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PROBLEMS OF PAYMENT OF EXECUTIVE CHARGES AND MAJOR RESIDENCE OF PRIVATE EXECUTOR

The head of the training and methodical cabinet of higher education at the Institute of Law and Postgraduate Education of the Ministry of Justice of Ukraine, Oleksandr Kuz, highlights the problematic issues of collecting executive fees and the basic remuneration of a private performer.

According to Art. 1 of the Law of Ukraine "On Enforcement Proceedings" (hereinafter referred to as the Law), executive proceedings as the final stage of judicial proceedings and the enforcement of court decisions and decisions of other bodies (officials) (hereinafter - decisions) - a set of acts specified in this Law bodies and persons, which are directed on the enforcement of decisions and are conducted on the grounds, within the limits of authority and in the manner defined by the Constitution of Ukraine, this Law, other laws and regulations, adopted in accordance with this Law, as well as decisions which are subject to this Law in accordance with this Law. Forced execution.

Part one of art. 13 of the Law determines that during enforcement, the executor executes executive actions and makes decisions by passing resolutions and other procedural documents in cases stipulated by this Law and other normative-legal acts. That is, the Law of Ukraine "On Enforcement Proceedings" and other normative-legal acts, including Instruction on the organization of enforcement of decisions in the wording of the order of the Ministry of Justice of Ukraine dated September 29, 2009 No. 2832/5, must provide for certain cases in which the executor makes the appropriate decision by issuing a resolution or other procedural document of enforcement proceedings.

Analyzing the rules of Articles 1 and 13 of the Law, the following conclusions can be drawn:

1) the executor (both state and private), when compulsory execution of decisions, has no right to execute executive actions and to take decisions which are not provided for by the legislation;

2) the legislation should provide for the corresponding incidents of the issuance by the executor of the rulings and other procedural documents of enforcement proceedings.

Item 5 of Part 1 of Art. 3 of the Law stipulates that, pursuant to this Law, the enforcement of a decision on the basis of executive documents, which, in particular, is the decision of the state executors on the enforcement of executive fees and the decision of private executors to recover the basic remuneration, are subject to enforcement. Next, consider what norms of the Law and other normative-legal acts provide for the issuance of the above-mentioned resolutions, which, based on the requirements of the Law, are simultaneously both executive documents subject to enforcement and enforcement documents issued in the course of enforcing the decisions.

Article 27 "Executive Fee" of the said Law specifies certain conditions for the collection of executive fees, but does not indicate on the basis of which executive judgment / enforcement proceedings should be subject to enforcement and when (at what stage, at what time or moment) it should be decided on his charge. Only from the norms of paragraph 5 of Part 1 of Art. 3 of the Law, we understand that an executive order is issued for the enforcement of an executive fee. So, Art. 27 of the Law, which regulates the main points of enforcement of executive fees, does not contain norms that provide for the Cases of issuing a resolution on the enforcement of executive fees. Article 31 "Remuneration of the private executor and advancing the costs of enforcement proceedings" of the Law of Ukraine "On the bodies and persons executing compulsory execution of court decisions and decisions of other bodies" defines the notion of basic remuneration of a private executor and regulates certain moments of its collection. However, this article also does not specify on the basis of which the decision / enforcement proceedings should be charged the main remuneration of the private executor and when, exactly (at what stage, at what time or moment) it is necessary to decide on its enforcement. As in the situation with the executive assembly, only from the norms of paragraph 5 of Part 1 of Art. 3 Law we know that the decision on the recovery of the basic remuneration of a private executor is made by an order, which is the executive document. So, Art. 31 of the Law of Ukraine "On the bodies and persons carrying out the enforcement of court decisions and decisions of other bodies", which regulates the main moments of the collection of the basic remuneration of a private performer, also does not contain norms, which stipulate the Cases of taking a decision on its collection.

According to Part 1 of Art. 45 of the Law, when distributing the amounts collected by the executor from the debtor for the execution of the proceeds of money (including those received from the sale of the debtor's property), in the third place satisfied the requirements of the collector, and the executive fee of 10 percent of the actual sum collected or the basic remuneration of the private executor is charged in proportion to the actual deduction from debtor amount. Part three of this article establishes that the basic remuneration of a private performer is levied in the manner prescribed for the enforcement of the executive fee.

However, Art. Article 45 of the Law also does not contain norms that would indicate that the distribution of the debts from the debtor should be ordered to collect the executive fee or the basic remuneration of the private performer. Thus, Art. 45 of the Law, by imposing the collection of executive fees and the basic remuneration of a private executor when distributing the funds collected from the debtor, does not provide for the occurrence of a decision on their collection.

At the same time, it should be noted that in the laws of Ukraine "On Enforcement Proceedings", "On Bodies and Persons Enforcing Enforcement of Court Decisions and Decisions of Other Bodies" and other normative-legal acts, there are no rules in general that would provide for the Cases of the issuance of a resolution on the recovery of the main reward for a private artist.

