The Legal High School has started the Third International Forum on the enforcement proceedings. The focus of the first panel discussion "Achievements and prospects of Ukraine in the implementation of decisions" are the following issues: the results of the reform of enforcement proceedings; summary enforcement proceedings: legislative myth and reality; private executor vs state executor: problems of interaction and organization of work; experience of the disciplinary commission of private performers - the problem of unity of approaches; reasons for reducing access to the profession of private performers; problems of ensuring security of participants in executive proceedings; Ministry of Private Executors: Regulatory Activity of the Association of Private Entrepreneurs of Ukraine.
Managing partner of Evris Igor Kravtsov is the moderator of the discussion. Participants of the discussion: Deputy Minister of Justice of Ukraine on issues of executive service Svitlana Glushchenko, a member of the Committee of the Verkhovna Rada of Ukraine on Legal Policy and Justice Ruslan Sidorovich, Deputy Director of the Department of Litigation and Bankruptcy of the Ministry of Justice of Ukraine, Deputy Head of the Disciplinary Commission of Private Artists Igor Bagno, private executor of Serbia, foreign expert of the EU-LAW-JUSTICE project Damir Site, deputy chairman of the Council of private performers of Ukraine Oleksandr Syvokoz, chairman of the NGO "Agen" tion on Enforcement "Vladimir Boer.
The dynamics of disciplinary proceedings for private performers is positive - participants in the III International Forum on Enforcement Proceedings
"Execution of court decisions is an integral part of court proceedings and one of the guarantees of a person in defense of his rights and legitimate interests. Recently, significant changes have taken place in the system of implementation of the decisions, and the achievements and prospects of these changes will be discussed today, "he said, opening the panel discussion" Achievements and Prospects of Ukraine in Implementing the Decisions "of the III International Forum on Enforcement Proceedings, Moderator, Managing Partner of Evris Igor Kravtsov.
2016 was a turning point for judicial reform, and judicial reform can not be complete without reform of the system of execution of court decisions. This was emphasized by the Deputy Minister of Justice of Ukraine on issues of executive service Svitlana Glushchenko. According to her, unconditional positive is the conduct of the institution of a private performer. The Ministry of Justice has taken all measures to develop the necessary sub-legal acts in order to ensure proper access to the profession.
Svitlana Glushchenko highlighted the following achievements: for the first time in Ukraine, a competitive environment for executives was created, the executive procedures were as close as possible, administrative pressure was minimized, and corruption risks eliminated. It is also important that today the work of public and private performers is motivated. However, it is still too early to stop. Enforcement should be even more effective.
The speaker has also released some statistics. By execution of 1.4 million executive documents, executives executed 500 thousand decisions, charged 6.8 billion USD. At the same time, 14 thousand executive documents were handed over to private performers, 58% of them executed. Speaking about the work of the qualification commission, Ms. Glushchenko stressed that 38% of candidates passed examinations successfully; Regarding the work of the disciplinary commission, 220 complaints were received by the Justice Ministry, in 90% of cases complainants initiated complaints. Only ten appeals were sent to the Disciplinary Commission.
Igor Kravtsov noted that, according to international experts, Ukraine needs from 2 to 4 thousand private executives so that they compete with the state. But now there are about 100 private performers in our country. "What is the problem?" He inquired from Mrs. Glushchenko. She replied that the problem was that not all candidates who completed their studies and internships came to take exams.
The experience of the disciplinary commission of private performers was shared by Deputy Director of the Department of Litigation and Bankruptcy of the Ministry of Justice of Ukraine, deputy head of the Disciplinary Commission of Private Performers Igor Bagno. The experience of the commission is formed on specific cases. The Disciplinary Commission was formed on December 4, 2017, its composition has already been changed, due to objective circumstances, the change of chairman was also stipulated.
