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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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JANEK POOL,
Chairman of the Assembly of the Chamber
of Bailiffs and Trustees in Bankruptcy in Estonia
SULEV LÄÄNE,
Chancellor of the Chamber of Bailiffs
and Trustees in Bankruptcy in Estonia
AARE KRUUSER,
Laywer of the Chamber of Bailiffs
and Trustees in Bankruptcy in Estonia
Restriction of debtor’s rights
in the legislation of Estonia
n the enforcement procedure, claims can be divided into civil claims,
I
where, as a rule, the claimant has suffered certain damage, which has to
be compensated through the enforcement procedure in the volume indicated
in the enforcement document, and public law claims, which, as a rule, have
been presented with the purpose of securing public order and the respect of
law and in those the claimant oneself has not suffered from direct damage.
In the following presentation, we shall focus on the issue of debtors’ rights
and their restrictions in connection with the execution of civil claims, mainly
alimony claims. Naturally, civil claims for compulsory execution may vary
a great deal and both their claimants and debtors may be of greatly different
capability. The execution of alimony is a long-term process and, as a rule, one
can state that in case the debtor does not satisfy the alimony claim regularly
and in the claimed volume, it has a perceptible effect on the economic
subsistence of the claimant, i.e. the child or the child’s second parent or the
guardian. Generally, debt in a civil claim hinders the development of business
and the natural functioning of economy, on the claimant’s level it hinders
one’s succeeding and development potential. It is especially conspicuous in
case of alimony claims. Regarding the fact that the execution of the claim
is a long process and the claim is periodically incrementing and personal
relations between the debtor and the claimant or one’s representative are
often very complicated, these circumstances may considerably lower debtor’s
motivation for the voluntary due execution of the claim. At the same time,
the enforcement procedure has to be as effective and efficient as possible
under these circumstances.
As per art. 27 of Section 3 of the Constitution of the Republic of Estonia,
parents have the right and the duty to raise their children and provide for
them. As per art. 96 of the Family Law Act, parents are obliged to provide
for their children. In Estonia, courts issue more than 1000 rulings a year
concerning claims for support. In most cases the alimony sums ruled by courts
are the minimal sums provided by the law, which is 50% of the minimum
monthly salary determined by the Government of the Republic (in 2013 the
average support ruled by the court was 160 EUR per month and the average
debt in support was 960 EUR). During the court procedure (also after it),
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J. Pool et. al. About restriction of debtor’s rights (Estonia)
the parent has the right to decrease the support in case one has a good reason
for it. In many cases, the parents obliged to give support to their children
avoid paying the alimony for their children even after the court ruling has
taken effect, therefore most of the judicial decisions are referred to bailiffs to
start the enforcement procedure. Even bailiffs are not able to enforce a high
number of claims for support. According to the recent data, there are more
than 12 000 maintenance claims. There are around 9000 debtors of alimony
in respect of whom enforcement procedures have been started.
Since 2006, the number of pending files on maintenance claims has become
almost tenfold, at the same time the total sum of pending maintenance claims
for the same period has increased almost 30 times. At the same time, the
monthly minimum salary, which is the basis for the court while ruling the
maintenance sum has increased from 191.73 EUR in 2006 to 320 EUR in
2013 – this makes almost 68%. This means that maintenance debts have not
increased because of the rise of the minimum salary, but have cumulated
considerably faster, exceeding 10 million EUR in 2013.
Regarding their economic welfare, maintenance debtors can be divided
into two groups. In the first group, there are those debtors who really lack
any income or other assets to cover the maintenance claim. Sectoral NGOs
have expressed their opinion that the number of such violators of the maintenance obligation is rather low. In the other group, there are debtors who
do have assets for paying the alimony, but who have succeeded to hide their
property from bailiffs. Either such debtors earn their income in the form of
payment under the table or they themselves own an unregistered business.
In such cases, typical enforcement procedure measures like the seizure of
bank accounts or remuneration are useless. The former is useless because
many debtors use only cash or other persons’ bank accounts. Often it is
not possible to seize remuneration either because many of the debtors have
no official job to be tracked based on the data presented to the Estonian
Tax and Customs Board. Rather often, a bailiff identifies the employer
of a debtor based on the documents presented to the Estonian Tax and
Customs Board, but after the delivery of the instrument of remuneration
seizure, the debtor’s employer states that the employment relationship has
been terminated already.
