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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. Avdeev. The sufciency of the restrictive measures
tative characteristics of the property, its destruction and other adverse effects,
causing difficulties for its foreclosure. In each case the trial is determined by
the amount, type and duration of property use restriction. The characteristics
of the property, its significance for the owner, economic, domestic and other
factors are considered in every case.
3. Prohibition for other individuals to transfer property to the debtor or
perform other obligations in relation to the debtor. Prohibition for the debtor and
other individuals to commit actions hindering the enforcement in regards to the
property and funds of the debtor
At present the judicial officers of the Republic of Belarus are authorized
to disable the debtor from the Internet and mobile communications. We
can determine the debtor’s subscription for mobile communication services
through online databases of cellular operators by sending the operator a ban
on services provision for the debtor, and also foreclose the existing personal
account funds. A similar practice exists with regard to the Internet service
providers.
I agree that restricting the debtor’s mobile phone usage at this stage is not
a panacea and should be situational in relation to a particular debtor and particular circumstances of the enforcement proceedings. I can give an example
when an enforcement officer applied this restrictive measure, prohibiting the
operator to provide communication services for an organization-debtor on
the eve of the concert it was organizing in the capital of the Republic, thereby
endangering a scheduled event, which eventually forced the debtor to comply
with the court decision.
Currently we are working on the issue of additional resources access of
the Ministry of taxation relating to the information on gambling and citizens
using the services of gaming establishments, as well as the State border and
Customs committees, in order to foreclose the cross-border movements of
goods, including those purchased from foreign online shops.
I would like to note that for the period of 2015, the percentage of the
Internet trading in total volume of the Belarusian market has grown significantly (it consists of supplies from China, Poland, Germany, Russia, etc.).
Last year Belarus received 6.5 million parcels containing commercial investments, and already almost 5 million packages in the first five months of the
following year. In addition, these packages arrive from abroad not only for
personal usage of the individuals, but they also contain batches of goods,
which are then sold in the markets and other places. The maximum value
of parcels that Belarusians can get without paying customs duties in postal
items amounts EUR 200 a month, which in many cases exceeds the amount
recovered under the enforcement.
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II. Enforcement procedure in foreign countries
According to statistics, 81% of Belarusians make their purchases in domestic online stores. But, in recent years, our citizens increasingly order goods
by mail on foreign trading floors.
China is leading in this list with a share of 33%, followed by the EU in
the second place and Russian shops in the third.
Since this kind of shopping is becoming more convenient and customary
to the citizens, the threat of foreclosure and related inconveniences will, in
our opinion, be one of the measures of debtors encouragement to pay off
minor debts in the nearest future.
The possibility of foreclose on the electronic money of the debtor is also a
pressing issue. Some precedents have already taken place, but, unfortunately,
the issue is not yet sufficiently regulated by law, and the work to eliminate
this imperfection is in progress. Since March 1 this year, when all owners of
electronic wallets had to be obligatory identified, it has become a little easier,
and we are planning to cooperate with the banks on the issue of turning of
the penalty onto the citizens’ electronic wallet funds.
4. Temporary restriction of a citizen or individual entrepreneur-debtor’s right
to leave the Republic of Belarus
The basis for this measure application is a citizen’s unfulfilled obligation
which was established and enforced by the court decision or other enforcement document for the time period specified by the court, but only until the
obligations are actually fulfilled, in case the above-mentioned individuals
avoid the fulfillment of such obligations.
To date, the application of this measure is under the court jurisdiction.
However, the draft Law allows transferring the authority to consider this
issue from court to the judicial officer. Thus, one of the problems of the
enforcement measures application in relation with the court failure to satisfy
the judicial officers’ requests for their application will be solved. In 2014, the
number of failures in limiting the debtor’s rights totaled in 14% of all requests
filed by the judicial officers.
As practice shows, the application of the above mentioned enforcement
measures has a significant impact on the prompt and complete fulfillment
of the enforcement document requirements by the debtor.
Thus, in 2014 out of the total number of enforcement proceedings where
the debtor’s rights limiting measures were applied amounted 47% of the
enforcement proceedings were executed in corpora.
Since the decision of the temporary restriction of the right to leave the
country concerns the debtor directly and restricts their right to freedom of
movement, this measure is applied in the existing practice by the court only
in exceptional cases, taking into account all the circumstances.
