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Ministry of Education and Science of the Russian Federation
State educational institution Higher professional education
"St. Petersburg State Engineering and Economic University"
Faculty of Law and Economic Security
Department of Civil Law and Civil Process
Graduation qualifying work
« Actualproblems of enforcement proceedings»
Is done by a student:
Melikov because
Scientific adviser:
Lobanova E.V.
St. Petersburg 2012 G.
Introduction
1.1 Legal Nature of Executive Production
1.2 The main tasks and principles of enforcement proceedings in Russian law
Chapter 2. Stage of Executive Production
2.1 Excitation of enforcement proceedings
2.2 Preparation for compulsory execution
2.3 Implementation of forced execution
2.4 End of Executive Production
Chapter 3. The main production of the executive process
3.1 Production on the recovery of the debtor
3.2 Features of the execution of executive documents on non-property
Conclusion
Bibliographic list
Introduction
Executive proceedings - a dynamically developing sphere of Russian law, which recently acquires more and more significant importance.
The essence of the enforcement proceedings is that the execution authorities using special measures forced execution, ensure the satisfaction of the interests of citizens and organizations in the executive work. This complex process in which the balance of interests should be observed as a challenger and the debtor must be carried out in accordance with the principles of enforcement proceedings, under which the set of regulatory, basic provisions that determine the essence and maintenance of procedural relations arising in the executive proceedings are understood.
Executive production takes a special place in the system of law. The value of the norms, its components is difficult to overestimate. The law on enforcement proceedings are based on constitutional norms guaranteeing state, including judicial, protection of human rights and freedoms and citizen (part 1 of Art. 45; Part 1 and 2 of Art. 46 of the Constitution of the Russian Federation). The effectiveness of judicial protection and the authority of power dependes not only on how literate, laws and other state bodies and officials are legal and reasonable, but from how quickly they will be fulfilled to be implemented.
The relevance of this work is due to the fact that at present, many issues of both the science of enforcement proceedings and the practice of implementing the Federal Law of July 21, 1997 N 119-FZ "On Enforcement Proceedings" do not find a single permission due to the formation of the doctrine, imperfection of legislation and other reasons.
The purpose of the study is to study the features of enforcement proceedings.
The object of research is legal nature, the main tasks, principles and stages of the enforcement proceedings.
The subject of the study is enforcement proceedings.
In accordance with the purpose of the object and subject, the following research objectives were delivered:
1. To reveal the theoretical foundations of enforcement proceedings, including:
Describe the legal nature of enforcement proceedings;
Create the main tasks and principles of enforcement proceedings in Russian law.
2. Consider the execution stages, including:
Excitation of enforcement proceedings;
Preparation for compulsory execution;
Implementation of forced execution;
End of execution.
3. Describe the main production of the executive process, including:
Consider the proceeding of the debtor's recovery;
Provide the features of execution of executive documents on non-property cases.
The theoretical significance of the chosen topic is to study the organization of enforcement proceedings.
The applied value of the chosen topic is to summarize the executive proceedings used in practice.
The development of this problem: the enforcement issues are described quite in detail in the works of A.H. Ageeva, I.Yu. Burmakova, A.N. Beresneva, A.T. Bonner, D.Kh. Valeeva, MA Vicut, Yu.V. Heppa, B.E. Degotya, M.R. Zagidullina, A.A. Ignatenko, N.V. Kirilenko, E.K. Kostyshev, A.B. Lyagina, D.Ya. Maleshina, A.V. Matseva, I.B. Morozova, H.A. Pankratova, A.B. Pero, A.N. Sarycheva, A.K. Sergun, A.M. Threushnikova, D.
Ileva, M.Yu. Chelyrava, V.M. Schertkja, MK Yukova, V.V. Jarkova DR.
Despite the existing numerous sources, almost all fundamental issues of the overall part of the enforcement proceedings are not sufficiently worked out: the concept of enforcement proceedings, its subject and legal regulation method, the system and principles of enforcement proceedings. In a special part of the system of enforcement proceedings, studies are mainly applied, but truly complex and comprehensive studies are still few. This is due to the fact that the study of the issues of the special part of the enforcement proceedings is hampered by the constant change in the relevant material and procedural legislation, as well as conflicting law enforcement practice.
The structure of the work includes three chapters that combine six paragraphs, an introduction, conclusion, a bibliographic list.
Chapter 1. Theoretical basis for enforcement proceedings
1.1 Legal Nature of Executive Production
Study legal nature executive rights (enforcement proceedings) is of particular interest due to the fact that this branch of law is still relatively young and passing the period of its formation.
The question of the legal nature of the industry in the industry is today in legal science highly discussion. In addition, not all authors recognize its independence in the system of law of the Russian Federation, which serves as a deterrent in the development of the doctrine of executive law. In modern literature, there was still no sustainable concept of such an industry that various authors referred to and "Executive Law", and "Executive Proceeding Law", and "Civil Executive Law" or, finally, they simply speak about the "executive production" of Gueys in ., Guschin V.V. Executive production: textbook. M.: Eksmo, 2010. P. 15 ..
Conditionally, the following approaches to the legal nature of the executional standards can be distinguished:
1. Enforcement proceedings are considered as stage (institute) of a civil (arbitration) process (the so-called traditional approach in the understanding of the enforcement proceedings) Dernova D.V. Features of enforcement proceedings as a civil procedure stage // Executive right. 2009. No. 2. P. 34 ..
2. Enforcement proceedings are characterized as an institution (sub-separable) of administrative or administrative-procedural law (administrative theory of enforcement proceedings) Tenth M.S. Executive proceedings as a legal institution of Russian legislation // Executive right. 2011. No. 2. P. 26 ..
3. Enforcement proceedings seemed to be independent legal education (industry) in the system of Russian law (the theory of independent production) Chukhvichev D.V. Executive proceedings. M.: Uniti-Dana, 2008. P. 13 ..
Agreeing in general with the executive production expressed in the literature expressed in the literature: procedural nature and civil bases / ed. D.Kh. Valeeva, M.Yu. Chelywis. - M., 2007. p. 46., we adhere to the theory of independent production.
Currently, in the framework of the theory of independence of the enforcement proceedings, three approaches to an understanding of the essence of the Executive SalesPunnikov Yu. N. On the issue of the procedural form of the enforcement proceedings // Executive proceedings: Procedural Nature and Civilide Fundamentals: Collection of Materials of the All-Russian Scientific and Practical Conference, G. Kazan, Kazan state University, April 4, 2008 M.: Statute, 2009. The conduct of the executive authorities "Yarkov V.V. The main global compulsory systems. Problem issues of civil and arbitration processes / Ed. L.F. Lesnitskaya, MA Rozhkova. - M.: Statute, 2008. P. 65 .. The authors of the second approach come to the conclusion that the executive production is independent procedural industry Rights Executive Production in the Russian Federation: Lectures / Ed. O.V. Isaenkova. - M.: Grossmedia, 2008. P. 32 .. and within the framework of the third approach, executive proceedings are designated as a procedural comprehensive industry. Executive proceedings: procedural nature and civilian bases / ed. D.Kh. Valeeva, M.Yu. Chelywis. P. 61 - 62 ..
I join the opinion of scientists - supporters of the "traditional understanding of the procedural form", as an additional argument of the designated approach, it is possible to consider the concept of separation of state power in the industry, within which the judiciary, being independent and independent, can be considered as an additional argument. It has functions, has its own goals and objectives. And in this system of separation of the authorities, the work of which is ensured by the mechanism of checks and counterweights, the procedural form acts as a tool of such a mechanism. The role of the procedural form as a guarantor of protection of violated and challenged rights, freedoms, legitimate interests increased significantly and increased, since, firstly, the activities of the legislative and executive power can be an object of verification of the court of judicial (direct and indirect normocontrol, challenging actions (inaction), solutions state authorities, local governments, officials, state and municipal employees), secondly, the legality of judicial acts is controlled by judicial authority (revisions of judicial acts in the order of appeal, cassation, supervision, according to newly discovered circumstances). And therefore, the activities of the judiciary (and only judicial) are checked into the procedural form, which fully and the volume can provide the possibility of such control of the control of Yu. N. On the issue of the procedural form of the enforcement proceedings // Executive proceedings: Procedural Nature and civil bases: a collection of materials All-Russian Scientific and Practical Conference, Kazan, Kazan State University, April 4, 2008 M.: Statute, 2009. C. 66 ..
The purpose of the enforcement proceedings is that without changing the essence of the act made by the court or other authorized body, to fully fulfill it with the help of the funds specifically stipulated by the law.
The object of compulsory execution can be both judicial acts and acts of other organs and officials, and not everyone, but only those who are granted property responsibilities on certain persons.
Based on Art. 1 of the Federal Law "On Enforcement Proceedings" can formulate the main signs of enforcement proceedings:
1. Executive proceedings are carried out forced, i.e. Regardless of the will and desire of the required persons. The following measures can be applied: the recovery of the debtor's property by imposing arrest on property and its further implementation; Appeal for wages, pension, scholarships and other types of debtor's income; Appeal for removal of cash and other property of the debtor, which are in other persons; seizure of the debtor and the transfer of certain items specified in the executive document; penalty charge; as well as other measures provided for by the Federal Law "On Enforcement Proceedings".
2. The above measures are implemented specifically at authorized subjects: executive bailiffs, as well as some other bodies or specially authorized persons. For example, a bank, having received an executive list, is obliged to write off the debtor from the account and enroll in the account of the recoverer a certain amount of money specified in the executive list.
3. Forced measures concern exclusively property regulations, or rather, acts prescribing certain actors of the property turnover to take actions (or refrain from actions) in which the counterparties have material interest.
4. The process of actuating production itself is formal, i.e. It is carried out in a specially established law by Belousov, L.V., Zabrallyuk A.V., Kulikova M.A., Reshetnikova I.V., Tsaregorodtseva E.A. Commentary on the federal law "On Enforcement Proceedings" and the practice of its application "(Pasteling) / OT. ed. I.V. Reshetnikova. - M.: Volterskliver, 2009. P. 26 ..
Taking into account the foregoing, it can be stated that enforcement proceedings are a comprehensive legal institution of Russian legislation, which can be viewed as a set of legal norms regulating procedural, organizational and logistics aimed at the correct and timely execution of judicial acts, acts of other bodies and officials And in the cases provided for by the legislation of the Russian Federation, the fulfillment of other documents in order to protect the violated rights, freedoms and legitimate interests of citizens and organizations.
1.2 The main tasks and principles of enforcement proceedings in Russian law
The tasks of enforcement proceedings are determined by the tasks of justice civil AffairsBut do not coincide with them. The main task of the enforcement proceedings is the correct and timely execution of judicial acts, acts of other bodies and officials, and in the cases provided for by the legislation of the Russian Federation - the execution of other documents in order to protect the violated rights, freedoms and legitimate interests of citizens and organizations of Valeev D.H. Commentary on the federal law "On Enforcement Proceedings" (with articleteiths). M.: Statute, 2011. P. 27 ..
The correct execution of judicial and other acts will be the fulfillment of these acts in strict accordance with the requirements of the legislation on enforcement proceedings and in accurately compliance with their content. Performance of this task may be difficult in the event of an ambiguity of the requirements, for example, the resolution part of the court decision, and therefore the legislator provides not only the institution of clarification of the court decision, but for the first time - clarifications of the executive document, the method and order of their execution (art. 433 GPK, Art. 32 FZ "On Enforcement Proceedings").
The timely execution of judicial and other acts is their execution in the time limits established by law. By general ruleenshrined in art. 36 FZ "On Enforcement Proceedings", the requirements of the Executive Document must be executed by the bailiff within a two-month period from the date of the initiation of enforcement proceedings. If the deadline for the execution of the requirements contained in the executive document is established by federal law or executive document, then the requirements should be executed on time set by federal law or executive document. In the same article, exemptions are established from the general rule on the period of execution of executive documents.
The tasks of enforcement proceedings on proper and timely execution should be solved in aggregate, only in this case it will be possible to talk about achieving the goal of protecting the violated rights.
The process of compulsory execution should be carried out in accordance with certain principles under which the set of regulatoryly fixed basic provisions that determine the essence and maintenance of procedural relations arising in the executive work.
Principles have not only a purely theoretical, but also practical importance, which is that they should guarantee the timely, correct and effective fulfillment of jurisdictional acts, the protection of the rights of participants in enforcement proceedings and show the role of the state in regulating legal relations included in the subject of executive rights of A. BUT. On the question of the principles of civil executive law // Executive right. 2009. No. 2. P. 25 ..
Principles of executive rights are classified on various reasons. Depending on the sphere of its action, it is customary to distinguish: general-sectoral principles (general) principles, intersectoral principles, sectoral (special) principles and principles of individual institutions (intra-industry principles) Demichev A. A. Principles of Executive Right under the Federal Law of October 2, 2007 №229 -FZ "On Enforcement Proceedings" // Executive Production: Procedural Nature and Civilide Foundations: Collection of Materials of the All-Russian Scientific and Practical Conference / T. ed. D.Kh. Valeev, M.Yu. Chelywis. - M.: Statute, 2009. C. 56 ..
There is also a different classification, which is based on the form of consolidation of the principle. Based on this basis, it is possible to allocate: the principles that have received direct legal consolidation in the legal act; Principles that have not received direct legal consolidation, but derived from the norms or meaning of the legal act.
In accordance with this classification, the general, initial principles that have received their fixation in Art are available to the first group of the principles of executive right. 4 Enforcement Act:
1) the principle of legality;
2) the principle of timeliness of the execution and the application of compulsory measures;
3) the principle of respect for the honor and dignity of a citizen;
4) the principle of inviolability of the minimum of the property necessary for the existence of a citizen debtor and his family members;
5) the principle of correlation of the volume of demandsor requirements and compulsory measures.
One of the basic principles of enforcement proceedings is the principle of legality. The principle of legality is an intersectoral principle that permeates all branches of Russian law. At the same time, in each industry of law, based on its features, it finds a specific manifestation. In accordance with Part 2 of Art. 15 Constitution of the Russian Federation Public Authorities, local governments, officials, citizens and their associations are obliged to comply with the Constitution of the Russian Federation and laws.
In relation to the enforcement proceedings, the principle of legality means that all the actions of the bailiff in the commission of executive actions must comply with the law. The principle of law is applied not only to the bailiff, but also on other subjects of the enforcement proceedings - parties, specialists, understood, etc.
