After the interruption of the deadline for submission of the executive document for execution in connection with its submission for execution, the term begins again from the day after its return. The time elapsed before the interruption of the term is not included in the new term.
This conclusion was reached by the Supreme Court in the composition of the panel of judges of the Administrative Court of Cassation in case № 240/10258/19.
Circumstances of the case
It is known from the case file that in September 2019 the limited liability company "B" filed a lawsuit in the Solomyansky district department of the State Executive Service of Kyiv of the Main Territorial Department of Justice in Kyiv to cancel the decision of the chief state executor Solomyansky Air Force on the opening of enforcement proceedings.
In support of the claim, he noted that in order to enforce the court decision, the Control and Revision Department in Zhytomyr Oblast was issued a writ of execution with the deadline for submitting an executive document for execution until September 21, 2012.
Indicates that the debt collector repeatedly filed a writ of execution, resulting in the opening of enforcement proceedings and subsequent return of the writ of execution to the debt collector due to the lack of property of the debtor, which can be levied.
He also claimed that the Northern Office of the State Audit Office missed the deadline for submitting the enforcement document for execution, and therefore the defendant was obliged to return the writ of execution to the claimant without accepting it for execution due to the missed deadline.
In addition, the plaintiff emphasized that the writ of execution was submitted by the head of the Northern Office of the State Audit Office in Zhytomyr region without confirmation of its authority to act on behalf of the Northern Office of the State Audit Office.
Considering the decision of the chief state executor of Solomyansky VDVS on opening of executive proceedings illegal, LLC "B" addressed to court with the requirement for its cancellation.
The decision of the court of first instance, upheld by the decision of the Administrative Court of Appeal, dismissed the claim. Denying the claim, the court of first instance proceeded from the absence of violation of the deadline for presentation of the writ of execution issued on December 22, 2018 by the Zhytomyr District Administrative Court for execution. This position was supported by the Court of Appeal, which reviewed the decision of the court of first instance and left it unchanged.
The conclusion of the Supreme Court
The Supreme Court noted that the fourth part of Article 12 of the Law of Ukraine "On Enforcement Proceedings" provides that the deadlines for submission of an executive document for execution are interrupted in the case of:1) presentation of an executive document for execution; 2) granting a postponement or installment of the execution of the decision by the court that considered the case as a court of first instance.
The essence of the interruption of the term is that in the occurrence of these circumstances (legal facts) the term begins again, and the time that elapsed before the break, the new term is not included. This was directly stated in the second part of Article 23 of Ukraine "On Enforcement Proceedings" (№ 606-XIV), which is a preliminary version of the Law № 1404-VIII, while in the current version of the Law the issue of time for submission of an enforcement document is regulated by Article 12, but it lacks this rule.
The norms on the interruption of the term for presenting the executive document for execution are systematically connected with the application of the norms regulating the completion of the enforcement proceedings by returning the executive document to the claimant.
Thus, from the analysis of parts four and five of Article 12 of the Law of Ukraine "On Enforcement Proceedings" № 1404-VIII it is concluded that after the interruption of the deadline for submission of the enforcement document for execution in connection with its submission for execution again the day after his return. The time elapsed before the interruption of the term is not included in the new term.
Thus, the return of the executive document without execution does not deprive the claimant of the right to re-present the executive document for execution within the period established by Article 12 of the Law № 1404-VIII.
The Supreme Court stressed that this position is consistent with similar legal opinions expressed in the decision of the Supreme Court in the Judicial Chamber for Bankruptcy of the Commercial Court of Cassation of October 29, 2020 in case № 916/922/16 and in the decision of the Civil Court of Cassation in Of the Supreme Court of 27 May 2021 in case № 303/2642/20
.Therefore, having established that the enforcement document was returned to the claimant on January 15, 2019, ie the term was interrupted, the court of first instance, with the conclusions of which the appellate court agreed, came to a reasonable conclusion that the chief state executor of Solomyansky Air Force execution of March 14, 2019, which was received by the executive service on March 19, 2019, within its powers by the decision of June 4, 2019 opened enforcement proceedings in accordance with the requirements of Article 12 of Law № 1404-VIII.
The Supreme Court noted that the violation by the enforcement body of the decisions of the rules of registration of correspondence and the terms of opening enforcement proceedings is not a ground for returning the enforcement document to the claimant.
The Supreme Court upheld the decision of the court of first and appellate instance.
Source:sud.ua