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A. Avdeev. The sufciency of the restrictive measures
Overall, this measure was implemented not so long ago in the legislation
of the enforcement proceedings (since 2011 in the economic process, since
2012 in civil proceedings). Thus, this measure can be taken as a result of
alimony debt, bank loans and other types of debts. There are no exceptions
stipulated in the legislation.
According to the current regulations this measure cannot be applied
against the founders, managers and other officials of the organization who
are the debtors which, in our opinion, is not quite justified.
In this regard, certain propositions concerning the application of the
temporary restrictions not only against the debtor – a physical person, but
also against the officials of a legal entity were made to the draft Law “On
enforcement proceedings”. We believe that the legal entity officials should
be fully responsible for their decisions when carrying out organizationaladministrative functions in relation to the organization. This innovation will
allow us to influence the officials of a legal entity-debtor, in order for this
legal entity to fulfill its obligations.
We have also established collaboration with the Ministry of internal Affairs
in this area, carrying it out for over three years. In situations when a citizen
appeals to the internal affairs authorities to get a foreign passport allowing to
move from the Republic to another country for permanent residence, prior to
issuing them a passport, the internal affairs authorities send an inquiry about
existing debts to the enforcement authorities (tax and alimony obligations,
debts for reimbursement of expenses of the state for the children in public
care). If the debtor has any outstanding debt, the debtor’s application for
registration of permanent residence outside the Republic of Belarus will be
rejected. If there are other types of debt the enforcement officer initiates a
temporary restriction of the debtor’s right to move.
5. Temporary restriction of the citizen or individual entrepreneur-debtor’s
right to drive motor vehicles, conn small boats, hunt, except in cases when it is
necessary for the debtor to keep these rights because of a disability or as the only
means of income, – until the debtor fulfills their obligations, but for not more
than five years
If the debtor fails or refuses to fulfill their obligations and other enforcement measures are not sufficient and if it does not preclude from the fulfillment of other obligations of the debtor, the enforcement officer is authorized
to file an inquiry to the court to initiate interim measures against the debtor
and exempt their permit to drive motor vehicles, conn small boats or hunt.
The application of this measure can also be initiated by the claimant.
The draft Law “On enforcement proceedings” delegates the authority for
this measure application to the enforcement officer’s competence.
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II. Enforcement procedure in foreign countries
Procedural law does not contain provisions indicating that this measure
can only be applied during enforcement of certain categories of proceedings
(child support, fines, and damages). Thus, it is possible to limit the debtor’s
rights in all categories of property requirements as well as requirements of
non-property nature.
This restrictive measure is very effective, since the level of motorization in
the Republic of Belarus is quite high. Its application as well as a threat to use
the limitation of rights to drive vehicles for the debtor having a proportionate
debt resulted in the repayment of 50% of the amount stated by the enforcement proceedings, and in some regions up to 75%. However, I would like to
emphasize again that the impact of this measure application depends on the
debtor, debt amount and other details of specific enforcement proceedings.
The enforcement authorities of the Republic of Belarus apply restrictive
measures limiting the debtor’s right to drive vehicles in close cooperation
with the authorities of the GAI of the Ministry of Internal Affairs. The enforcement officers take part in joint raids with the traffic police on the roads
of the Republic. Using the equipment that identifies cars and their owners,
traffic police identify the debtors of the enforcement proceedings, including
those whose right to drive is limited, search for wanted vehicles registered for
the debtors, which allows a enforcement officer to take coercive measures
including withdrawal of the car.
Since 2014 the enforcement officer is authorized to use an entirely new procedural right –forced opening up of residential or other premises of the debtor.
In case the debtor systematically prevents the enforcement officer from
accessing their land, residential or other premises, where the debtor’s potentially subject to foreclosure property is located, the court can issue an order
to open and inspect the premises or warehouse of the debtor without his
consent, based on the enforcement officer’s petition.
I would also like to note that the draft Law “On enforcement proceedings”
provides a possibility of foreclose on the dwelling in which the debtor and
their family reside, providing housing of lower consumer qualities, but not
below the minimum standard prescribed by the present legislation (20 square
meters per person).
This provision primarily has a preventive nature and is aimed at forcing
the debtors who own real estate to find ways of debt repayment under the
threat of real estate sales and deteriorating housing conditions.
In order to encourage debtors to fulfill their obligations in 2015, the enforcement authorities carried out a substantial work in the field of social advertising. Various sources of information were used: the Internet (publications
and interviews), street billboards, radio, utility payment bills, flyers in public
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A. Avdeev. The sufciency of the restrictive measures
transport, public authorities, and of course the subway (on plasma screens)
and television (both local and national TV channels).