According to the data from the Estonian Tax and Customs Board, 50%
of the maintenance debtors lack official jobs. At the same time, only 4,8%
of the maintenance debtors have registered themselves as unemployed in the
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II. Enforcement procedure in foreign countries
Estonian Unemployment Insurance Fund. This means that 45,2% of the
maintenance debtors do not have official earnings neither they aren’t active
job seekers.
The enforcement procedure makes it possible to sell the debtor’s seized
assets to cover the debt. Often debtors lack any valuable registered property.
The obligation to present a list of their movable property is often ignored by
debtors or the items listed are necessary for their personal use and therefore,
it is not allowed to sell them to cover the debt. At the same time, real life
has shown that sometimes so called official unemployed persons may have
enough money to drive a car every day (covering also its maintenance and
fuel expenses), but cannot find those 160 EUR referred to above to support
their child. In case the bailiff obliges the debtor to bring the car to the
bailiff’s office for the seizure of the car or give the location of his/her car,
the usual answer of a debtor would be that the car one is using actually
belongs to another person or it has disappeared for the reasons unknown
to the debtor.
According to the Penal Code, persons violating the maintenance obligation can be punished by a pecuniary punishment or maximum one-year
imprisonment. Penal punishment of debtors has had no extensive preventive
effect in decreasing the total sum of maintenance debt.
In conclusion, we may state that the existing legal measures for enforcing
maintenance are not effective enough to lower the total sum of maintenance
debt. The annually growing number of maintenance debtors refers also to
the fact that the enforcement and penal procedures initiated against debtors
have not brought along an extensive preventive result in the Estonian society
for decreasing the violation of maintenance obligation. At the same time,
Estonian Government has considered active measures towards maintenance
debtors and more effective enforcement of maintenance debts to be its
priority during the recent years. The 2014 Action Plan of the Estonian
Government provided the use of strong public coercive measures against
those avoiding alimony for children and this is a priority for 2015 and
during the following years. Regarding the fact that in the existing legal
acts there are provisions already for deducting alimony from income tax
returns and funded pension funds, Estonian Government considered it
important to draw special attention to the improvement and specification
of enforcement procedure rules to make the enforcement of maintenance
for children more effective.
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J. Pool et. al. About restriction of debtor’s rights (Estonia)
In February 2015, several laws were amended, primarily, the Code
of Enforcement Procedure, but also sectoral acts in order to make those
persons obliged to pay alimony for children do it voluntarily. Amendments
to the law provided several important restrictions of the freedom of
action of maintenance debtors, which should put pressure on the debtor
to improve voluntarily one’s alimony payment behaviour. Part of these
amendments will take effect in the autumn of 2015 and the others – in the
spring of 2016.
One of the major amendments concerns further development of the Code
of Enforcement Procedure, which, in case the debtor has failed to pay the
alimony without any substantial reason, provides the court with the right to
suspend the debtor’s:
1) hunting right;
2) motor vehicle’s driving licence;
3) small vessel and jet driving licence;
4) the validity of the fishing permit;
5) the validity of weapons permit;
6) the validity of weapons procurement permit.
In case rights are suspended, the court will ban also the granting of such
rights.
While suspending the rights, an example of several other countries have
been followed (for example, the USA, Canada, the Czech Republic, the Slovak Republic), where such a measure has produced good results in satisfying
maintenance claims. In Estonia, the legislator has preferred the court to rule
the restrictions of rights and not the bailiff. The court can suspend debtor’s
rights and the validity of one’s permits and ban their granting only in case
the bailiff has already warned the debtor that one’s rights and the validity
of one’s permits may be suspended and the granting of rights and permits
may be banned. The first precondition for warning is claimant’s consent for
suspending the debtor’s rights and the validity of one’s permits and banning
of their granting. Claimant may determine whether and with the suspension
or banning of which debtor’s abovementioned rights and validity of permits
one agrees. Asking for the consent of the claimant may be necessary in order
to protect child’s interests. Second, the bailiff has the right to issue a warning
to the debtor only in case during the enforcement procedure, the debtor has
failed to pay regular alimony for the child during two months and the bailiff
has not succeeded in enforcing it from debtor’s assets. The third precondition for the warning is that the debtor has not presented a substantial reason
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II. Enforcement procedure in foreign countries
for not paying the alimony before the warning. A substantial reason may be,
for example, a severe illness, which prevents the debtor from earning his/her
income. A precondition for the warning is also the existence of a right or a
permit the debtor has, the validity of which could be restricted.
