The point
The debtor in the enforcement proceedings appealed to the court to lift the seizure of property.
The court of first instance, with the decision of which the appellate court agreed, closed the proceedings because the plaintiff is a debtor in the enforcement proceedings, so it has a different procedure for protection of the violated right by appealing to the court against the actions of public / private executor. claim proceedings.
In his cassation appeal, the applicant stated that the courts had erred in concluding that the dispute was not subject to litigation.
Conclusion of the Supreme Court of Cassation (decision of May 24, 2021 in the case № 712/12136/18)
In resolving the issue of ensuring the unity of judicial practice (due to different practices) and leaving previous court decisions unchanged, the Supreme Court in the joint chamber of the Civil Court of Cassation made the following legal conclusions.
One of the means of legal protection of the parties to enforcement proceedings during enforcement actions is judicial control over the execution of court decisions in civil cases, which provides, in particular, the possibility of certain procedural actions in enforcement proceedings only with court permission and the court's obligation to consider complaints on decisions, actions or inaction of the state executor and other officials of the state executive service and lawsuits arising from the relationship of enforcement of court decisions.
During the execution of court decisions, the parties to the enforcement proceedings have the right to appeal against the decisions, actions or inaction of the state executive service, their officials, executors or private executors in judicial control, as execution of the court decision is the final stage of the trial.
In accordance with Part 1 of Art. 59 of the Law of Ukraine "On Enforcement Proceedings" a person who believes that the seized property belongs to him and not the debtor, may apply to the court to recognize the ownership of this property and to lift the seizure.
In this case, in civil proceedings, the protection of property rights is carried out in litigation, as well as by appealing the decision, action or inaction of the state executor or other official of the state executive service.
Disputes over civil law related to the ownership of the seized property, in accordance with Art. 19 GIC of Ukraine are considered in civil proceedings in litigation, if one of the parties to the dispute is a natural person, except when such cases are considered under the rules of other proceedings.
Yes, in accordance with Art. 447 GIC of Ukraine, the parties to enforcement proceedings have the right to appeal to the court if they believe that the decision, action or inaction of a state executor or other official of the state executive service or private executor during the execution of a court decision under this Code violated their rights or freedoms.
If the description and seizure of property was carried out by the state executor, the complaint of the party of executive proceedings is considered in the order provided by section. VII GIC of Ukraine. Other persons who are the owners (possessors) of the property and who believe that the seized property belongs to them and not to the debtor, may apply to the court for recognition of the ownership of this property and for the revocation of the seizure.
Having established that the plaintiff is a debtor in enforcement proceedings, the courts of previous instances came to the reasonable conclusion that he could not file a lawsuit to lift the seizure of property, because the law in this case provides another way of judicial protection, namely the debtor's appeal. inaction of the state executor in the manner prescribed by Sec. VII GIC of Ukraine.
Source:pravo.ua