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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
ARMEN HARUTYUNYAN
Deputy Chief Compulsory Enforcement Officer
of the Republic of Armenia
The peculiarities of the legislative regulation
and development of law enforcement practice
of enforcement proceedings initiated
on the base of administrative acts
in the Republic of Armenia
n the past few years, the analysis of the legislative changes governing
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the activities of the judicial acts enforcement Service of the Republic of
Armenia, shows that these changes are aimed at expanding the enforcement
officers functions. In particular, these changes came into effect in January
2014, when, as the result of the introduced legislative changes, the scope of
enforcement acts expanded to include the administrative acts of public legal
monetary claims, and the process of implementation of the enforcement
proceedings commenced by these acts was regulated. We believe this is a
significant indication of the increasing confidence of the state and society in
the potential and competencies of our service.
In particular, the changes in the Law of the Republic of Armenia “On
fundamentals of administrative action and administrative proceedings” which
came into force in early January 2014, determined that the enforcement is
also subject to a monetary claim on the basis of undisputed administrative
acts in the procedure established by the Law of the Republic of Armenia “On
compulsory enforcement of judicial acts”.
Following the same logic an amendment in the Law of the Republic of
Armenia “On compulsory enforcement of judicial acts” was introduced, its
relevant art. was supplemented by a new paragraph, and it was determined
that undisputed administrative acts are also subject to compulsory execution
in the procedure established by the Law of the Republic of Armenia “On
fundamentals of administrative action and administrative proceedings”.
As the basis for compulsory enforcement measures implementation, the
Law of the Republic of Armenia “On compulsory enforcement of judicial
acts” required a statement, issued by an administrative authority about the
execution of an administrative act, along with a writ of execution.
Practically the above mentioned and a number of other legislative changes
resulted in abolishment of the enforcement of payment orders implemented
by the Administrative court of the Republic of Armenia, providing a possibility
of debt-collection on the basis of undisputed administrative act without
application to the court by means of administrative body applying directly
to the body implementing judicial acts enforcement.
In fact the aim of these changes was also to give the administrative court
an exemption from its obligation to consider cases that did not require
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A. Harutyunyan. Peculiarities of legal regulation of enforcement proceedings in Armenia
administrative justice involvement in a classic sense. The mentioned
proceedings did not present any difficulty for the court and had a technical
nature. However, implementation of these proceedings used to take a lot
of time, as a result burdening the administrative court with additional
proceedings, which could not fail to have a negative impact on the normal
professional work of the court.
As a result of legislative changes and their implementation the administrative
court presently noted a considerable optimization of work process, which
naturally contributed to rising productiveness of case consideration under its
jurisdiction on the one hand and on the other hand, gave an extra importance
to the role of the enforcement service, which clearly improved the speed and
productivity of the public legal monetary claims implementation process.
Certainly, the enforcement process of administrative acts on public legal
monetary claims did not work impeccably right after the above mentioned
changes came into force, since that institution was in fact new to all the
state and non-state bodies and organizations involved in the process and
was implemented for the first time in the legislative system of the Republic
of Armenia. The same reason at first caused some problems in the process
of undisputed administrative acts enforcement by the enforcement service,
which were resolved with time due to the Service consequent work and fast
problems resolving.
The first of these problems we would like to mention concerned the
foreclosure within the levy proceedings on the basis of administrative acts.
The problem was that some banks misinterpreted the enforcement officer’s
instructions on the seizure, equal to the amount of the stated cases monetary
claim, meaning that instead of the seizure of the amount stated in the
enforcement officer’s monetary claim order, the seizure was implemented
to the whole bank account of the debtor which caused a righteous indignation
of the debtors.
The operational measures taken by the enforcement service showed that
this problem had technical reasons and was caused by the fact that certain
banks software did not allow partial seizure of the client’s bank account.
To resolve this problem the chief enforcement officer of the Republic of
Armenia sent a letter to all bodies and organizations concerned, including
the president of the Central bank of the Republic of Armenia, drawing their
attention to the problem and the importance of its urgent solution. We can
say that the initiative of the enforcement service and its joint efforts with the
concerned organizations after all resulted in resolving this issue.
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II. Enforcement procedure in foreign countries
Another problem that occurred during administrative acts enforcement
concerned the enforcement of administrative acts subjected to enforcement
by the Traffic Police of the Republic of Armenia. There occurred some cases
where a citizen would pay the administrative fine in the period stated by law,
but the Traffic Police of the Republic of Armenia would mistakenly present
the same administrative fine to the enforcement Service for collection, as an
overdue fine which was, therefore, multiplied by five times.
Considering claims and dissatisfaction that occurred in the society due to
this problem, the enforcement service took measures for the urgent solution
of this problem. In response to the letter of the Service on the necessity
of operational solution of the issue in question, the Traffic Police of the
Republic of Armenia gave its consent to our proposition to accept the debtor’s
documents presented to the Enforcement Service whenever they confirm
that the obligations were fulfilled when due, the stated documents will be
considered by the service as a factual fulfillment of the obligation in the
primary state, and the penalty for the rest of the presenter’s claim will be
automatically dismissed without any legal consequences. This regulation
showed positive results in a very short time period.
