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Файл:Ограничение прав должника. Новеллы законодательства и практика применения =The restriction of the rights of the debtor. The latest legislative changes
.pdf
ARTHUR PARFENCHIKOV,
Director of the Federal Bailiffs' Service
of the Russian Federation –
Chief Bailiff of the Russian Federation
OPENING SPEECH
Dear reader!
Below there are a collection of materials of the 6th International scientificpractical conference on the enforcement proceedings.
Over the past years the Conference has evolved into a kind of a dedicated
forum for discussing topical issues of enforcement proceedings. To do this we
have put a lot of effort. In the autumn of 2009, the Federal Bailiff Service has
become a member of the International Union of Judicial Officers. During
consultations as part of activities undertaken by the Union, we have noticed
existence of a common interest in the exchange and dissemination of positive
experience of the participants. At the same time, the Union does not unite
all nations.
For this reason it was decided to organize and hold an international forum
in the territory of the Russian Federation, where the representatives of the
enforcement agencies of any state could share their experiences and discuss
the existing problems. At the same time we wanted to cover the highest
possible geography of participants.
First International scientific-practical conference was held in 2010
in Saint Petersburg.
During this time, it became possible to get acquainted with the various
systems of enforcement and their efficiency, with the existing issues in various
countries in the area of enforcement of courts and other bodies acts.
Conferences are always organized with the participation of the leading
law schools of the country, representatives of the academic community,
which allows to discuss issues not only from the practical but also from the
scientific point of view.
The 6th Conference was held for the first time in the east of Russia, in the
Republic of Buryatia.
Previously conference was also held in Saint Petersburg, Kazan, Voronezh,
Yekaterinburg, Vladikavkaz.
Year by year, the interest in the Conference only growing, expanding the
geography and the number of participants.
The 6th Conference was attended by representatives of 18 countries,
including leading experts in the field of enforcement proceedings, state and
202
Arthur Parfenchikov. Opening speech
public figures, representatives of key Russian law schools, the various bodies
of the government, the banking community and other organizations.
This collection contains materials relating to the limitation of the rights
of the debtor: the latest legislative changes and their implementation. It is
always a controversial issue, among others; it is under close attention, as it
affects the rights and freedoms guaranteed by international acts.
I am confident that the conference materials will be useful for members
of the legal profession, the academic community, teachers, students and
PhD students, as well as anyone interested in the issues of the enforcement
proceedings.
I. REPRESENTATIVES
OF THE RUSSIAN PUBLIC
AUTHORITIES
ON ENFORCEMENT
PROCEDURE
ARTHUR PARFENCHIKOV,
Director of the Federal Bailiffs’ Service –
Сhief Bailiff of the Russian Federation
Restricting the rights of the debtor:
legislative novelties and practical application
owadays nobody has any doubts that execution of enforcement docu-
N
ments can be efficient only when free-will execution is more profitable
for the debtor than the enforced one. At present methods of implicit enforcement are of utmost interest in this respect.
Measures of explicit enforcement are reasonable only if the debtor hasassets which can be used to satisfy the creditor’s claims. Moreover, the practice
proves that debtors either have no property at all or more and more often
take actions to hide their property filing it out in favor of third entities, thus
making it impossible to recover it.
Therefore, it seems necessary to develop mechanisms that encourage
the debtor to execute judgments on his own free will; it can be achieved by
restricting his non-property rights.The given institute is well developed in a
lot of countries, andcitizens’ arrest, limitations on getting and enjoying special
rights, limitations on possibilities to travel are widely implemented in global
enforcement proceedings.
For Russia this institute is new, but very promising.
Today only one measure of this kind is envisaged in legislation – it is a
restriction for the leave the country. The mechanism of its implementation
came into force in 2007 when a new version of the Federal Law “On Enforcement Proceedings” was adopted.
At the same time, a relevant norm of substantive law was provided for in
legislation as early as 1996.
Thus, as per provisions of the Federal Law of 15 August 1996 N 114-FZ
“On the order of leaving the Russian Federation and entering the Russian
Federation” the right of the Russian Federation citizen to leave the country
can be temporary restricted in case he avoids his obligations imposed by
the court until he executes his obligations or the parties settle the dispute.
Implementing the given norm court bailiffs issued a writ banning the debtor
to leave the Russian Federation. And it was not until 2007 when a new version of the Federal Law “On Enforcement Proceedings” was adopted that
the mechanism of limiting the right to leave the country was formalized.
