Toda

The supreme court is completed to the extraordinary expenses?

The Supreme Court faces certain conflicts in the interpretation of the procedure for collecting executive fees.

The Supreme Court, in the composition of the panel of judges of the Court of Cassation, in its ruling of February 15, 2018, in case No. 910/1587/13, concluded that, in accordance with the Law No. 1404-VIII "On Enforcement Proceedings", the mandatory conditions for collecting an enforcement fee is:

1) the actual execution of a court decision;

2) the use by the state executive of measures of enforcement of decisions.

Also, in the conviction of the court, "on its own behalf, an executive fee is a pecuniary reward of the state executor for the enforcement of measures for the enforcement of the decision, provided that such measures led to the execution of the decision".

In addition, the Supreme Court noted that "when collecting the executive fee, in accordance with part 3 of Article 40 of the Law No. 1404-VIII, without a real recovery of the amount of debt from the debtor in case of return of the enforcement document to the collector upon his application, conditions are created for the recovery from the debtor of a double sum executive summary or enforcement of it without real execution of a court decision ".

Thus, it is apparent from the dispute that the state executor was opened an enforcement proceeding; the debtor, in the term provided by the executor, voluntarily failed to execute it (in accordance with the provisions of the Law No. 606-XIV, which provided for a term for voluntary execution).

Subsequently, the debtor transferred funds directly to the payer's account, agreed with the taxpayer to file an application for the return of the enforcement order and appealed against enforcement of the executive fee.

The courts of all instances were on the side of the debtor.

This publication is an author's attempt to analyze this position from his point of view.

In accordance with Article 129-1 of the Constitution of Ukraine, a judicial decision is binding. The state ensures execution of a court decision in accordance with the procedure established by law.

The consequence of non-enforcement of a court decision is the state enforcement of its execution. At the same time it is quite natural that the debtor should be held liable for the non-enforcement of a court decision on a voluntary basis - from the time of the entry into force of the decision and before the beginning of its enforcement.

In domestic legislation, such liability is provided in the form of payment of executive fees, and recently - and in the form of a basic remuneration of a private executor in the event of a decision by a private executor.

In accordance with Article 27 of the Law of Ukraine "On Enforcement Proceedings", an executive fee is a charge that is enforced throughout the territory of Ukraine for the enforcement of decisions by the bodies of the state executive service.

Then some conflicts begin. Thus, according to part two of the same article, the executive fee is levied by the state executor in the amount of 10 percent of the amount actually collected, returned, or the value of the debtor's property transferred to the payer by the executive document.

That is, from the literal interpretation it is supposed that the legislator "tied" the collection of executive fees solely to the actual execution of the decision, and therefore "no penalty - no executive fee."

However, if, however, to turn to the statutory grounds for collecting the basic remuneration of a private executor, then, in accordance with part 3 of Article 31 of the Law of Ukraine "On the bodies and persons who execute the enforcement of court decisions and decisions of other bodies", the basic remuneration of a private executor , depending on the executive acts that are subject to execution in the enforcement proceedings, is established as:

1) a fixed amount - in case of execution of a non-property nature;

2) the percentage of the amount to be recovered or the value of the property to be transferred under the executive document.

Thus, we see a rather strange collision: the executive fee is levied by the state executor on the amount actually deducted, returned, and the basic remuneration of the private executor is established from the amount to be recovered.

In this case, in accordance with part three of Article 45 of the Law of Ukraine "On Enforcement Proceedings", the basic remuneration of a private executor shall be levied in the manner prescribed for the enforcement of the executive fee!

However, in accordance with part three of Article 40 of the Law of Ukraine on Enforcement Proceedings, in case of return of the executive document to the payer on the grounds provided for in paragraphs 1 (the taxpayer submitted a written application for the return of the enforcement document), 3 (the taxpayer refused to retain the property of the debtor, not implemented during the execution of the decision, in the absence of other property that can be recovered), 4 (the taxpayer impedes execution of executive actions or failed to advance the costs of enforcement proceedings provided for in Article 43 The law, despite the warnings of the executor on the return of the executive document), 6 (the debtor does not have the property specified by the executive document, which he must transfer to the collector in accordance with the executive document), part one of Article 37 of the Law, the termination of enforcement proceedings on the grounds provided for in paragraphs 1 (recognition by the court of the refusal of the payer from the enforcement of a court decision), 2 (approval by the court of a settlement agreement concluded by the parties in the course of execution of the decision), 4 (adoption by the National Bank of Ukraine of a decision on withdrawal of a banking license and liquidation of the debtor bank); 6 (a written refusal of the collector from the receipt of items withdrawn from the debtor during the execution of the decision to transfer them to the collector, or the destruction of things that must be transferred to the payer in kind or paid for removal), 9 (actual execution in full decision in accordance with the executive document, except for the case before the opening of enforcement proceedings), 11 (sending an executive document to the court which issued it, in the case stipulated by part three of Article 63 of the Law), 14 (if the debtor has not been fully charged, the sum is not charged for the year and in this connection transferred to the State Budget of Ukraine) and 15 (if the funds received from the sale of the pledged property (in accordance with the executive document on foreclosure of the pledged property) are insufficient to satisfy the claims of the collector - the pledgee, as well as if the property that is the subject of the mortgage is transferred to the mortgagee or purchased by him in accordance with the requirements of the Law Of Ukraine "On Mortgage", in accordance with the executive document on foreclosure of property that is the subject of a mortgage), part 1 of Article 39 of this Law, if the executive fee has not been collected, the state executor shall, not later than the next working day from the date of return of the executive document (the termination of the enforcement proceedings), issue a resolution on the enforcement of the executive fee, which shall be executed in accordance with the procedure established by this Law.