With regard to more practical aspects, then there are issues of withdrawal and isolation. So far, the commission has not seen any objective prerequisites for establishing a conflict of interests in any one case. "The Disciplinary Commission of Private Arbitrators is not a judicial body. However, when deciding on the issue of disciplinary liability, the commission enjoys its discretionary powers. No one forbids to challenge this decision in court ", - Ihor Bagno drew attention.
According to him, the dynamics related to disciplinary penalties is positive: in two cases, a disciplinary sanction was applied (the activity of one private performer was discontinued, the other was suspended), in one case the case was sent for re-examination, six statements were rejected. Commission activities are open and transparent, the commission does not oppose the direct broadcasting of meetings on the Internet, but against the fact that these broadcasts turned into a show.
The execution of judicial decisions the state should give outsourcing - R. Sidorovich, people's deputy of Ukraine
The panel discussion "Achievements and Prospects of Ukraine in Implementing the Decisions" of the III International Forum on Enforcement Proceedings continues its work. Democratic Citizen from Serbia, a foreign expert from the EU-LAW-JUSTICE project, said the state should ensure that judgments are executed so that they do not remain an illusion. The right to a judicial decision is one of the inalienable human rights. He stressed that most European countries are switching to a private system for enforcing court decisions.
As for the interaction of private and state executives, Oleksandr Syvokoz, deputy chairman of the Council of Private Executors of Ukraine, spoke in one sentence: there is no such interaction. A number of problematic issues arise when the executive documents are transferred from the state to the private executor, the seizure of property. According to Mr. Syvokozov, one of the most important problems is the security of a private performer. At the stage of preparation of the relevant legislation, much attention was paid to the issue of interference with the activities of private performers, but at the stage of passing the first reading these norms were excluded. Now the security of a frequent executor is prescribed by general phrases in two articles, but effective mechanisms that could prevent interference, prohibit the investigating authorities from interfering in enforcement, no. The current situation is a threat to the activities of private performers. There were cases when the "executive case" was seized by the investigator at the request of the debtor, there are blatant facts of conducting searches, even in the homes of parents of private performers. "You need to do something with this. Such facts can not be left without attention ", - Mr. Syvokoz is convinced.
"If you do not stand yourself in the sun yourself, then nobody will give it to you", - appealed to the representative of the Council of private performers Ruslan Sidorovich, a member of the Verkhovna Rada of Ukraine on legal policy and justice.
"Those who at least once turned to the private performer, let's be frank, or go to the state executor. This testifies that the reform of the system of execution of court decisions was justified, "said Volodymyr Boer, Head of the State Agency for the Implementation of Decisions. He believes that it is necessary to take measures to popularize the profession of private performer. Why do candidates who have successfully completed training and internships do not go to the exam? First, they saw that their predecessors "did not become millionaires", and secondly, there is still no trust.
"No judicial authority if there is no proper enforcement of decisions. No judiciary if there is not one of the pillars of democracy, "Mr. Sidorovich said. He recalled that reform of the system of execution of court decisions was very difficult, many attempts were made to curtail the reform.
However, the relevant legislation was adopted, but many problems remain unresolved, and when they are resolved, the people's deputy of Ukraine does not know, especially if we consider the conditions for the start of the election race. For example, the question of access to accounts was raised at the stage of drafting legislation, but then this problem was put forward as the bracket of reform, and there are problems related to the combined enforcement proceedings. "The work of a private executor is a tool for identifying assets. If the debtor will be aware of the inevitability of enforcement proceedings, he will independently execute the decision without waiting for the accrual of executive expenses, "Ruslan Sidorovich emphasized.He is convinced that the state should handle the issue of enforcement of court decisions by outsourcing, leaving only specific categories of cases.
The association of private performers is not so independent so that the Ministry of Justice will abandon micro-management, participants of the forum say.
The second session of the 3rd International Forum on Enforcement Proceedings "Private Performer as a Business Project" began. The moderator of the session is Nikolai Kovalchuk, Senior Partner of LUKI L.I.GROUP. According to him, this is an extremely important event for the entire legal market, which provides an opportunity to discuss all the topical issues. "The Institute of Private Arranger has been operating in Ukraine for a year, and this year we can share market issues with government officials. This bilateral dialogue is extremely important ", - emphasized Mr. Kovalchuk.
