "How to bring a judicial decision to perform" is devoted to the nuances of certain types of penalties and judicial control. Oleksandr Kuz, head of the educational and training office of the Institute of Law and Postgraduate Education of the Ministry of Justice of Ukraine, ex-director of the Department of Internal Affairs of the Ministry of Justice of Ukraine, spoke about the peculiarities of foreclosing the debtor's property, including his arrest.
The lecturer recalled that the Civil Code of Ukraine under the property of the debtor refers to the property owned by the debtor on the basis of property rights. Article 48 of the special law clearly stipulates that the recovery of the debtor's property is in arrest, seizure (write-off of funds) and sale. "I am convinced that another mandatory element of recovery, which is not in the Law of Ukraine" On Enforcement Proceedings ", is the assessment and determination of the value of the arrested property", - noted Mr. Kuz.
Speaking directly about the practical aspects of arresting money and property of the debtor, the lecturer recalled that the law sets clear deadlines during which the executor is obliged to seize the property of the debtor.
Also, Alexander Kuz noted that the profile law today has a number of imperfections. For example, the provisions on the order of attachment are contained in several rules, which refer to one another. "In my opinion, it would be necessary to lay down all these provisions in a single rule that regulates this order", - commented the lecturer.
He dwelt in more detail on the practical ascetics of the opening of enforcement proceedings in the context of the arrest. Thus, the rules of the law provide that at the stage of enforcement proceedings, the executor already has to apply measures to recover the debtor's property and impose an arrest.
The lecturer also drew attention to the fact that the law provides for two kinds of resolutions that impose an arrest: a resolution on the seizure of property (cash) and a resolution on the description and seizure of property.
In addition, the executor is also obliged, in accordance with the law, to make a decision to impose an arrest on the debtor's property (money) at the opening of enforcement proceedings, and also has the right, right after the opening of the proceedings, to identify the specific property of the debtor and impose on him arrest.
At the same time, the lecturer emphasized the fact that there is a judicial practice when the courts cancel the arrest warrant issued in accordance with article 56 of the law, arguing that this decision imposes arrest on all property, including on movable property which is not subject to state registration. Oleksandr Kuz recommended in the resolution part of such a resolution to indicate that this arrest does not apply to movable property of a debtor which is not subject to state registration.
After the executor has arrested, by issuing two decrees, he is obliged to take actions to identify the property of the debtor in reality and make a resolution on the description and seizure of property. "Thus, the legislator on the performer imposes an obligation on the same property to make three arrest warrants," the lecturer noted. In his opinion, this is inappropriate, because it leads to a delay process.
So, as an example, he brought Lithuania to one arrest warrant. Additional documents are not required due to the fact that there is a single register of movable and immovable property, which contains all the information. This register has access to all banking institutions, law enforcement and tax authorities, and private enforcement agencies. The lecturer expressed hope that Ukraine will still come to such a mechanism.
Oleksandr Kuz also drew the attention of the listeners to the fact that the arrest warrant and the enforcement order imposed in accordance with Article 48 § 1 of the law are two totally different procedural documents that need not be confused. The decision on the recovery of the debtor's property must also be made after the opening of the enforcement proceedings.
LHS lecturer Oleksiy Solomko: "The concept of judicial control should be expanded in the legislation"
The next lecture of the module "Execution. Separate types of penalties and judicial control "within the framework of LHS was devoted to judicial control over the activities of performers. Oleksiy Solomko, an advisor, executive director of ADER HABER, has opened this topic for the audience.
The lecturer noted that Ukraine has a problem of control over the execution of court decisions, which every year becomes more and more comprehensive. Today, the legal community maintains a single position that the concept of judicial control should be expanded in the legislation.
The concept of judicial control as such is contained only in Article 129-1 of the Constitution of Ukraine, which provides that the control over the execution of court decisions is carried out by a court. "The organizational and legal form of judicial power implementation, which is carried out by the judicial authorities in accordance with their competence, with observance of the requirements of jurisdiction of cases, in the form fixed by the law", - gave the theoretical definition of judicial control of the speaker.