Despite its vitality, the implementation of the administrative acts of legal
public monetary claims enforcement for about a year revealed the necessity
of future legal changes.
In particular, on December 30, 2014 the President of the Republic of
Armenia signed the Law of the Republic of Armenia “On the basics of
administration and administrative proceedings” which came into force on
January 9, 2015.
A key novelty introduced by the above mentioned law was that from now
on the legal public monetary claims are subject to enforcement only on the
basis of the execution writ issued by court, and only in the following cases:
a) monetary claim to be collected from a citizen on the basis of the
undisputable administrative acts should exceed two hundred thousand drams;
b) enforcement of the monetary claim to be collected from a citizen is not
possible without closure of the only flat he owns by the right of ownership
(including common ownership);
c) monetary claim to be collected from a legal entity or individual
entrepreneur should exceed the price of property of the legal entity or
individual entrepreneur.
Prior to passing this law there were no limitations provided to the enforcement
of administrative acts once they become undisputed for about a year.
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A. Harutyunyan. Peculiarities of legal regulation of enforcement proceedings in Armenia
Besides, the mentioned law created favorable conditions for the drivers
providing an opportunity for relief from certain administrative fines for traffic
infractions in particular cases.
Therefore, transitional provisions of the law determined that drivers
who committed road traffic violation in the period till January 1, 2012 and
were fined for these violations are completely free from the obligation of
payment set by the administrative fine act as well as from the additional
amount that occurred due to the nonpayment, and from the enforcement
costs. And drivers who committed road traffic violations in the period
from January 1, 2012 to January 9, 2015 can be freed from payment of
the additional amount that occurred due to the nonpayment, and from
the enforcement costs, once they pay the main amount required by the
administrative fine act and provide the proof confirming the fine payment.
This payment needed to be made within 6 months from the moment the
law entered into force.
I shall state that the law established the complete list of administrative
violations, upon the committing of which, the debtors were freed from the fine
payment as well as the additional part of the payment and the enforcement
costs in the above mentioned order. Among these violations were, for
example, speeding, violation of rules of vehicle exploitation, ignoring road
signs and road markings and so on.
Undoubtedly, to insure proper enforcement of this law after it came
into effect the chief enforcement officer instantaneously issued instructions
to the Enforcement service employees, since the service was facing certain
difficulties during its implementation. For instance, if proceedings were
commenced directly on the administrative act basis in the enforcement
service, this administrative act already included all the necessary information
for establishing the basis for proceedings determination, about the type of
violation, its date and there was no need for further information on the
amount of the fine.
As for enforcement proceedings, commenced on the basis of the writ of
execution on the collection of fines, the main amount of the fine stated in
the administrative act in these cases was not separated from the additional
amount, which occurred due to the nonpayment, there was no necessary
information on the violation in the writ of execution. Therefore, in this case
the enforcement officers faced a necessity of getting additional information
from the presenter about the main amount of the fine, its due period and the
type of violation.
The above mentioned examples indicate the efforts of the enforcement
service, aimed at the development of the administrative acts enforcement
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II. Enforcement procedure in foreign countries
institution and the refinement of the legal practice in the Republic of
Armenia, as well as the results of these efforts.
We continue to consequently inform our society about the new legislative
changes and clarification of rights of its members in connection with these
changes by means of mass media and other forms of communication.
Within the frame of my short report it is, of course, impossible to fully
understand all the peculiarities of the legal regulation of enforcement
proceedings, commenced by the administrative acts, and the law enforcement
practice, and also the volume of work, that we have carried out in this
sphere, however, I hope that the presented experience can be of use in
your practice.
MARC SCHMITZ,
1st Vice-President of International Union
of Judicial Officers, Official Representative
of the Belgian National Chamber of Judicial Officers
A new order for payment
procedure in Belgium –
a limitation of debtor’s rights?
n 30th June 2015 was published a new Law project that might change
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fundamentally our profession and especially the way how to judge on
a claim.
This Law project aims to adapt the civil process to the needs of our time.
The procedures need to be proceeded more quickly but without compromising the quality of justice and of administration of justice.
The main object is to adapt the Civil Procedure Law on a way that justice
can concentrate on its core tasks by reducing the number of procedures that
requires the direct intervention of a judge.
A first step to reach this aim will be to decrease the number of cases on
appeal and those that are actually in the jurisdiction of the Commercial
Courts.
To understand very well the background of these measure, you have to
know that, till now, under Belgian law, most of the claims must be judged by
court hearing. This kind of procedure requires the presence of the judge and
the claimant. In nearly 95% of the cases, the debtor will be absent because
the claim is not contested by him. It’s obvious that this kind of proceeding
constitutes a loss of time.