Patrick Safar, vice president of the National Chamber of Bailiffs (France), spoke on guarantees of financial and procedural independence in the work of private executives in France.
He drew attention to the so-called hybrid status of performers in France. Apart from being independent, they have certain responsibilities. Acting as the state, the executives work as independent agents, and their activities are monitored by the French Ministry of Finance. According to Mr. Safar, this profession belonged to so-called free (liberal) in the Middle Ages. Performers in recent years have increased their qualifications and received additional authority. They are civil (for any harm), criminal (for forgery of documents) and disciplinary (must follow certain ethical rules) responsibility.
According to their status, according to an expert from France, the executors are self-employed persons, their offices function as non-profit entities. It is possible to carry out its functions at the place of residence in appellate courts, and the number of executives is controlled by the Ministry of Justice. With regard to monopolization, that is, a certain network of tariffs, which is enshrined in the law. According to the code of professional ethics, agents can not raise tariffs. In conclusion, Patrick Safar stressed that French performers should be independent and impartial to any of the parties, they can not exceed their powers.
Prospects for joint work of private and public executives analyzed legal adviser of the Center for Commercial Law, expert of the EU-Law "LAW-JUSTICE" Igor Nikolayev. He conducted parallels with a notary: initially private notaries were also treated with extreme caution. But now for the consumer of notarial services there is no difference to whom to apply - to a private or public notary. Subsequently, it will be the same with private and state executives, because their work is reduced to one denominator - the effective enforcement of court decisions.
Mr. Nikolayev stressed that the private performer is not a free artist, expressing regret that the Association of Private Performers is not so independent so that the Ministry of Justice has abandoned the functions of micro-management, but hopes that the situation will change soon. "Collaborating public and private actors should be within the limits of the current legislation, but cooperation and competition (in the positive sense of the word) should be directed to one result - enforcement of judgments. We must achieve irreversible execution of court decisions ", - summarized Igor Nikolayev.
Forum: The institute of private performers has positively established itself in the eyes of the legal market The second session, "Private Performer as a Business Project", of the III International Forum on Enforcement Proceedings continues its work. Private interlocutor Dmytro Lyapin stopped the interaction of private executives with the legal services market. The subjects of the legal market accepted private performers quite pragmatically and restrained. In the case of banks, they start to collaborate with a private executor only after accreditation, but accredited performers must meet certain criteria, for example, having work experience (one or two years) in the bodies of the state executive service.
"The legal market accepted the institute quite positively, and, as indicators show, lawyers are happy with their work", - underlined Mr. Lyapin. Moderator of the session, Senior Partner of the LG I.I.GROUP Mykola Kovalchuk agreed with the speaker: the institution of the private performer has been very positive, but there are still issues such as trust, the number of private performers, but all of them will be resolved over time.
About the taxation of private performers told a private performer Nazar Pavlyuk. According to the speaker, budget planning is one of the main components of their work. The speaker noted that registration by the fiscal authorities of a private executor as a self-employed person is not difficult. Speaking about the place of registration, Mr. Pavlyuk emphasized that you can register either at your place of residence or at the office location. The tax base is great, and there are a lot of problems.Private executives must pay 41% of the tax, but what amount should they pay these taxes? Today there are several individual tax advice that frustrates performers. Nazar Pavlyuk predicts a series of lawsuits to the tax authorities and encourages colleagues not to ignore the issues, and Mr. Kovalchuk is convinced that private executives will be able to consolidate their efforts and solve problems, including at the legislative level.
At the end of the session, with the nuances of liability insurance of private performers, was informed by Igor Sahar, Deputy Chairman of the Board of PJSC "Insurance Company" Ridna ". Some private executives have already registered their responsibilities, but they have not yet been added to the single register of private performers.
