Toda

Payment of funds from borges with different operators

 In accordance with part one of Article 1 of the Law of Ukraine "On bodies and persons performing enforcement of court decisions and decisions of other bodies" the enforcement of court decisions and decisions of other bodies (officials) is entrusted to the bodies of the state executive service and in the Law of Ukraine "On enforcement proceedings "(hereinafter - the Law) cases - to private performers.

According to Article 19 of the Law, the right to choose the presentation of an executive document for enforcement in the organs of the state executive service or to a private executor belongs to the collector if the execution of the decision in accordance with Article 5 of this Law falls within the competence of both the bodies of the state executive service and private executors. It is certain that, as a result of this rule, the situation will often arise when a part of the executing documents on collection of money from one debtor will be executed by the state executor, while some - privately or by collectors, according to decisions of the property nature, with respect to one debtor, turn to various private executors.

The peculiarities of the implementation of several decisions in case of receipt of several executing documents for one debtor are specified in Article 30 of the Law. According to the provisions of the aforementioned article, execution of several decisions on collection within the framework of a consolidated enforcement proceeding from one debtor is carried out by the state executor who opened the first enforcement proceedings against the debtor. Several decisions on collection of funds from one debtor are carried out by a private executor within the framework of the consolidated enforcement proceedings.

Thus, separate executive summary proceedings may be performed in both the state executive service and private enforcement agencies, however enforcement actions in this case are carried out solely at the level of individual actors, whether public or private.

However, Article 5 of the Law provides for a list of categories of cases, which, given their social weight, can only be performed by state executives. Private executives are not empowered to execute decisions on collection of funds from the state and in favor of the state, on the confiscation of property, etc.

Taking into account the specified legally established distribution of powers for the implementation of certain categories of decisions, the cases of simultaneous residence of executive documents, both from state and private performers, will have a systemic character.

Since the ultimate goal of any enforcement of decisions of a property nature is the actual full recovery of arrears, the most acute in the case of the enforcement of enforcement proceedings against one debtor at the same time from public and private performers or from different private performers is the problem of distribution of funds between payers.

Thus, Article 46 of the Law establishes the order of satisfaction of the receiver's claims in case of insufficient amount of collection to meet the requirements of collectors, namely that it is determined that:

1) in the first instance satisfied with the collateral requirements for the recovery of the value of the mortgaged property;

2) in the second place, the requirements for the collection of alimony, compensation for damage and damage caused as a result of a criminal or administrative offense, injury or other health damage, and also in connection with the loss of breadwinner;

3) in the third place satisfy the requirements of employees related to labor relations;

4) in the fourth place, the requirements of collectors for compulsory state social insurance, requirements for collection for compulsory state pension insurance, insurance premiums for compulsory state social insurance and requirements for taxes and other payments to the budget are met;

5) in the fifth place all other requirements are met.

At the same time, the requirements of the receivers of each subsequent queue are satisfied after satisfying the full requirements of the receivers of the previous queue. In case if the sum is not enough to meet the full requirements of one queue, the requirements are met in proportion to the amount due to each payer.

Consequently, requirements of lower social significance are inferior to requirements of higher significance in such a way that claims of individuals are prioritized to the requirements of legal entities, non-commercial claims are prioritized to commercial ones, the requirements of the state are inferior to the requirements of employees.

Establishment of the priority of satisfaction of claims receivable, as well as the distribution of debts from the debtor, is primarily aimed at coordinating the interests of all participants in enforcement proceedings and observing a reasonable balance of private and public interests. At the same time, non-compliance may lead to the fact that, in the case of execution of a decision by a private executor, the requirements of one individual or enterprise will be fully met, while the state and other collectors who have submitted executive acts to the state executive service authority do not will receive no funds.

Also, the absence of a legally determined mechanism for committing executive acts in the event of enforcement proceedings against one debtor at one and the same time from public and private performers or from various private executors may lead to the seizure and transfer to the implementation of one and the same property of the debtor. And since one of the consequences of the forced realization of the arrested property is the seizure of such property, there is a risk of the buyer acquiring property with the arrest of other performers, which will make it impossible to properly register the ownership of such property by the winner of the bidding.

Also, in such cases, it is not necessary to exclude the possibility of a so-called "domestic corruption", namely: the termination by a public or private executor of the debts of the debtor's property encumbrances imposed by the arrest warrant issued in other executive proceedings, that is, the removal of the arrest from the property of the debtor imposed other public or private performer.

 Distribution of funds based on the calendar receipt of execution documents for execution.

The current practice of implementation of the consolidated executive proceedings in the bodies of the state executive service indicates that during enforcement of decisions concerning the debtor company, new executive documents on the collection of wage arrears from this enterprise (the certificate of the commission on labor disputes) are constantly being implemented. In connection with this, during the implementation of the consolidated enforcement proceedings, the funds are primarily allocated among the payers of labor relations.

