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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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S. Li. The restriction of the rights of the debtor in Kazakhstan
Thus, for over two years, the initiation of a “stop-card” measure against
the debtor, which includes a set of multiple restrictions, has been actively
discussed in Kazakhstan.
This is especially true for the debtors who failed to pay administrative
fines to the state.
We, the private bailiffs, also support this idea but we believe that “stop
card” should be more integrated and expanded against all debtors, and it
shall include:
– limitation of permission, license (special rights);
– seizure of assets (chattel and real estate);
– a ban on leaving the country;
– a ban on acquiring state services;
– seizure of accounts, deposit boxes, safes;
– a ban on consumer services.
If such measures of rights restriction as seizure of assets, ban on traveling,
account freezing, restriction of special rights (driving license and other rights)
in many countries have been introduced and successfully applied, then we
should discuss the ban of rights for state and consumer services.
State services in Kazakhstan are regulated by Law of 15 April 2013.
State service is one of the forms of a certain state function implementation,
performed individually on the application of service recipients (individuals
or legal entities) and is aimed at the realization of their rights, freedoms
and legitimate interests, providing them with relevant tangible or intangible
benefits. The total amount of state services is 542, and these services are
provided by state subjects.
Services are provided on the “one window” principle, which is a form
of centralized public service system demanding minimum participation of
service recipients in the collection and preparation of documents and limiting
their direct contact with service providers.
All services are included in the qualified list of state services (registry),
approved by the Government.
Public services are rendered through citizen service centers or “electronic
government” website.
Requirements and procedure of public service rendering by service
providers are defined by standard and regulation of public services.
Of course, not all services should be limited. For example, social services
(granting benefits, issuance of guardianship and trusteeship references,
enrolling children in preschools and kindergartens, rendering medical services, etc.) cannot be limited, neither shall be limited services on registration
of birth, marriage, death, etc.
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II. Enforcement procedure in foreign countries
However, debtors should be limited in other services.
Public services can be categorized in following groups:
– those to issue and terminate a license;
– those to issue and terminate permits;
– notification services;
– other services.
Consumer services in Kazakhstan are regulated at the level of by-laws
and legal acts as well as contractual obligations between service providers
and service recipients.
However, almost all debtors who face such services, having a nonexecuted judicial act, try, first of all, to fulfill their obligations for these
services, often neglecting their obligation to execute a judgment.
In every day life we generally classify the following services as consumer
services, which can limit the debtor’s rights:
– purchase of tickets and travel cards (for motor, air, sea, railway
transport);
– utility services (maintenance of houses or apartments of residence,
electricity, heat, water bill payments, etc.);
– purchase of mobile phone numbers, payment telephone charges;
– rent, booking, accommodation in hotels, inns.
I believe this list can be expanded.
The national private bailiffs’ chamber and the Ministry of Justice are
constantly improving methods and forms of judicial acts execution, increasing
the penalties for debtors’ failure to perform.
We are ready to try new measures of influence on the debtors, especially
debtors on socially important executive documents, which are: alimony;
payment of pensions and allowances; reparation of damages caused by crime;
penalties in favor of the state.
It is important for us to limit the debtor’s rights effectively, aiming at
timely and complete execution of judicial and other acts. Restrictions of
debtors’ rights should contribute to improving citizens’ trust in justice and
government authority.
VUJADIN MASNIKOSA,
The President of the Chamber of Private Bailiffs
of the Republic of Serbia
in the Autonomous Region of Vojevodina
The principle of defense of a debtor's rights
during legal enforcement in the legal system
of the Republic of Serbia
Introduction
There was a saying in the Roman law “don’t kill your debtor since the debt
will never be paid back to you”. The essence of the relations between debtors
and creditors today is the same as it was before. The creditor has an economic
interest to recover debt payments as soon as possible and in full.
Nevertheless the Roman interpretation of the relationship between the
creditor and the debtor belonged exclusively to the private law field, this
relationship was considered solely a private relationship, whereas in modern
law, with the development of the state, there are also public legal interests
which should be protected by the legislator with the help of rules of the
enforcement procedural law.
With the development of the state and strengthening of the state role
in the society, the state intervention in private legal relations is enhanced.
This tendency is especially pronounced in socialist countries. Herewith,
the legislator intervenes in private legal relations using the provisions that
have characteristics of public law regulations, and thereby intervenes in
the relationship between creditors and debtors. The principle of social
action1appears in the enforcement procedural law and this principle becomes
its basic principle.
In the judicial practice, the principle of social action is expressed to
different extents when it turns out that the enforcement creditor is burdened
by the state social action, as their debts often cannot be recovered in course
of enforcement proceedings due to the state and court social action in favor
of the debtor.
