Problematic aspects of consolidated enforcement proceedings

Problematic aspects of consolidated enforcement proceedings

In connection with the commencement of the work of a new subject of enforcement (private performers), problematic issues related to the enforcement of judgments of courts and other bodies by different performers (state and private) regarding the same debtor began to emerge.

The enforcement proceedings allow for the existence of several executive documents per debtor. For example, on a single decision a court may issue several executive documents relating to the collection of principal or court fees. In more complex situations, one court decision allows for the presence of several payoffs (usually solicitors). However, in practice, the most frequent cases are when a single debtor has several decisions of courts or other bodies for which the enforcement is in favor of several collectors.

There are no problems with this issue if the execution is performed by one performer. The Law of Ukraine "On Enforcement Proceedings" (hereinafter - the Law) determines that the execution of a decision is carried out at the place of residence (residence) of the debtor or his property or at the place of his work. In this case, the right to choose the place of performance belongs to the collector. Taking into account the possibility of simultaneously staying the debtor's property in several territorial jurisdictions, or his residence or work, in practice there are situations where enforcement proceedings against one debtor are opened by different performers at the option of collectors.

In this regard, the legislator has created a rule of summary enforcement proceedings, according to which the enforcement proceedings for the recovery of the same debtor should be combined into a consolidated.

What is the purpose of the institution of consolidated enforcement proceedings? First, procedural savings, in particular, the recovery of the debtor's property takes place in the amount necessary for the execution of all executive documents. Second, adherence to the principle of priority and proportionality of the distribution of debts sums debts.

However, there were still methodologically inadequate questions as to whether, in all cases, it would be advisable to combine several executive documents into the summary enforcement proceedings (for example, on foreclosure of mortgages) and executive enforcement documents in favor of the fifth installment payers. After all, if the funds received from the sale of the pledged property are not sufficient to satisfy the requirements of the collector - the mortgagee in accordance with the executive document, on the basis of which the foreclosure of the pledged property is brought, this enforcement proceedings are to be completed (Article 51 of the Law).

In this case, it is unacceptable to return to the debtor excessive funds under one enforcement proceeding, when he continues to be a debtor in another proceeding.

There is also the opinion of some experts that if there are two or more collectors in the enforcement proceedings, a tendering process, that is, a bankruptcy proceeding, should begin in general. However, legislation does not provide for legislation that regulates the bankruptcy of legal entities and sole proprietors. In addition, the institution of bankruptcy of individuals to us so far has not been implemented.

Until recently, in the case of the existence of a single entity of enforced execution (the state executor), the law defined a single procedure for execution of executive actions in a consolidated enforcement proceeding - the arrest is imposed taking into account all executive documents. That is, the collection was carried out simultaneously on all executive documents.

Choosing a collector?

However, according to the ideology of the new system (the so-called mixed model of implementation), now when executing certain categories of decisions, enforcers have the right to choose - to apply for enforcement of a decision to public or private performers.

The current version of the Law (Article 30) states that execution of a number of decisions on the recovery of funds from one debtor is carried out by the state executor who opened the first enforcement proceedings against such a debtor within the framework of the consolidated enforcement proceedings. Several decisions on collection of funds from one debtor are executed by a private executor within the framework of the consolidated enforcement proceedings.

From the contents of the said norm it is immediately understood that in the case of receipt of several executive documents concerning a single debtor in the bodies of the state executive service, a summary executive proceeding is formed, taking into account the rules of "the first state executor who opened the enforcement proceedings", and from the private executor - his own consolidated proceedings that actually "do not intersect", despite the fact that the language can go about the same debtor.

If in the system connection with the Law try to analyze also the Instruction on the organization of enforcement of decisions, approved by the Decree of the Ministry of Justice of 02.04.2012 number 512/5 (hereinafter - the Instruction), which can not contradict it, then you can be completely confused. Yes, p. 15 sec. III of the said Instruction, which should regulate the merger of enforcement proceedings for the recovery of funds from one debtor to the consolidated enforcement proceedings and the adherence of enforcement proceedings to a consolidated enforcement proceedings by a private executor, contains only a reference to paragraph 14, which refers to the union of the executive proceedings in the bodies of the state executive service.

Such a statement of the rules in an isolated form is extremely unsuccessful, since it provides a broad field for its interpretation. Is there a "rule of the first private artist" here, because there is no word about him in the law ?! Is the state executor obliged to transfer his enforcement proceedings (executive document) to a private executor for joining the consolidated, taking into account that the procedure for the transfer of enforcement proceedings is precisely in this case not provided for by the Instruction. There are many questions, but there are no answers.

