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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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M. Schmitz. A new order for payment procedure in Belgium
database and the data will be stored for 10 years to ensure traceability and
transparency.
Finally to fully ensure the respect of debtor’s rights in this expedited
procedure, the legislator grants to the debtor the possibility to apply to the
judge in the form of a notice of opposition.
Furthermore, the debtor will have the possibility during the enforcement
procedure, to apply at any time to the enforcement judge.
In summary we can say that this new procedure (and I honestly hope that
it will pass) constitutes not only a real evolution but even a revolution of the
Civil Procedure in Belgium.
This procedure will allow us to relieve our courts, which are actually overcrowded and allow them to find the necessary time to do their core business:
to examine and to decide on contested litigation, while uncontested claims
can be handled efficiently, easily and quickly, and of course with the full
guarantee of respecting debtor’s rights.
ANDREAS ZEDEL,
Chairman of the Land Association of Judicial Officers
of Thuringia of Germany
The creditors’ rights
against the debtors’ rights.
The requirement on the institutional
equity of state
t is impossible to do without the notion of “fairness” as the basis of as-
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sumption of rights so that citizens could be aware of and perceive rights.
Fairness is a common denominator for citizens in settling disputes. But even
Aristotle thought in the contemporary manner and considered fairness to be
not simply a human quality (see Plato’s cardinal virtues) but an intersubjective notion. Therefore, fairness in thought and deeds is always directed to
another person. Thus, fairness is one of the fundamental norms of human
coexistence in society.
The notion of ambient institutional fairness gains more concrete sense
in the work of state bodies of enforcement proceedings. What moral, ethical
norms are reflected in national legislation? In what way is perception of a
wrongdoing as a violation of rights confirmed in everyday public life? So,
legal focus is on compensatory fairness with such categories as rehabilitative or even corrective fairness which is intended to regulate non-voluntary
relations among subjects (for example, in case of robbery or theft) and on
exchange fairness intended to regulate voluntary relations among subjects
(for example, rent, buying-selling, lending).
While corrective fairness is exercised in practice, first of all, by means
of criminal law and only then by means of civil law, trespass to exchange
fairness only indirectly engages practice of enforcement proceedings upon
defining the claim.
On the one hand, having paid tribute to compensatory fairness by recognizing monetary claims it should be stated that in modern society there
should gain its place and recognition one more theory of fairness which was
not mentioned by either Plato or Aristotle: social fairness. Every theorist in
social sciences surmises and every court bailiff-executor knows that would be
difference between the undisputable creditor right and the debtor protection
in the context of social justice with its regulating function is similar to the
goddess Themis with her scales.
Social stability and institutional fairness linked to it are in no way static
but subject to continuous changes. I want to use the notion of intergeneration
fairness as an example. Next generation will get a minus balance of profits due
to the fact that the state as the present generation of citizens accrues debts to
be inherited by the next generation since, in a plain language, the state debt
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A. Zedel. The creditor rights vs the debtor rights
is an increase in taxes transferred to the future. Hence, corrective measures
in terms of austerity monetary policy are necessary to maintain the current
level of intergeneration fairness.
Thus, correction quite often means waiving real or assumed rights or their
cutting down.
Regulating social fairness undergoes similar changes. To compensate
fractionation in society the state strives to increase social expenses and
create additional protection norms for debtors. The former can cause the
above – mentioned problems in regards of intergeneration fairness. The latter is fraught with difficulties in the sphere of exchange fairness. As a result,
people lacking perception of fairness do not question society but the state with
its authorities and monopoly to exercise power which can lead to instability
in the state and its breakdown.
So, here we are to be quickly aware that different aspects of fairness, each
important in its capacity, must be able to change and develop. It tends to
become challenging when the political potentate must make up his mind to
what extent fairness is to deviate.
On the whole, the theme of the current conference forestalls such political
decision. One should not raise the issue of restricting the creditor rights but
rather of strengthening the creditor position by means of the debtor rights
limitation.