The third category of measures aimed at compelling the debtor to fulfill their
obligations (coercive escort, putting on wanted file, bringing to administrative,
criminal responsibility).
It has been about one year since the resolution of the Council of Ministers
of the Republic of Belarus “On regulation of information forms about debtor’s
property and sources of income” was approved. This regulatory act specified
the form of the debtor’s provision of the information about their property
and other necessary data. The act was passed in order to facilitate the work
of the enforcement officers on the identification of the debtor’s assets. The
enforcement officer is authorized to call the debtor or their representatives
and founders of the legal entity for questioning or submitting the necessary
documents. The debtors can be subject to a fine or administrative arrest for
failure to provide accurate information about their property status, change of
work place or residence, additional earnings (including off-hour work) and
other sources of income.
Thus, a citizen can be fined up to 50 basic units (about 560 USD) or administrative arrest up to 15 days, and a legal entity – up to 1 000 basic units
(11 thousand USD).
I would like to specify other measures of procedural impact on the debtor,
such as coercive escort or putting the debtor on the wanted file.
Whenever a debtor or their representatives, as well as the founders of a
legal entity fail to appear at the enforcement institution without a valid reason
after they were called in accordance with the established order, they can be
coercively brought to the authorities.
The judicial officer’s enforcement order about coercive escort of the
debtor is carried out by the internal affairs authorities.
In case the coercive escort is not possible, in cases when in the course of
enforcement proceedings it is established that the debtor is absent and it is
not possible to establish their location or the location of their property, the
debtor is declared wanted, which was pertained to the competence of the
internal affairs authorities.
As for the liability for non-execution of court decisions, the law of the
Republic of Belarus at present has some gaps that preclude a full impact on
the individuals who evade enforcement of a judicial act.
This issue has been elaborated better in relation to the officials of legal
entities and individual entrepreneurs. In these cases the measures of administrative and criminal liability for a failure of an official to perform the
actions ruled by the court decision or other judicial act, or obstruction of its
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II. Enforcement procedure in foreign countries
enforcement, and also evasion from debt repayment stated by a court order
can be applied.
The majority of problems during the court decisions (acts) enforcement
are caused by ordinary citizens. There are many cases of evasion from the
assigned obligation fulfillment. The specified individuals do not have any
criminal liability for such actions. The only exception is the liability of the
individuals obliged to pay alimony, or to reimburse the state expenses for the
children legally taken away from their families.
In this regard, we introduced a bill in the Parliament providing for the
introduction of criminal liability for nonperformance of a judicial act. Criminal liability measures for the citizens could result in arrest and restriction of
freedom.
The topic of my report is the sufficiency of provisional measures. Thus,
the question arises – are current measures in relation to the debtor sufficient
and what else needs to be regulated to ensure the enforcement of a judgment
or other act.
The legislation of the Republic of Belarus on enforcement proceedings
contains a regulation, according to which the list of possible restrictive measures against the debtor is not completed, which will allow to improve existing
and implement new ways of compulsory impact on the debtor, sufficient
for a prompt and complete execution of requirements of the enforcement
documents.
SERGEI LI,
Chairman of the Board of the Republican Chamber
of Private Judicial Officers
of the Republic of Kazakhstan
The restriction of debtor’s rights
in the Republic of Kazakhstan
urrently, the enforcement proceedings system of Kazakhstan is
C
undergoing a reform, in particular since 2016 the state bailiff service
has been subject to gradual abolishment. Therefore, Kazakhstan switches
almost entirely to the enforcement of judicial and other acts on private basis.
The existence of a mixed enforcement system in Kazakhstan since 2011
to date has stimulated the private enforcement development, rather than
the state one.
Thus, the approved functioning of private bailiff enforcement distinguished
the main positive aspects in this direction:
1) improving the quality of enforcement of judicial and other acts;
2) reduction of claimants’ complaints on the failure of judicial acts
enforcement;
3) reduction of enforcement time period and increase in its efficiency;
4) the reduction of state expenditure (budget) on securing the enforcement
of judicial and other acts.
At the same time, we realize that whoever is enforcing judicial acts (state
or a private bailiff), both the success and the result depend on the legislative,
organizational and informational-technical support of the bailiff’s activity.
Along with that, these support essentials ensure primarily the voluntary
enforcement of judicial and other acts by the debtor as well as the compulsory
enforcement by the bailiff.
One of the effective measures of the bailiff’s enforcement activities is the
debtor’s rights restriction.