The principle of timeliness of the commission of executive actions and the use of compulsory measures means that the requirements contained in the executive document must be executed by the bailiff in a timely manner, i.e. As a general rule within a two-month period from the date of the excitement of the enforcement proceedings (Part 1 of Art. 36 of the Law on Enforcement Proceedings). If the deadline for the execution of the requirements contained in the executive document is established by federal law or executive document, then the requirements should be executed on time set by federal law or executive document. If the executive document provides for the immediate execution of the requirements contained in it, their execution should be launched no later than the first working day after the arrival of the executive document into the division of bailiffs.
The principle of respect for the honor and dignity of the citizen, who was previously called the principle of integrity of the personality of the debtor, who was previously called the principle of integrity of the debtor's personality, meaning that the bailiff is obliged to use the rights granted to him in accordance with the law and not allow in its activities to infringe the rights and protected by the law of citizens and organizations. In no way impossible to derive the dignity of the personality of the debtor, humiliate him.
The current theory of constitutional law, determining the fundamental provisions of the development of Russia, along with the consolidation of statehood, calls to ensure the dignity of the person, speaking of the need for its cultivation. Taking into account that the basis of forced performance is the method of coercion, in the executive right we only talk about one form of physical coercion, namely a debtor aimed at the material scope, but in no case about the direct impact on the person (to the second type of physical coercion in The theories of the right include corporal punishments, imprisonment, etc., directly aimed at personality).
In the execution of jurisdictional acts, the constitutional right of citizens not only on respect for the honor and dignity, but also for inviolability private life, personal and family mystery, secret correspondence, telephone conversations, postal, telegraph and other messages. Restriction of these rights in accordance with Art. 23 of the Constitution of the Russian Federation is allowed only on the basis of a court decision.
The principle of inviolability of a minimum of the existence of the debtor and his family members is closely related to the overall principle of social justice. The principle under consideration acts in the executive production only in relation to individuals. It is this principle that it is designed to guarantee the conservation of the debtor of the ability to provide its own livelihoods and contain disabled dependents after the executive acts in relation to it have achieved its goal. The law on enforcement proceedings allocates, firstly, the property that is not paid for recovery, and secondly, the type of income that Valeev D.H. cannot be addressed Commentary on the federal law "On Enforcement Proceedings" (with articleteiths). M.: Statute, 2011. P. 32 ..
The list of property not subject to recovery is fixed in Art. 446 Code of Civil Procedure of the Russian Federation. In particular, such property includes: residential premises (its parts), if for a debtor's citizen and his family members, together living with him, this room is the only one suitable for permanent residence; Land plots, the use of which is not related to the implementation of a citizen of the debtor of entrepreneurial activity; Objects of the usual home furnishings and consideration, individual use (clothing, shoes and others), with the exception of jewels and other luxury items, etc.
Article 101 of the Federal Law "On Enforcement Proceedings" indicates those types of income that fails to be drawn.
The principle of correlation of the volume of demandster requirements and forced execution measures (previously called the principle of fairness of satisfaction), as well as the previous one, is a specific principle characteristic only for executive law. The principle of correlation of the scope of the requirements of the charter and forced execution measures is intended, firstly, to protect the debtor from disproportionate debt and other obligations of payments and, secondly, to protect the rights of recovers in multiplicity of requirements and insufficiency of money and property of the debtor to meet all creditors. Thus, by virtue of Article 99 of the Federal Law "On Enforcement Proceedings" in the execution of the Executive Document (several executive documents), no more than fifty percent of the salary and other income of Belousov L.V., Zabrallyuk A.V., may be held with a citizen's debtor. Kulikova M.A., Reshetnikova I.V., Tsaregorodtseva E.A. Commentary on the federal law "On Enforcement Proceedings" and the practice of its application "(Pasteling) / OT. ed. I.V. Reshetnikova. - M.: Volterskliver, 2009. P. 35 ..
To other principles, although not received direct legislative consolidation, but permeating legal regulation in the field of enforcement proceedings and ensuring its harmony, it is possible to consider the following principles with confidence:
1) the principle of forced fulfillment of judicial and other acts of specially authorized state bodies. Forced fulfillment of judicial acts, acts of other bodies and officials assigned to the federal bunching service and its territorial bodies;
2) the principle of equality before the law is a manifestation constitutional principle equality of citizens before the law regardless of gender, race, nationality, language, origin, property and regulations, place of residence, relations to religion, beliefs, belonging to public associations, as well as other circumstances (Art. 19 of the Constitution of Russia);
3) The principle of proportional distribution of the imposed amounts between therapeners is designed to protect the rights of recovers in multiplicity of requirements and insufficiency of money and property of the debtor to meet all creditors. Article 111 of the Enforcement Act of the Enforcement Procedure is established, but if the money charged from the debtor is not enough to meet the requirements of one queue in full, then they are satisfied in proportion to each collapse of the amount specified in the executive document;
4) The principle of initiative to the actuators of the enforcement proceedings is that the debtor, the recoverer can manifest the initiative, refusing the recovery, concluding the settlement agreement, refusing the subjects seized by the debtor in the execution of an executive document on the transfer of them to the recoverer;
5) the principle of the state language of the enforcement proceedings means that enforcement proceedings in the Russian Federation occurs in Russian. If the parties do not speak Russian, Article 58 of the Enforcement Act provides them with the right to invite a translator;
6) The principle of providing voluntary performance has educational importance in the executive right and is to establish when the execution of the executive production period for the voluntary execution by the debtor contained in the executive document of the requirements. Such a term may not exceed five days from the date of receipt by the Debtor on the initiation of enforcement proceedings. The deadline for voluntary fulfillment of the requirements is established for all executive documents for the first time in service (Part 11 of Article 30 of the Enforcement Act). The law also provides cases when this period is not established (part 14 of article 30);
7) The principle of the obligation of the claims of the judicial bailiff is that the legal requirements of the bailiff are mandatory for all state bodies, local governments, citizens and organizations and are subject to strict implementation throughout the Russian Federation. In case of failure to comply with the legal requirements of the bailiff, it applies measures provided for by the Enforcement Committee;
8) Principle judicial control For the activities of the bailiff implies control by the judicial authorities for the production of enforcement of executive documents as one of the most effective and effective species state control. Although in the new law on enforcement proceedings, as well as in the previously active, nor the court, nor the judge among those involved in the executive proceedings, are nevertheless, on the basis of the analysis of the current legislation, it is possible to affirmatively talk about the important role of the judiciary in the field Executive V.V., Guschin V.V. Executive production: textbook. M.: Eksmo, 2010. P. 42 ..
It is difficult to overestimate the importance of legal principles in the executive right. First, the principles are cementing the executive right, give it some constructive completion. Secondly, the principles underlie the executive law, they concentrated the views of the legislator on the nature and content of legal regulation of enforcement proceedings, they seem to be a skeleton of the law. Thirdly, the principles of executive right reflect the entire process of implementing the norms of executive law.
Chapter 2. Stage of Executive Production
2.1 Excitation of enforcement proceedings
The concept of "stage" in the enforcement proceedings is very often used both in the scientific literature and in practice. However, the question of the execution stages remains currently one of the least developed in theoretical plan and discussion. There is no single opinion about them yet. So, I.M. Veskaya and S.A. Savchenko allocate: 1) the stage of excitation; 2) the stage of preparation for direct execution; 3) the stage of implementation of enforcement proceedings; 4) Stage of the end of the executive production of IM, Savchenko S.A. Executive proceedings: studies. Address. M.: Prospekt, 2010. S. 53 .. At the excitement, the commission of executive actions and the ending as a separate stage of the enforcement proceedings indicates D.V. Chukhvichevchukhvichev D.V. Executive production: textbook. M.: Uniti, 2008. P. 54 ..
V.A. Gureev and V.Vgushchin share the executive production of the following stages:
excitation of enforcement proceedings;
preparation for compulsory execution;
compulsory execution;
distribution of recovery sums;
completion of enforcement proceedings;
appealing the actions of the judicial bailiff-performer V.A., Guschin V.V. Executive production: textbook. M.: Eksmo, 2010. P. 64 ..
In theoretical plan, you can identify the main features for which each stage is individualized:
First, each stage has its own specific functional purpose, special goals and the tasks subordinate to the common goal of the entire process of enforcement proceedings;
Secondly, any stage is a system of procedural actions subordinate to the special specific purpose of this stage;
Thirdly, each stage is isolated in time and in the chronology of the whole process, they complement each other, following in a certain order;
Fourthly, the results of the stage are fixed in the special procedural instructional documentation of IM, Savchenko S.A. Executive proceedings: studies. Address. M.: Prospekt, 2010. P. 47 ..
Based on the above criteria, four main stages can be allocated in the executive production: the excitation of enforcement proceedings; preparation for executive actions; implementation of compulsory measures; ending.
Chapter 5 of the Federal Law "On Enforcement Proceedings" regulates the stages of the enforcement proceedings, the first of which is the initiation of enforcement proceedings. We should not say that in terms of legislative technology, the procedural codes were wiser, allocating the stage of proceedings into various chapters of the law. The law on enforcement proceedings, unfortunately, grouped into one article by a very voluminous material about such a stage of enforcement proceedings as arousal.
At this stage, the bailiff, having received an executive document, should establish the presence or absence of grounds for the initiation of enforcement proceedings, after which it is to decide on the initiation of enforcement proceedings or a refusal to initiate enforcement proceedings.
Before the excitement of the enforcement proceedings, no executive actions are committed. This rule follows from the fact that the commission of executive actions is associated with the possibility of applying to the debtor of measures of state-power coercion in the form of compulsory measures that significantly infringe upon and limit its property rights.
The excitation of the enforcement proceedings is preceded by the actual presentation of the executive document to recovery. At this stage, the bailiff adopts a statement and executive document from the recoverer, or from the court, or another body that issued an executive document. The application may contain a petition for the imposition of the debtor's property in order to ensure the execution of claims contained in the executive document, as well as the establishment of restrictions for the debtor.
However, in itself, the actual adoption by the bailiff of the executive document does not yet mean the subsequent initiation of enforcement proceedings. Thus, the bailiff of the executive document on the three days from the date of receipt to it makes a decree on refusal to initiate enforcement proceedings if:
1) the executive document was filed without a declaration of a recoverer or a statement not signed by the recoverer or its representative, except in cases where the executive proceedings are subject to excitement without a recovery statement;
2) the executive document was not submitted at the place of executive actions, except in the case provided for by Part 4 of Art. 30 of the law on enforcement proceedings;
3) expired and not restored by the court to present the executive document for execution;
4) The document is not executive or does not comply with the requirements for executive documents established by Art. 13 of the law on enforcement proceedings;
5) the executive document was previously presented to execution and the executive proceedings on it were discontinued on the grounds established by Art. 43 and part 14 art. 103 of the law on enforcement proceedings;
6) The executive document was previously brought to execution and the executive production on it was completed on the grounds established by paragraphs. 1 and 2 hours. 1 tbsp. 47 and PP. 1, 2 and 4 h. 15 tbsp. 103 of the law on enforcement proceedings;
7) the judicial act, the act of another body or an official, which is an executive document or on the basis of which an executive document is issued, with the exception of executive documents subject to immediate execution;
8) The executive document in accordance with the legislation of the Russian Federation is not subject to the federal bailiff service.
Article 33 of the Federal Law "On Enforcement Proceedings" has established general provisions on the place of executive actions. So, if a citizen is a citizen, the executive actions are committed and the measures of compulsory execution are applied by the bailiff for its place of residence, the place of stay or the location of his property.
If the debtor is an organization, the executive actions are committed and the measures of compulsion are applied to its legal address, the location of its property or at the legal address of its representation or branch.
The requirements contained in the executive documents obliging the debtor to make certain actions (refrain from committing certain actions) are executed at the place of the commission of the Valeev D.K. The place and time of the executive actions // Practice of enforcement proceedings. 2008. № 5. P. 27 ..
In the absence of information about the location of the debtor, his property, the location of the child, the executive actions are committed and the measures forced execution are applied by the bailiff for the last well-known place of residence or the place of stay of the debtor or at the place of residence permit to establish the location of the debtor, his property.
In practice, there are no cases when the executive documents are presented with violation of these rules. This may be caused by the ignorance of the recoverer of the administrative and territorial division of the relevant region or other causes of Svirin Yu.A. Executive production and transgression of executive law. M.: Overley, Astra-Printing, 2009. P. 75 .. The executional law has established a new rule that allows the recovery, if it is unknown, enforcement proceedings should be initiated in which executive document should be initiated in The territorial body of the Federal Bailiff Service (the main bailiff of the constituent entity of the Russian Federation) at the place of execution and the use of compulsory measures. The main bailiff of the constituent entity of the Russian Federation sends these documents to the appropriate division of bailiffs within five days from the date of their receipt, and if the executive document is subject to immediate execution - on the day of their receipt.
According to the rules of Art. 30 of the Federal Law "On Enforcement Procedure" The executive document may be charged with a bailiff by a recoverer, a court, another body or an official who issued an executive document. This norm is determined by an exhaustive list of entities eligible to make an executive document to recovery.
In some cases, the enforcement proceedings are initiated without an appropriate application. So, after the end of the main executive proceedings, the bailiff initiates enforcement proceedings on the expenditure and non-evaluated decisions from the debtor for the execution of executive actions and the execution of the executive document in the process of executing an executive document (part 16 of Article 30 of the Law on enforcement proceedings). In addition, the bailiff initiates executive proceedings without a declaration of a recoverer, in particular, if necessary, the implementation of individual executive actions and (or) the use of individual measures of compulsory execution on the territory on which the powers of the bailiff do not apply. In this case, he has the right to entrust the relevant bailiff-performer to make executive actions and (or) to apply forced execution measures. The commission is issued by the decision of the bailiff, approved by the senior bailiff. According to the specified decision by the bailiff, to which it was received, and the enforcement proceedings are initiated (part 6 of Art. 33 of the Enforcement Act).
Executive proceedings are initiated without a statement and in cases where the court, another body or official in accordance with the Federal Law, send the executive document by the bailiff of the executive officer (part 5 of Article 30 of the Enforcement Act).
