The National Bank has decided, at first glance, a small but significant decision-making effect. Innovations not only improve the process of adoption by banks of enforcement proceedings, but also have a prospect for the development of a system of compulsory execution of decisions.
By the decision of the Board of the National Bank of Ukraine dated January 28, 2019, No. 23, amendments to the Instruction on cashless settlements in Ukraine in the national currency were amended (approved by NBU Resolution No. 22 of 21.01.2004). Among other things, the circle of persons has expanded, from which the banks have the right to accept documents on collection of debtors' funds. Now these papers
It is allowed to bring an assistant to a private performer or an authorized (authorized executor).
As you know, each private executor (unlike the state) may have an assistant, which is a definite official and whose data is recorded in the Unified Register of Private Performers. And although the law gives the assistant a wide range of powers (drafting documents, submitting and receiving business papers, etc.), in fact the Ministry of Justice has made it impossible to fulfill these functions.
Thus, enforcement proceedings are in the Automated System of Execution, access to which is limited to the assistants of the private performer. The participation of an assistant in conducting executive actions is possible only as an outside observer.
The real powers of the assistant are reduced to the function of the secretary, who, on behalf of the private executor, registers the correspondence, answers the calls, prints the envelopes and assigns them to the mail. However, the possibility of handing over documents to the parties and other participants in the enforcement proceedings is doubtful.
As a matter of fact, his status is no different from the status of any other person who works with a private executor under the terms of employment (cleaner, clerk). Therefore, it is not surprising that most private executors do not have auxiliaries: they do not have an objective need, but in fact the performers use the services of technical workers.
In this regard, the provision by the National Bank of the powers of the assistant to the private executor to hand over documents relating to the collection of funds from debtors' accounts, for the first time in the history of law, gives him an active role in the enforcement proceedings. The assistant has a certificate of the established sample and will hand the relevant documents to the banks upon presentation of such a certificate.
IT technology and lottery game
Problems with the state of execution of court decisions in Ukraine are not emphasized only lazy. In this regard, many analyzes, studies, discussions have been conducted. The extent of the crisis was such that the state at one time even managed to take an extraordinary measure - the implementation of a system of implementation of decisions by private performers.
Among other factors that were identified as affecting the state of implementation of the decisions, called the gap between modern IT technologies and the enforcement process.
In executing court decisions on recovering funds, executors identify debtors 'accounts opened at banks' institutions. For collecting money for money available on these accounts, the executors make arrest warrants and send payment claims for the cancellation of funds. Instruction No. 22 determined that the bank may accept such documents (arrest warrant and payment claims) personally from the executor or valuable or recommended letters.
Today most of the Bank's clients use the "Bank-Client" system, which allows you to instantly transfer money from one account to another on-line. As practice shows, in case of the threat of execution of a court decision on collection of funds, unscrupulous debtors instantly transfer money from their own accounts to the accounts of other persons.
In order to recover funds from the debtor, the executor must arrange an order to impose an arrest and payment claim. And although the executor also uses peculiar IT technologies - all decisions are made in an automated system; for the decision to come into force, it must be printed on paper, signed and endorsed with a stamp. And then, as noted, deliver this document to the bank in which the debtor has an account.
It is the latter operation that often overcomes all efforts of the executor, since the debtor has the ability to transfer funds from his account in a few minutes, and the performer, even if at the same time will be able to issue a paper version of the ruling, will deliver it to the bank within a few hours as soon as possible. And this provided that the financial institution is located in the area of the office of the executive. And delivery of the order by means of mail will delay this procedure for a few more days.
However, in practice, everything is much more complicated. Debtors have accounts opened in several banks, and the performer must deliver the resolution simultaneously to all (because the performer does not know in advance which of the banks the debtor's funds are located). The choice of the financial institution, to which the performer will bear the decree above all, to which - in the second turn, and to which send by mail, is a real game in the lottery.
It should be remembered that the performer at the same time is not one and not even a few, but tens and hundreds of court decisions. And leaving to the "business tour" by banks to perform one actually stops the work of implementing other solutions.
Step through hesitation
Indeed, the described problem does not resolve the adopted resolution. Its solution is the need to introduce an IT system to send executives orders to impose arrears on funds. At the same time, according to expert studies, the implementation of such a system does not require the development of a separate legislation. By the way, PrivatBank, without waiting for initiatives from the Ministry of Justice (which administers IT processes in the work of executors), has already introduced a system of electronic exchange of information on the acceptance and enforcement of the decisions of private executors on the seizure of debtors' money.
In this context, the NBU decree only slightly improves the private life of the performers, giving them the opportunity to attract their own assistants to deliver the documents on the collection of funds to banks.
However, unexpectedly the resolution resolved another problem in the work of a private executor - the involvement of his assistant in the process of implementation of decisions.
According to the Association of Private Entrepreneurs, the initiative to empower assistants to submit to bank institutions documents on collection was not at all from the Ministry of Justice, but from it. In general, the ministry is cautious about the idea of expanding the powers of private performers, and even more so by giving the procedural powers of their assistants.
But the first step has already been made. In the future, the issue will be the issue of helping assistants to create documents in the automated system of projects and perform other functions (for example, collecting information about the property status of the debtor, participating in conducting executive actions). The National Bank's initiative to support the work of private executives is a reflection of the fact that the need for further development of this institute has long been ripe in society. And, while the Justice Ministry is hesitant, the NBU has taken the first step. Possibly, other state institutions will take over the initiative and continue to get started.
Alexey SOLOMKO, Attorney, Adviser ADER HABER
(translated using google translate)