"There were insurance cases? Did complaints come from the debtors? "- Such questions were addressed to Mr. Sakhar Mykola Kovalchuk. "Yes, such situations arose, but they were more than an occasion to complain about the absurd activity of the performer. There were no insurance cases in such complaints ", - summed up the speaker.
Forum participants rated short stories and experiments in the field of execution of court decisions
The III International Forum on executive proceedings continues. A session that was moderated by Konstantin Kolesnik, head of the Kyiv office of JSC "Shkrebets & Partners" was devoted to the actual issues of the executive process. Roman Klimenko, deputy director of the department - head of the department for enforcement of decisions of the State Bailiffs Service of the Ministry of Justice of Ukraine, told about the latest developments in the implementation of court decisions and other bodies in accordance with the Ministry of Justice's passport of reforms approved by the Ministry of Justice. He drew attention to an experiment on the establishment of service centers for the enforcement of judgments - this initiative is aimed at accelerating enforcement proceedings. And while answering the questions of the moderator about the differences between these centers, Mr. Klimenko noted that special advisers would be involved in their work, which would allow citizens to get all the necessary legal assistance within the framework of enforcement proceedings.
Victor Vishnev, General Director of SEATAM, made a report on the peculiarities of asset sales within the framework of executive proceedings. Briefly speaking about the history of "CETAM", Mr. Vishnev focused on practical issues of organizing bids with various assets.
In particular, he spoke about the peculiarities of the implementation of mortgages and initiatives to improve the profile law. Other interesting cases - the sale of derivative rights: emphyteusis and superfiction. Mr. Vishniv also commented on the peculiarities of the implementation of arrested land plots, the organization of trading in jewels and weapons. The session was continued by Diana Kozlovskaya, Managing Partner of Uk Elite Consult Group, Arbitrage Manager. The subject of her report is "How to" get "assets from abroad." She made a number of recommendations on how to obtain information on the availability of assets from the debtor in other states and how to effectively manage the information received.
Ms. Kozlovskaya reviewed four popular jurisdictions used by unscrupulous debtors: Britain, Italy, France and the Czech Republic, reporting on the possibility of obtaining information from public registries of these states.
"The plurality of arrests in the enforcement proceedings as an obstacle to the implementation of decisions" - with such a theme, the report was made by Andriy Dzhura, Deputy Director of the Department - Head of the Legal Aid Department of the Poverty Assets Department of PJSC "PUMB". He emphasized that this question is of interest to every buyer of the arrested property, since it creates some difficulties in the enforcement proceedings. The speaker also presented an overview of relevant court practice in cases related to bidding for property that was subject to multiple arrests. In turn, Sergey Donkov, advisor to the Evris, conducted a comparative analysis of two competing productions: the executive and the debtor's bankruptcy. Noting that executive and competitive production fulfill one and the same socio-economic function - regulation of mutual settlements and stimulation of fulfillment of obligations by the parties of contractual and public-legal relations, Mr. Donkov emphasized that they are rather poorly coordinated among themselves, and the legislation contains a large number of competing norms. Speaking about the peculiarities and collisions of the enforcement proceedings and the debtor's bankruptcy process, the speaker presented a number of recommendations on the harmonization of enforcement procedures. According to Mr. Donkova, the increase of the effectiveness of forced execution should also help to limit debtors in the implementation of operations for the sale of property after the opening of enforcement proceedings, the extension of the rights and powers of arbitration managers, a clear definition of sources and guarantees of payment of their work and costs,automated imposition and removal of arrests by the executors and the court in the bankruptcy procedure, coordination of actions for the recovery of current and property claims in the bankruptcy procedure, establishment of the executive's duty to close enforcement proceedings after opening a bankruptcy case, a prohibition on opening new enforcement proceedings after a moratorium on repayment of claims by creditors. According to the speaker, some of these proposals have already been taken into account in the Draft Code on Bankruptcy Procedures. At the end of the session was a private performer Zoryan Makovetsky. He familiarized the participants with the peculiarities of foreclosure of corporate rights in the aspect of the new Law of Ukraine "On Limited Liability Companies". After analyzing the stories of this law in relation to foreclosure for corporate rights, the speaker outlined a number of problems that may arise in practice, commenting on, in particular, the complexity of assessing corporate rights.