As exceptions from the general rule, the law contains a number of cases (for example, paragraph 2 of Art. 130 Code of Civil Procedure of the Russian Federation), when the will of the demand of the recoverer to initiate enforcement proceedings is not required, the exception relates to recovers that have public and social character. Thus, in cases of confiscation of property, the recovery of money in the income of the state, the recovery of damage caused by the crime by the state, cooperative or other public property, the recovery of alimony, recovery of compensation for harm caused by injury or other damage to health, as well as the death of the breadwinner, the recovery of money from Officials guilty of illegal dismissal or employee translating, or in the non-fulfillment of a court decision on recovery at work, the court on its initiative directs an executive list for execution, which is notified according to a financial body or a recoverer. In all other cases, when admission of executive sheets of courts of general jurisdiction, it is necessary to have a written statement of the recoverer with a request to initiate enforcement proceedings.
The executive work law establishes a total three-day transfer period by the bailiff of the statement of a recoverer and executive document from the date of their receipt to the division of bailiffs.
In turn, the bailiff within a three-day period from the date of receipt of the executive document to it makes a decree on the initiation of enforcement proceedings or to refuse to initiate enforcement proceedings.
If the executive document is subject to immediate execution, then after admission to the division of bailiffs immediately is immediately transferred to the bailiff, whose authority applies to the territory where execution should be made, and in the case of its absence, another bailiff. The decision on the initiation of enforcement proceedings is either a refusal to initiate enforcement proceedings, the bailiff must adopt within one day from the date of the execution of the executive document into the division of litigation of L.A. On the timing in the executive work // Executive right. 2011. No. 1. P. 8 ..
A copy of the ruling of the bailiff on the initiation of enforcement proceedings is no later than the day, following the day after the date of the specified decree, is subject to the direction of the recoverer, the debtor, as well as a subject that issued an executive document.
2.2 Preparation for compulsory execution
The task of the second stage - preparation for compulsory execution - is the creation of conditions for legitimate and operational compulsory measures. In this stage, three groups of action can be distinguished:
a) actions aimed at voluntary fulfillment by the debtor of prescriptions of judicial and other law equal to them (for example, clarification of his rights and obligations, including the indication of the term for voluntary execution; the provision of the official requirement to the debtor indicating the possibility of applying special sanctions in the case of non-fulfillment, etc.);
b) the actions to establish the location of the debtor and its property (search, wanted list);
c) other actions ensuring the effective implementation of forced execution measures (the imposition on the property of the debtor of the arrest, clarification by the court of the decision and the procedure for its execution of Art. 32 of the Law on Enforcement Proceedings, etc. Actions) Bezadyan A. Legislative regulation of the stages of initiation, implementation and termination of the executive Production in the Russian Federation // Right and Life. 2010. No. 10. P. 58..
In the initiation of enforcement proceedings, the bailiff must decide on the appointment of the term for voluntary execution of the executive document, as indicated in the decision on the initiation of enforcement proceedings (part 11 of article 30 of the Federal Law "On Enforcement Proceedings".) The term for voluntary performance is The set of time during which the debtor can fulfill the executive document without applying forced measures to it. The law has established two conditions, in the presence of which the deadline for voluntary execution can be set:
If the executive document first entered the bailiff service. Since the executive document can repeatedly come to the division and return to the recoverer, the law stipulates that the term for voluntary performance is established only with the primary presentation of the executive document to recovery;
The law does not establish exceptions for this category of affairs. The exceptions are listed in part 14 of Art. 30 FZ "On Enforcement Proceedings". The list is closed and is not subject to expansion.
By virtue of the existing Federal Law "On Enforcement Proceedings", the bailiff does not establish a period for the voluntary execution of the executive document in cases of enforcement proceedings:
1) after the end of the main enforcement proceedings, when the bailiff initiates enforcement proceedings on the expenditures of executive actions, the fulfillment and fines imposed by the bailiff in the process of execution of the executive document (part 16 Art. 30 FZ "On Enforcement Proceedings");
2) upon subsequent presentations of the executive document;
3) on recovery at work;
4) on administrative suspension of activities;
5) on confiscation of property;
6) on the executive document on interim measures;
7) OB administrative expulsion Outside the Russian Federation in the forces of forced and controlled movement of foreign citizens or stateless persons outside the Russian Federation.
The main consequences of non-compliance with the term for voluntary execution for the debtor is the use of measures forced execution and the recovery of the performing fee, and the penaltile collection is possible only if the term for voluntary execution was violated by the debtor without valid reasons. The question of assessing the causes of the term and assigning them to respectful are within the competence of the bailiff. The main criterion for attributing the reason for the skipping period to valid is the objectivity of the reasons, i.e. When the failure of the requirements does not depend on the will executive production in the Russian Federation: a course of lectures / ed. O.V. Isaenkova. - M.: Grossmedia, 2008. P. 65 ..
The consequence of violations by the debtor of the voluntary execution of property recovery will be applied to the debtor of measures of compulsory execution in the form of a recovery of property. There is an exception for legal entities in the form of institutions that are funded at the expense of the budget and do not respond to the property belonging to them on their debts.
Next to the question of voluntary performance is the question of the independent execution by the debtor's requirements of the executive document. The executive document obliges the debtor to fulfill a certain duty. Performance of the requirements of the executive document - the duty and at the same time the right of the debtor, which can be implemented to them at any time, regardless of the expiration of the procedural terms and stages of the enforcement proceedings (but until the actual implementation of the arrested property). Even if compulsory measures are applied to the debtor, his property was arrested and transferred to the implementation, the debtor is always entitled to independently fulfill the requirements of the executive document. However, in this case, he will have to reimburse the amount of expenses for the commission of executive actions, as well as pay the amount of the fulfillment. After the debtor independently fulfilled the requirements of the executive document and reimbursed all the costs of execution, the bailiff is obliged to cancel all the measures appointed by them, in no matter how the executive production does not be completed, after which the executive production should be completed.
The action aimed at voluntary execution will be the provision of a delay or installment execution of executive documents, as well as a change in the method and order of their execution. Delayed and installment execution undoubtedly have their differences. So, if the delay of execution is the transfer of the execution period, then the installment is considered as the provision of the debtor's right to perform execution by parts in the established deadlines A.A. Deferrership, change in the method and order of execution, exhibition of executive actions: new in the law on enforcement proceedings // Right and economics. 2010. No. 4. P. 32 .. In other words, the installment of the execution of the solution means transferring its execution and providing the respondent to fulfill it in parts. It is determined not only new term For the final execution of the decision, but also the corresponding intermediate time.
The recoverer, the debtor or bailiff has the right to apply for a statement about the provision of a deferment or installment of the execution of the judicial act, the act of another body or an official, as well as the change in the method and the procedure for its execution to court, another body or to the official who issued the executive document (Part 1 of Art. 37 of the Law on Enforcement Proceedings).
In general, Article 37 of the Enforcement Act contains a general rule, and grounds for committing such legally significant actions will be an assessment nature in view of the objective impossibility of consolidating an exhaustive list of grounds in law.
The principal position of the law is a ban on the commission of executive actions and the application of compulsory measures in the event that the debtor is given a delay in execution of the judicial act, the act of another body or an official. If the debtor is given the installment of the execution of a judicial act, the act of another body or an official, then the executive document is executed in that part and in those times as established in the act on the provision of installments (part 3 of Article 37 of the Enforcement Act).
Note that directly in Article 37 of the Enforcement Act, nothing is said about the need to make a decision on a delay, installments, a change in the method and procedure for the execution of the executive document, but the need to make the specified procedural document follows from the general rule that decisions on enforcement proceedings The executive bailiff from the date of the direction (presentation) of the executive document on execution is issued by the decision (Article 14 of the Enforcement Procedure).
The law on enforcement proceedings enshrines the possibility of depositing the executive actions and the use of compulsory measures (Art. 38).
According to the recoverer or on its own initiative, the bailiff has the right to postpone the executive actions and the application of compulsory execution measures for a period of no more than 10 days.
The bailiff is obliged to postpone the executive and the application of enforcement measures on the basis of a judicial act.
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Ministry of Education and Science of the Russian Federation
Nizhnevartovsky Economic and Legal Institute (branch)
Federal State Budgetary Educational Institution of Higher Education
Tyumen State University
Department of Civil Law and Process
TEST
under the discipline "Civil Process"
Topic: "Organization of notaries in the modern right system of Russia"
The test work performed:
student 3 courses
educational group Yu-31
in the direction of "jurisprudence"
Silence Lydia Sergeevna
The test work checked:
Krivobok Dmitry Viktorovich
Nizhnevartovsk 2016.
Introduction
Conclusion
Bibliography
Introduction
The legislation regulates not only the procedure for reviewing and resolving civil cases, but also the process of execution of judicial acts, as well as acts of other bodies that are subject to execution in the same manner.
The judicial act that entered into legal force should be executed by the obligated person - the debtor. If the judicial act does not fulfill voluntarily, the person in whose favor he has been submitted, has the right to apply to the court with a statement about issuing an executive document for compulsory execution. Forced fulfillment of judicial acts and acts of other bodies is carried out in an enforcement proceedings.
Executive production is the procedure established by law, the procedure forced implementation of judicial acts and acts of other bodies, who aims to ensure the real protection of violated or challenged subjective material rights or protected interests. In the enforcement proceedings, subjective material law or a law protected by law, which were violated or challenged, receive their restoration through the use of state coercion mechanisms established by law.
Relations arising in enforcement proceedings are regulated by a number of legal acts. Federal Law "On Enforcement Proceedings" is the main regulatory act, in detail of the regulatory relationship arising from the compulsory execution of judicial acts and acts of other bodies. It regulates the conditions and procedure for the enforcement of judicial acts, acts of other bodies and officials who, in the implementation of the powers established by the Federal Law, are given the right to impose on individuals, legal entities, the Russian Federation, the subjects of the Russian Federation, the municipalities of the obligation to transmit to other citizens, organizations or In the relevant budgets of cash and other property or in their favor certain actions or abstinence from the commission of certain actions (Article 1 of the FZ "On Enforcement Proceedings").
Relationships about the enforcement proceedings are governed by other federal laws. Such federal laws include, for example, the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and others.
For this institution of civil proof, their problems are characteristic. So, there are deficiencies in the legislation on enforcement proceedings, as well as in practice arises whole line Problems when applying data norms.
The purpose of the test work is to consider the main problems of modern enforcement proceedings that take place in the Russian Federation.
) After analyzing judicial and law enforcement practice, identify the problems of enforcement proceedings in Russia;
) Suggest reasonable ways to solve identified problems.
The relevance of the work is that the institution of enforcement proceedings is an important part of the civil rights protection mechanism. With the ineffectiveness of the mechanism of enforcement proceeds will be disturbed legal rights And the interests of many persons who are eligible for any property, but they cannot receive him due to the fault of the debtor. Therefore, it is necessary to analyze the problems of this institute with the goal to find a solution to each of them.
1. Problems of legislation on enforcement proceedings
The adoption of FZ "On Enforcement Proceedings" eliminated multiple disadvantages and conflicts in legal regulation Executive proceedings, without changing the basic principles on which previous legislation was built.
The advantage of the new federal law over the previous standards is more detailed regulation of the actions of all participants in the enforcement proceedings, as well as a decrease in the number of sending standards that existed earlier.
At the same time, the law on enforcement proceedings, in particular the FZ "On Enforcement Proceedings", has disadvantages. Thus, this law does not affect the possibility of regulating relations in the field of enforcement proceedings by legal acts of the authorities of the constituent entities of the Russian Federation. It seems that subjects of the Russian Federation can be provided with the right to regulate relations in this area.
In the law, there are no specific procedural sanctions in the legislation, which should be consolidated in the legislative procedure in relation to the recoverer, because procedural legislation The duties of the parties and the equality of rights are extended. In relation to the debtor, a system of sanctions has been developed. Possible obstacles from the recoverer of the actions of the bailiff remain unresolved.
Executive proceedings are a variety of legal process, and in connection with this, it should be reflected in the procedural characteristics, such as the stages (or stage) of the execution of enforcement proceedings.
Despite the proposals of a number of lawyers, to allocate in the Executive Code (which was never developed) or the Federal Law "On Enforcement Proceedings" a separate section called the "Performance Stage", this idea was not implemented. The allocation of the specified section in the legislation would create a clear structure of the new branch of law and a particular type of legal process - enforcement proceedings or executive and procedural law (as implemented, for example, in the PEC RF).
Also one of the main problems of the legislation on enforcement proceedings is the problem of the timing of the execution of executive actions. In practice and legal science, the issue of establishing optimal deadlines for committing legally significant actions is among the difficult and, at the same time, especially significant. The effectiveness of any legal activity increases legitimate time, allowing you to ensure the timeliness of committing legally significant actions and the adoption of relevant legal acts.
The legislator tried to foresee possible situations where the executive document cannot be executed in a timely manner. In Part 20 of Article 36 of the Federal Law "On Enforcement Proceedings" it is indicated that the expiration of the deadlines for the execution and the application of enforcement measures is not a basis for the termination or end of the enforcement proceedings. This provision requires specification.
In most cases, in practice, the time specified by the law is not enough to execute the executive document. We are talking about the enforcement proceedings that differ in particular complexity, for example, the recovery of the fine, appointed as a punishment for committing a crime, collecting large sums, recovery of arrears of taxes and fees, or the fulfillment of non-property requirements, etc. For other categories of executive proceedings, taking into account the load on the bailiff and the complex procedure of enforcement proceedings to fulfill the requirements contained in the executive document, it is difficult for a two-month term and is not always obtained. Presentations of the prosecutor's office on the elimination of violations of the executive production time can in practice, lead to the fact that bailiffs in some cases, when meaningful work will be obviously going beyond the established period, will be limited to the implementation of formal actions. The recoverer is more interested in ensuring that the bailiff has used all the opportunities provided for by law to fulfill the relevant requirements than that it is met for a two-month period.
Based on this, it seems appropriate to provide the main bailiff of the subject of the Russian Federation the right to extend the execution period.
To improve legal regulation of relations in the field of enforcement, it is necessary to improve the entire system of legislation in the field of enforcement proceedings in order to eliminate the conflicts existing in it and identify deficiencies.
executive Production Legislation Russian
2. Problems of addressing the debtor's property in the executive
In accordance with paragraph 1 of Article 69 of the Federal Law "On Enforcement Proceedings", the recovery of the debtor's property includes the removal of property and (or) its forced implementation or transfer to the recoverer. The recovery of the laid property on the basis of the executive inscription of the notary may include the withdrawal of property and its transfer to the mortgagee for the subsequent implementation of this property in the procedure established by the Civil Code of the Russian Federation and other regulatory acts.