Prerequisite to suspension of rights and term of validity of permissions and
refusal to grant rights and permissions is, alongside with the above-mentioned
also a requirement that there do not exist any acts that preclude suspension
of and granting of rights, where the debtor has:
1) began to perform the alimony claim and paid at least two month’s
alimony;
2) has concluded a schedule of payments agreement with the claimant
for payment of alimony and has paid at least one month’s alimony;
3) has substantiated that restriction of rights would be unjust in one’s
respect, first of all if there existed a good reason not to pay alimony
or if suspension of rights or refusal to grant rights would substantially
prevent subsistence of the debtor and one’s dependants.
The bailiff is entitled to present in two months as of delivery of the warning
notice to the court an application for restriction of the rights of the debtor,
in case the debtor again fails to pay alimony in one month during that period
and does not submit to the bailiff reasonable excuse thereof. The objective
of the measure, restricting the rights of the debtor is not to punish the debtor
for unpaid alimony. The above measure is rather an injunction that ought
to constrain the debtor to pay the monthly alimony on regular basis or to
submit a reasonable excuse why one is not able to do so. For that reason, the
warning notice does not contain a condition that the debtor is obliged to pay
the whole alimony arrears, in order to avoid further judicial proceedings. The
objective of the restriction of the rights of the debtor as a measure is to secure
the child its monthly alimony, not collection of the cumulative arrears. That
is the reason why the regulation has been elaborated with the presumption
that in case the debtor, after the warning notice has been served, begins to
pay monthly alimony on the regular basis, his right will not be restricted. The
arrears that have cumulated earlier shall be covered, using the other measures
of the enforcement proceeding.
In addition to the above, the absence of child alimony arrears shall be set
as a precondition in order to receive a private forest owner’s subsidy and a
grant of a start-up enterprise.
The amendment of legislation obligates the bailiff with the purpose to
discipline the alimony debtor and to collect alimony to keep regular connec-
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J. Pool et. al. About restriction of debtor’s rights (Estonia)
tion with the debtor at least in every two months, if during that period the
bailiff has not succeeded to collect the alimony, in order to find out, why the
debtor fails to comply with the obligation to support one’s child, what is one’s
income and how does one plan to liquidate the alimony arrears. The legislator
is of the opinion that the direct communication disciplines the debtor and
makes one think, what are the reasons, why one does not pay alimony, but
also motivates one to find ways to pay the alimony, in order to avoid the next
interrogation of the bailiff.
In addition, the bailiff is obligated to search the rooms and land in possession of the debtor more regularly, in order to find property to be arrested
and sold, if the other enforcement procedures have failed to collect alimony
in a long period of time.
Although the bailiff had the right of search earlier as well, the amendment of legislation will obligate the bailiff to conduct search operations on
the regular basis. At least once every other year since the last recovery of
alimony, and in case the recovery failed, at least every other year since the
last search. Entering the rooms and the plot in possession of the debtor and
making of the court ruling for conduction of search does not require the
earlier refusal of the debtor to conduct the above-mentioned procedures
as a prerequisite. This secures the moment of surprise at search. Earlier
bailiffs had had to prove to the court, in order to receive the court ruling
for search, that the debtor does not agree with the search of one’s rooms
and land. For this reason bailiffs had had to find out, whether the debtor
does agree with the search or not.
The Chamber of Bailiffs and Trustees in Bankruptcy was of the opinion,
upon procedure of the draft law in Parliament that a search should not be a
mandatory regular procedure. According to the comments of the Estonian
Constitution, the existence of the legal basis for search does not automatically
guarantee the search intervention conformity with Constitution. It is necessary to evaluate the compatibility, necessity and proportionality of search
in the narrower sense. In addition, it is necessary to analyse the practical
implementation of the search – whether together with the bailiff the property
of the bailiff will annually be searched by the police, as well? To obligate the
female bailiff to perform regular search procedures may constitute for her a
physical hazard.
The Chamber noted that according to legislation the official activity of the
bailiff could not be considered commercial activity. The bailiff is a person in
public law, who is entitled to get remuneration for one’s professional action
and to demand compensation for the costs, connected with this action only
in the cases, stipulated by the law. The bailiff is not allowed to conclude
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II. Enforcement procedure in foreign countries
agreements for changing the payment rates or order of payments that are not
stipulated in the present law. Proceeding from the above, the new obligations,
imposed on bailiffs by the law must be financed from additional resources.
