In 2017, the first private performers began to work in Ukraine. In a short time, the share of successfully executed court decisions increased 3 times compared with 2015. But on the way to the effective work of the "private owners" there are still many obstacles, among which there are 5 main ones.
Moratorium for mortgage housing
In Ukraine, there is still a moratorium on the collection of real estate mortgage of individuals. The relevant law was adopted in 2014 in order to protect the rights of people who were unable to pay the mortgage due to a sharp jump in foreign exchange rates and could lose their homes. In this case, the law has a good purpose. Nevertheless, practice shows that unscrupulous debtors often abuse such a legal instrument: they do not actually live in these apartments / houses, rent them out, use them for commercial purposes, change the type of such facilities.
As of January 2019, a moratorium on the recovery of mortgage property of natural persons is valid in the event that:
- the property is in a mortgage on loans in foreign currency;
- the property is a permanent place of residence for a physical person;
- the total area of the apartment is no more than 140 m2 (250 m2 for a residential building).
In practice, we see that the debtors abuse the moratorium, while the contractor cannot legally recover such property. Detailed legal regulation of the notion of a moratorium, improvement of instruments for monitoring compliance with its conditions, imposing responsibility for non-compliance with the conditions of the moratorium, as well as well-defined legal tools for private performers, along with positive judicial practice, would lead to a significant increase in the number of court decisions executed. In addition, it would allow minimizing the attempts of debtors to abuse the moratorium and evade the execution of decisions.
Lack of unified account registry
Still in Ukraine there is no unified register of bank accounts, which would allow automatically impose arrest and prohibit debtors to open accounts in any bank in the country. It is necessary to use the experience of European countries in which private performers have established themselves as a truly important and effective institution for the enforcement of court decisions.
In Germany, France, the Netherlands, in order to arrest debtor’s accounts, you only need to know its identification number. Unified systems automatically poison such arrest in all banks and financial institutions in the country.
If during the period of the arrest of the account the debtor tries to open a new account, an arrest will be automatically imposed on it - within the limits of the recovery amount.
In Ukraine, private executors have to send separate letters of resolution on the arrest of accounts to all banks of the country (currently there are 78). This is a long and time-consuming procedure, considering the shipment by mail. And in the case of execution, the time factor plays an extremely important role - debtors, knowing about the court decision, often try to withdraw their funds as soon as possible. Also, banks do not give out information about the balances of funds on debtors' accounts, for this it is necessary to issue a special requirement. However, in most cases, even after receiving such a document, banks still refuse to disclose information about the debtor’s accounts, explaining this by the principle of bank secrecy.
It is not uncommon for a bank, having received an arrest warrant, to ignore it and return it to a private executor due to the fact that, as of the date of receipt of the document, such a debtor did not have open accounts with this bank. It often happens that the next day the debtor opens an account in the same bank and can use it for the purpose of evading the execution of decisions of courts and other bodies.
A technological and unified system for arresting debtor’s accounts, as well as tightening the responsibility of financial institutions, would significantly reduce the time spent on arresting accounts and increase the percentage of execution of decisions.
In Ukraine, it is very difficult to detect vehicles that are wanted by a private performer. To this end, the contractor sends a search order to the information and analytical department of the police, which, in turn, enters data on such transport into the Video Control-Boundary system.
Unfortunately, such a system is still not working effectively. The police are not in a hurry to stop and withdraw debtors' cars, since this is a very time-consuming and bureaucratic process, and it does not have enough motivation. Often such a system is stationary at the entrances and exits of cities and at large police checkpoints on highways. This leads to the fact that the wanted vehicle can move freely within the city without leaving it. There are cases when the police simply do not include such a system so as not to have an extra “headache” with the paperwork.
Only law enforcement officers have access to a system in which all information is collected, and they rarely seek to search for, stop and arrest such vehicles. The assistance of the police, especially in big cities, a regulated legislative mechanism of cooperation between the subjects of different ministries, the continued fulfillment and control of their duties by the police, would significantly improve the performance of court decisions. It would also help to put into practice one of the main tasks of the police - the implementation of preventive and preventive activities aimed at preventing crime.
Child as a “shield”
There is still a problem with the work of the residence registration departments. The state protects and protects the rights and interests of children in transactions regarding real estate. For their perpetration (including enforcement in the framework of enforcement proceedings), the ownership of which or the right to use of which children have, requires the prior permission of the guardianship authorities.
In practice, these bodies never grant such permission than unscrupulous debtors use. In order to retain real estate mortgage, they often use the following trick: they deliberately register the residence of minors in such apartments or houses, although this directly violates the mortgage contracts they have signed. Such facts do not allow the contractor to carry out the arrest and collection, as the law prohibits the collection of real estate if a child is registered in it.
There are also cases when minors who are not even the children of the debtor are registered in mortgage apartments. Obviously, the problem lies in the fact that in the registration departments there is no access to the register of real estate rights, and they actually cannot verify information about a person. This situation in many cases allows debtors not to pay on loan agreements for decades.
Undoubtedly, the rights of children must be protected and protected by the state, and within the framework of enforcement proceedings, performers are unlikely to collect the housing where the children of the debtor actually live, and this is their only place of residence. However, the archaic regulatory framework and the same decisions of the guardianship and trusteeship bodies give the opportunity for unscrupulous debtors to evade execution of decisions.
Access to private property
The performer, in the presence of a motivated court decision on the forced entry into the dwelling or other possession of an individual, has the right to freely enter the land, in the residential and other premises of the debtor - physical person.
In practice, the courts rarely satisfy the performer’s submission, citing the constitutional provision on the inviolability of housing. Often unscrupulous debtors use this to prevent executive actions.
As we see, Ukraine still remains a “convenient” country for unscrupulous debtors - there are many “gaps” in the system of state administration and legislation. Invalid enforcement mechanisms for legality, technological backwardness, as well as imperfect legislation enable debtors to illegally receive their benefits, ignoring agreements and creditors' claims. The National Bank cited disappointing statistics on the debt of Ukrainians to banks: as of the end of 2018 in national currency, it amounted to almost 130 billion UAH. and more than 70 billion UAH. - in foreign.
Therefore, the priority tasks should be borrowing the experience of European countries in legislative regulation, which would not allow debtors to evade the execution of decisions of courts and other authorities, as well as building an effective system of state power that will help the work of the executors and not hinder it.
Despite all the listed obstacles in the work of private performers, the statistics of the Ministry of Justice testifies to the growth of trust in them. The proportion of executed court decisions after the start of the reform has tripled - from 6% to 18% at the end of 2018. If the representatives of the legislative and executive authorities pay due attention to the solution of these problems, Ukraine can reach the European level of execution of court decisions, and this is extremely necessary for building a legal state.
A source: vnews.agency
(translated using google translator)