The Candidate of Legal Sciences, a private executor, Andrew Autorov, in his blog for Jurligi analyzed the changes that are expected in the enforcement procedure and whether they will benefit from them.
"In the Verkhovna Rada of Ukraine, dated March 26, 2018, the Bill on Amendments to certain Laws of Ukraine on the enforcement of court decisions and decisions of other bodies was registered under No. 8198.
As stated in the explanatory note to the draft law, it is proposed to improve the procedure for enforcing enforcement by the bodies of the state executive service and private enforcement agencies.
Let's try to figure out if all the changes proposed by the bill will go to the institution of forced execution, which now includes state and private executives.
Admission to the profession
The draft law introduces amendments to the Law of Ukraine "On the bodies and persons executing compulsory execution of court decisions and decisions of other bodies", which concern admission to the profession of a private performer.
According to the proposed changes, candidates for private performers will no longer have to file a property, income, expense and financial obligation declaration to the Qualification Commission.
A candidate's qualification examination after an unsuccessful attempt can be completed in three months, not six, as determined by the law in force.
Advance fee, executive fee and basic remuneration
Instead of calculating the basic remuneration, which according to the current law is carried out within three days from the date of opening of enforcement proceedings, the private executor will simultaneously with the decision to open the enforcement proceedings to make a decision on the recovery of the basic remuneration.
In my opinion, the rules for collecting remuneration of a private performer should be eliminated from the Law "On bodies and persons executing enforcement of court decisions and decisions of other bodies" and to prescribe them exclusively in the Law of Ukraine "On Enforcement", which regulates forced execution procedure.
As to the proposed amendments to the Law of Ukraine "On Enforcement Proceedings", then one should dwell on the following.
The bill resolves the conflict issue related to the recovery of the basic remuneration of a private performer. Thus, the basic remuneration of a private executor may be recovered, or at the stage of distribution, from the debtor's sums, or by issuing a separate resolution on the recovery of remuneration in cases stipulated by law after the expiry of enforcement proceedings or the return of the enforcement order to the collector. The decision to recover the basic remuneration of a private executor is an executive document (paragraph 5 of part one of Article 3 of the Law). However, with the literal interpretation of the norms of the current Law on Enforcement Proceedings, it is seen that a private executor can not enforce the decision on the recovery of the basic remuneration made by him by himself, given that according to clause 1 of part 4 of Article 5 of the Law the private an executor can not execute a decision if the debtor or the collector ... is the executor himself.
The draft law introduces an exception to this rule for collecting enforcement costs and the basic remuneration of a private performer.
Unfortunately, the issue of fines imposed by the private executor on the debtor during the execution of the decision remains unresolved. Thus, according to clause 4 of part 2 of Article 5 of the Law of Ukraine "On Enforcement Proceedings", a private executor can not enforce decisions by which the state is a collector.
That is, from the contents of this norm it is seen that the decision of the private executor about the collection of a fine should be directed to the execution of the body of the state executive service.
At the same time, the presentation of such a resolution will be difficult given that the executive document is filed for execution on the application of the payer, and the private executor is not in this case the payer.
Therefore, it would be advisable to make a similar exception for this case.
Recognizes the changes and the marginal amount of the down payment. The bill proposes to pay it in the amount of 2 percent of the amount to be recovered, but not more than two sizes of living wage for able-bodied persons (in the current version not more than 10 minimum wages), and in the decision of non-property nature, the decision on the transfer of the items specified in an executive document, and a decision to secure a claim - in the amount of one living wage (in the current wording - one minimum wage) from the debtor - an individual and two amounts of living wage at a minimum - the legal entity (as amended -two times the minimum wage).
Also, the bill exempts from payment of advance payments to local self-government bodies, as well as other bodies and persons authorized by law to issue executive documents, in case of their appeal to the enforcement of issued executive documents.
Somewhat unsuccessful, in my opinion, the wording of the draft law on the need for payment of an advance payment appears in such a way that the down payment is paid "when the executive document is submitted for execution", whereas in the current Law it is a question of the fact that before the application about the enforcement of the decision the payer adds a receipt for the payment of the advance payment. At the same time, the norm of part four of Article 4 of the Law remains unchanged, which indicates that the enforcement document is returned to the collector without acceptance, if the payer has not provided confirmation of payment of the advance payment, if advance is obligatory. In view of this, it would be advisable to note that the down payment is paid "before the submission of the enforcement order".