On the other hand, on a European level, there already exists some procedure to simplify the access to justice and to speed up the handling of pecuniary
claims. The EU-Regulation № 1896/2006 of the European Parliament and of
the Council of 12 December 2006 which has applied since 2008, establishes
a European procedure for orders for payment. The procedure simplifies,
speeds up and reduces the costs of litigation in cross-border cases concerning
uncontested pecuniary claims.
It’s a written procedure where a Court hearing only takes place if the claim
will be contested by the debtor. If there is no contestation, the enforceable
title will be delivered to the creditor by the Court within a very short delay
and without any Court hearing.
Unfortunately, this procedure is only applicable in cross-border cases.
One of the requirements to use this regulation is indeed that the creditor and
the debtor are living in two different European countries. If both of them are
living in the same country, the creditor is not allowed to use this simplified
and cost reduced procedure!
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M. Schmitz. A new order for payment procedure in Belgium
In Belgian internal law, we don’t know – till now – such a kind of
procedure (without a court hearing) for pecuniary claims, like for instance
it already exists in numerous countries like in Germany, Luxemburg,
Austria, etс.
In summary, we can say that, actually, it’s easier, or at least cheaper and
faster to get in Belgium an enforceable title if the claim has a cross-border
character than if it’s a pure internal dispute. Where is the logic of such a
system?
To remedy this deficiency, the Belgian Parliament passed a Law project
on 30th June 2015 whereby not only the procedure for pecuniary claims will
be speed up and the number of procedures that requires the direct intervention of a judge will considerably be reduced, but where the role of the judicial
officer in a particular way and the role of the National Chamber of Judicial
Officers in a general way will be increased considerably.
First of all the requirements to use this new procedure:
This procedure is only applicable on pecuniary claims that are not contested by the debtor (most of the claims ARE indeed not contested!).
This procedure is also only applicable (in my humble opinion in a first
time) on a B2B (Business to business) relation and should not be used if the
debtor is a consumer.
This procedure is only open for claimants that are assisted by Lawyer.
How should run this procedure?
First of all, the judicial officer will serve a demand for payment to the
debtor. This demand for payment contains a clear description of the debt
including interests and (if applicable) contractual increases.
The judicial officer has to grant to the debtor a period of one month to
pay the debt. He has also to join to the demand for payment a copy of the
documents on evidence to this claim and, last but not least, a form of reply
to, if need be, contest the claim.
If the claim is contested, we come back to the existing procedure of Court
hearing with involvement of the judge. If the claim is not contested within
one month after the demand for payment served to the debtor – and here we
come to something brand new and exceptional in Belgian law – the judicial
officer draws up a report from which it appears that the claim hasn’t been
paid totally or partially; the debtor hasn’t asked or obtained payment facilities; the claim hasn’t been contested by the debtor.
This report will be declared enforceable on the request of the judicial
officer by a magistrate of the managing and supervising Committee of the
Central database of attachment reports… which is established at the National
Chamber of Judicial Officers!
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II. Enforcement procedure in foreign countries
So we are able to obtain an enforceable title without the intervention of
the Court! The enforceable title will be awarded by the National Chamber
of Judicial Officers!
In my humble opinion, if this Law project will pass (and chances are rather
good), this will represent a real evolution of the civil procedure in our country.
Nobody has any doubt that if this procedure will be a success in resolving b2b litigation, why it shouldn’t be transposed for resolving litigation
with consumers and become accordingly the general way to obtain a title for
non-contested claims!
And now I come finally to the theme of my presentation: This new order
for payment procedure, is it a limitation of debtor’s rights?
I don’t think so!
First of all we have to respect European requirements:
Article 10 of Directive 2011/7/EU of the European Parliament of 16th February 2011 on combating late payment in commercial transactions: “Member States shall ensure that an enforceable title can be obtained, including
through an expedited procedure and irrespective of the amount of the debt,
normally within 90 calendar days of the lodging of the creditor’s action or
application at the court or other competent authority, provided that the debt
or aspects of the procedure are not disputed. Member States shall carry out
this duty in accordance with their respective national laws, regulations and
administrative provisions”.
To install such a procedure, the Belgian legislator says clearly in the argumentation of the Law Project that: “Of course such an instrument can only
be entrusted to the judicial officers (bailiffs) which presents the necessary
guarantees in term of expertise and independence, and it’s easy to guess that
it will be them who should undertake it exclusively”.
Furthermore, the legislator develops in his argumentation that for this new
mission for the judicial officers, additional guarantees, such as a consistent
intervention and control of the National Chamber of Judicial Officers can
obviously been provided.
Another guarantee for respecting debtor’s rights will be the fact that a
magistrate will be established at the managing and supervising Committee
of the Central database of attachment reports established at the National
Chamber of Judicial Officers!
The whole procedure of order for payment will be documented case by
case in a new database called “Central Register of non-contested pecuniary
claims” under the supervision of the National Chamber of Judicial Officers.
The judicial officer in charge of such an order of payment procedure has to
transmit within three days copy of all relevant documents of the case to this
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