According to the executive document, first received the executive to the bailiff, the period must be set for its voluntary performance. Such a term may not exceed 5 days from the date of receipt by the debtor of the decision on the initiation of enforcement proceedings or its copy. However, persons participating in the executive work are entitled to submit a bailiff for the extension of the deadline for the voluntary fulfillment of the requirements of the executive document and the depositing of the executive actions. This application is subject to the consideration of the bait, according to the results of which they are subject to a decree on the extension or refusal to extend the term. Relatives of the statement or the non-direction of the Debtor of the Decree leads to the abolition of the decision of the bailiff on the recovery of the fulfillment of the execution. The decision of the bailiff on refusal to extend the term for voluntary fulfillment of the requirements of the executive document may be appealed in order of subordination or to court.
The parties to the enforcement proceedings or the bailiff has the right to apply for a statement on the provision of a deferment or installment execution of the executive document with difficulty of execution to the authority that issued a document or to court. The number and frequency of treatment with similar statements by law is not limited, however, the appeal for more than three times may be regarded by the court as abuse and violation of the interests of the parties to enforcement proceedings. The applicant must indicate for what reason there is a given difficulty (can lead to bankruptcy, violate the rights of third parties, temporary severe financial situation, etc.), and if the reason is a serious financial situation, then to prove it and the prospect of correcting the situation in the future And then the application will be satisfied. A positive decision on installments is partial repayment of the debt amount, which indicates the presence of the debtor's desire to fulfill the executive document. The destruction period is established by the court, based on its own beliefs, and is not limited.
The state, establishing the conditions and procedure for the compulsory execution of judicial acts, also establishes the limits of recovery. In accordance with Article 446 of the Code of Civil Procedure of the Russian Federation, the recovery on executive documents cannot be addressed to the following property belonging to the debtor citizen on the ownership of:
residential premises (its parts), if for a citizen of the debtor and his family members it is the only room suitable for permanent living;
land plots on which the objects listed in the legislation are located;
objects of the usual home furnishings and consideration, things of individual use, except for jewels and luxury items;
the property necessary for professional training of the debtor, besides items, the cost of which exceeds 100 minimum wages;
food and money for the total amount of an equally established size of the subsistence minimum of the debtor's citizen himself and those in his dependence;
fuel, the necessary family of a debtor's citizen to prepare its daily food and heating during the heating season of its residential premises;
means of transport and other citizen-debtor in connection with his disability property;
prizes state awards, honorary and memorable signs that the debtor's citizen awarded;
other types of property specified in the legislation.
This list applies to all citizens, including individual entrepreneurs (Article.336 of the Code of Civil Procedure of the Russian Federation). In most cases, the only property, the cost of which can satisfy the requirements of the charter is a residential premises, which is the only one suitable for the permanent residence of a debtor's citizen and his family members. It is impossible to exclude the possibility of abuse from unscrupulous debtors who can take advantage of the property (executive) immunity in order to failure, inappropriate fulfillment of their civil and legal obligations to creditors, in particular to invest money, including unreasonably accumulated, into expensive living space to which which As the only housing for them can not be paid for recovery - despite its size, quality and cost.
To increase the effectiveness of the execution of court decisions, it was proposed to provide the possibility of addressing the recovery of residential premises, which is the only suitable for permanent residence for the debtor, in order to meet the requirements of the recoverer and the acquisition of other premises suitable for the permanent residence of the debtor and his family members. At the same time, the balance must be respected between the satisfaction of the demands of the recoverer and the preservation of the minimum of the property necessary for the existence of the debtor-citizen.
If the debtor has a property belonging to him on the right of a common property, the recovery is drawn to its share determined in accordance with the Federal Law. In accordance with Article 254 of the Civil Code of the Russian Federation, the general property section between the joint ownership participants, as well as the separation of one of them can be carried out after preliminary determination of the share of each of the participants in the right to general property. When sharing a common property and allocate a share, unless otherwise provided by the law or agreement of the participants, their shares are recognized as equal.
The lender of the participant of equity or joint ownership in case of insufficiency of the owner of another property has the right to make a requirement for the separation of the debtor's share in the general property to appeal to it.
If in such cases, the allocation of the share in nature is impossible either against this, the remaining participants in the share or joint ownership object, the lender has the right to demand the sale by the debtor of his share to other participants in total joint ownership of the price, commensurate market value of this share, with the appeal from the sale of funds to repay debt . In the event of a refusal of the other participants in the total ownership of the acquisition of the share of the debtor, the lender is entitled to demand for the court of recovery to the share of the debtor in the right of common property by selling a share with public leases (Article.255 of the Civil Code of the Russian Federation).
Thus, the bailiff does not have the opportunity to independently recovery to the debtor belonging a share in the right of common property. The recoverer will need to additionally submit to the debtor's requirement to determine his share, to sell the share of other participants in the total ownership of the price, respectively, this share, with the appeal of the debt repayment.
The recovery of the debtor's property consists of its arrest (inventory), seizure and forced implementation. The ban or limitation of the right to dispose of property has been valid from the moment of bringing the decision about this to the owner (owner) of property and is issued as an act identifying the arrested property. With the arrest of property, it is forbidden to give, sell, change, submit for rent and perform other actions on his alienation.
The basic measure of compulsory execution is to appeal to the debtor's property by imposing arrest on property and its implementation.
The arrest of property of the debtor is an exceptional measure, since the debtor undergoes adverse effects, depriving his property. Therefore, arrest applies only in the following cases:
) in the execution of a judicial act on the confiscation of the debtor's property;
) In the execution of a court definition about the imposition of arrest on property belonging to the defendant.
Based on paragraph 3 of Article 68 and paragraph 1 of Article 64 of the Federal Law "On Enforcement Proceedings", the arrest of property is considered depending on the specific situation as a measure of enforcement or as an enforcement. If restrictions on their compulsory execution are allowed to complete the suspension of enforcement proceedings, then similar provisions are not provided for the executive actions.
Consequently, one of the key points to be proof in the framework of the trial to dispute the actions of the bailiff in the form of an arrest of the debtor's property is to establish the legal nature of this arrest, i.e. It was applied as an executive act or as a measure of compulsory execution.
The arrest can only be made in relation to that property, which subsequently can be implemented or transferred to the recoverer, and the attractive itself is limited during the arrest of the debt size imposed on the executive document. At the same time, the property of the debtor can be arrested, described and seized by the bailiff only when the bailiff has documentary evidence of property belonging to the debtor. The act on the imposition of arrest (property inventory) is not a document confirming the assessment of property, but only contains it inventory. The property located in other persons can be seized by the decision (definition) of the Court. In the presence of a dispute about belonging to the debtor of the property, which is imposed of penalties, interested persons are entitled to apply to the court to exclude such property from OTICI and withdrawing arrest from it. The property located in other persons can be seized by the decision (definition) of the Court.
In practice, the bailiff promptly sends a decree on arrest and write off funds to the bank, and the decision to write off is sent, without waiting for answers from banks on the availability of either the absence of funds in the debtor's accounts, which often leads to the write-off of unnecessary amounts. So it allows him to act on the FZ "On Enforcement Proceedings", which provides for the possibility of receipt by the Deposit account of the division of bailiffs of the debtor's money in a larger amount than is necessary to repay the amount of debt. The arrest of the debtor's money over the size and volume, which is necessary for the execution of the executive document, taking into account the recovery of the fulfillmental collection and expenditures for the commission of executive actions testifies to the unreasonable restriction of the debtor's rights.
If the debtor recovered an excessive amount, then the attracting in accordance with Part 1 of Art. The Federal Law "On Enforcement Proceedings" is returned by the debtor of an overlooking amount by making a decision on the return of unnecessary funds received (redistribution). According to the experience of Moscow, money is returned to the account of the debtor's organization within 60 days. In practice, the bailiffs often motivate the refusal to remove the arrest with the excessive arrested cash by the fact that they are not yet listed on the deposit account in due amount or are not displayed on the account of the department, which contradicts the norms of current legislation.
The lack of state registration of ownership of an object does not exclude the possibility of its arrest within the framework of the enforcement proceedings, because Subsequently, the attractive attachment can contact the authority state registration Rights on real estate and transactions with him, demanding about registration of ownership.
There are frequent cases when in the process of enforcement proceedings, the bailiff establishes the fact of the absence of the debtor of the property, which could be addressed, including funds, or the fact of the impossibility of establishing the debtor's location. In such a situation, the bailiff must draw up an act on the presence of these circumstances and make a decision on the end of the enforcement proceedings by virtue of paragraph 3 of Part 1 of Article 46 and paragraph 3 of Part 1 of Article 47 of the FZ "On Enforcement Proceedings". If the act of attracting was not compiled or not approved by the senior bailiff or his deputy, the decree of the bailiff on the end of the enforcement proceedings can be recognized illegal in judicial order.
Also the problem is the absence of the law of the right to challenge the deals committed by the debtor on the alienation of property or property rights. The only measure of responding to the bailiff in establishing the fact that the deal for the alienation of property or property rights of the debtor is the nature of the property of the property, is a report on the detection of signs of a crime with the transfer of enforcement proceedings into an inquiry authority to address the issue of initiation against a criminal debtor , while the recoverer more important is the recovery of funds.
The bailiff does not have the opportunity to independently draw a recovery on the debtor belonging to the share in the authorized capital of the economic society, in the share capital of the partnership, PAE in PC. Since the recovery appeal is allowed for the data of objects only by the court decision in case of insufficiency to cover the debts of another property of the participant in the data of commercial organizations. Consequently, the recovere will have to go to court with a statement about changing the method of executing a decision and address the recovery to the relevant share.
Conclusion
Thus, the enforcement proceedings are a combination of procedural and actual actions of a specialized state body aimed at enforcing executive documents enforced.
The enforcement proceedings are inherent in its problems, both at the level of legislation and in practice. Usually, the problems that arise in practice in court bailiffs are a consequence of the shortcomings of the law on enforcement proceedings.
The following main problems of modern enforcement proceedings were identified, which occur in the Russian Federation:
there are no measures of responsibility in relation to the recoverer;
the short time of the execution of executive actions, which in practice, as a rule, cannot be observed;
abuse from the debtor, namely: it can invest money in a residential premises, which will be the only one for him housing, as well as another property that is not subject to recovery;
the bailiff does not have the opportunity to independently draw a recovery on the debtor belonging a share in the right of common property;
the debtor's cash is possible over the size and volume that is necessary for the execution of the executive document, which violates the rights of the debtor;
the lack of the law of challenge the transfer of transactions committed by the debtor on the alienation of property or property rights;
the bailiff does not have the opportunity to independently draw a recovery on the debtor belonging to the share in the authorized capital of the economic company, in the share capital of the partnership, the PAE in the manufacturing cooperative;
the constituent entities of the Russian Federation do not have the authority in the field of regulatory legislation;
The decision of the majority of these problems is, first of all, the introduction of competent edits into existing norms, primarily in the FZ "On Enforcement Proceedings". It is proposed to expand the powers of the bailiff. However, excessive expansion of his authority may adversely affect the interests of debtors. This issue requires the balance of interests of the debtor and the recoverer, since no side should be in a disadvantageous position. It is also possible to provide the subjects of the Russian Federation authority in the field of regulating enforcement proceedings.
Separate lawyers and scientists at all see the enforcement proceedings as a separate branch of law with their special method of legal regulation, which is proposed to be called executive procedural law.
To create a stable and effective system of legislation in the field of compulsory execution, both its independent character and procedural features related to the principles on which legislation was built and accurately in the commission of executive actions are built, that is, the stages of enforcement proceedings. Therefore, the question of the allocation of executive procedural law into a separate industry remains open.
Bibliography
1. "Civil Procedure Code of the Russian Federation" dated November 14, 2002 No. 138-FZ (as follows. Ed.) // ConsultantPlus. - URL: # "Justify"\u003e. "Civil Code of the Russian Federation (part of the first)" of 30.11.1994 No. 51-FZ (as follows. Ed.) // ConsultantPlus. - URL: # "Justify"\u003e. Federal Law of 02.10.2007 No. 229-FZ (as follows. Ed.) "On Enforcement Proceedings" // ConsultantPlus. - URL: # "Justify"\u003e. Treiushnikov MK Civil process. Textbook for universities. - M.: Statute, 2014. - P.723-756.
Baranov V.A. Civil process. - M.: Yuraight, 2015. - C.281-305.
Uvarov P.V. Some problems of implementing the legislation on enforcement proceedings. // Bulletin TSU. - 2011. - № 1 (45). - P.89-91.
Kim E.V. Problems of appeal to the property of a debtor's citizen in the framework of enforcement proceedings. // A New Look. - No. 1. - P. 209-215.
Mezhinskaya N.O. The main problems and ways to solve them in the field of enforcement proceedings. // Herald Essentuki. - 2014. - № 8. - P.73-77.
Resolution of the FAS of the West Siberian District of 03/15/2012 in case No. A27-8132 / 2011. // Consultant Plus. - URL: http: // base. consultant.ru/cons/cgi/online. CGI? REQ \u003d Doc; Base \u003d AZS; n \u003d 100415 (date of handling: 05.04.16).
In the Federal Law of the Russian Federation "On Enforcement Proceedings" there are no all rules governing the actions of bailiffs and other participants in execution for each category of executive actions. To a certain extent, it is a framework and already, therefore it assumes the existence of sub-law acts on the activities of the Federal Law, taken not only by the President of the Russian Federation, but also the Government of the Russian Federation, and the Ministry of Justice of the Russian Federation.
The absence of the reference to regulatory acts of the Russian Federation and the Ministry of Justice of the Russian Federation in Article 2 of the Russian Federation of the Russian Federation and the Ministry of Justice of the Russian Federation (in any case, the latter) in the completion of the law by regulatory and instructive material.
In Article 2 of the Federal Law "On Bailiffs" on the contrary, as legislation of the Russian Federation on enforcement proceedings, not only the regulatory legal acts of the Government of the Russian Federation are indicated, as well as adopted in accordance with the Constitution of the Russian Federation, federal laws. regulations President of the Russian Federation, Ministry of Justice of the Russian Federation. It seems that these discrepancies in these laws must be eliminated. In fact, in its activities, the bailiff applies the decrees of the President of the Russian Federation, for example, a temporary regulation on the procedure for adding recovery on the property of organizations, approved by the Presidential Decree of February 14, 1996, which determines the procedure for the recovery of the property of organizations - debtors, with the exception of funds funded The owner of the institutions carried out by the bailiff or other person or body authorized to be in accordance with the legislation of the Russian Federation.