The principle of social action in the West or in bourgeois countries with
market oriented economies is called the principle of debtor protection.
The difference we can observe is not only terminological; it is essential.
We are free to say that the principle of social action is a broad concept and
that it generates the principle of debtor protection, but both principles are
1
See: art. 5. of the Enforcement Proceedings Law (EPL). Official herald SFRU. 1978. N 20;
1982. N 6; 1987, N 74; 1989. N 57; 1990. N 27; 1991. N 35; 1992. N 27; 1993, N 31.
234
V. Masnikosa. The protection principle of the enforcement debtor
focused on the enforcement, without endangering the minimum subsistence
level of the debtor, while respecting the personality and dignity of the debtor.
Theoretically we can say that the legislation of various countries establishes
limits to the enforcement proceedings to protect the minimum standard
of living of the debtor, i.e. the real restrictions in relation to the judicial
processing, enforcement means and personnel constraints regarding the
status of the enforcement debtor.
We believe that the principle of social action from the point of its content
includes a greater number of constraints in real and personal terms, while the
protection principle of the enforcement debtor implies a lower level of such
restrictions, and, as a rule, in reality only in relation to the judicial processing
and enforcement means.
The number of constraints in the enforcement proceedings depends on
the form of government and social structure, i.e. the protection level of the
enforcement debtor in the enforcement proceedings. However, along with
the humanization of the society and increasing level of fundamental rights
and freedoms, the constitutions of most countries contain provisions on social
and legal security. The so-called social rights are growing worldwide affecting
the international law, and for this reason the majority of constitutional laws
of different countries provide a higher level of social rights.
A legal system providing social security of the citizens in its constitutional
laws necessarily states that the legislator should protect the guaranteed social
rights using laws, in course of the enforcement proceedings.
German legal theory states that the principle of the enforcement debtor
protection comes from the principle of social state. The Constitution of the
Federal Republic of Germany assumes that anyone who is not able to take
care of themselves is entitled to assistance, care and means in absence of
which it is impossible to imagine human dignity.
Nevertheless, we believe that the protection principle of the enforcement
debtor comes not only from the social state principle, but it also protects
the society and thus the state, as the inability to collect debt is often a
consequence of the current economic crisis of a society or nation.
In particular, during the period of the economic crisis a big economic
downturn can be observed both in business and in the population, but at the
same time during the period of economic crisis some individuals can make great
fortunes. Countries with open market economies that were previously adhering
the completely liberal concept began to intervene with economic measures
and save certain categories of the population as well as their own economy.
It is well known that the economic crisis at the end of the first decade of the
XXI century was caused by a group of bankers, which made a large number of
235
II. Enforcement procedure in foreign countries
loan repayment impossible and created a chain reaction making other loans
uncollectible, which eventually led to a large number of unrecoverable loans.
There follows a reasonable question – whether the risk of new monetization,
which is a consequence of the economic crisis should only effect the debtor
citizens or it needs to be distributed among the bankers as creditors and the
enforcement creditors, and whether it is fair that the consequences only effect
the debtors, and the state provides the creditors an opportunity to recover debts
without giving any protection to the enforcement debtors who are put in this
position due to the macroeconomic tendencies of the economy.
We can conclude that the protection principle of the enforcement debtor
comes not only from the social state principle but it also uses it to protect and
broaden social interests and provide a stronger protection to the property of
all society members.
The legislator’s goal to introduce the protection principle of the enforcement
debtor during the enforcement proceedings is not easy. On the one hand, the
protection principle of the debtor protects the enforcement debtor’s property,
but on the other hand it makes it impossible for the enforcement creditor to
recover their loans promptly and in full. Introducing the protection principle
of the enforcement debtor the legislator had to make sure that this protection
does not cause great damage to the enforcement creditor or to find a relevant
measure in this regard.
In particular, the introduction of more and more restrictions concerning
the subject and means of enforcement, as well as private restrictions concerning certain categories of enforcement debtors, lead to the inability of the
enforcement creditor to recover their loan; and of course the protection of
the enforcement debtor should not be carried out completely at the expense
of the enforcement creditor.
The protection principle of the enforcement debtor, is undoubtedly the
result of law humanization and “the property claims satisfaction at any cost
could question the interest of the whole legal system”1.
The development of the principle of the enforcement
debtor protection in the Republic of Serbia
After the fall of the medieval Serbian state and the creation of the modern
Serbian state, after the First and Second Serbian uprisings2 took place the
1
N. Vorgic, The Enforcement Proceeding Principle // The Advocate Chamber Herald of
Voevodina: the legal theory and practice magazine. Novi Sad, 1978. 23.