So, it was, in fact, a result of the initiative and law enforcement practice of
court bailiffs that comprehensive institute of limitation on the right to leave
the country was formalized in Russian legislation.
208
A. Parfenchikov. Restricting the rights of the debtor
The practice of implementing the given institute speaks of its effectiveness.
Firstly, the number of debtors whom the right to leave the country was
restricted is going up every year. If, for example, in 2009 their number
was about 216 000, in 2012 – 622 000, in 2013 – 869 000, and in 2014 –
over 1.2 m.
Secondly, every year the sums willingly reimbursed by the debtors in
accordance with the claims of enforcement documents increase as a result
of limitation of their right to leave the country. Thus, in 2013 almost 60 000
debtors satisfied enforcement claims for the sum of 7.9 billion rubles, in 2014
83 000 debtors reimbursed 12 billion rubles.
Yet, the issues of implementing the limitation of the right to leave the
country by court bailiffs caused earlier a lot of disputes despite the fact that
today there is a quite positive dynamics in recovery of sums in enforcement
proceedings.
It is sure to be reasonable since its application does not allow the citizen to
enjoy the right to freely leave the country as it is provided in the Convention
on protection of human rights and fundamental freedoms and the Russian
Federation Constitution.
However, the Convention and the Constitution also contain provisions
that human rights and citizen’s freedoms can be restricted to the extent that
is necessary to achieve their goals.
These days, taking into account the practice of the European Court of
Human Rights, none has any doubts that execution of judicial decisions
is an integral right of the man and the citizen to judicial protection.
Therefore, any limitation of the debtor rights within the framework
of enforcement proceedings is implemented in order to protect the
creditor rights as it is guaranteed by the Russian Constitution and the
Convention.
Hence, it is impossible to speak of any violation of the debtor rights.
The given issue was also considered by the Russian Federation Constitutional Court, and in Resolution of 14.05.2012 N 11-R the Court ruled that
provisions of the Federal Law “On Enforcement Proceedings” on restrictions
to leave the country do not contradict the Constitution.
At the same time, while granting the court bailiff-executor powers to
implement measures of indirect enforcement towards the debtor there must
be ensured the balance of measures and claims of the creditor. It is one of
the principles of enforcement proceedings.
Therefore, to ensure the balance of interests of the debtor and the creditor and taking into account provisions of the Russian Federation legislation
and established practice the court bailiff-executor can restrict the debtor
209
I. Representatives of the Russian public authorities on enforcement procedure
right to leave the Russian federation only when a whole set of conditions
is available:
1) firstly, there should be in operation an execution document issued on
the basis of a judicial act or a judicial act per se;
2) secondly, the sum claimed must not exceed 10 000 rubles;
3) thirdly, the debtor failed to willingly execute the enforcement claims
within the established time.
This is the only case when the court bailiff-executor issues the writ to
restrict the debtor right to leave the Russian Federation.
In case the enforcement procedure is stated on the basis of other
enforcement documents but the other conditions are observed the decision
on limitation can be taken by the court at the initiative of the creditor or the
court bailiff-executor.
Otherwise, the limitation is not applied.
As the practice of enforcement proceedings in Russia proves not all
debtors exercise the right to leave the country, hence, it is evident that the
given measure of implicit enforcement is efficient only for a limited scope
of people.
Thus, there should be worked out some other measures of enforcement.
We are doing this work taking into account the experience of our foreign
colleagues. For instance, a possibility to restrict the debtor right to drive a
vehicle is provided in the Czech Republic and the Republic of Belarus, the
Republic of Kazakhstanhas a limitation on granting or prolonging licenses.
The court bailiffs in Russia do not have such powers so far. But three relevant
bills are being drafted now.
The first bill presupposes granting the court bailiff-executor powers to
restrict the debtor right to drive a vehicle or/and a vessel, if he does not
willingly and timely execute of the enforcement document claims.
To ensure the balance of the debtor and the creditor interests the bill
provides for a list of cases when such restriction will not be applied and must
be cancelled. They are the following:
1) imposing the limitation as per enforcement proceeding leaves the
debtor without his main lawful source of income; 2) driving the vehicle and/
or vessel is for the debtor and members of his family living with him the only
means of sustenance for them; 3) the debtor who drives a vehicle is a person
of limited abilities 4) the debtor is granted a deferral or installment plan to
execute the enforcement document claims; 5) the sum of the debt as per
enforcement document does not exceed 10 000 rubles.
Besides, the bill presupposes that such restriction will be applicable only
within the framework of a certain category ofenforcement proceedings. They
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