Also, I would point out that it would probably make sense to establish and set the minimum amount of advance payment, which can not be less than the cost of the cost of registration of the executive document in the automated system of enforcement proceedings. To date, such expenses amount to 51 hryvnia.
Amendments to Article 27 of the Law of Ukraine "On Enforcement Proceedings", which regulates the procedure for collecting executive fees, are introduced.
The basis for such changes is also a conflict of laws. Thus, according to part 2 of Article 27 of the Law of Ukraine "On Enforcement Proceedings", the executive fee is levied by the state executive in the amount of 10 percent of the amount actually collected, returned, or the value of the debtor's property transferred to the collector by the executive document.
However, if, however, to turn to the statutory grounds for collecting the basic remuneration of a private executor, then, in accordance with Article 31 (3) of the Law of Ukraine "On bodies and persons who enforce enforcement of court decisions and decisions of other bodies", the basic remuneration of a private executor , is established as a percentage of the amount to be recovered, or the value of the property to be transferred under the executive document.
Thus, as stated above, the current legislation determines that the executive fee is levied by the state executor on the amount actually collected, returned, but the basic remuneration of the private executor is established from the amount to be recovered.
However, in accordance with part three of Article 45 of the Law of Ukraine "On Enforcement Proceedings", the basic remuneration of a private executor is levied in the manner prescribed for the enforcement of the executive fee!
This conflict is sometimes very well used by debtors, challenging in court as decisions of state executives on collection of executive fees, as well as the decision of private executors to collect the basic remuneration.
The bill also stipulates that the executive fee shall be levied by the state executor in the amount of 10 percent of the amount that is subject to enforcement, return, or the value of the debtor's property, which is subject to transfer to the collector by the executive document.
Given that the enforcement fee is actually a sanction applicable to the debtor for non-execution of the decision to make, this is quite logical.
In addition, it is difficult to understand the logic of the authors of the Draft Law regarding changes proposed to the part of the third article of Article 27 of the Law.
Thus, it is proposed to enforce the decision to transfer the property to the collector, if the value of the property subject to the transfer is not specified in the executive document, to collect an executive fee of two minimum wages from the debtor - an individual and in the amount of four minimum wages from the debtor - a legal entity, that is, in the same amount as is provided for the non-property nature of the decision.
It should be noted that the Law of Ukraine "On Enforcement Proceedings" has historically created confusion with the sign of equality between decisions of non-property nature and decisions requiring the debtor to perform certain actions.
She moved to the current version of the Law as Article 64 of the Law "The Procedure for the Implementation of the Decisions on which the Depositor is obliged to take certain actions or to refrain from their commission" is found in Section VIII "Implementation of decisions of non-property character".
But not all decisions on which the debtor is obliged to perform certain actions or to refrain from their commission are non-proprietary. Is it possible to consider a decision of a non-property nature of a decision by which the debtor is obliged to transfer the collector the property determined by the decision?
If, on the other hand, the executive fee for a decision on the transfer of, for example, 1000 tons of wheat will be only four minimum wages, will this stimulate the debtor to voluntarily (independently) execute the decision before the opening of enforcement proceedings? Probably not.
In my opinion, if the value of the property subject to the transfer is not specified in the executive document, for the purposes of collecting the executive fee or the basic remuneration, it is possible to evaluate it or to orientate on the price of the claim.
Debtors are given a right
As a general rule, enshrined in Article 74 of the Law of Ukraine "On Enforcement Proceedings", acts or omissions of a state executive may be appealed by the collector and other participants in the enforcement proceedings (except for the debtor) to the head of the department, which is directly subordinated to the state executor.
At the same time, the draft law provides for an exclusion from this rule. Thus, the debtor will have the right to appeal to the head of the department, which is directly subordinated to the state executor, the decision, action or inaction of the state executor in respect of non-arrest from the property (funds) of the debtor and the abolition of other measures taken to enforce execution in cases provided for in Article 40 of the Law.