2
First Serbian Uprising started in 1804, and the Second Serbian Uprising was in 1815, and
by means of these uprisings began the process of Serbia's liberation from the Ottoman Empire.
236
V. Masnikosa. The protection principle of the enforcement debtor
Code on the judicial procedure in civil disputes since 1865 year became the
first law regulating the judicial procedure. This Code stipulates the protection
of the minimum agricultural area, thus exempting from the enforcement
5 days for plowing, the house for living and farm buildings1.
Between the two world wars the Law on the judicial procedure and
security of the Kingdom of Yugoslavia (passed in 1930, applied in 1936) was
enforced in Serbia and operated throughout the territory of the Kingdom
of Yugoslavia. It included provision 471, par. “4a”, of the Code on judicial
procedure in civil disputes in 1865.
After the Second World War Yugoslavian and therefore Serbian legisla-
tions were developing under a strong influence of the revolutionary Soviet
legislation. For many years a law which would systematically regulate the
enforcement procedure would fail to be passed. It was not before 1978 when
the Law on the enforcement proceedings was passed, which was a significant
codification of the enforcement proceedings of the former Socialist Federal
Republic of Yugoslavia and it contained multiple provisions to protect the
enforcement debtor. Specifically, the EDP (enforcement debtor protection) of 1978 prescribes the social action principle in the basic provisions
of the law.
In particular, art. 5 of 1978 EDP established the social action principle
as a core principle of the enforcement and in terms of content this principle
was certainly the basic principle of proceedings since it fully protected the
enforcement debtor and considerably limited the enforcement creditor during
the reimbursement of their loan2.
The EDP stated that the enforcement of monetary loan and this loan
provision are prescribed and applied in the volume required for coverage,
i.e. securing3.
Enforcing and securing application made it necessary to ensure the dignity
of the debtor is respected and enforcement has the least negative impact on
the debtor.
The debtor protection was personally identified since some categories of
legal entities were protected through their professional activity4.
1
1865 Code of court procedure in civil disputes, section 471 par. “4a”.
2
See: art. 5 ZIP (1978).
3
See: art. 4 ZIP (1978).
4
So on the basis of the provisions of art. 6. 1978 Law on Enforcement Proceedings the objects and rights, in the public domain, which are used by public and political societies and their
organs, the organization of joint labor and the organization of government and society cannot
be object of enforcement if these objects or rights is a condition to perform their tasks or are a
prerequisite for their activities.
237
II. Enforcement procedure in foreign countries
From the content of the above mentioned EDP provisions of the 1978 we
can make a conclusion that the enforcement debtor protection was damaging
the enforcement creditors’ interests and stipulated by the legislator it was quite
strong. In practice it could be even stronger due to the autonomous decisions
of the courts. In this respect the position of the district court in Kraguevas
according to which “agricultural land and farm buildings cannot be the
object of the enforcement, in cases where they are vital for the maintenance
of the farmer’s family and other individuals he is legally obliged to support,
as well as home with a yard”, the fact that the application of the art.152 of
the enforcement Law was often omitted, lead to its continuous incorrect and
incomplete definition the actual situation”1.
The EDP was in use in the Republic of Serbia for over twenty years, but
because of the mentioned social action principle and multiple legal remedies
which were provided for the parties of the procedure, in practice it led to
many unsolved cases. The enforcement debtors were abusing provided legal
remedies, and often the enforcement creditors could not recover their loans
whenever the debtor would skillfully abuse their procedural rights granted
to them by law.
It was also the reason for the enactment of a new enforcement proceedings
Law of the 20002, which did not contain a clear provision on the protection of
the enforcement debtor, and subsequently passing the Law on enforcement
proceedings in 20043.
The Republic of Serbia currently has the Law on enforcement and
security4 which was passed in 2011 and came into force in September 2012.
All of these laws passed after 2000 do not contain a provision on the
protection of the enforcement debtor, but a certain provision of the present
EDP of the 2011 provides the enforcement debtor protection. The enforcement
debtor protection in the Republic of Serbia has been greatly reduced in
comparison with the socialist period and it is commonly thought in the
professional circles that the EDP of the 1978 was a debtor protection law,
whereas the laws passed after 2000 protected the enforcement creditor.
We believe that this statement is true, but still there are still some
provisions that protect the enforcement debtor in the Republic of Serbia,
and primarily the enforcement property of the debtor, but such protection
is not sufficient enough.
1
The decision of the District Court in Kragujevac N GZh. 1522/79.
2
Official herald SR. N: 28/2000, 73/2000, 71/2001.
3
Official herald SR. N: 125/2004.