The regulatory acts of the Ministry of Justice of the Russian Federation should also be indicated as sources of executive legislation:
- - Order of the Ministry of Justice of the Russian Federation "On improving work on the selection of specialized organizations for the sale of arrested property" of 12.11.1998. № 166.
- - Order of the Ministry of Justice of the Russian Federation "On the obligatory purpose of a specialist in the implementation of the valuation of securities to which the recovery is drawn" of 10.27.1998. № 153.
In paragraph 3 of Art. 2 FZ "On Enforcement Proceedings" enshrines the traditional rule about the priority of norms international treaties Russia compared to inside russian legislation.
The international legal instruments containing the rules of enforcement proceedings can be attributed to: the Convention on legal aid and legal relations on civil, family and criminal cases between member states of the Commonwealth of Independent States, signed on January 22, 1993. and ratified by the Federal Assembly of the Russian Federation.
In the activities of the service of bailiffs, there are objective problems that do not allow to effectively fulfill all decisions of judicial and other bodies related to ambiguous law enforcement practices and interpretation of the Federal Law "On Enforcement proceedings".
Article 7 of the Law of the Russian Federation "On Enforcement Proceedings" defines an exhaustive list of executive documents, but the executive inscription in it is not mentioned. At the same time, a significant number of creditors' claims was satisfied earlier through the procedure for issuing a notarial act to recovery.
The legal basis for such actions was the corresponding provisions of Art. 89 of the main legislation of the Russian Federation on the notary and norms of the decision of the Council of Ministers of the RSFSR of 11.03.1976. № 171.
The absence of a mentioned Art. On the Law of the Russian Federation "On Enforcement Proceedings" of the executive inscription leads to the fact that in a number of regions, bailiffs are denied the adoption of executive inscriptions to execution.
At the same time, the notarial act on the recovery is widely known and is used in the legislation of European states in order to reduce the load on the judicial system and ensure timely consideration of the creditor requirements. Based on such a purpose, we believe that there is a need for a legislative consolidation of executive inscription as a type of executive document.
From the provisions of paragraph 1 of Article 9 of the FZ of the Russian Federation "On Enforcement Proceedings" it follows that the bailiff is obliged to accept the executive document from the court or another body, its issued, or a recoverer and initiate enforcement proceedings. At the same time, paragraph 6 of the same article states that the decision on the initiation of enforcement proceedings may be appealed in a 10-day period (as well as a complaint in accordance with paragraph 5 of article 27 of this law is the basis for the suspension of enforcement proceedings). The question arises: what is the point of providing the right to appeal against the decision of the bailiff on the initiation of enforcement proceedings, if he is prescribed in the law, having received the executive document that meets the requirements established by the established requirements is obliged to make a decree, and does not have other alternatives in this legal situation. The question is not idle, since unscrupulous debtors use the right to appeal against the decision on the initiation of enforcement proceedings in order to take advantage of the suspension of the executive actions and to protect the property and cash from the recovery.
The most common problems of the execution of Article 13 of the Federal Law "On Enforcement proceedings" concerning the two-month period of execution, and the norms regulating the production of certain actions in a specific time frame, somehow the imposition of arrest on property within a month from the date of the provision of the Debtor on the initiation of the executive production (Article 51), the implementation of the arrested property within a two-month period from the day of arresting (Article 54) and others. The deadlines are control, and not supplement, and the specified circumstance should be reflected in the law under consideration, since the ignorance of this gives rise to complaints of the parties. , pursuing them, on the actions of the bailiff.
The difficulty lies in the fact that previously operating norms of the Civil Procedure Code of the RSFSR, regulated by the activities of the bailiff, did not contain temporary restrictions on the enforcement proceedings. Therefore, the provision on the two-month execution date of the decision of the courts included in the law on enforcement proceedings is practically reduced by all executive proceedings, taking into account the realities of the present.
However, the Federal Law of the Russian Federation "On Enforcement Proceedings" does not contain legal norms on the extension of executive terms. Therefore, when passing deadlines for the arrest of property (Article 51) or for implementation (Article 54), individual judges are considered illegal by these actions of bailiffs, which means the impossibility of further execution of the judicial act and, therefore, should entail an end to production and refund. executive document to court or recording. Let us give the following example:
05/25/2002 In the Arbitration Court of the Ulyanovsk Region, the defender of Simbirsk-dialogue directed a complaint against the actions of the bailiff of Svetiviazhi PSP of Ulyanovsk, which indicates that 10.05.2002. The bailiff of the Svetivijazh PSP was made a decree on the imposition of arrest on the debtor's property and a state of arrest of the property of AOZT "Simbirsk-dialog" was drawn up. With the actions of the bailiff, the debtor did not agree, since in accordance with paragraph 1 of Article 51 of the FZ of the Russian Federation "On the Executive Production", the arrest of the debtor's property is imposed no later than one month from the date of the provision of the Debtor on the initiation of enforcement proceedings.
Having considered 26.06.2002. The proof presented, the court satisfied the complaint against the actions of the judicial bailiff, since the decree on the imposition of arrest on the property of AOZT "Simbirsk-Dialog" from 10.05.2002 It was adopted with a violation of the period established by Art. 51 of the FZ of the Russian Federation "On Enforcement Proceedings". The court considered that the violation of the term, directly established by Art. 51 of the Russian Federation "On Enforcement Procedure" to impose arrest on the property of the debtor, speaks of the illegality of the actions of the bailiff.
I consider this definition of contradictory legislation and subject to cancellation on the following grounds:
- 1. Recognizing the unlawful actions of the bailiff for the imposition of arrest on property, the court deprived the court of bailiffs to fulfill the court decision, since the cash funds of the debtor - AOZT "Simbirsk-dialogue" are missing.
- 2. The grounds for the end of the enforcement proceedings, according to Article 27 of the FZ of the Russian Federation, "On Enforcement Proceedings" is also not.
At the same time, the conclusion of the court on violation of the bailiff of the Russian Federation "On Enforcement proceedings" is insolvent, providing the right to bailiff-executive to impose an arrest on property no later than one month from the date of delivery to the Debtor on the initiation of enforcement proceedings. This rule only emphasizes the efficiency and specificity of such a measure of the enforcement of a judicial act as the appeal of the debtor's property by imposing arrest on property and its implementation.
The compilation of the Act of Osia and the arrest of the debtor's property after a month from the date of the presentation of the Debtor on the initiation of enforcement proceedings cannot unambiguously entail the illegality of the enforcement action. This requirement of the law concerns only the timeliness of the actions of the bailiff for the execution of a court decision. Interpretation of the law in the sense of how the Arbitration Court of the Ulyanovsk region did, contradict legal Institute Forced fulfillment of court decisions, and also contradicts the meaning and appointment of the FZ itself "On Enforcement Proceedings".
How to act a bailiff in the current situation?
If you follow the conclusions of the Arbitration Court, the executive production against the debtor - AOZT "SIMBIRSK-DIALOG" must also be terminated by the court, which recognized the actions of the bailiff illegal, since grounds for the end of the enforcement proceedings, according to Article 27 of the FZ of the Russian Federation " On the executive work "from the bailiff is not.
In this case, this seemingly a deadlock helped to resolve the recoverer - the administration of Ulyanovsk, which is 27.06.2002. He turned in connection with the hopelessness of the situation in the Svetiviazhskaya PSP of the city of Ulyanovsk with a statement about the return of the executive document, and 06/29/2002. Repeatedly presented an executive list.
And yet the appeal instance, after submitting the corresponding complaint by the bailiff of the Svetiviazhskaya PSP, did not agree with the conclusion of the court of first instance that a violation of the period directly established by Article 51 of the Russian Federation "On Enforcement proceedings" to impose arrest on the property of the debtor, Speaks about the illegality of the actions of the bailiff. The compilation of the Act of Osia and the arrest of the debtor's property after a month from the date of the presentation of the Debtor of the Decree on the initiation of enforcement proceedings cannot serve as a basis for recognizing illegal executive action. Other interpretation of this norm, according to the appeal instance, contradicts the meaning and appointment of the FZ of the Russian Federation "On Enforcement Proceedings".
At the same time, the FZ of the Russian Federation "On Enforcement Proceedings" does not provide for such grounds for the end of the enforcement proceedings as the expiration of a two-month period or skipping the deadlines for individual actions. By virtue of this circumstance, bailiffs, the actions of which are recognized as illegal, based on the passing of the arrest or realization of property, are forced to look for other reasons for the end of the enforcement proceedings, including to compile acts on the impossibility of recovery, which is not true.
Another problem is directly related to terms - compliance with the norms of Article.78 of the FZ of the Russian Federation "On Enforcement Proceedings", namely: Determination of the order to meet the requirements of the recovers. As a rule, the plaintiffs in the courts are mainly physical and legal entities that this law Are collaborators of the third-fifth queue. The design of the Russian Federation Article 78 of the considered law was unambiguously consolidated by the rule, according to which in case of insufficiency, the estimated amount was divided into satisfaction of all requirements, the specified amount is distributed between the recovers in order of priority established by this article. Five categories of sequence are known, while the requirements of each subsequent queue is satisfied after the fulmination of the requirements of the previous one. In practice, this means that when large debts first and second stage (and this applies to most enterprises), the satisfaction of which in a two-month period is impossible due to financial and economic difficulties, the following queues do not have chances not only in a two-month period to obtain any means, but also to meet the requirements of For the lack of sufficient property masses of the debtor.
In such a situation, there are recorders when executive sheets of latter queues are received, in the presence of priority, according to which executive actions have already been carried out and the question of all that is possible, the question arises: how much time can be a bailiff executive lists of the last waiting after The expiration of two months. Currently, such executive proceedings lie without movement for years, because in production (also years) there are priority recovery.
Does not solve this problem and Article 55 of the Federal FZ RF "On Enforcement Proceedings", prescribing several executive proceedings initiated against the same debtor into consolidated enforcement proceedings. In this case, it is unclear how to calculate the two-month period of execution: from the earliest excitation or from the moment of combining into the consolidated production. In addition, the union makes sense with the simultaneous arrival of several executive sheets or obtaining them within two months in relation to one debtor, otherwise the consolidated production loses its relevance. Next: from the Federal FZ of the Russian Federation "On Enforcement Proceedings" is unclear whether it is possible to refer to the executive actions carried out on earlier executive listings, and what are the legal basis and the deduction of executive sheets in the consolidated executive work, if in a two-month term solution Court cannot be fulfilled in the first, nor at later executive sheets.
The non-marketability of these issues leads to the fact that the courts, on the one hand, observing the law, recognize the unlawful actions of the bailiff with the passage of the deadlines for the commission of concrete executive actions (ST51.54 of the Russian Federation "On Enforcement Proceedings"), on the other, return executive Sheets for further production, if even a two-month term has expired.
Proposals for terms:
- 1. So far, the Federal Law of the Russian Federation "On Enforcement Procedure" has gaps, it is necessary to be guided by the norms of the Code of Civil Procedure of the Russian Federation, regulating the actions of the bailiffs of the executivers, according to which the term for execution of the executive actions is not limited. This is possible, since the Code of Civil Procedure of the Russian Federation has a priority value, and the existing contradictions in the law under consideration is clearly not in favor of the execution of judicial acts and recovers.
- 2. If the judges are guided by the rules governing the deadlines of the executive actions, they should take into account the impossibility of conducting judicial barns of actions beyond the two-month period and agree with their arguments on the end of the executive proceedings due to the impossibility of recovery and return the executive documents that the recoverer It may be submitted to the time provided for by law.
The first offer is more necessary, the second - more complies with existing legal norms.
I would like to know the opinion of the judicial community on this issue, and develop a single position.
Another important problem is the application of the norms of clause 1 of Article 19 of the FZ of the Russian Federation "On Enforcement Proceedings" in terms of the realization of the law of the bailiff to postpone executive actions on the application of the recoverer. The specified norm states that the bailiff may postpone the executive actions on the application of the recoverer. That is, this rule does not contain mandatory requirements, but gives the right to decide this issue as positive (may) and negatively (may not be postponed). Ultimately, if necessary, the recoverer has the right to appeal against the order of the bailiff, if the execution is not postponed, or immediately apply to the court to postpone the executive actions.
The question associated with this problem arose due to the fact that individual decisions (in particular, the separation of the Pension Fund of the Ulyanovsk Region), incorrectly understanding this standard of the law under consideration, postpone executive actions repeatedly and for a long time, negotiating at the same time with the debtor about the phased Repayment of debt.
It turns out a controversial situation: the recoverer pays for a compulsory execution to the bailiff service and does not give it to execute it.
This situation is fraught with the fact that non-fulfilled production accumulates, and when the recoverer wishes that bailiffs of the executives apply repressive measures, their effectiveness is low, since the debtor has lost its liquid property during this time. As a result, the recoverer begins to contact all instances with complaints about the inaction of the bailiff.
Therefore, I believe that the declaration of deposition of executive actions cannot always be subject to unconditional execution of the bailiff. The commentary of the FZ of the Russian Federation "On Enforcement Proceedings" in this part does not quite coincide with the text of claim 1 of Article 19 and therefore it can serve as a basis for recognizing the actions of the bailiff with the executive actions illegal. Analysis of the application of the Decisors of Article 19 of this Law on the depositing of the executive actions has shown that it is due to the mostly mercantile interests, since the recovers believe that the execution of the executive actions is automatically postponed and the recovery of the performing fees (Article 77 and 78) is automatically postponed.
Such an understanding is erroneous: based on the meaning of the law under consideration, the executive fee is subject to recovery, both in sediments and with measures suspending executive actions, and even after returning the executive document. The deposition or return of the executive document does not mean the abolition of the recovery of the Performing Gathering, as it must be recovered in full after time expiration for voluntary performance.
I would like to note the following that the position of paragraph 1 of Article 77 in paragraph 1 of Article 19 of the FZ of the Russian Federation "On Enforcement Proceedings", on the basis of which from the monetary amount, a recovered bailiff, the performer from the debtor, the executive fee is paid first of priority, and the demandster requirements are satisfied Recently, recognized as not relevant to the Constitution of the Russian Federation (Resolution of the Constitutional Court of the Russian Federation of July 30, 2001 No. 13-P). In my opinion, these changes are an effective way to fulfill the court decision in full.