Accidents of the issuance of a resolution on the enforcement of an executive fee are provided for only part of the third article. 40 of the Law, which states that in case of return of the executive document to the collector or the termination of enforcement proceedings on separate grounds, if the executive fee has not been collected, the state executor no later than the next working day from the date of return of the executive document (the end of the enforcement proceedings), shall issue a resolution on the enforcement of the executive fee, which shall be executed in accordance with the procedure established by this Law.

Given the provisions of part three of Art. 45 of the Law, it can be concluded that the decision on the recovery of the basic remuneration of a private executor is also made in all cases, without exception, of the return of the executive document to the collector or the termination of enforcement proceedings on the grounds provided for in part 3 of Art. 40 of this Law. However, the collection of the basic remuneration of a private executor by decisions of a property nature after the completion of the enforcement proceedings (the return of the executive document to the collector or the end of the enforcement proceedings), provided that the enforcement of the decision did not actually take place, in my opinion, is impossible at all due to the provisions of Art. 31 of the Law of Ukraine "On the bodies and persons who execute the enforcement of court decisions and decisions of other bodies" and paragraph 19 of the Procedure for the payment of remuneration to state executors and their size and the size of the basic remuneration of a private executor, approved by the resolution of the Cabinet of Ministers of Ukraine of 08.09.2016 No. 643. Therefore the provisions of Part 3 of Article. 40 and part 3 of Art. 45 In practice, the law can be applied to make a decision on the recovery of the basic remuneration of a private performer only in individual cases, in particular, in the case of the actual execution of a decision of non-property nature or the transfer of the collector of property.

Taking into account the above, the Law provides for the enforcement of executive fees and the basic remuneration of a private executor, as well as recognizes executive decrees on their enforcement, but the law does not provide for the cases of the issuance of these rulings, except for the completion of enforcement proceedings in cases set forth in Part 3 of Art. 40 of the Law.

This situation leads to controversy of the procedure for collecting both the executive fee and the basic remuneration of the private performer. This is especially evident in the example of Part 1 of Art. 45 of the Law, according to which, when distributing the debtor from the debtor for enforcement, the receivables are met and the executive fee or the main remuneration of the private executor is met.

The problem is that, on the one hand, the law for distributing the debts from the debtor involves the collection of executive fees or the main remuneration of a private executor, but does not foresee cases of rendering decisions on their collection; on the other hand, the enforcement of a debtor's executive fee or the basic remuneration of a private executor without issuing the relevant resolution is a violation of the requirements of the Law, since such enforcement is carried out without sufficient legal grounds, in particular, the decision an executor (an official), which must be made by passing the corresponding resolution, which according to clause 5 of Art. 3 of the Law is an executive document, because only on the basis of an executing document a person may be deprived of the right to own the property or funds belonging to her. Particular attention should be paid to the fact that the calculation of the determination of the amount of executive fee or the basic remuneration of a private executor (as a decision / procedural document of enforcement proceedings) is not a ground for their direct collection. The only reason for the enforcement of the executive fee or the basic remuneration of a private executor should be the corresponding decree, which is the executive document.

It should be noted that at present in the activity of the bodies of the state executive service there is no single practice of the procedure for collecting executive fees at the stage of distribution of funds collected from the debtor. Yes, there is a practice of collecting state executive executors at this stage without making a decision on collection of executive fees, but there is another practice - when, in the same situation, state executors make decisions on the collection of executive fees.

Taking into account the lack of proper regulation of the law, the issue of making decisions on the collection of executive fees or the basic remuneration of a private performer in distributing the debts from the debtor, it is possible to predict the consequences of counteraction debtors who can challenge the actions of the executors, using the shortcomings of the Law in order to prevent the collection of the executive fee, or the main reward of a private performer.

Thus, the enforcement of the executive fee or the basic remuneration of a private executor from the debtor in the allocation of the proceeds without issuing the relevant resolution gives grounds for challenging the actions of the executors regarding the collection of reasons for the lack of legal grounds on the grounds, in particular, the lack of a corresponding executive document.

If, in the case of the distribution of the debts from the debtor, the executive fee or the basic remuneration will be levied on the basis of the relevant resolution issued by the executor, the latter may be appealed, as neither the Law nor another legal act provides for the occurrence of such decisions.

The presence of this problem will in particular be a source of concern for private performers who should start their activities in the near future. On the other hand, this problem can be solved quite elementarily - it is enough to make appropriate changes to the Instruction on the organization of enforcement of decisions in the wording of the order of the Ministry of Justice of Ukraine dated September 29, 2016, No. 2832/5 (hereinafter referred to as the Instruction), supplemented by its norms, which will stipulate CASES making decisions on the enforcement of executive fees and the basic remuneration of a private performer. Subsequently, appropriate changes should be made to the Law of Ukraine "On Enforcement Proceedings". By the way, Part 4 of Art. 42 of the Law stipulates that at the stage of distribution of money collected from the debtor in accordance with the requirements of this Law or in the case of the return of the enforcement document to the collector or the termination of enforcement proceedings, in case of necessity of compulsory collection from the debtor of the costs of enforcement proceedings, the executor shall be ordered to recover them. The said norm should be supplemented by the provisions on the issuance of resolutions on the enforcement of the executive fee and the basic remuneration of the private performer.