In view of this, it would be quite logical to make the appropriate changes to Article 34 of the Law of Ukraine "On bodies and persons executing compulsory execution of court decisions and decisions of other bodies" (Control of the Ministry of Justice of Ukraine for the activities of a private executor) that the debtor has the right to file complaints against the actions of a private performer solely on the basis of the above.
The blow to the reform
Without exaggeration, the impact on the institution of private performance can be called the changes proposed to the introduction in Article 30 of the Law of Ukraine "On Enforcement Proceedings".
Thus, the current version of Article 30 of the Law determines that execution of several decisions on 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.
Thus, as it follows from this norm, in the case of receipt of execution of several executive documents on a single debtor, the bodies of the state executive service form their own summary enforcement proceedings, taking into account the rule of "the first state executor who opened the enforcement proceedings", and from the private executor - its summary proceedings.
The draft law proposes to introduce the second part of Article 30 as follows: "The peculiarities of the execution of several executive documents per one debtor in the case of being executed by the state executor and the private executor are determined by the Ministry of Justice of Ukraine."
As far as I know, the draft order, which the Ministry of Justice of Ukraine plans to define in the future, foresees the introduction of amendments to the Instruction on the organization of enforcement of decisions, approved by the Decree of the Ministry of Justice of 02.04.2012 №512 / 5.
The procedure for combining enforcement proceedings in the consolidated is proposed as follows. Thus, in the case of the establishment of another open enforcement proceedings for collection of funds (consolidated enforcement proceedings) against the same debtor, the enforcement proceedings are transferred for the consolidation of enforcement proceedings in the consolidated enforcement proceedings.
Such enforcement proceedings are transferred to the state executive of the body of the state executive service, a private executor, in which at the execution of the first open enforcement proceedings regarding recovery of funds from the debtor.
However, if the first enforcement proceedings concerning the collection of funds against the same debtor are opened by a private executor, and the executive body of the state has opened enforcement proceedings for the enforcement of decisions specified in part two of Article 5 of the Law (which the private executor has no right to exercise) the private executor passes "his" enforcement proceedings (summary enforcement proceedings) against this debtor to the state executive service.
Such a solution to the problem of consolidated executive proceedings by 80% will leave private executives out of work, because by opening an enforcement proceeding on a completely solvent debtor, in an automated system of enforcement, one can see that, for the same time, the debtor has enforcement proceedings before the ICE, and sometimes, even at very insignificant amounts.
There are also cases in which, despite enforcement proceedings, opened in the bodies of the state executive service, private executors executing their "own" enforcement proceedings, reveal both free from arrests of debtors' accounts and indefinite time funds on accounts previously subject to seizure.
Therefore, private traders will have to wait when the ICE will fulfill all its unfulfilled decisions, and as long as they become "statisticians" who will only transmit to executive bodies the executive documents that will be sent to them for execution.
This effectively eliminates the whole reform, given that the debtor will intentionally create a friendly creditor, even for a small amount, and "anchor" all other proceedings against him in one body of the ICE.
Instead of conclusions
In general, it should be noted that the bill is positive, with the exception of amendments to the consolidated enforcement proceedings.
At the same time, during its preparation, changes to the legislation that will take place on the basis of the Law of Ukraine dated October 3, 2017 are not fully taken into account. N 2147-VIII, 30 days after publication by the State Judicial Administration of Ukraine of the announcement of the commencement of functioning of the Unified State Register of Executive Documents in the newspaper "Holos Ukrainy".
If the draft law is still approved, it would be highly desirable to expect that the procedure for conducting consolidated enforcement proceedings, which is at the discretion of the Ministry of Justice, will be the subject of discussion, and if approved, it will be taken into account as the opinion of the Association of Private Enforcement Entities of Ukraine (as specifically provided for by paragraph 6, part 5 of Article 54 of the Law of Ukraine "On bodies and persons who carry out enforcement of court decisions and decisions of other bodies") and the legal community.
Otherwise, there are legitimate concerns that the institution of private performers will simply cease to exist. "
(translated using google translate)