Is it compliant with “a good deed”? Does such targeted decision promote
stability in society? How far can one go not to violate consensus of all strata in
society in respect of fairness? Finally, what weight can be put on the Themis’s
scales till one scale reaches the bottom and the other will swing on the top?
Fairness and security are inseparably linked. If we retain fairness we will
lose security. Hence, light-minded denial of once given rights is likely to gain
as little as waiving necessary changes if the creditor rights are infringed from
our professional point of view.
To proceed from the triad of “fairness-security-stability” to consequences
of law enforcement practice in enforcement proceedings in Germany I would
like to touch upon individual debtor rights of practical importance
1. Movable estate protection from arrest. German procedural legislation contains a detailed list of a great number of items that cannot be
ceased from the debtor, for example, wedding rings, items of clothing,
linen, household and kitchen utensils, small domestic animals in a limited
amount as well as a cow or, at the debtor discretion, two pigs, goats or
sheep instead if these animals provide sustenance to the debtor etc. Only
these protection norms include, with the exception of real estate and luxury
items, almost all that a common debtor possesses. Due to interpretation
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II. Enforcement procedure in foreign countries
of these protection provisions even imposing arrest on a private car, as a
rule, practically falls through.
For the last two centuries the society has been constantly developing the
debtor rights. From the beginning when so called complete arrest was applied so that all movable and immovable property of the debtor was ceased
to satisfy the claims till the current status quo when it is really impossible to
seize movable estate.
Thus, only 2% of enforcement proceedings in Germany involve arrest of
movable estate. And it means that no restoration of justice happens this way.
Would it be reasonable to cut down the debtor rights? I do not think so. In
accordance with modern ethical norms the state must ensure a high (perhaps,
too high?) social standard of living for the debtor. Even such economically
highly developed countries as Germany cannot afford it any longer. Hence,
the creditor has to waive restoration of justice.
2. Limits to protection from arrest for employees. While imposing arrest on
earnings and bank deposits of the debtor it is necessary to leave him certain
minimum money to avoid paying social benefits. This sum tends to increase
with time to take into account the increasing cost of living.
In Germany we use a technical term “exemption of salary” (Lohnabstandsgebot). It means that the state has no right to eliminate incentives for
the debtor to carry on fee-based labor activities fixing social benefits by tax
returns at the level similar to his wages. It must be profitable to work.
Although the level of GDP is high at about 3.2 trillion euro, an average
monthly income of a German citizen is “only” 2700 euro gross and about
1500 euro net. Protection from arrest starts at about 1100 euro. Since most
debtors do not belong to mid-segment income strata the income liable to
arrest is often miserable. According to rough estimates only about 30% of
arrests imposed on wages and bank deposits are executed because of that.
It means that restoration of justice is very slow and two thirds of enforcement proceedings do not involve direct duress. Yet, experience testifies to the
fact that involvement of third entities – the employer, the bank – can often
encourage the debtor to willingly execute his pecuniary claims. The exerted
pressure seems to be like a wall of shame, nevertheless, it encourages the
debtor to waive the defined income limits. According to another approximate
assessment it helps to execute about 20 more percent of claims.
It means that restoration of fairness is slow but acceptable taking into
account the necessity to ensure public consensus.
3.The right to protect personal data. Although the Principle law of FRG
does not envisage protection of citizens against the third entities or the
state abusing their personal data, decisions of the Federal Constitutional
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A. Zedel. The creditor rights vs the debtor rights
Court refer the right to information self-determination to the main rights
of the citizen.
Paradigm shift took place in the German legislation on enforcement
proceedings in 2013. Since 1879, that is for over 136 years, the mandate
creditor attempt to impose arrest and sell the debtor movable estate was toppriority but now the focus is on collecting information, the debtor personal
data included, on whether there are contentions, rights or movable estate,
for example, a car liable to. So, information on the debtor is collected, for
instance, at the federal transport agency –to search for vehicles in personal
use, at personal insurance authorities – to search for an employer, and at the
federal tax agency – to search for bank accounts.
Targeted enforcement proceedings are carried out on the basis of these
data.