In resolving the raised issue, it should also be taken into account that the Law provides for the collection of executive fees in cases stipulated in part 5 of the article. 51 (at the expense of funds received from the sale of pledged property) and part 8 of Art. 61 (at the expense of the recruited funds in case if the collector has expressed the desire to retain the unrealized property). However, these rules of the law do not provide for the collection of the basic remuneration of a private performer, which may give the debtor reasons to appeal against the actions of a private executor in respect of the recovery of the basic remuneration in the said cases. Therefore, the raised problem can also be resolved by making appropriate changes to the Regulations, and in the future - to the Law.

Another problem associated with the basic remuneration of a private performer lies in Part 11 of Art. 61 of the Law, which states that in case if from the sale of a part of the property the amount necessary for satisfying the requirements of the collector, payment of executive fee, reimbursement of the costs of enforcement proceedings, as well as payment of a fine, the sale of the arrested property is terminated. Part one of the article. 45 of the Law, which stipulates that the basic remuneration of a private executor is levied in accordance with the procedure envisaged for the enforcement of the executive fee, under the aforementioned situation, you will not be "subjected". And this means that, using clause 11 of Art. Article 61 of the Law, the debtors will actively demand the cessation of the sale of the arrested property in case if during the implementation of the arrested property, the debtor himself will pay the debtor a significant part of the debt, and its balance will be paid off from the amount earned from the sale

part of the property, due to which the funds for the basic remuneration of a private performer was not enough. The problem with the changes to the Instruction is no longer eliminated, the Law should be changed. The consequence of this situation is that private executives actually comply with the decision will be forced to make a decision to recover the basic remuneration in the manner prescribed by Part 3 of Art. 40 of the Law, and to pass this resolution for further execution already to another private executor or to the body of internal affairs, as according to Part 4 of Art. 5 of the Act, the executor can not execute a decision on which he is a collector.

But will this solution be implemented by another performer? By the way, this also applies to decisions to recover the basic remuneration of a private performer, which are issued after the actual execution in full of executive documents of non-property nature or the transfer of the collector of property, but which the private performer is not entitled to perform in person.

Particular attention should be paid to the contradiction between the norms governing the collection of executive fees. So, according to Part 2 of Art. 27 of the Law, when executing decisions of the property nature of the debtor, the state executor shall be charged an executive fee of 10 percent of the amount actually recovered, returned, or the value of the debtor's property transferred to the payer by the executive document. That is, the legislator has clearly defined:

1) the executive fee is charged from the amount actually collected;

2) the amount of executive fee is also deducted from the actual amount collected.

However, Part 3 of Art. 40 of the Law contains the rules, which oblige the state executor to take a decision on the collection of executive fees and to execute it in cases which do not fall under the definition of Part 2 of Art. 27 of the Law, that is, under the conditions when there is no actual collection of funds from the debtor. In essence, the provisions of Part 3 of Article. 40 of the Law contradicts Part 2 of Art. 27 of the Law. Using this disadvantage of the law, debtors have the legal grounds to cancel in court the decisions on collection of executive fees made in accordance with Part 3 of Art. 40 of the Law.

Provided that the actual collection of the execution of the decision did not occur, in this situation it is impossible to calculate the size of the executive fee, which should be indicated in the decision on its collection, and which should be determined in accordance with Part 2 of Art. 27 of the Law on the amount actually collected. In other words, the concept of Part 2 of Art. 27 of the Law allows the collection of enforcement only in cases of actual collection by the executor of the debtor funds.

The problem of collecting the executive fee or the basic remuneration of a private executor remains in the open when the executor has carried out all executive actions aimed at execution of the decision, including the debtor's property has already been transferred to implementation, however, "at the last moment" the debtor has managed to pay directly with the collector, as a result of which the decision is actually executed in full without the fact of direct collection of the amount of the debt.

Recall that according to Part 2 of Art. 27 of the Law executive fees are levied in the amount of 10 percent of the amount actually collected, and in accordance with paragraph 19 of the CMU from 08.09.2016, No. 643 "On Approval of the Procedure for Paying State Beneficiaries and Their Size and the Size of the Principal Compensation of a Private Artist", the private executor receives the basic remuneration in the amount of 10 percent of the sum charged to him. The law does not provide an interpretation of the legal term "collection" , but in the sense of the Law, "collection" is an executive act that is directly committed by the performer himself. Therefore, due to the requirements of the Law, the possibility of collecting executive fees or the basic remuneration of a private performer in a simulated situation is rather problematic, especially if debtors skillfully use the disadvantages of the Law and challenge foreclosure decisions.

These problematic issues need to be addressed promptly, especially as regards the recovery of the basic remuneration of private executives, who are expected to start operations in the near future but who already have a risk for their future own revenues.


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