In addition, I would like to pay attention to one another, in my opinion, the disputed moment of the law under consideration. If followed in paragraph 1 of Article 19 of the FZ of the Russian Federation "On Enforcement Proceedings" of the prescriptions, then the bailiff may postpone the executive actions or refuse to postpone the executive actions, despite the appropriate decision of the judge. It should be noted here that specified in legal norm The prescription is the right of the bailiff, and not a duty. This means that in the sense of the specified norm, despite existing definition Judges, the bailiff may not bear the decision on the deposition of executive actions. Obviously contradict the legitimate interests of the regulations of Article 81 of the FZ of the Russian Federation "On Enforcement Proceedings" on the procedure for charging the fulfillment. The practice of applying the Federal Law of the Russian Federation "On Enforcement Proceedings" indicates the need to change the provisions on the execution of the law under consideration in Article 81. First of all, the calculation of the performing collection, which property Development It is 7 percent of the amount imposed. The position of paragraph 1 of Article 81 of this Law, according to which in the case of non-fulfillment of the executive document without good reasons for the deadline established for the voluntary execution of the specified document, the bailiff makes a decree on which the executive fee of seven percent of the accumulated amount or The cost of the property of the debtor, - in the extent, because it is due to its formal uncertainty in terms of the grounds for the liberation of the debtor from paying the executive fee, it allows its application without providing the debtor the opportunity to properly confirm that the violation of the established deadlines for the execution of the executive document obliging it to convey the remarkable cash funds caused by emergency, objectively by unexpected circumstances and other unforeseen, irresistible obstacles that are outside of its control, while complying with the degree of caringness and prudence, as Aha was required for the purpose of proper execution of the obligation arising from the prescriptions of paragraph 1 of Article 81ded Law, recognized as not relevant to the Constitution of the Russian Federation (Resolution of the Constitutional Court of the Russian Federation of July 30, 2001. №13-P).
In our opinion, it requires additions and paragraph 4 of Art. 54 of the Federal FZ of the Russian Federation "On Enforcement Proceedings", which indicates that if the property is not implemented in a two-month period, the recoverer is provided with the right to leave the property. In this situation, the question arises, how to be a bailiff-executive, if he has a consolidated executive production and number of recovers more than one.
Consider a possible situation:
On the execution of the bailiff is a consolidated executive basis against the debtor-organization. This consolidated enforcement proceedings include two enforcement proceedings, where various organizations are recording. In the course of the execution of executive actions, the bailiff is imposed on the property of the debtor's property, which later was not implemented in the manner prescribed by law. Bailiff receiving information from specialized organization On the failed bidding, or the impossibility of realizing property at the commission basis, is obliged in accordance with paragraph 4 of Art. 54 of the Russian Federation "On Enforcement Proceedings" to offer the recoverer to use the right to leave the property. There is a question of who from the existing stratifiers to give preference. The choice of one or another charger can be considered as the abuse of the bailiff of the official position. Therefore, in my opinion, there will be an addition made by the legislator in the above-mentioned norm of this law: "Unrealized property of the debtor is not transmitted, if the number of challenges of more than one or the cost of the thing exceeds the size of the requirements contained in the executive document, the recovers are referred to " Such cases have already happened, and after making a court decision, the requirements of the recovers were satisfied.
The ban to pay the recovery on the property of the debtor, which, in accordance with the Federal Law, cannot be drawn to the penalty, sometimes interpreted by the parties to the enforcement proceedings, as well as by some vessels only in the sense of Article 50 of the Russian Federation "On Enforcement Proceedings", explaining that in the execution of executive Documents against citizens cannot be addressed to property specified in the list of types of citizens' types, which cannot be paid for executive documents. Meanwhile, in Part 1 of paragraph 5 of Article 46 of the FZ of the Russian Federation "On Enforcement Proceedings" meant the property of institutions that cannot be recycled in accordance with Article 18 of the Civil Code of the Russian Federation.
It should be noted that new list The types of property of citizens who cannot be paid for executive documents (14.11.2002 №138-FZ Code of Civil Procedure of the Russian Federation, Article 446).
The adjustment of the norm of paragraph 4 of Article 73 of the FZ of the Russian Federation "On Enforcement Proceedings", which has established that in case of the impossibility of executing the executive document of the non-property, the bailiff is obliged to make a decision on the return of the executive document to the court or another body, its issued.
Meanwhile, the impossibility of execution may be temporary caused by non-establishment during the period allotted by Article 13 of the FZ of the Russian Federation "On Enforcement Proceedings" by execution, addresses of the debtor-organization or place of residence of the debtor-citizen. In this case, in accordance with subparagraph 3 of paragraph 1 of Article 26 of this Law, the Executive Document is subject to a return to the recoverer, and not a court or another body that issued an executive document, since the possibility of execution cannot be considered completely lost.
In court or another body that issued an executive document of a non-property nature, this unfulfilled document should obviously be returned only when the possibility of its execution is lost, to terminate the enforcement proceedings on the grounds provided for by paragraph 3 of Article 23 of the FZ of the Russian Federation "On Enforcement proceedings" , that is, in the case of the death of a collector-citizen or a citizen debtor, the announcement of his deceased, recognition as missing, if the requirements or obligations established by the judicial act or act of another body cannot move to the legal successor or the management property of the missing missing, as well as in the case when The organization, which is a marker or debtor, is eliminated.
According to paragraph 1 of Art. 46 FZ of the Russian Federation "On Enforcement Proceedings" Appeal to the Debtor's Debtor's property consists of its arrest (inventory), seizure and forced implementation. According to paragraph 2 of Article 46 of the FZ of the Russian Federation "On Enforcement Proceedings", recovery on executive documents is primarily addressed to the debtor's money in rubles and foreign currency and other values, including those in banks and other credit institutions. Cash funds discovered by the debtor are withdrawn. Cash withdrawal from the cashier does not represent difficulties for the bailiff, when the bailiff arrives in the organization discovered cash in cash and seized it for the relevant act of making money
The problem is as follows:
Since the cash book is envisaged in each company, where the arrival and consumption of cash of a particular enterprise is indicated. The bailiff has the right to demand from the director of the enterprise, an accountant and cashier cash book for verification. It often happens that in the company there is a daily amount of money. However, at the time of the inspection of the cash book and the cash office, cash is absent. How to be in such a situation. According to accounting documents, the bailiff establishes that funds to be arrested primarily enter the enterprise's cash desk daily. However, they are absent when the bailiff is for their withdrawal. No one, it is no secret that accounting workers fill the cash book at the end of the working day, and not when the cash in the enterprise's cash register arrive. Sometimes the cash book is filled and once a few days. In such a situation, trace and detect the money is almost impossible. The legislation also does not provide for the possibility of arresting money entering the debtor's cash register.
In my opinion, such an arrest is possible and even necessary, and most importantly, this executive effect does not contradict the existing executive legislation.
In order to discuss this problem, consider the following examples:
MP "Specvostovto farming of the city" appealed to the Arbitration Court of the Ulyanovsk Region, with an application for exclusion from the Act of Opisi and the arrest of property described by the bailiff of the railway division of the bailiffs of Ulyanovsk. The applicant asks to exclude an arrest of arrest from the Act of Opisi and the arrest of property to the "parish part of the internal office by 20%," since this is contrary to Art. Art. 46.51 FZ of the Russian Federation "On Enforcement Proceedings".
Having studied the materials of the case, examining and evaluating the proofs presented, having heard representatives of the parties, the bailiff, the court considers that the actions of the bailiff for the imposition of arrest on the "parish part of the internal cash register by 20% are illegal.
At the same time, the court proceeded from the following:
"The arrival part of the internal cash desk is not a property. In accordance with Part 2 of Art.51 of the FZ of the Russian Federation "On Enforcement proceedings" the arrest of the property of the debtor consists of an inventory of property, the ban declarations to dispose of them, and if necessary, restrictions on the right to use property, its withdrawal or transfer to storage. Since the "parish part of the internal cash register" is not property, it is not possible to impose an arrest on it. Under these circumstances, the court considers that the actions of the bailiff for the imposition of arrest on the "parish part of the internal cash register" are illegal.
In my opinion, this decree of the Arbitration Court is completely reasonable and is not subject to cancellation.
Consider another example:
In 2000 A complaint was filed by the municipal enterprise, a complaint was filed against the actions of the bailiff of the interdistrict division of the bailiffs of the city of Ulyanovsk for the imposition of arrest on cash entering the MP Cassum "Special Authority for Cleaning the City" in the amount of 30%. With the actions of the bailiff, the applicant does not agree on the following grounds:
Article 46 of the Federal Law "On Enforcement Procedure" defines the procedure for adding collection of funds and other property of the debtor. In Part 2 of Article 46 of the Federal Law "On Enforcement Proceedings" states that the cash funds found from the debtor are drawn. Cash recovery is to identify, withdrawal and enrollment on the deposit account of the division of bailiffs. Thus, this act, the bailiff imposed an arrest on the "special vehicles for cleaning the city" in the office of MP, the funds of the "Special Authority for Cleaning the City" and laid the duty to identify and storing the company's officials.
Based on the following, the applicant asks - to recognize the actions of the bailiff of the interdistrict division of the bailiffs of the city of Ulyanovsk on the imposition of arrest for funds entering the MP Cassum "Special Authority for Cleaning the City" in the amount of 30% illegal.
After examining the materials of the case, listening to the persons participating in the court session, the court considered that the complaint should be refused. Article 46 of the FZ of the Russian Federation "On Enforcement Proceedings" provides that the recovery of executive documents is primarily addressed to the Debtor's funds, including those in banks and other credit institutions. Cash funds discovered by the debtor are withdrawn. In the presence of information about the money available in the debtor and other values, they are imposed on arrest. In this case, the bailiff of the executor of the arrest is imposed on funds entering the debtor's cash desk, which does not contradict the said law.
Thus, the debtor's complaint is left without satisfaction, which is undoubtedly legally.
In my opinion, the arguments of the debtor about the illegality of imposing arrest on cash entering the box office, are not justified with nothing. The debtor refers to the fact that the bailiff imposed the arrest on the "Special Authority for Cleaning the City" in the cash register of the MP, and laid the duties to identify and storing the company's officials. Such an interpretation of the executive action taken by the bailiff against the debtor, in my opinion, does not correspond to reality. After all, the postponement of money entering the cashier is not to have their identification, but is - the obligation of the cashier. The responsibility of the cashier is the proper maintenance of the cash book of the enterprise. As for the storage of the arrested property, on this score of Article 53 of the Federal FZ of the Russian Federation "On Enforcement Proceedings" says unambiguously - "Debtor's property (and in this case, these are cash of the debtor) is transferred to the part of the partition in the act of arrest of property to the debtor or another person, appointed bailiff. "
The practical activity of bailiffs of executors on the execution of decisions of judicial and other bodies faces many difficulties and problems. For example, an arrest is imposed on the property of the debtor - bank or another organization, and she ceased to exist in the form of reorganization, or a citizen who was a party in the executive production. According to Art. 32 FZ of the Russian Federation "On Enforcement Proceedings" in this case - i.e. When removing one of the parties, the bailiff must be replaced by its successor to its decree. Since the legislation on the enforcement proceedings does not cover this procedure in detail, the department for organizing the work of the court bars of the Main Directorate of the Ministry of Justice of the Russian Federation in the Khabarovsk Territory has developed a temporary instruction on the procedure for replacing the parties in the executive production by the successor. In the instructions in accordance with the requirements of the legislation, issues of the foundations of the succession, its design, the rights of the successor are solved. The developed Instructions indicates that rights and obligations, during enforcement proceedings on a specific executive document, can proceed from some of those who came to the executive proceedings to other persons. The succession is the transfer of rights and obligations during the enforcement proceedings on one side to another person who has not previously not participating in the executive production. The succession is possible throughout the entire executive production: from the moment of initiation until the end of the grounds specified in Article 27 of the FZ of the Russian Federation "On Enforcement Proceedings".
As the basis of succession in the enforcement proceedings, the transition of material rights and obligations from part to other persons. Such grounds may be the following legal facts:
- - the death of a citizen who was the parties;
- - termination of the existence of a legal entity in the form of reorganization (Article.57,58 Civil Code RF). If the legal entity is eliminated, its activities in accordance with Article 61 of the Civil Code of the Russian Federation ceases without the transition of rights and obligations in order of succession to other persons;
- - assignment of requirements;
- - Translation of debt.
The succession is possible not for all executive documents, but only by those on which it is possible in material law. For example, under Article 1175 of the Civil Code of the RSFSR, the heirs respond to the debts of the testator within the cost of hereditary property, and therefore, the succession is permissible. According to Art. 436 Code of Civil Procedure of the Russian Federation The duty of the judge to suspend enforcement proceedings arises in the event of the death of the debtor, the declaration of his deceased or recognition is missingly absent, if the legal relationship established by the court allows the succession, as well as the arbitration court of proceedings in the case of insolvency (bankruptcy) of the debtor. The succession is issued by making the decision of the bailiff. If the requirements or obligations established by the court decree cannot move to the successor of the deceased or declared persons or to the managed property of the missingly absent, then according to Article 439 of the Code of Civil Procedure of the Russian Federation, the judge terminates executive proceedings.
At the same time, the order of succession should be distinguished depending on what executive documents and for what legal facts it arises.
In the event of grounds for succession in the execution of the executive document issued by the Arbitration Court, the successor must be determined in accordance with Art. 40 APC RF through the definition of the Arbitration Court. In Art Apk RF, it was determined that "in cases of disposal of one of the parties in the disputed or established decision of the Arbitration Court, the legal relationship (reorganization, assignment, the demand, debt transfer) is to replace this part of its successor, indicating this in the definition, decision, or Resolution. "
For the period before joining the enforcement proceedings, it is subject to compulsory suspension on the basis of the definition of the relevant court (clause 1 of Article 20 of the FZ of the Russian Federation "On Enforcement Proceedings"). As for the procedural and legal consequences, when establishing other grounds for the succession (assignment of the requirements, the transfer of debt), since the Federal Law of the Russian Federation "On Enforcement Procedure" does not contain grounds for suspending the proceedings in such cases, then according to the successor Action (Article 19 of the FZ of the Russian Federation "On Enforcement Procedure") In order for the successor to familiarize himself with the materials of the case and prepared for participation in the executive production.