The problem is that information collection is allowed if the amount of
the claim exceeds 500 euro. The legislator was reluctant to make available the
debtor personal data to the court bailiff-executors and, hence, to the creditors
if the claim is petty. Creditors of petty claims are justified to ask a question:
“Is my right to compensative fairness less valuable?”
Thus, in modern society increasing connectedness of personal data caused
the illusion of citizens’ transparency. No doubt, personal data must be protected from abuse. Yet, state authorized bodies of criminal proceedings and
enforcement proceedings must gain unlimited access to the data to ensure
security, prosecution, citizens’ rights and justice. German legislators have
tackle the problem in the near future.
4. The right to travel freely. The right to travel freely was enshrined as a
main right of the citizen. The right to travel refers to human rights, yet, I have
a cordial liking of the countries that prohibit the right to travel not only to
convicted criminals (by means of imprisonment) or people potentially dangerous for public order in the state (see normative acts on counter-terrorism)
but to debtors. The wish of debtors to hide on the territories of Schengen
countries in order to hopefully avoid enforcement proceedings must make
the state respond accordingly. It is specially petty creditors such as craftsmen
and private entities that feel frustrated in such cases as they stand no chance
to gain their rights or justice.
It means that cutting down the debtor rights seems reasonable only in
some cases, for example, in the sphere of protecting personal data to promote
restoration of justice. This issue is to be closely monitored.
In addition, opportunities to curb the debtor rights should be searched
with regard to the citizen’s rights, for instance, by means of restricting the
freedom to travel. Let me also express an idea of restricting the right to be
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II. Enforcement procedure in foreign countries
elected. These measures are thought to be adequate, intended to encourage
the debtor, with the help of sanctions, to willingly execute his responsibilities
by voluntary abandonment of protection mechanisms (for example, with
regard to imposing an arrest on salary).
I suppose I could positively say the following: to ensure fairness any stable
society needs moderated legislation being able and ready to develop.
In this respect, I consider conferences like the present one as well as dayto-day activities of court bailiff-executors provide a good chance to learn from
one another and encourage politicians to develop legislation.
JUHANI TOUKOLA,
Director General, National Administrative Office
for Enforcement of Finland
Restriction of debtors’ rights
and the recent developments in the area
of enforcement in Finland
ooking at the history of Finnish legislation, we can conclude that debtors’
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rights mainly have been increased and relieved in the course of history.
Executive measures that have been viewed as inhuman, such as debtors’ prisons or paying debts through forced labour, have been eliminated. As human
and fundamental rights have developed, enforcement legislation has been
restricted: coercive measures must be in proportion to the interests of those
who are applying for enforcement. Also other measures aimed at restricting freedom of movement, such as travel bans, have been eliminated. The
development of rule of law and the welfare state have softened the measures
directed at debtors.
However, many restrictions of the debtors’ rights are still related to the
enforcement procedure due to the enforcement measure’s nature and coercive measures related to it. Debtors lose their right to dispose of distrained
property, and often the possession over it. In evictions, they are removed
from their dwellings, etc. These restrictions, however, are due to the purpose
of the enforcement itself.
During the procedure, different coercive measures may be directed at the
debtors: they are obliged to attend an order to obtain information and can be
brought there by the police if they do not attend voluntarily. A fine can be
used to further effect and unpaid fines are transformed into imprisonment,
which means deprivation of liberty.
If the debtor is found insolvent, this leads to a bad credit record, which
in turn leads to difficulties in daily life, for example losing one’s credit cards
or difficulties in obtaining telephone subscriptions and other commodities.
In a consumption and credit society, a bad credit record is a considerable
restriction for the debtor.
Sometimes, criminal activities are also related to the enforcement. This leads
to sanctions related to the criminal process for the suspected person. During the
investigation, the suspect may lose his or her passport and cannot travel abroad.
Pre-trial detention is also possible and imprisonment may be sentenced.
Unpaid fines are also transformed into imprisonment in some cases,
which means a very tangible way of restricting the debtor’s rights.
In some cases, bad handling of debts may also lead to administrative
sanctions for restricting the debtor’s rights: restaurant owners may lose their
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