4
Official herald SR. N: 31/11, 99/11 – and another Law, 109/13, 55/14, 139/14.
238
V. Masnikosa. The protection principle of the enforcement debtor
The legislation of the Republic of Serbia privatization Law1 provides
protection for some acts during the privatization procedure, when the court
cannot define enforcement or apply it.
The current Law on enforcement and security contains a provision that
obliges the court and bailiff to take into account the enforcement debtor
protection while determining the provision items and means, applying the
so-called proportionality principle. Namely, the provision of art. 20 § 8.
Of the EDP prescribes: “when determining the means and subjects of the
enforcement and security, the court or the enforcement officer is obliged to
consider the proportionality between the number of commitments and the
enforcement means of the debtor as well as of the enforcement and security”.
However, the enforcement debtor has no right to file complaints or use any
other legal protection against the decision of the court or the bailiff about
the exact means and subjects of enforcement.
The legislator was guided by the idea that this right enactment would
create a procedural opportunity to prolong the proceedings which would
contribute to the abuse of rights.
Besides, the enforcement debtor protection in the Republic of Serbia
enforcement proceedings is carried out in certain cases by means of defining
a minimum percent, lower which the debtor’s property cannot be sold.
The provision of the art. 82 of the Law on enforcement and security
stipulates: «the following objects cannot be subject of enforcement: 1) clothes,
shoes and other personal items, linens, dishes, dishes needed for the
enforcement debtor and their family members as well as stove, fridge and
furnace for heating; 2) food and fuel for the needs of the enforcement debtor
and their family for the next 3 months; 3) cash of the enforcement debtor
that would reach their monthly wage level, which, by law, is exempted from
the enforcement, proportionally to the time of the next wage; 4) orders,
medals, military memoirs and other honors and recognitions received by
the enforcement debtor, personal letters, manuscripts and other personal
letters of the enforcement debtor, family photographs; 5) medical devices
and equipment which is physically necessary to sustain the vital functions for
the disabled or other individuals; 6) pets”.
We believe that the legislature prescribed a wide range of items for the
enforcement debtor protection regarding clothes, shoes and other personal
items since some individuals may possess very expensive personal items
(e.g., valuable fur coats) that do not have either moral or economic reason
to be exempted from the enforcement.
1
Official herald SR. N: 83/2014, 46/2015.
239
II. Enforcement procedure in foreign countries
The enforcement debtor protection is stated in the form of determining
the sale price of movable and immovable property. The provision of the
art. 97 of the current Law on enforcement and security stipulates that the
initial price at the first auction amounts 60% of the appraised value, and if
the item was not sold at the first auction, the initial price at the next sale
cannot be lower than 30% of the appraised value. However, if the item was
not sold, at the second auction, the court or the bailiff confirms that the sale
was unsuccessful and calls the creditor immediately, not later than within
five working days to review the options of either direct negotiation sale or
compensation through adjugement. If the enforcement creditor expresses the
desire to receive compensation through adjugement of the item, according to
the art. 102, § 2 of the Law on enforcement and security it is therefore taken
as compensation in the amount of 30% of the appraised value.
From stated above it is clear that in the Republic of Serbia there is no
prescribed lower limit, under which the enforcement property of the debtor can
be sold and that the property of the enforcement debtor may be sold almost for
nothing. In this case we believe that the situation was resolved to satisfy solely
the enforcement creditor’s interests and the enforcement debtor did not receive
any protection. In conditions of the economic crisis, indeed, the enforcement
debtor is at the mercy of the enforcement creditor.
The enforcement debtor protection in the Republic of Serbia is prescribed
in the form of percentage in which it is possible to determine the salary and
pension of the debtor. In particular, the court or the bailiff may carry out
enforcement through arrest or transfer of 2/3 of the debtor’s salary or pension
to the enforcement creditor’s loan reimbursement, however, in case of a
minimum wage and pension (which currently amounts about 200 Euro in
the Republic of Serbia) the court or the bailiff may carry out enforcement in
the amount of 1/2 of the salary or pension1.
The enforcement debtor protection is prescribed even when it affects
individuals who receive certain benefits, such as compensation for the
disabled, disabled veterans etc., and these revenues can be used to reimburse
only the requirements of legitimate content2.
There is no individual bankruptcy notion in the Republic of Serbia.
The principle of the enforcement debtor protection during the enforcement
proceedings is implied through prolongation of the enforcement or its
cessation. This option is absent in the Republic of Serbia in accordance to the
current Law on enforcement and security, so the court and the enforcement
1
See: chl. 148 art. 2 ZIO.
2
See: chl. 148 art. 3, 4, 5 ZIO.
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