The bailiff makes, in the course of contacting alimony debtors, considerable
additional professional actions, for which there is no additional possible
reimbursement provided. Therefore, the bailiff’s payments remain, in spite
of additional tasks, in case of the same basic claim still on the same level as
before, but the sum of the basic claim must cover more professional activities
and mandatory tasks and the expenditures actually made by the bailiff are
not covered. Until practical life has not proven the opposite, the danger that
the measures applied do not yield desired results and the payment discipline
of the debtors does not improve, will remain. The bailiff has performed
additional actions, which do not bring along any real profit. Thus, on one
hand, we can understand the wish of the legislator to improve payment
discipline of the debtors and implement more effective measures, but on the
other hand, it seems that the implementation cost of the measures is left to
bailiffs’ personal resources to bear. In order to diversify the risks one could
consider a possibility that in case the claimant wishes implementation of the
above-mentioned measures; the bailiff’s payment for the above actions shall
be paid by the claimant.
One of the innovative changes is taking into consideration the person’s
income upon its seizure. So far, the enforcement procedure has proceeded
from the principle that the size of the person’s income is the monetary income
of the person. Very often, the bailiff finds it impossible to establish the income
of the debtor, because the debtors do not settle accounts, using their own
bank accounts but use cash or the accounts of the other persons for this
purpose, which prevents seizure of their income. Part of the debtors gets other
benefits (non-pecuniary benefits) for their personal use from their employers.
According to the amendment of legislation, the bailiff may consider these
payments-in-kind as part of the person’s income. The calculation of the value
of such benefits, proceeding from the employment relationship shall be based
on their market value. If the money, paid to the debtor does not exceed the
non-liable minimum, the market value of the other benefit, proceeding from
the employment relationship, shall be added to the monetary payment, paid
to the person. As a result, the calculable payment to the debtor increases and
the bailiff can arrest the major part of the payment, paid in money. In addition
to the benefit, proceeding from the employment relationship it is possible,
under the same principle to include into the income of the person also
goods, services, payment-in-kind and benefit, calculable in money, which
the debtor has received in connection with the employment relationship,
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J. Pool et. al. About restriction of debtor’s rights (Estonia)
as the member of managing or inspection body of a legal person or from a
long-term contractual relation.
The bailiff shall be entitled to arrest the monetary obligation, paid instead
of the debtor to the third person, if the monetary obligations paid to the
third persons in one month (for instance the bank loan, car leasing etc. that
has been paid for the debtor) in total exceed the sum of income, foreseen in
one month for the debtor and not liable to arrest. The monetary obligation,
arrested from the third person under the corresponding provision shall be
deemed as un-enforced in respect of the third person. As the result, the
third person is also entitled to demand fine for delay from the debtor. The
objective of this amendment is to receive the money, hidden from the bailiff,
which is paid to fulfil the obligations of the debtor to the third person in cash
or using the bank account of another person. The provision is in force only
upon recovery of alimony arrears.
The above-mentioned amendments have been approved as a law, but shall
be implemented in practice partly this autumn and partly in next spring. We
hope that these measures will have a considerable effect on improving the
efficiency of the enforcement procedure.
At the same time, we have to take into account that money and assets do
not come into being on the command and that the success of the enforcement
procedure and problems depend on the debtors’ capability to earn money.
In this connection, it is worth to think back on the information of the
two investigative journalists of the Spiegel magazine, PhD of legal sciences
Hans-Peter Martin and a journalist-engineer Harald Schumann, published in
1997 in the book “Globalization Trap. Assault on Welfare and Democracy”1
about the fact that in September 1995, in San Francisco hotel Fairmont came
together 500 leading politicians, economists and scientists from all over the
world, who pressed our future in the 21st century into the 20:80 ratio model
and the notion “tittytainment”. According to the data presented, none of the
persons, gathered in San Francisco, believed in sufficient number of future
well-paid professions that are built on technology, no matter what field was
under question. They thought that in the 21st century we need only 20 per
cent of the able-bodied population of the world to keep the world economy
going, because one fifth of the job seekers will be more than enough to offer
all the products and services that the world needed. This fifth of the world’s
population is well paid, lives and works actively, earns good money, is able to
consume and consumes, no matter in what country they happen to live in.
1
Hans-Peter Martin, Harald Schumann. Globalization Trap. Assault on Welfare and
Democracy. Publishing House Tänapäev, 1999. PP. 9–13.
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II. Enforcement procedure in foreign countries
Thereby it was admitted that this ratio may even be slightly bigger, but it
has no impact whatsoever on the substance matter. It was also recognized that
the rest, 80 of the able-bodied people and conclusively also their dependants
find themselves face to face with enormous problems and the mitigation of
social discontentment calls for special measures, which they marked with the
catch-word “tittytainment”.
Thus, it is appropriate to look for complex solutions.
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