Mr. Solomko reminded that the administrative control involves monitoring the Ministry of Justice of Ukraine for state executors and the control of the Council of Private Entrepreneurs of Ukraine. Such control is provided by the relevant legislation.
Moving directly to the limits of judicial control over the execution of court decisions, Oleksiy Solomko noted that the law does not contain a definition of control over the enforcement of decisions. "The limits of judicial control are very limited," the lecturer commented on the situation.
The restrictions apply both to the subject structure and to the time periods. In particular, as regards the former, only the parties to the enforcement proceedings are entitled to file a complaint. That is, from the entire subjectivity of persons who are related, including interest, to the execution of the decision, the right of appeal is granted only to the debtor and the debtor.
As to the limited timeframe, the Civil and Commercial Procedural Codes of Ukraine envisage two types: in ten and three days. In the first case, a complaint can only be filed within a ten-day period from the moment a person has found out or should have been informed of the violation of his rights. As a rule, such complaints relate to acts or omissions of the performer. The second term - three days - concerns the possibility of appealing against the decision to postpone executive actions. But this right is not used today by the parties.
The following aspect, to which Mr. Solomko drew attention, is the judicial control provided for by the Code of Administrative Justice of Ukraine. According to the CAS Ukraine, the court has the authority to control the decision taken by it. "The court may oblige the subject of power to file a report on execution of a court decision in a court order", - said the speaker. According to him, the next important provision of the CAS Ukraine is the possibility of imposing fines on a particular manager. Given the fact that the amount of fine is substantial, the reaction, as a rule, appears instantly.
According to the lecturer, the only negative is the non-eligibility of the norm, and practice shows that the administrative courts are reluctant to use the possibility provided by law.
Oleksiy Solomko also spoke about procedural supervision over the execution of the decision.
LHS lecturer Volodymyr Boer: "What is the real percentage of enforcement of judgments in Ukraine - nobody knows"
How to bring a court decision to execution? The answer to this question will be sought by the Legal High School listeners as part of a separate, special block that started today. During the first lecture Volodymyr Boer, head of the State Agency for the Implementation of Decisions, spoke about the reform of the enforcement proceedings, analyzing key legislative innovations in this area.
Prior to the introduction in Ukraine of a mixed system of enforcement of judgments, the concept of which, as is known, was embodied in the adoption by Parliament on 2 June 2016 of two key laws - "On Enforcement Proceedings" and "On Bodies and Persons Enforcing Enforcement of Court Decisions and Decisions of Other Bodies" ", According to the lecturer, the number of state executives in our state (as of 2016) was 5826 people, the average monthly load for each - about 82 enforcement proceedings. What is actually the percentage of execution of court decisions in Ukraine - nobody knows. "Such statistics have never been conducted in our country at all," Mr. Boer said, adding that the relevant record is only about executive proceedings. Several can be opened in the last instance under one court decision.
The speaker analyzed in detail the key innovations in executive reform, describing the main expectations of the creation of a mixed decision-making system by private and public executives. Firstly, it is ensuring that decisions are made in a reasonable time. Secondly, the introduction of an effective mechanism for financing the activities of the executive service and the private performer, as well as increasing the motivation of the performer. Thirdly, this is a reduction of the state budget expenditures for the maintenance of internal affairs bodies, and thus an increase in budget revenues at the expense of taxes from private executives, executive fees, and the sale of property.
Volodymyr Boyer emphasized the functioning of the automated system of executive proceedings, the Unified Register of Debtors, as well as the peculiarities of the activities of private performers. Determination of the maximum amount of remuneration; compulsory liability insurance; obligatory membership in the Association of Private Entrepreneurs of Ukraine; restrictions on categories of enforcement proceedings; office requirements, storage of enforcement documents; accounts in state banks of a new subject of legal relations - the lecturer focused on these nuances of the work of a new subject of legal relations.
