The issue of jurisdiction of cases of forced entry into the possession of the debtor was clarified by the Grand Chamber of the Supreme Court, the portal of the judicial authority reports.
According to the rules of the Code of Civil Procedure of Ukraine, consideration of procedural issues related to the execution of decisions of other bodies or courts of other jurisdictions, if a specific law does not regulate a specific procedure for carrying out certain executive actions, in particular, granting permission to enter the premises, is subject to civil procedure. Such a logic of the legislator is connected with the fact that the specified executive actions go beyond the limits of public law legal relations or economic legal relations and relate exclusively to the civil rights of individuals or legal entities.
The Grand Chamber of the Supreme Court considered the case on the proposal of the state executive in the Poltava region to grant permission for forced entry into non-residential premises, a cafe, which is owned by an individual.
The peculiarity of this case is that the state executive filed a submission to the local court in civil proceedings in order to obtain permission to take actions in pursuance of the decision adopted in the course of economic proceedings.
According to Article 18 of the Law of Ukraine of June 2, 2016 No. 1404-VIII “On Enforcement Proceedings”, the executor is entitled to go to court with the idea of forcible entry into housing or other possession of the debtor - a natural or other person where the property of the debtor is located or the property and funds belonging to the debtor from other persons. Only on the basis of a court decision on the forced entry into the housing or other possession of an individual, the performer has the right to freely enter and carry out executive actions (article 18 of the said Law).
According to Article 376 of the Code of Civil Procedure of Ukraine (as amended at the time of filing with the court), the question of involuntary infiltration of housing or other possession of the debtor was decided by the court at the location of housing or other possession of the person or the court, which made the decision on the presentation of the state performer Similar provisions are enshrined in Article 439 of the CCP of Ukraine as amended on October 3, 2017.
The Grand Chamber of the Supreme Court noted that Article 376 of the Civil Procedural Code of Ukraine is placed in section VII “Procedural issues related to the execution of court decisions in civil cases and decisions of other bodies (officials)”. That is, according to the rules of the Code of Civil Procedure of Ukraine, consideration of procedural issues related to the implementation of decisions of other bodies or courts of other jurisdictions, if a special law does not regulate the procedure for carrying out certain executive actions, in particular, for granting permission to forcibly enter the premises, is subject to civil procedure.
These rules establish special rules of jurisdiction, namely, that the idea of forced entry into housing or other possession of the debtor is considered not by the court that issued the executive document, but by the court at the location of the person’s home or other possession.
The full text of the resolution can be found at the link.
source: newspaper "Legal Practice"
(translated with the help of google translator)