At the same time, orders of commercial courts for collecting funds in favor of economic entities are not performed for months, in some cases for years, since these payments were passed by the legislator to the fifth turn.

At the same time, it should not be forgotten that there are workers who need to pay wages in the payers - legal entities that carry out business activities. Thus, failure to return to legal entities the funds due to them before payment by the debtor leads to a violation of the rights of employees who are in labor relations with the collector, a legal entity. It follows from this that the established order of satisfaction of claimants is somewhat inconsistent with the principle of equality of all subjects of law before the law and the court, as defined in Article 24 of the Constitution of Ukraine, Article 7 of the Code of Civil Procedure of Ukraine and Articles 2, 6 of the Civil Procedure Code of Ukraine. After all, since enforcement proceedings are, in particular, the final stage of litigation, the above principle should also apply to the procedural status of recoverers.

That is why the proposed approach - a change in the distribution of funds, depending on the date of receipt of the executive document - would encourage taxpayers not to delay implementation of their procedural rights regarding debt collection and would facilitate the expeditious implementation of the constitutional principle of the mandatory implementation of court decisions. Moreover, it is already applied by the bodies of the state executive service in certain cases. In particular, the requirements of payers for paying arrears of wages and other claims related to labor relations are satisfied in the order of receipt of executive documents. However, if these executive documents have been received within one day and the amount collected is not sufficient to fully satisfy all the requirements of such executive documents, the corresponding requirements are met in proportion to the amount due to each payer.

At the same time, it should be noted that this approach appears to be somewhat discriminatory in relation to the rights and interests of the taxpayer who, untimely, perhaps even for objective reasons, has exercised his rights to obtain an enforcement order and file it for enforcement.

Another option to meet the requirements of the collectors - in the order of arrears, that is, depending on the date of the decision, on which the executive document was issued, or the date of entry into force of the decision (entry into force).

Due to this principle it would be possible to prevent a situation where, as a result of certain agreement of the debtor with the private executor under the new court decision on the collection of artificially created debts, the property is accelerated and discharged from seizure in violation of the rights and legitimate interests of other collectors whose enforcement is already carried out by the authorities. the state executive service or other private executives.

At the same time, such a method of meeting the requirements of collectors will have some difficulty in applying, for example, it will be necessary to abolish the rule that the funds arrested on the client's account may not be used until the receipt of a payment claim by the executing document for which execution was supposed to be arrested, since the priority the cancellation will be granted depending on the date of the decision to be enforced. Therefore, this approach also requires clear regulation of the collection and distribution of funds accumulated to execute a court order to secure a claim.

In addition, in the event of satisfaction of the claimants depending on the date of the decision or its legal effect, the realization of the rights of a particular person is largely dependent on the length of consideration of her case in court, that is, from the objective factor.

One more approach to solving the problem of distribution of funds between payers, namely, the collection of funds, is first of all in accordance with the executive documents of those persons who have been subject to arrest, that is, depending on the date of the issuance of the arrest of the debtor's property (funds). Thus, which of the executives will first charge the penalty, and will ensure the full or partial execution of the decision that he is at execution. This approach will significantly accelerate the enforcement of enforcement measures, because the skill of the performers will depend on obtaining the appropriate remuneration. However, in the context of the simultaneous execution of executive actions in relation to the property of one debtor by various performers, it is necessary to legislatively establish the impossibility of re-announcing the search for the same vehicles, the re-description of the property, and its re-transfer to implementation.

At the same time, it should not be forgotten that the current order of satisfaction of claims receivable not only aims at the fair distribution of values between payers, but also pursues certain social tasks such as protecting the interests of the most vulnerable categories of the population (for example, the recovery of alimony, compensation for damage , caused by the victims of a crime), as well as the repayment of funds due to the state budget.

For example, satisfying the requirements of a certain collector - an enterprise, at the expense of the debtor's property - an individual whose funds could be used to pay off the arrears in favor of minors can hardly be called consistent with the basic principles of the functioning of civil society.

Another solution to the above problems may be the introduction of an effective mechanism for the interaction of state and private performers, aimed at timely implementation of decisions and meeting the requirements of all collectors in full. I believe that such a result of public-private execution can be achieved by ensuring an effective information exchange between the performers and the activities of the jointly formed executive groups.

Today, in accordance with Article 25 of the Law, in the presence of circumstances that complicate the execution of the decision (in case if the enforcement proceedings for the recovery of funds from one debtor are open in several bodies of the State Bailiff Service, if the debtor and his property are located on the territory of the administrative-territorial units referred to the jurisdiction of various bodies of the state executive service, etc.), or in the case of implementation of consolidated executive proceedings, executive bodies can be formed in the bodies of the state executive service.

