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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
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A. Parfenchikov. Restricting the rights of the debtor
are so called socially-important enforcement proceedings, for example, alimony recovery, accrued payroll, criminal injury.
To avoid cases, when the debtor does not know or understand the essence
of the applied limitation, the order for its execution, legal consequences of its
violation, the order for returning the taken license the bill presupposes that
the court bailiff-executor is to explain the above issues to the debtor in the
writ on restricting his right to drive a vehicle and/or vessel.
We believe that such mechanism can ensure the rights and interests of the
parties to enforcement proceedings.
At present the bill has had its first reading at the Russian Federation State
Duma and is being prepared for the second one. We hope it will be adopted
at the forthcoming session.
According to preliminary estimates of the FBS of Russia about 450 000
debtors will be affected by the law if it is adopted.
Now we are developing the draft of the second bill together with the
interested state power bodies. It concerns granting the court bailiff-executor
powers of prohibition on legally significant acts.
A comprehensive notion of “legally significant acts” is used in the bill
which can refer to registration acts, acts on getting, prolonging permits (licenses) and other acts that lead to accrual, alteration and termination of the
debtor rights, obligations.
Therefore, the adoption of the bill, firstly, will significantly widen the
court bailiff powers, secondly, will make it possible to prohibit the debtor to
perform legally significant acts which can facilitate decreasing the creditor
possibilities to satisfy his claims.
Wherefore, not forgetting the principle of the balance of the creditor
claims and the measures applied to the debtor it is proposed to grant the
court bailiff-executor this right onlyif the debtor avoids executing his alimony
claims. In our opinion, the given category is worthy of special attention since
there is not such a socially vulnerable person as a child left without means
of sustenance.
Laws enforcement practice of court bailiffs established in Russia was one of
the reasons for drafting such a bill, the way it happened with legal formalization
of the mechanism of restricting the right to leave the country.
At present court bailiffs, though there is no direct formalization, actively
implement prohibition (limitation) on registration acts which are in themselves legally significant.
The given enforcement act is specially vital if the court bailiff has information available from the registration body on the debtor property but has
no possibility to virtually arrest it.
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I. Representatives of the Russian public authorities on enforcement procedure
For example, the debtor hides his car to avoid possibility to use it for
recovery. In this case the court bailiff-executor issues a writ on prohibition
of registration acts in respect of the given car, thus excluding the chance to
reregister the car in the interest third parties.
So, implementation of the above law-draft, taking into account its wording, will make it possible not only to legally formalize the established practice
but also to extend the scope of its application.
Still another, the third bill also concerns limitations on the debtor nonproperty rights. It proposes to envisage possibility of refusal to provide public services the person if he has an outstanding debt as per an enforcement
document.
First of all, what a public service means. It can be said that this is a new
format of communication of the citizen with the state and the state with the
citizen established in Russia not long ago. It is very convenient. If the citizen
needs to get form state power some information, a fact sheet, some certifying or registration document, settle some other problem he does not need to
directly address the state power body but can do it at a multifunctional center
which is, as a rule, near his place of residence or on its official website on
the Internet.
Thus, the mechanism of restricting the right proposed in the bill is as follows. The citizen addresses a state body to render a service to him. The state
body rendering the requested servicechecks, if the citizen has an outstanding
debt as per a certain category of enforcement documents. If there is such a
debt the requested service will not be rendered until the debt is settled.
The given mechanism drastically differs from the ones proposed by other
law drafts as the court bailiff-executor does not issue any writs on the debtor
rights limitation. The decision on refusal is taken by a civil servant of the
relevant state body on the basis of the fact that the citizen is listed in the
data-base as an enforcement proceeding debtor.
There are already certain tools for implementing such a mechanism.
Since 2011 the FBS of Russia has been keeping data bank in enforcement
proceedings. Therefore, this resource can be used for purpose of the law
bill.