The foreclosure of assets held by third parties is the focus of LHS listeners attention.
"Requesting a levy on assets held by third parties" is the topic of the next lecture of the module "Execution. Separate types of penalties and judicial control ". Olena Pertsova, Advisor to the AEQUO Law Firm, was introduced to the audience with the nuances of this issue.
According to her, such a question became relevant after the entry into force of the new Commercial Procedural Code of Ukraine. She also noted that until this time, the charge depended only on the performer. Such a norm was fixed in 2016 in the Law of Ukraine "On Enforcement Proceedings".
In particular, the performer has the right to recover the debtor's property from other persons as well as the property and money belonging to the debtor from other persons.
The speaker drew attention to the fact that if the funds, which are subject to transfer to the debtor by other persons, are in the account in banks / financial institutions, the executor pays a charge to them on the basis of court orders. "To persuade an artist to go to court earlier was almost unrealistic," the lecturer said.
Elena Pertsova also reported that since December 15, 2017, both the executor and the payee directly can apply to the court with a statement on the collection of funds to be paid to the debtor by a third party. Both the debtor and the debtor and a third person are summoned to court to resolve this issue.
Earlier, the performer collected information about the debtor's property, including from third parties, sending requests for information. He also had to take action, if necessary, to bring him to justice for not submitting information and to apply to the court with a petition for the collection of funds.
Since December 15, 2017, the process has changed significantly. The Civil Code of Ukraine today stipulates that the court that considered the case as a court of first instance may, at the request of the taxpayer or public / private executor, recover payment for cash belonging to a person who has an indebtedness to the debtor. At the same time, the application is satisfied if the debt is not challenged or confirmed by a court decision which has become legally valid.
"As for me, non-repayment by a third person of a debt is a mythical case. Therefore, it is more realistic to collect the debt, when there is a judicial decision between the debtor and the third person ", - said the lecturer.
Also, Elena Pertsova drew the attention of the audience to part 2 of Article 336 of the Code of Civil Procedure of Ukraine. The norm stipulates that the court refuses to comply with an application if it is filed after the expiration of the limitation period for the debtor's claim to such person or the term for submission to execution of an executive document on the collection of funds from such person in favor of the debtor by a court decision which acquired legal force.
The Pilot Decision of the Supreme Court refused to comply with the statement of the executor. "The submitter did not send a third party to the request for information. But the purpose of the demand is to establish the facts of indefinite indebtedness and gather evidence for its confirmation, "the lecturer called one of the arguments for refusing to accept the application.
"The norm does not work too much, and there are so many ways in which the statement of the executor or the collector was denied," summarized the case law of Mrs. Pertsova in this category of disputes.
The next aspect, to which she drew attention, is the issue of foreclosing real estate of the debtor. The lecturer said that in this context, the ownership of property not registered in accordance with the procedure established by law is decided by the court upon the submission of a public / private executor.
Another norm that is not yet in force is that the court may, on application by the taxpayer, arrest money held in accounts or stored in banks and owned by a person who has an indebtedness to the debtor.
Elena Pertsova also described the prospects of appealing the relevant decisions of the courts of first instance in appeal and cassation procedures.
LHS lecturer Volodymyr Boer told about the competence of private performers
Completed the module "Execution. Separate types of penalties and judicial control "lecture by Volodymyr Boer, chairman of the NGO" Agency for the implementation of decisions ", on the competence of private performers.
Before proceeding to the theme of the lecture, Mr. Boerou introduced the students with "fresh" statistics on the enforcement of court decisions. In particular, he cited information posted on the official website of the Ministry of Justice of Ukraine, according to which only about 10,000 documents were handed over to private performers in the past six months. More than 1 million were brought to the state executive service. However, such statistics testify to the gradual increase of trust in the institute of private performers.
Positive dynamics is also observed in the part of the actual execution of court decisions on all completed executive proceedings.