The ban to pay for the recovery of the debtor's property, which, in accordance with the FZ of the Russian Federation, "On Enforcement Procedure" cannot be drawn to the penalty, sometimes interpreted by the parties to the enforcement proceedings, as well as by some vessels exclusively in the meaning of Article 50 of this Law. This article clarifies that in the execution of executive documents against citizens, recovery of property specified in the "list of types of property of citizens who cannot be drawn to executive documents cannot be addressed. Meanwhile, in Part 1 of paragraph 5 of Article 46 of the FZ of the Russian Federation "On Enforcement Proceedings" was also due to the property and institutions to which the recovery of the Civil Code of the Russian Federation could not be applied. [
Another problem in the execution of judicial and other decisions concerns Article 88 of the FZ of the Russian Federation "On Enforcement Proceedings", which prescribes all its decisions to the executive executive to the executive acting, affecting the interests of the parties and other persons to climb. Thus, the bailiff, by making a decision on the production of any executive action, then, if necessary, in it, its own decree can cancel it.
Let us give the following example:
08.22.2000. The bailiff of the Interdistrict PSP of Ulyanovsk is imposed arrest on cash entering MP "Special vehicles for cleaning the city" in the amount of 30%. Due to the fact that this enterprise is removed from the city and it was impossible to attract the participation of strangers understood, the bailiff invited to participate during the imposition of arrest on the property of the debtor of people working in this enterprise.
The debtor - MP "SPECIAL EXPENSION FOR CLEANING OF THE CITY" appealed against the actions of the bailiff in the arbitration court, referring to the fact that according to Article 39 of the Russian Federation "On Enforcement proceedings", citizens who are not consisting of participants in the enforcement proceedings can be invited Subordination or controlling.
Due to the fact that the bailiff of the law was violated by the rule of law, by decree on 08/31/2000. Canceled Act of Arrest dated 08.22.2000. and proposed to the debtor to withdraw the complaint from the Arbitration Court, due to the inexpediency of its consideration.
When this cancellation is made in the form of a decree on the abolition of the previous decree (ACT), these actions of the bailiff and its decree with some courts are considered illegal. In this regard, I consider it necessary to make an appropriate addition to the named article.
It seems desirable clarification of the norms of Article 90 of the Russian Federation of the Russian Federation "On Enforcement Proceedings", about appealing to the court action of the bailiff. It is obvious that the procedure for consideration by the courts of such complaints should be contained in the Code of Civil Procedure of the Russian Federation and the APC RF. And, nevertheless, the legislator for a uniform solution to this issue should indicate, in which order are considered by such complaints and the form of participation in the consideration of the Complaint of the legal entity - territorial body Justice represented by the judicial attachment service of the subject of the Federation, and also note that the judicial act adopted on the complaint is subject to appeal in accordance with the norms of the Code of Civil Procedure of the Russian Federation and the APC RF.
Bubbles Denis Mikhailovich
Implementation problems at the stage of formation of the executive document
The actual position of the parties in the executive production is such that when contacting FSSP, a recoverer, as a rule, is dealing with unscrupulous and, moreover, malicious debtors. Law-abiding subjects that recognize the debt usually fulfill the regulations of the law voluntarily and in a timely manner, and therefore there is no need to go to court (or other bodies competent to issue executive documents); If the law-abiding subject does not agree with the requirement of the creditor, he, nevertheless, extinguishes the debt voluntarily immediately after the court decision entry into force, and the need for compulsory execution does not occur. The later the executive actions will begin, the greater the chance that the unscrupulous debtor will hide, subjected to alienation, will destroy the property to which recovery can be drawn, will create other obstacles to the implementation of the executive document. In addition, the debtors often have several decisions, which causes the recent competition and the delay with the implementation of the executive document can again lead to a decrease in the size of the recovered or to the full impossibility of recovery. Debtors - individuals can leave the place of their stay (to go to another area, region or abroad), they can comprehend the disease or death, debtors - legal entities may stop economic activities, hide or destroy reflective documents, dissolve staff, etc. ., What will also seriously difficult or make almost impossible penalties. And the time works in the debtor and against the recoverer. The state of affairs is also complicated by the fact that at the moment the level of life of the baits, as well as many other FSSP workers, it is difficult to call decent, and the load on a specialist, the conditions of its activities often leave to desire the best; Therefore, if choosing, even in the absence of corruption intentions, the choice is carried out towards minimizing the load.
Judicial orders
Problems in the implementation of the executive document are already possible in its formation; Code of Civil Procedure of the Russian Federation provides for the institution of refusal to accept the application for the issuance of a judicial order - within three days from the date of receipt of the application for the issuance of the court order, if there are grounds, makes a definition of refusal to accept the application. But the current civil procedural legislation does not provide for the possibility of appealing such a definition, and the illegal refusal to accept the application for a judicial order prevents the further movement of the case in order of ordinary production, and the recoverer is deprived of the right to consider its application in a simplified procedure, which makes it less accessible in comparison. with claims. On the one hand, the lack of right to appeal the definition of a refusal to accept the application for the issuance of a judicial order is caused by the specifics of the order, and on the other - in this case, the situation arises when the court himself instead of a person contacting the judicial protection determines the choice of court proceedings in A framework of which this defense will be provided that in itself violates the principle of the interpretation of the civil procedure, according to which only interested party defines the method and procedure for the protection of its violated right. Secondly, a large question is subject to the state of the basis of the order on the transaction committed in a simple writing in connection with the legal illiteracy of the population and the ubiquitous distrust of the state authorities; In practice, abuse of law is possible, and therefore existing proposals on even greater simplification of the procedure of the court order in the conditions of the existing Russian legal reality are premature. In practice, the author met the case of abuse of the possibilities of ordinary production by the commercial bank when granting its services to the population - after signing a loan agreement after some time (even when the client has not yet refused the Bank's services and did not use the loan) after consideration by the Justice of the Bank's statement with the application written contract A judicial order was sent to the employer of the client (due to the complexity of the alerts, the client of notifications from the bank did not receive) on the recovery of the loan amount with interest for the use and penalties due to the delay in payment. Not knowing his rights and not having the actual possibility of proving its rightness, the Bank's client was eventually forced to pay the amount of non-existent debt. Thirdly, the lack of motivation in the court order leads to the restriction of its transboundary action, which is particularly relevant within the framework of the CIS member states. The current Code of Civil Procedure of the Russian Federation does not contain the obligations of the world judge to point out the motives of his adoption in the court order, and, as a result, in practice there are problems to determine the content of the judicial order - foreign courts are denied its execution, since there are not given or are given, but slightly motives for which The judge came to certain conclusions. In practice there was a case of refusal to accept a lawsuit on the payment of alimony on a child from the Father - a citizen of the Turkish Republic. It should be thought that simplifying judicial procedures should not be carried out by simplifying the content and form of acts of justice.
Difficulties to implement other executive documents
Regarding the acts of bodies with non-judicial jurisdiction, it should be noted that these requirements of the bodies acquire the virtue of the executive documents, only in cases where the legislation of the Russian Federation did not establish a different procedure for execution, and in accordance with the COAP of the Russian Federation, the decree of bodies (officials) on the imposition of fines on physical Persons (citizens) should be sent for compulsory execution to bailiffs only if the debtors voluntarily do not fulfill the requirements specified in the resolutions and do not work (do not have permanent revenue). If there is a need to recover additional sanctions, such as penalties, then the prerequisite is to appeal to the court; The procedure entered by law complicates the work of the bailiff and in practice, the penalty often goes to a dead end.
There is a question about the law regulated by law in the absence of a permanent place of residence at the place of stay of the charter; The place of residence of the citizen is recognized as a place where a citizen constantly or mainly lives - in a residential building, an apartment, a hostel, and the like as a owner under the employment contract (delivery), under the lease agreement or otherwise provided for by Russian legislation, and the place of residence, Rule, should coincide with the place of registration. The solution of the gap is seen in establishing a citizen's residence court on the basis of various legal facts, not necessarily related to the registration by its competent authorities, that is, the refusal to accept the recovery statement may be appealed in court on the basis of the recognition of the place of residence of the local location of the recoverer. Based on this, it is possible to present a lawsuit at the place of actual stay of the recoverer, submitting the court to evidence that the recovere does not live at the place of registration, but constantly or mainly lives outside the registration site.
Problems of execution with the independent treatment of the recoverer to the bank, other organization or face
There is also a gap with respect to the recovery by the recovery itself of periodic payments in the amount of more than 25,000 rubles. Although this practice, apparently, is rare, from the literal interpretation of the law it follows that in this case the bank can be legally denied the execution of the decision, and for the implementation of the decision of the court, the recoverer will have to contact FSSP. The law also has not been established period during which, in the absence of money on the account, the executive list must be returned to the recoverer, which gives ample opportunities for the abuse of law - after all, the non-return of the executive document prevents the further proceeding course. It seems that in practice, in this case, the fastest and logical and logical is obtained by a charter of a duplicate of the executive document sent to FSSP, and the violation of the acquisitions of the bailiff will entail the imposition of an administrative fine to the bank or other credit institution in the amount of half of the money amount to be recovered from the debtor But not more than one million rubles. Reimbursement of expenditure debtor, although it is possible in the claim by the recoverer, but to prove the fact of the availability of funds on the debtor's bank account at the time of its treatment with the executive document of the Declaringer seems extremely difficult. It should be added that in the case of the guilty defaults contained in the executive documents of the courts, arbitration courts of claims for the recovery of funds from accounts (from deposits) of customer organizations in the presence of funds in the accounts (in deposits) of these people of the Central Bank of the Russian Federation may withdraw a license for the credit institution banking operations However, the presentation of the above fact in the Central Bank of the Russian Federation is also impossible.
The law determines that enforcement proceedings should be completed within a two-month term. If the debtor guess to close the bank account specified in the controversial contract, as well as other account, the recoverer will not be able to recover money with the help of the bank and will be forced to appeal to the accompaniment, which, extinguing production, can quit, get sick or just forget timely send Debtor Resolution for the recovery of funds.
Problems of performance when contacting FSSP
When applying for a recoverer in FSSP with a notarial inscription, the baptization may substantiate his refusal by order of the Ministry of Justice of Russia, according to which the letter of the Ministry of Justice of Russia dated January 26, 1995 No. 09-1600 / 13 of the executive inscriptions of organs performing notaries, that is, actually not recommended Take the executive inscriptions of notaries for execution, which will require appeal to the court and delay the execution of the requirements of the document.