Well-known lawyer Y. Zejkin recently wrote that there is a simple test for compliance with a high culture of writing legal norms: "If you read the article and understand everything right away, that's fine. If you were forced to read 2-3 times - it's satisfactory. If you have to read several times and turn to the opinions of other lawyers and scientists - the legal technique of such a norm at a low level ... ". In our opinion, unfortunately, we are dealing with the last case.

Question without answer

In addition, the law leaves unanswered, perhaps, the main question - the meaning of the term "consolidated enforcement proceedings" (as opposed to the previous version of the Law). The manual also does not answer this question, despite the ambitious goal of its authors to resolve all aspects of the artist's work. Thus, it can only be a general understanding of the consolidated enforcement proceedings. Generally accepted legal concepts, which are equally understood by all actors of law enforcement, may not require a separate definition. For example, the use of the same term "norm" is equally understood as the established rule of conduct, although no normative legal act defines its content.

In the case of a summary enforcement proceedings, of course, it refers to proceedings involving one debtor under several executive documents. Discrepancies may only concern the question of whether other implementing acts are included in this concept, other than executive enforcement documents. The current version of the Law does not answer this question (i.e., the generally accepted notion of the term "Consolidated Enforcement Proceedings" may include both enforcement documents for enforcement and executive documents of non-property nature).

However, the generally accepted understanding of the concept of consolidated enforcement proceedings was "buried" by the current wording of Art. 25 of the Law. In particular, this article states that in the case of circumstances that complicate the execution of the decision (if the enforcement proceedings for the recovery of funds from one debtor are open to several bodies of the state executive service, if the debtor and his property are located on the territory of administrative-territorial units, subordinated to different authorities the state executive service), or in the case of implementation of consolidated enforcement proceedings in the bodies of the state executive service, executive groups may be formed in the order determined by the Ministry Justice of Ukraine.

Attention is drawn to the deciphering of circumstances that complicate the execution of the decision: if the enforcement proceedings for the recovery of funds from one debtor are open to several bodies of the State Bailiffs' Service. It is in this case that the summary proceedings are understood.

However, the legislator has a different understanding of this term, since, after circumstances that complicate the implementation of the decision as the basis for the formation of an executive group, the law determines the possibility of a consolidated enforcement proceedings.

If the summary enforcement proceedings are not the one in which the collection of funds from one debtor occurs, what then has the legislator invested in the concept of "consolidated enforcement proceedings" in Art. 25 of the law? The presence of punctuation and content separation and the separate decoding of terms exclude the possibility of legislative tautology. There must be something else. But what?

Thus, the law defined the unclear term "consolidated enforcement proceedings", which further complicates the application of Art. 30 of the Law. However, the legislator did not stop there. The content of this norm opens up unexpected problems during execution of several decisions concerning one debtor.

The law stipulates a summary enforcement proceedings in the presence of several decisions. According to Art. 1 of the Law, a judgment is considered a decision and decisions of other bodies (officials). However, executive documents are defined as those issued on the basis of decisions (Article 3 of the Law). Consequently, if there are several executed documents per one debtor issued on one court decision, this case, based on the literal interpretation, in no way falls under the definition of Art. 30 of the Law.

In addition, when determining the need for the actual transfer of enforcement proceedings to the execution of a state executor who opened the first enforcement proceedings against the debtor, the problem is the definition of the first state executor. Does it mean that the state executor, who first discovered the enforcement proceedings against him in the history of the debtor's activity (whether it is completed or remains open) or the first state executor of executive orders that remain incomplete. Also, the legislator left unanswered the question of whether this rule applies only to enforcement orders for recovery or execution of decisions of non-property nature.

Problem of implementation and informing

The next problem is the mechanism of transferring enforcement proceedings. The law does not contain this mechanism, but the Instruction on the organization of enforcement of decisions only states that the decision on the transfer of enforcement proceedings from one body of the state executive service to another is taken by the head of the regional administration of the state executive service or the director of the Department of State Bailiffship.

At the same time, the question remains unclear who should inform the indicated persons about the necessity of transferring executive orders, and in what order is the decision made and in what period it is executed? It is completely unclear whether further action should be taken if the manager refused to make such a decision.

In addition, the issue of further filing of new enforcement documents by the taxpayer is still unresolved, since the taxpayer has the right to choose a compulsory execution unit independently, in the course of execution by one body of enforcement of the consolidated enforcement proceedings, the taxpayer is not deprived of the right to present an executive document under the rule of territorial subordination for the location of another enforcement authority.