I would like to inform the audience about the existing measures limiting
the debtor’s rights in Kazakhstan, measures, which are to be implemented
in the nearest future, and the effectiveness, relevance and dateness of these
restrictions.
When we talk about the rights limitation of a debtor’s, who is in particular
a citizen, then of course, the constitutional rights of human and citizen are
involved.
People’s rights and duties are stipulated in many branches of law, but the
state law, primarily the Constitution, has particular importance in securing
the position of individual in society, and it establishes the basis of the legal
status of individual and citizen.
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S. Li. The restriction of the rights of the debtor in Kazakhstan
In the sphere of enforcement of judicial and other acts in Kazakhstan, we
see the following constitutional human rights:
– the right to inviolability of residence (residence entry, eviction);
– the right to property (alienation of property);
– the right to liberty free use of property;
– the right to freedom of entrepreneurial activity.
The Constitution of the Republic of Kazakhstan in terms of human and
civil rights restriction stipulates (art. 39) that human and civil rights and
liberties can be limited only by laws and only to the extent necessary to
protect constitutional order, public order, human rights and liberties, health
and morals of the people.
For a clearer interpretation we would like to include in the Constitution
the norms allowing for the rights limitation in order to enforce judicial and
other enforcement documents.
Thus, whenever the question of the debtor’s rights restriction on a particular
activity or action is raised, the subject of limits and scope of constitutional
human and civil rights always comes up.In scope of the enforcement
proceedings the bailiff also has to deal with legal entity-debtors. Therefore,
I suppose we should distinguish the debtor’s rights restriction on the basis
of these rights:
– the human and civil rights;
– the rights of legal entities.
Along with that, the legal entity-debtor’s rights limitation in Kazakhstan is
more favorable than that of an individual debtor. For instance, if an individual
can stay in the registry of debtors for a lifelong term until the judicial act
enforcement is completed, the legal entity can be removed from the register
due to its liquidation (bankruptcy).
Currently, with the participation of the World Bank consultants in
Kazakhstan, a work group introducing the Institute of individual bankruptcy
was established.
Defining the subjects of rights limitation we should distinguish individuals,
officials and legal entities. The concept of an official as debtor has recently
emerged.
In this context the introduction of the ban on leaving the Republic of
Kazakhstan in 2012 resulted in conflicts of norms of travel restriction application towards legal entities. Courts interpreted the norms of legal entities’
travel ban implementation differently. It was unclear who this prohibition
should apply to, whether a chief executive officer, or an accountant, etc.
In this regard, in February 2014 an amended was made to give a definition
to the legal entity official, this ban on leaving the country applies to.
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II. Enforcement procedure in foreign countries
Also, with regard to the analysis of the debtors’ rights restrictions
implementation, we should outline the measures, that have developed in
practice and are still effective, yet standard.
Regarding an individual – seizure of property and ban on leaving the
country. Regarding an individual entrepreneur – seizure of accounts and
seizure of property. Regarding a CEO (official) – ban on leaving the country.
Regarding a legal entity – seizure of accounts, seizure of property, ban on
participation in state procurement.
It should be noted that prohibition to participate in state procurement
for a legal entity is a limitation for the legal entity-debtor since it is
automatically placed on the debtors’ registry the moment the proceedings
are initiated.
This rights limitation measure does not occur from a separate bailiff’s
procedural act on the limitation of rights.
Thus, a provision from 1 January 2014 was made by state procurement
Law, that a potential supplier and (or) a subcontractor (co-executor), who is to
be brought to justice and has unfulfilled obligations on executive documents
and is included by an authorized body of enforcement in the registry of
debtors, are not allowed to state procurement.
The analysis also showed that not every specific measure of rights limitation
has equal effect on the debtor’s behavior.
For instance, a ban on leaving the country can prove to be effective for
some debtors’ faster fulfillment of court decisions, whereas for others it would
be seizure of assets.
On this account we have a proposal, which I am going to focus on later.
According to types of debtor’s right limitations in the Republic of
Kazakhstan we can point out the following:
– a lien on property;
– seizure of property;
– prohibition of certain acts;
– a ban on usage;
– sealing;
– a ban on leaving the country;
– limitation of special rights.
Every rights limitation of the debtor is applied by the bailiff partially or
entirely depending on the claimed amount in the executive document, the
judicial act requirements, the risk of failure to fulfill obligations, as well as
debtor’s position and property standing.
The opinions on the application of rights limitation of some academics
and experts differ partially or significantly.
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