A large glow giving wide corruption opportunities from the bailiff is the presence of discretionary formulations. Typical example explicit, right stipulated by law , the choice is to regulate the powers of an official according to the formula "may", "entitled" or strongly blurred wording, in general complex to use. It is possible to violate the relationship between the rights and duties of the parties and the bailiff - so the right of the parties is not supported by the appropriate duties on the part of the bailiff and gives the ability to choose, based on personal discretion: either allow the application of the recoverer or debtor immediately after its application, or formally without breaking the law, in general Not to consider the petition received from the recoverer or the debtor for a long time (up to the moment when the petition loses its meaning), since the procedure and period of permission of received applications, notifications of the results of consideration and the place of storage of documents are not regulated; Moreover, the bailiff has the opportunity to do not consider petitions at all, and do not accept any decision on them and do not even attach petitions to the materials of the enforcement proceedings, which prevents the proper control of the work of these officials. The property of the debtor's property is imposed no later than one month from the date of the provision of the Decree on the initiation of enforcement proceedings, and in the necessary cases - simultaneously with its presentation; At the same time, the concept of "necessary cases" in the executive legislation is not disclosed, and the ability to choose between the application or non-use of the law on the immediate arrest of the debtor's property, and have the right to be guided by its own discretion. Also, according to the application of the recoverer, at the same time, the decree on the initiation of enforcement proceedings is entitled to make an inventory of the debtor's property and impose an arrest on it, as indicated in this ruling. However, in such a word, again, it means providing an official with any limited choice between two behaviors: to satisfy the corresponding statement of the recoverer or refuse it. All other things being equal and in the absence of a corruption motive, the choice is nevertheless, it is rather bends in favor of non-use of property arrest (ie, in favor of the debtor), because this option means less load and the responsibility of the bailiff. At the same time, the rights of the recoverer, usually with more complete information about the debtor and its property situation, and more accurately assumes how the debtor will lead himself during the executive proceeding in disappointment of such a measure, will be infringed because it is accepted and entered into legal force Court or other jurisdictional authority, from the execution of which the debtor evades, and also because the debtor remains the right to appeal to arrest. In the practice of the author there was a case of sale registered on one of the spouses acquired during the time of the joint life of the apartment - without the use of the arrest of the alienation of the latter was formally legitimate. A copy of the decision on the initiation of enforcement proceedings no later than the next day after the day of its submission is sent to the recoverer, the debtor, and the Important Legal Consequences of the law binds not the fact of the direction, but with the fact of the presentation of the relevant documents to the debtor or other persons during the enforcement proceedings, but at the same time The law does not charge the duty to track and fix the copy of the copy to the recoverer and the debtor, as well as within a reasonable time to make additional measures to submit a copy if the document sent by mail is not handed. There is no such responsibility for the bailiff and relative to the direction of other important documents (requests for the availability of property in the debtor, copies of the decision on the return of the executive document, the most executive document, etc.) But if the ruling is not awarded, there is no reason and expect voluntary execution, moreover, Debtor B. installed manner It was not awarded a copy of the ruling, it is usually no reason to argue that the debtor knows about the entry into force of the relevant judicial act. This, in turn, prevents the debtor-citizen's debtor or the head of the debtor's organization to administratively or criminal liability for evading the execution of a judicial act, for a person cannot be recognized guilty of non-fulfillment of a judicial act if it has not been proven that he knew about the existence of this act. Thus, the execution of the production of a non-property nature is impossible, where the defendant from the organization is the head of the state body, in fact, maliciously evading the execution of the court decision. The current for the application of arrest on the property of the debtor begins with the day the Debtor of the Decree on the initiation of enforcement proceedings. Therefore, legally formally, if there is no evidence of the presentation, the current of the period does not begin, the arrest of the debtor's property does not occur, the executive production will be problematic and recovery becomes problematic. In the practice of the author, there is a case of the actual refusal to fulfill the court decision on the issuance of a previously seized passport of the vehicle and registering the car by the head of the MREO of the city of Vyborg - with the direct treatment of the recoverer (already after the executive proceedings) officially answered that no rulings of the bailiff were obtained and about the court decision in general it became known only with the personal handling of the recoverer - while procedural time The appeal of the inaction of the bailiff has long been held (and the oral conversion of the recoverer to the Vyborg branch of the FSSP was constantly during 2007 and 2008). There is no regulation of such an important procedural action as wanted. Taking into account the lack of the specified correlation of the rights of the parties with the duties of the bailiff in the execution of the judicial act, the possibility of the debtor's search fully depends on the discretion of the bailiff, it is also doubtful the provision that the search for the debtor (except for the law protected) is possible only if the consent of the recoverer is the burden of searching for the search and advances the specified costs; The size of the advance contribution and the method of its calculation, the issues of returning an advance payment, and whether a fully advance payment of the recovery is returned if the debtor's search did not give positive results; From here, it can be concluded that the Debtor's Search Institute is currently actually acting, and the possibility of its application or refusal in this involves the possibility of widespread corruption in general regarding the application of administrative and criminal law. There are a number of serious omissions. Failure to fulfill the requirements contained in the executive document provides for the application to the debtor of the actuator and fine, but in the case of good reasons for their use can be appealed, when it is found in the actions of persons, signs of a crime, which is not subordinated by the consequence of FSSP bodies, (for example, fraud, tax evasion) , the latter are obliged to transfer the case to the Ministry of Internal Affairs; This takes a certain time, and the assets of debtors in the meantime "lend" - become legally inaccessible. There are proposals for the establishment of "alternative contrast" for a number of cases: Articles 199 - "Evasion of payment of taxes from the organization", 159 - "Fraud", 160 - "Assignment or Destroy", 165 - "causing property damage by deception or confidence abuse" , 170 - "Registration of illegal transactions with land", 194 - "Evasion of payment of customs payments", but there are solid doubts that the competences of FSSP in the coming years will be enough to implement an "alternative contrast" the question of the possibility of applying to foreign citizens And stateless persons in Russia, such a measure, as a temporary restriction on the departure of the debtor from the Russian Federation, since it can be applied to any debtors, and not only the citizens of our country, individual rules for its use are defined at the sub-compere level. It should be borne in mind that for the use of such a measure on foreign citizens there will be a number of practical issues: on visa mode, since when limiting the exit, a visa period may end; about place of residenceSince the permanent residence of a foreign citizen is usually located abroad and in Russia he may not have a residential premises for living, and so on. In enforcement proceedings there is a need participation of the prosecutorwhich is explained by the fact that the prosecutor may be subject to claims: a) to protect the rights of persons who need it, but not able to implement independent protection (children, elderly, physically intimid, etc.); b) to protect government and public interest as a representative of the state. In accordance with the law in order to ensure the rule of law, the unity and strengthening of the legality, the protection of human rights and freedoms and citizens, as well as the Prosecutor's Office protected by the Law of the Company and the State, supervises the execution of laws, compliance with human rights and freedoms by the authorities and officials State and non-state formations, as well as for compliance with the laws of legal acts published. At the same time, supervising the execution of laws in the implementation of the judicial bailies of its functions in accordance with the Prosecutor's Office of the Prosecutor's Office is carried out by the Prosecutor General and the prosecutors subordinate to it. All of the above applies to the supervision of the execution of laws by bailies, that is, in fact, there is a whole direction prosecutor's supervision - public relations arising in the process of enforcement proceedings, first of all - the legality of the measures taken by bailies and the endowed legal acts; It seems that in the field of view of the prosecutors there should be a fulfillment of bailies of other legislation, the violation of which is possible in the course of their activities (for example, federal laws "On the basics of the State Service of the Russian Federation", "On weapons" and a number of others). Meanwhile, in the law on the executive proceedings, the norm on the procedural position of the prosecutor is completely absent and currently there is no effective mechanism for the implementation of the specified powers of the prosecutor, both as a power supervisory authority and a representative of state interests and the rights of persons who need it, but not having Opportunities for self-defense. That is, with a legally formal side, the prosecutor is deprived of the possibility of appealing as a representative of the parties to the FSSP, the bank, other organization or face, there is no legal basis for challenging the action (inaction) of the latter in court - in a word, there is no final bringing to the logical end of the legal protection of these subjects and Interests.
The gaps of the law and the abuse of the right of immunity of property
When recovering the property, the bait is facing the immunity of the debtor's property, and sometimes the defense established by law contradicts the meaning of the entire law or has no regulation at all. When conducting the procedure for recovery, on the one hand, the debtor is given the right to specify those types of property or items for which the penalty should be paid first, on the other - the final order of the recovery of the debtor's property is determined by the bait, first of all, the provisions of the legislation and , secondly, actual circumstances (property status, its liquidity, etc.). In practice, it is often quite often a question about the legality of the recovery of the property for which the debtor pointed out as an object for priority recovery, but such an indication was made with a violation of the priority established by the legislation on enforcement proceedings. It seems that the addition is entitled to draw a penalty for the property specified by the debtor, without complying with the rules of the order
The Law is clearly registered the list of property to the debtor, which does not deprive the last possibility of abuse of the right, the reasons for what are the blurry of the wording, and the lack of proper legal regulation. Thus, the law remains for the debtor the objects of the usual home environment and everybody, but the marginal value and the number of such items is not provided for, which allows the debtor to maintain such possible to appeal to the recovery of things, such as, for example, television and video equipment, expensive household appliances , other items not recognized by the subject of luxury. The same applies to the only one for the residence of the debtor and members of his family a residential premises, except for cases of encumbrance of his mortgage. With joint ownership and accommodation in such a living room, other residents of the recovery appeal is possible only with the sale of property share in such a room, which seems to have small liquidity when selling from trading, especially if in a small room (more often - apartment, room) owners And the tenants are a large number of people, and the recoverer with the failed sale of the share will only get the right to use such a place. Also, for example, the registration for the debtor of the only residential premises, which may be the three-storey mansion, the law does not develop the possibility of a reasonable relationship of the principle of integrity of the minimum of property necessary for the existence of a citizen's debtor and members of his family and the main task of the executive production - execution of judicial acts , acts of other organs and officials, and, in fact, is the abuse of law. In the practice of the author there was a case of evading the debtor-citizen from paying taxes and alimony by imaginary donation of most properties (apartments, cottages) on relatives and the closest familiar who occurred in February 2008. With regard to the property of the liturgical appointment, which the creditors' claims cannot be addressed, there must be a list of species of such property, which is established by the Government of the Russian Federation on proposals of religious organizations, but such a list has not yet been approved.
The existing legislation does not directly indicate that property attributed to mobilization facilities is limited in the turnover. Judicial practice was recognized that the implementation of objects intended for the production of products necessary to meet the needs of the state, the Armed Forces of the Russian Federation, other troops, military formations, bodies and special formations and the needs of the population in wartime, can lead to a breakdown of mobilization assignment and, As a result, it is limited in turnover. The presence of such a problem in the implementation of the execution of the property of state organizations, as well as in connection with the frequent implementation of its functions in the form of institutions, significantly limits the possibility of recovery from state organizations and the development of corruption in their administration - in the practice of the author there was a case of FSUE debt in the Leningrad region in 2007, Which was returned only after receiving a certain percentage from the recoverer from the holding amount.
The site "Decider" took me an interview about the problems of enforcement proceedings. The main questions concerned the causes of the unsatisfactory work of the bailiff service, the possibilities of execution without the service of bailiffs, the rating of attachments. Below you can familiarize yourself with the text Interview ( italics is given my answers).
The current edition of the FZ "On Enforcement Proceedings" provides for several mechanisms forced fulfillment of the requirements of executive documents without the participation of the Federal Bailiff Service of the Russian Federation. This is the presentation of the executive document to the Bank of the Debtor-Organization, the presentation of executive documents to persons paying the debtor-citizen periodic payments, and the presentation of the executive document issuers and professional participants of the securities market.
Are these mechanisms in practice are used? How much do you think they are effective? What problems, when implementing these emphasis, the most often faced by the recovers? Does the legislant improve these mechanisms to supplement or expand the powers of the recovers?
The most popular mechanism, from those named, in practice is the presentation of an executive document for execution to the bank, where the debtor has a settlement account.
This order has a number of advantages: no need to know the specific account number of the debtor; The bank itself is obliged to find him; No need to make a collection order, just an application for presenting an executive document for execution.
The main disadvantage of this method is the lack of opportunity for the recoverer to present an executive document into several banks at the same time, because It is necessary to impose a genuine copy that the recoverer is available in a single instance.
The bailiff draws a recovery of the debtor's funds by making decrees (and not the presentation of the executive document), therefore there is no such restriction on the number of banks in the number of banks. New edition of Art. 81 FZ "On Enforcement Proceedings" allows the executive bailiff, including on the day of the enforcement proceedings, impose an arrest on the existing debtor's cash funds in several banks in which it may have settlement accounts. This is a very effective innovation that allows you to quickly execute judicial acts against debtors organizations.
With regard to the prevention of the executive document on the place of receipt of the debtor-citizen's income, this method is rarely used in practice. First, the recoverer does not have reliable information about the work of the debtor-citizen. Secondly, the amount of recovery on the executive document may not exceed 25 thousand rubles. At the same time, in a concrete case, this method may be optimal, but its application has a number of legal nuances.
The presentation of the executive document issuers and professional participants in the securities market refers to exotic cases in practice, because Such solutions are rarely made.
I currently see the need to make some significant changes and additions to the legislation on enforcement proceedings.
What problems, in your opinion, exist in the interaction of bailiffs and executors? And is it possible to solve them somehow?
The main problems in cooperation arise, among other things, due to the availability of global problems in the activities of the bailiff service. It cannot be said that all the recovers are perfect, and the problem of interaction is only in the bailiffs. However, the main problems of the service of bailiffs are currently this:
- A colossal workload that has long exceeded all the limits of human capabilities;
- Low level of qualifications of bailiffs and high frames of personnel;
- Insufficient material and technical support of bailiffs.
At first glance, all the reasons are objective, and the recovere can not affect them. However, the practice shows that it is possible to ensure effective interaction with each specific bailiff. It applies to the provision of practical and methodological assistance, assistance in the preparation of projects of procedural documents and their delivery to the addressees, and much more. Frames Interviews do not allow to fully disclose this difficult topic.
Now in several major cities, the project "Rating of baits" started, the initiator of which was the president of the Association of Corporate Collection Dmitry Zhdanukhin. What do you think will help whether this project To establish a dialogue between the Federal Bunching Service of the Russian Federation and the recovers? Will it be able to influence the situation that has now been in the territorial departments of the FSSP of Russia and help in resolving those problems that exist?
I have no doubt for a second that it will help in establishing a dialogue with bailiffs. Only a very short-sided person underestimates the role and influencePR on the life of society and the state. The only wish, here it is necessary to be guided by the medical principle: "Do not harm!". The goal of the project is not to "hide" bailiffs on the disadvantages that are available in their work, the goal is to make an objective picture from the charter, which will help the management team in the FSSP of Russia to adjust the situation in the service for the better. In fact, this is one of the forms of public control, which is an integral institution of any democratic state.
For active Internet users, and especially for those who use electronic money, it would be interesting to learn more about the possibility that appeared in connection with the introduction of changes in the FZ "On Enforcement Proceedings", this is an appeal to electronic money. That is, now if a person has a debt, he can detect a decrease in the balance in his "electronic wallet"? Could you generally tell about this procedure?
I have done a lot before this topic, when there was no legal definition of electronic money, now these studies are perhaps historical value. With the entry into force of the Federal Law "On the National Payment System", I do not see any obstacles in the appeal to electronic money in order similar to the recovery of ordinary non-cash funds. Thus, indeed, now a citizen can detect a decrease in the balance in its "electronic wallet", which occurred on the basis of the ruling of the bailiff. Unfortunately, I can not bring any specific example. A brief note on this issue can be viewed.
Now the vacation period and many citizens leave to relax abroad. In this connection, the question was very relevant: how to find out if the bailiff did not limit the bailiff of a citizen in the exit from the Russian Federation? And how quickly after payment of the debt is the restriction on leaving the border, if such a restriction was?
You can learn from the bailiff at its place of residence. Indirectly, this can be found out with the help of the service of the FSSP of Russia "Bank Executive Production", checking whether you have any debt at all. It is logical that since you have no debt, the decision to limit the exit regarding you cannot be made. However, as practice shows, the accuracy of the data in the mentioned service is not 100%, therefore the most reliable way is the direct appeal to the bailiff (by phone, on personal reception, etc.).
The existing procedure for imposing and removing the restriction is complex, it is involved both FSSP of Russia and the FSB border service of Russia. The fastest time to remove the restriction after payment of the debt is 2 weeks (provided that no one has confused anything anywhere, not lost, etc.)
Once again, the Constitutional Court at the request of a resident of Ufa considered the question of the appeal to the sole housing of the debtor. In his decision, the judge of the Constitutional Court of the Russian Federation obliged the legislator to establish the limits of the executive immunity provided for in Article 446 of the Code of Civil Procedure of the Russian Federation, as well as to provide guarantees for the preservation of housing conditions for the debtor and members of his family necessary for their normal existence. What do you think is worth it for us in the near future to expect changes in Art. 446 Code of Civil Procedure of the Russian Federation? Will this help to increase the effectiveness of judicial acts? And how can it be affected on the executive work as a whole?
I think that in the near future we should not expect changes, such a problem is no sharply problem, and the problems of private lenders are the problems of private lenders. In addition, I have personal experience suggests that many changes lead only to deterioration or complication of the situation.
Here it is necessary to think over a lot of questions: how many meters to leave; who leave; on what period; Like an apartment (house) to divide (or relocate in another housing) I.T.D. These issues are very complex for regulatory regulation. Most likely, these questions will be resolved in court, which is long for the procedure. Therefore, I would not build some illusions that a paradise in the field of the enforcement proceedings of Russia will come.
At the beginning of this year, a fairly large amount of changes in the Federal Law "On Enforcement proceedings" came into effect. Are these changes in practice are noticeable? Did this affect the work of bailiffs?
There are really many changes, in general, all of them are useful and "distinguished" practice. But the fact is that the problems in the legal regulation of enforcement proceedings are far from the most important problems for the service of bailiffs. The right-wing bailiff service is provided with the law abused, the problem is in their implementation in practice. On global service issues that do not allow it to work effectively, I briefly touched the question above.
Thank you for the interesting and useful answers to questions.