Making the given proposal we are aware that certain services are indispensable. They are, for example, registration of acts of civil status, medical
and social services.
Thus, the bill presupposes to envisage that the Russian Federation
Government establishes the list of public services the rendering of which
will be denied to persons having outstanding debts as per enforcement
proceedings.
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A. Parfenchikov. Restricting the rights of the debtor
As for enforcement proceedings categories from the outset the bill proposed requirements of recovery of pecuniary claims in favor of the Russian
Federation budgets.
In most cases the sums do not exceed 3 000 rubles. In our opinion, registration of real estate title can be included into the list of public services
rendering of which can be denied. The given property can be many times as
more valuable. Therefore, refusal to render this public service is thought to
be a good stimulus for the debtor to willingly satisfy the claim in this case.
In the course of further development of the given law bill together with the
interested state power bodies it was also extended to enforcement proceedings
on indemnity afflicted by crime, alimony recovery.
It is not impossible that in the course of further development this and
other law bills mentioned in the report will be somewhat amended. It is
quite reasonable. The scope of necessary limitations, mechanism of their
implementation are formed taking into account legal traditions, culture,
economic conditions, law enforcement practice and current needs at the
moment of development.
In this respect, we are quite interested in learning enforcement proceeding
practice of other countries.
The debtor rights limitations implemented and under development in
Russia are not the only possible means of indirect influence on the debtor in
order to motivate him to execute enforcement documents’ claims.
I believe that there exists positive experience in the given sphere in other
countries too.
II. ENFORCEMENT
PROCEDURE
IN FOREIGN COUNTRIES
ANDREY AVDEEV,
Chief of Central Department on Enforcement
of the Ministry of Justice of the Republic of Belarus –
the Chief Bailiff of the Republic of Belarus
The sufficiency of the restriction measures
against debtors in the process
of enforcement proceedings
he enforcement effectiveness can only be provided on the basis of a strong
T
legislation regulating the enforcement process.
Legislation development in the sphere of enforcement of court decisions
and other acts in the Republic of Belarus, as well as changes that have been
made recently, is aimed at improving the enforcement efficiency, expanding the enforcement authorities competence, strengthening the service
authority.
Since the early 2000s an incredible work in the sphere of the enforcement proceedings development has been accomplished in the Republic of
Belarus. For example, nowadays the ownership rights arrest or the limitation
of debtor’s rights is an ordinary procedural act of the judicial officer. Whereas
15 years ago the enforcement actions were mostly limited to the determination
of the debtor’s property, its arrest and realization.
Is the amount of the restrictive measures presently taken against the debtor
sufficient and is there a limit to the debtor’s rights limitation when the constitutional rights and freedoms guaranteed to the citizen by the Constitution
are not violated?
One of the fundamental principles, accepted by all international acts declaring individual’s rights and freedoms and stipulated by national legislation
of every civilized state, is the guarantee of rights and freedoms of a citizen.
Developing these provisions of international law the Constitution of the
Republic of Belarus on the one hand guarantees the right of the citizens
of the Republic of Belarus to feely move within the limits of the Republic
of Belarus, leave it and freely go back (art. 30 of the Constitution), on the
other hand it provides a possibility of limitation of rights and freedoms of an
individual only in cases stipulated by the law, for reasons of national security,
social order, public health or morals, rights and freedoms of other individuals (art. 23 of the Constitution). The constitution of the Republic of Belarus
also guarantees the right to housing (art. 48 of the Constitution). This right
is one of the most important social-economic rights of the citizens, since it
affects the fundamentals of their lives.
As a result, the enforcement measures taken against the debtor have to
provide effective enforcement on the one hand and if possible not violate the
debtor’s constitutional rights on the other hand.
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A. Avdeev. The sufciency of the restrictive measures
In the contemporary social-economic conditions the society keeps developing, improving, and changing, which is a logical process, objectively
requiring consequent mastering of the enforcement procedure.