To my personal conviction, the legislator incorrectly or mistakenly spelled out part two of Article 28 of the Law No. 1404-VIII of 2 June 2016 "On Enforcement Proceedings".

Thus, in the wording of Law No. 606-14 of 21.04.1999 it was clearly stated that "the debtor is charged with an executive fee of 10 percent of the amount to be recovered or returned, or the value of the debtor's property, which is subject to transfer to the collector for the executive document "(Article 28 of the Law). In addition, in the latest edition of the Law No. 606-14 of April 21, 1999, before the expiry of its validity it was also noted that the executive fee is levied, regardless of the execution by the state executor of the enforcement measures envisaged by this Law. Thus, taking into account the norms of Article 40 of the current Law and the rules governing the collection of the basic remuneration of a private executor, as mentioned above, in the current Law, the procedure for collecting and collecting the executive fee should be defined in a similar manner.

Nevertheless, by analyzing the current Law on Enforcement Proceedings and despite the above-mentioned legislative conflicts, it can still be concluded that the enforcement fee is in effect a sanction applicable to the debtor for failure to comply with the decision before the opening of enforcement proceedings and the commencement of enforcement, and in any case, is not a "remuneration to a public executive, for the enforcement of enforcement measures," as the Supreme Court noted.

I remind you that in case of cancellation of a decision that is due to be executed, the executive committee is returned to the debtor, despite the fact that the enforcement measures were committed, even though the decision was actually executed.

It should be noted that in some countries with a private enforcement system, the payer pays the executor remuneration for each action (opening of enforcement proceedings, drawing up an act of seizure of property, etc.). In the future, this amount is levied from the debtor, but there are no references to this in the domestic legislation.

But in the legislation on executive proceedings of the Republic of Kazakhstan, where both state and private executors are active, the analogue of the domestic executive collection is closer to its essence of definition - "executive sanction".

I believe that it is precisely this definition of the executive fee and the basic remuneration of a private performer to be in domestic law, given the legal nature of executive fees and the basic remuneration of a private performer.

Thus, the conclusion of the Supreme Court in this case that the executive fee is a peculiar remuneration of the state executor for the enforcement of measures for the enforcement of the decision is, in my opinion, erroneous.

Now there are several arguments regarding the conclusion of the Armed Forces that "upon collecting the executive fee, in accordance with part 3 of Article 40 of the Law No. 1404-VIII, without a real recovery of the amount of debt from the debtor in case of return of the enforcement document to the collector on his application, conditions are created for the recovery from the debtor of the double the amount of the executive fee or the recovery of it without real execution of the court decision. "

It should be noted that, as seen from the ruling of the Armed Forces, the question whether the statement on the return of the executive document to the collector of the execution of the decision by the debtor was preceded by the courts was not investigated at all.

In practice, situations arise when, when the enforcement of the decision, the executor took all necessary measures to implement it, arrested the debtor's property and transferred it for sale. The debtor, understanding the seriousness of the situation, is calculated with the payer, and does not pay the deposit account of the ICA or private executor, and directly to the payer's account.

Subsequently, the debtor agrees with the collector on the return of the enforcement document on his application. The payer is happy to agree, given that the court decision is in his favor fulfilled, and the economic realities are such that "today I am charging, and tomorrow I can be a debtor."

In my opinion, in this case the execution of a court decision took place in a coercive manner, and therefore, even on the basis of the principles of justice, there are all grounds for collecting from the debtor the executive fee or the basic remuneration of the private performer, not to mention the fact that this is clearly stipulated by law.

Concerning the conclusion of the SCU on the collection of a "double sum of the executive fee" from the debtor, it should be noted that, in accordance with part six of Article 27 of the Law of Ukraine "On Enforcement Proceedings", in the event of subsequent submissions to the state executor to the execution of the executive document, the executive fee is levied in parts that were not charged at the time of the previous execution.

Well, the cherry on the cake "the unity of judicial practice." Thus, by the decision of the Supreme Court of the Supreme Administrative Court of Ukraine on February 22, 2018, in the case No. 816/823/17, the lawful actions of the ICA were directed against execution of orders to recover from the debtor the executive fee in accordance with the requirements of Law No. 1404 of 02.06.2016 p., despite the submission by the petitioner of the application for the return of the executing documents and the decision of the state executor to return the executive document to the collector.

Posted by Andrew Autorov

(translated using google translate)