The 3rd International Forum on the Enforcement Proceedings was completed by the analysis of judicial practice in the process of execution of court decisions
The current judicial practice in the process of executing court decisions at the final session of the III International Forum on Enforcement Proceedings was analyzed by the judge of the Kyiv Appeal Administrative Court Oksana Epel, Deputy Minister of Justice of Ukraine, Ivan Lyshchina, Government Commissioner for European Court of Human Rights Ivan Lyshchina, Judge-Speaker of the Court of Cassation Economic Court in the Supreme Court Serhiy Zhukov, Member of the Board of NGO "BVI Alternative", Chairman of the Board of Private Entrepreneurs of the Executive District of Dnipropetrovsk Region at the Ministry of Justice of Ukraine Yuriy Lysenko and Attorney Andrew Autorov. The moderator was Andriy Kristenko, Advisor to the ILF. Oksana Epel focused on the nuances of attracting the debtor to responsibility in the enforcement proceedings, including taking into account the practice of the European Court. She reminded that the legislator regulated an updated tool for encouraging debtors to properly discharge their responsibilities, but the effectiveness of its practical implementation depends on performers (public and private). Involving the debtor in liability for non-execution of the decision in the enforcement proceedings and imposing a fine on him, the executor (public or private) is obligated to thoroughly investigate all the circumstances of the case, in particular, to properly verify the fact of non-fulfillment by the debtor of his duties and to determine the reasons for their non-fulfillment or improper fulfillment . At the same time, according to Mrs. Epel, precisely the inadequate performance of the said obligation by state and private executors in most cases becomes the reason for the abolition of judicial decisions on the imposition of fines on the debtors under art. 75 of the Law of Ukraine "On Enforcement Proceedings". She also commented on some issues of reimbursement of expenses incurred by the executor.
Ivan Lyshchina spoke about the problems and prospects of executing court decisions against the state. He noted that our discussion in this regard is mainly about the failure to comply with the decisions of the European Court. The speaker commented on the decision of the European Court in the case of Burmich v. Ukraine. He stressed that Ukraine was given two years to solve the problem of non-enforcement of court decisions. It concerns both actual payments and the development of measures that should prevent further violations in this area.
Separately, Mr. Lyshchina stopped at the problems associated with the introduction of various moratoria, the adoption of certain "social" laws, as well as a small category of cases of impossibility to enforce decisions on the obligation to commit. Sergey Zhukov delivered a report "Trial practice as a methodological basis for executive proceedings". Emphasizing the importance of the decisions of the Supreme Court in the formation of judicial practice, the speaker commented on individual conclusions of the Arbitration Court in cases concerning appeals against decisions, actions or inactivity of the bodies of the state executive service, public and private performers.
Mr. Zhukov said that the publication of a generalization of the practice of the Armed Forces in this category of cases is planned in the near future. "The jurisprudence of the Supreme Court is only beginning to be formed, and it is very important that it be understood by the legal community, in line with the rule of law and contributed to the restoration of the complaints of the complainants' rights", - summed up his statement by the judge-speaker of the Court of Cassation in the Supreme Court.
Yuriy Lysenko gave his speech dedicated to the issues of consolidated executive proceedings in a "mixed" system of decision-making. He, in particular, analyzed how in practice there are several decisions on the same debtor and which is a judicial practice for claims of debtors to private performers.
At the end of the profile session and the entire forum was made by Andrei Authorov. He spoke about the problematic aspects of collecting executive fees and remunerating a private performer. The speaker presented examples of the controversial case law of the Supreme Court in collecting executive fees and shared his thoughts on how to bring the executive fee and the main remuneration to a "common denominator."
(translated using google translate)