The IT development has given this process an additional impulse, which
had a direct impact on the enforcement development. At present the automation of processing, storage and retrieving of personal data, introduction
of personal identifications, establishing the interconnection between various
informational resources of state authorities and other institutions make it
possible to gather diverse information about the person we are interested in
within the scope of the enforcement.
Today the enforcement officers of the republic have access to the data
bases of the state authorities and other institutions which provide information about passport, place of residence, place of work (income source) of
the citizens, registration data, bank accounts of legal entities and individual
entrepreneurs, debtors’ usage of mobile operators, Internet services, registered
motor vehicles, property, debtor’s possession of hunting certificate.
The access to the National Bank database, Customs authorities, Border
service and other information systems allows to promptly receiving information about the debtor and their property.
Thus, the enforcement officer possesses sufficient tools to quickly identify
the debtor’s property and obtain any other information necessary for the enforcement of court decisions and acts of other institutions, within the shortest
possible time, take restrictive measures, thereby ensuring the enforcing of the
enforcement documents requirements.
In accordance with the procedural legislation of the Republic of Belarus
the enforcement measures of the enforcement document can be applied at
any stage of the enforcement proceedings shall the failure of their application
make the enforcement difficult or impossible.
In most cases, the provisional measures are applied directly after the
enforcement proceedings commence to prevent the debtor from taking
measures for the debt evasion, including the concealment of their assets.
Both the enforcement officer and the creditor can initiate the consideration
of this issue. The application of this or that particular measure depends on
the exact enforcement circumstances.
Thus, measures securing enforcement of the enforcement document
in the legislation of the Republic of Belarus can be divided into following
categories:
1) measures, securing the enforcement of the enforcement document,
taken against the debtor’s property, including their monetary funds, property
rights.
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II. Enforcement procedure in foreign countries
2) measures, aimed at the direct limitation of debtor’s personal rights.
3) measures, aimed at compelling the debtor to fulfill their obligations
(coercive escort, putting on a wanted list, bringing to administrative, criminal
responsibility).
Depending on the enforcement measure ensuring the enforcement of
the enforcement document to be taken, the matter is supervised by court or
a judicial officer. However, the law allows for taking multiple enforcement
measures simultaneously, as well as for the replacement of one enforcement
measure with another to provide document enforcement.
I would like to focus on the second category of restrictive measures aimed
at limiting the debtor’s personal rights.
1. Prohibition for the debtor to take certain actions
This measure is applied to a particular action that the debtor carries out
or can carry out. For example, currently the enforcement officer can prevent
the debtor from entering into leases of real property as a lessor. Such measure
becomes necessary when it comes to the arrested real estate realization; its
aim is to prevent contractual obligations of the debtor with new tenants,
further burdening the seized property and reducing customer demand for
the seized real estate.
In many cases, enforcement officer prohibits the debtor to open current
(settlement) accounts in the banks of the Republic of Belarus. Typically, this
measure is applied by court simultaneously with passing a resolution on the
debtor’s suspension of account operations to avoid payments to other banks
by opening new accounts. The draft Law “On enforcement proceedings”,
prepared for the second reading in Parliament, provides a statute that in
the situation when the bank has an enforcement officer’s order to suspense
debtor’s account operations, the bank will be obliged to reject the debtor’s
claim for opening new accounts. The information on account operations
suspension of one bank will be automatically transferred to other banks by
electronic means.
We all know that debtors often take steps aimed at debt repayment evasion.
In order to avoid any negative consequences in the process of turning of the
penalty onto the debtor’s receivables the enforcement officer is authorized
to prohibit the debtor and their counterparty to conclude treaties aimed at
the cessation of obligations to the debtor (offset, resignation, cession, debt
transfer).
2. Prohibition for the debtor to use their property or its usage restriction to
certain limits
Prohibition for the debtor to use their property is a necessary means, for
example when the application of this right may result in the decrease of quali-
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