Turning directly to the theme of the lecture, Volodymyr Boer drew attention to the fact that the powers of private and public executives are absolutely identical. The fundamental difference lies in the criterion of territoriality. That is, the competence of the state executor extends exclusively to the territory of the jurisdiction of the territorial division of the service in which he operates. The private executor has no such restrictions. For example, if a private executor found property in another district or even an area, unlike the state executor, he would not complete the enforcement proceedings and would not transmit it on a territorial basis. In fact, the relevant legislation provides that executive actions in enforcement proceedings opened by a private executor in the executive district may be committed throughout the territory of Ukraine.
In addition, in order to verify the information on the presence of the debtor or his property in another executive branch, the private executor has the right to carry out such actions on his own or involve another private executor on the basis of the agreement on the authority to execute certain executive actions, the standard form of which is approved by the Ministry of Justice of Ukraine.
In detail, the lecturer described the procedure for determining the debtor's material position in the context of the benefits and effectiveness of a private performer. At the end of the lecture, the speaker counted the powers of private performers. In particular, this is: restrictions on the right to travel abroad, prosecution (administrative and criminal), search for property, seizure of property, including securities and corporate rights, as well as forced entry into the premises.
Decisions on collection amount to 99% of all enforcement decisions - Speaker LHS Oleksiy Solomko
Oleksiy Solomko, Advisor, and ADER HABER, Executive Director of Execution Practices, spoke about the theory and practice of measures affecting the debtor and a step-by-step strategy to implement the court's decision to the students of the Legal High School School of Judicial Practice.
According to the lecturer, there are two procedures for collecting - judicial and extrajudicial. The main disadvantage of the first - a long term of conduct, because the debtor can appeal the decision of the court, which drags the time. But there are many benefits. So, after acquiring a decision of legal force, it is impossible to challenge the debt as such - the sum is always fixed. In addition, when filing a statement of claim, you can increase the amount of collection, which is an additional measure of influence on the debtor. Also, the court decision allows you to arrange installment or postponement of execution from the side of the collector. And implementation of such a decision is difficult enough to stop.
An alternative to a litigation is extrajudicial - an executive inscription of a notary, the only advantage of which is the speed of its receipt. However, the possibility of obtaining such a note is technically limited, since not every debt can be immediately recognized as indisputable. The problem is that the debtor can challenge both his own executive inscription and the amount of arrears. Many pay attention to the fact that the sum of court fees is much higher than the amount of state duty for the execution of an executive inscription.
After selecting the procedure, the collector must select the subject of collection. You can choose a private or public artist, for which you need to take into account the rules of the place of execution of the decision. Oleksiy Solomko emphasized: the organization of the system of work of the state executor loses the fact that the private executor works, because the collector will have to carry out many actions, and the investments in their conduct will not be reimbursed. Those private executives are limited to implementing decisions. For example, they can not execute a decision where the debtor is a state, a state body, communal and state enterprises, etc. The lecturer pointed to the jurisdiction of the bodies of the state executive service and explained that the Ministry of Justice of Ukraine is not an ICE body, therefore, it can not contest the decision accordingly.
Oleksiy Solomko argues that although the preparation and submission of documents is controlled by the court, the payer must also pay attention to the correctness of their execution. Particular attention should be given to obtaining a decision on legal force and information on the timing of presentation of executive documents, as courts may sometimes simply omit these important data.
Speaking about how to identify, evaluate and arrest property, the lecturer noted that there is a problem in that according to the law, the penalty can be applied to the property and funds of the debtor. And now the Central Committee of Ukraine decrypts the concept of own property together with the notion of property rights. An important fact is the possibility of an executor to levy charges on objects of the intangible world. Oleksiy Solomko assured that the procedure for imposing an arrest on property largely ends in the fact that an arrest warrant is issued, but the law does not detail the possibility of imposing it and ignores the notion of encumbrance of property.
source: LHS
(translated using google translate)