The procedure for the formation of executive groups is defined in section IV of the Instructions.

It should be noted that in accordance with paragraph 13 of Section III of the Instruction, a private executor may involve, for the purpose of checking information on the presence of the debtor, his property, place of work in another executive branch of another private executor on the basis of an agreement on the authorization of certain executive acts in accordance with the established standard form.

However, there is no mechanism for coordinating actions between private and state executives, as only executive executors of one or several bodies of the state executive service can be members of the executive group, and the creation of executive groups involving both public and private enforcement agents is not provided by the current legislation.

Among the issues that are most acute in organizing joint implementation of decisions, will be the order of formation of executive groups and distribution of rewards among performers. At present, the decision on the formation of executive groups is taken by executives of the bodies of the state executive service and is their discretionary powers, that is, they are carried out at their own discretion.

However, in order to comply with the priority of satisfying the requirements of collectors to ensure the coordination of actions of private and public executives without transferring to each other enforcement proceedings for recovery of funds from one debtor, the formation of the executive group must be determined imperatively. That is, it is necessary to legislatively provide that, if enforcement proceedings for recovery of money from one debtor are opened in the body of the state executive service and the private executor, they are executed within the framework of the consolidated executive proceedings by an executive group consisting of a private and state executor.

"In the case of the opening of enforcement proceedings concerning the recovery of funds from one debtor at the same time in the body of the state executive service and a private executor or various private executors, execution of decisions is carried out within the framework of consolidated executive proceedings by an executive group consisting of state and / or private executives."

It should be noted that in accordance with paragraph 7 of the Procedure for the payment of remuneration to state executives and their size and the amount of the basic remuneration of a private executor, approved by the Resolution of the Cabinet of Ministers of Ukraine dated 09.08.2016 No. 643 (hereinafter referred to as the Order), in case when execution of the executive document was provided by the executive group The funds are distributed equally among all members of the executive team. In this regard, the question arises about setting limits on remuneration not only for public executives but also for private performers.

It should not be forgotten that a private executor, as an entity of independent professional activity and a self-employed person, organizes and maintains an office on his own, pays taxes and wages to his assistants, pays for the use of the registry and carries out other expenses related to the performance of his professional duties. tricks His remuneration depends solely on the results of his work. At the same time, the state executor is not burdened with the above expenses and receives wages at the expense of the state budget. An important incentive in the work of the state executor is the possibility of obtaining the latest remuneration provided for by the Procedure. However, if the failure to comply with the decision for the state executor ultimately affects the non-receipt of remuneration, while the salary is still paid, for a private executor non-fulfillment of the decision and non-receipt of remuneration can to a large extent negatively affect the entire process of his professional activity.

In this regard, it is quite predictable that when the maximum efforts of the private executor and regardless of the actions taken by the state executor, the debtor's actions will be recovered, but they will be subject to remittance according to the order of priority by the categories of executive documents performed by the body of the state executive service. That is, in practice, execution of decisions that will be in the conduct of a state executor can, in such cases, be secured at the expense of a private executor.

In this case, in accordance with the Order, the opportunity to receive remuneration will arise only from the state executor, while the private performer will be deprived of this possibility, since the funds will be received by the non-payer. In addition, the Order currently provides for the payment of 0.5 per cent of the sum collected or the value of the debtor's property transferred to the payer by the executive document, but not more than 200 living wages for able-bodied persons, established on January 1 of the calendar year, to the head of the state executive service body and his deputies , which is directly subordinated to the state executor.

The aforementioned norm will also need to be revised to ensure that the specified percentage is deducted solely from the amount payable to public executives.

I also consider it expedient to establish the obligation of the executors to open the enforcement proceedings to monitor the means of the automated system of enforcement proceedings to open proceedings against one debtor, which are in execution in the executive bodies of the state and / or private performers, and to notify the relevant actors of the implementation of the opening of a new enforcement proceedings to combine such proceedings with the consolidation and the inclusion of new executors in the executive group.

At present, the technical possibility of such an information exchange is provided.

Establishing the order of interaction between the bodies of the state executive service and private executors covers a wide range of problematic issues that require urgent resolution. It is impossible to quit, as the first private executors are already actively engaged in enforcement activities.

The proposed approaches to the settlement of public-private execution of decisions are not ideal and are merely an attempt to shed light on a situation that has already developed and which can not be ignored. Nevertheless, any of these approaches can be used. At the same time, the adoption of specific legislative decisions in this direction will depend solely on the common position developed by the Ministry of Justice of Ukraine and the Association of Private Entrepreneurs of Ukraine.

Author: Vitaliy Chepurny - Deputy Chief of the Main Territorial Department of Justice on the Issues of the State Bailiffship - Chief of the Office of the State Bailiffs Service of the Main Territorial Department of Justice in Kyiv.

(translated using google translate)