All at once

Problem is the possibility of simultaneous execution of executive actions by several performers per one debtor (this does not necessarily mean competition between public and private performers). However, the law provides for the possibility of merging executive proceedings into a consolidated one only with respect to decisions that are executed by one private executor or decisions that are executed in the bodies of the state executive service. Consequently, the union does not occur in the following cases: the presence of several executive documents, issued on one solution; the presence of several solutions at the same time performed by private performers; the presence of several decisions at the same time for execution by private executives and bodies of the state executive service.

In addition to the issue with payment requirements, the list of the following issues can be continued with cases of seizure of property by the three executors: whether it is an obstacle for them to carry out the following three property descriptions, three assessments and the possible transfer of property for realization. If such simultaneous actions were carried out by state executives, most likely, the state executive service within its system will find a compromise solution. But is there a similar compromise between private performers? Which of them should in any case yield? So far, the legislator does not answer this question.

The first experience of private performers has shown that due to lower workload and greater interest, they execute executive actions more quickly than their state counterparts.

In practice, this results from cases where a public enforcement agent has enforcement or summary enforcement proceedings against a particular debtor. A private payer is appealing to a private executor for enforcement of a decision to recover funds from the same debtor. If guided by Art. 30 of the law, then there is no reason to combine these proceedings into a consolidated one.

In the future, the private executor has charged the debtor faster than the state executor. Will this violate the rights of collectors, decisions in favor of which is performed by the state executor? In our opinion, there will be no violation if in the future this will not lead to impossibility of execution. If all the same, then the answer will be exactly the opposite.

Who in such a case will violate the rights of these collectors: a private executor who "fulfilled" his decision quickly, or a state executor who, because of the heavy load and other objective or subjective reasons (about the existence of malicious agreement with the debtor, would not want to think or did not have time) to do this?

Unfortunately, the first practice of private performers shows that despite the summary enforcement proceedings opened in the organs of the state executive service, sometimes private executives, carrying out their "own" enforcement proceedings, reveal unpaid bills and unpaid monthly bills on previously arrested accounts.

How can the situation be solved without violating the rights of all collectors who have a default in their favor from the same debtor? This question is rather complicated and controversial.

If it is resolved exclusively by the imperative method, clearly stating that the consolidated enforcement proceedings are still "accumulated" only by the state executor, who first opened the enforcement proceedings, this effectively eliminates the whole reform, given that the debtor will "create" a friendly creditor even for an insignificant sum, and "anchor" all other proceedings concerning oneself in the same body of the ICE.

So, if we want to prevent this, then the problem needs to be addressed in a different way. As a basis, you can take an overseas experience.

An alien experience

For example, in the Republic of Lithuania, where implementation is carried out exclusively by private performers, if several enforcement proceedings against one and the same debtor are held by several performers, this issue is resolved in this way. The priority of the penalty is given to the executor, who first discovered the debtor's property and began the process of applying for it to be recovered. Other performers may join their enforcement proceedings before executing a performer who has a priority. The latter - must take into account in its proceedings one more or more collectors, as well as expenses and remuneration of colleagues. In this case, 75% of the remuneration gets a "priority" performer, 25% - the performer who joined his proceedings. Thus, the order and proportionality for all the collectors is not violated, regardless of whether one performer or more conducts their case. However, such an accession may not occur if the debtor's property is sufficient to satisfy all recoverers, whose enforcement proceedings are held by different performers.

In Kazakhstan, where there is a mixed system (that is, public and private executives work), both in case of collection by the state and when recovering from a debtor from a debtor a private enforcement agent receives a sum to satisfy the demands of the payers, including the executive documents contained in other court cases performers, within the administrative-territorial unit.

In Ukraine, there is a technical opportunity to implement the experience of other countries. Thus, Ukraine has an automated system of executive proceedings (hereinafter - AHPP), which combines all information on each executive action in all enforcement proceedings.

For example, if an electronic executing document, when issuing it, assigns the order of charge and adjusts the AHP in such a way that it does not miss the charge "off-line", and that at the time of arrest all the charges taken into account are taken into account, theoretically the problem could be solved .

Consequently, with the use of international experience or the search of its own way, there is an urgent need to solve the problem issues of consolidated enforcement proceedings, the distribution of sums collected between collectors, as well as the fair distribution of executive fees and the basic remuneration of a private performer.


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