Most people are convinced that winning a court and making a decision in their favor completes such a debilitating and difficult process in protecting and restoring their rights. Unfortunately, the Ukrainian reality proves another: the process of implementing a lawful decision, which in most cases is accompanied by the involvement of state or private executives, begins to take place, in their turn, all appropriate measures for the effective enforcement of a judicial decision, as, as practice shows, debtors do not often rush to execute a court decision and / or pay off the debt on their own.
One of the most effective means of achieving the maximum result in enforcing a court decision is to restrict the right to travel abroad. As practice shows, this is one of the most effective ways of enforcing a court decision, which is applied in accordance with the Law of Ukraine "On Enforcement Proceedings". However, it is necessary to take into account the fact that such a limitation applies not immediately after the opening of enforcement proceedings, but only in case of evasion of the debtor from execution of a court decision.
In addition, the decision to limit the right to travel abroad, as a temporary measure until full repayment of arrears, is established by the court at the request of a public / private executor. In each individual case, the court, on its own accord, decides whether there are sufficiently substantiated evidence that evicts the debtor from fulfilling his obligations.
Quite abstract, is not it?
In our opinion, this issue has been resolved more specifically by the legislator in cases involving the payment of alimony. Thus, in the presence of arrears in payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for four months, the executor makes a motivated decision on the establishment of a temporary restriction of the debtor in the right of departure outside Ukraine, until the full payment of arrears of alimony is paid. The time limits for avoiding court decisions are clearly defined and the procedure is more transparent.
In any case, we want to add that it is not always easy to apply this measure, as the performers themselves are not rarely "forgotten" about giving them legal opportunities and not doing any "hands-on", referring to the incredible load. However, you do not need to be afraid to remind them of their job responsibilities and your legal rights and interests that need protection. If there is no reaction, then it is safe to file a complaint with the head of the body, and in the future, to complain to the regional management of the executive service. We must note that in the case of a complaint with a clear justification of violations of the law by the performer, the reaction will be virtually instantaneous. Therefore, it is always necessary to keep the executor in "tone", or to have a representative, who from a professional point of view will "motivate" the performer to perform his duties.
However, in such a situation there are always two sides: the collector and the debtor. The actions of the collector are fairly understandable, but what to do if the person advances from the opposite side is a debtor. After all, the right to legal assistance is provided by both parties, including those that are protected. So, is the court's decision to be executed, the means to pay off the debt, the executor takes unpleasant measures, seizes the property, forbids going abroad, how to get out of this situation?
In the beginning, it is necessary to clearly examine the documents that became the basis for the opening of enforcement proceedings: an executive letter, an order, an executive note of a notary, etc. After all, only in the event of their proper registration, the executor opens the enforcement proceedings and makes the relevant resolution. If there are legal references to the enforcement document and / or circumstances, such an enforcement document may be considered non-enforceable, which will result in the closure of enforcement proceedings and the cancellation of all measures (arrest, description, restrictions on travel abroad, etc.).
However, if the enforcement proceedings are open without obvious violations of the law, first of all, try to maintain contact with the executor, convince him that your failure to comply with the decision is caused not by escape from execution, but by a difficult material situation. To the extent possible, partially repay the outstanding debt. Active participation in the enforcement proceedings on your part will help reduce the risk of restricting you to the right to travel abroad, at least - you will have arguments for the court to protect their rights to free movement.
We go further. In case you are already restricted in the right to go abroad - there are several options for solving the problem situation in your favor. The first option - as simple as possible, but not always beneficial for you in the physical sense. All that is needed is simply pay off the debt and provide such confirmation to the performer. If there are several enforcement actions, and there is not enough money to pay off debts, first of all choose the debt you are limited to in the right to travel abroad.
he next option is the appeal in court (including appeal) of the decision of the executor and / or court, which imposes limitations on you to travel abroad. As we have already mentioned above, a statement about your avoidance of execution of a court decision (debt repayment) should be substantiated, that is, there should be facts such as: unreasonable costs, concealment of property, fictitious agreements, confirmation of travel abroad, etc. Ukrainian courts are usually fairly formally suited to this point and do not properly investigate similar facts, which is the basis for further appeal to the debtor of such a decision and the abolition of the restriction of the right to travel abroad in an appeal.
Another option - rather complicated, but no less effective. As a debtor, you need to find compelling circumstances for the court, which will indicate that the decision to open an enforcement proceeding was ungrounded and need to be canceled. In the case of a court decision favorable to the debtor, enforcement proceedings are in fact closed, and all enforcement measures, including restrictions on the right to travel abroad, are automatically canceled. For example, in relation to one of our clients, enforcement proceedings have been opened to recover debts due to improper execution of a decision that has been proved by us. As a result, the court found the actions of the executor unlawful, abolished the decision to open the enforcement proceedings, which automatically led to the abolition of all restrictive measures.
As you can see, everything can be solved legally, and with qualified legal support, this can be done faster and more efficiently. Remember your rights and do not allow them to violate anyone.
The author of the consultation: Vitaly Kulakov, Managing Partner, Advocate of ADVICE Consulting Group
Source: protocol.ua