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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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V. Gureev. The RF Costitution as a guarantee in enforcement proceedings
bodies is exactly one of such guarantees. In addition, an important
constitutional provision is legality stipulated in part 2 of art. 15 of the RF
Constitution in accordance with which “state authorities, local government
bodies, officials, citizens and their associations must observe laws and the
Constitution of the Russian Federation”. Article 4 of the Federal Law
“On Enforcement Proceedings” in substance merely reproduced the
constitutional principle of legality. In line with the given principle the above
article enshrined another significant principle of enforcement proceedingsbalance of executioncreditor claims and executory force in respect of the
debtor. There comes up the question what this principle means and how it
should be implemented. The courts regularlydraw attention to the need for
proportionality in restriction on, for example, the right of the debtor to leave
the Russian Federation1. It is also obvious that proportionality primarily
upholds debtor’s interests ensuring some protection against excessive
executory force versus creditor’s claims. This proportionality is perceived
by the court bailiff-enforcer as a certain correlation of the amount of the
debt and the value of the property, and if the value of the property greatly
exceeds the amount of the debt it becomes a factor inducing the court bailiffenforcer occasionally elect not to levy execution upon such property. The
situation is accentuated by apparent declarativity of the given principle, lack
of coherent criteria of such proportionality. Moreover, entrenchment of
proportionality principle could contradict the principle of legality. Imagine
a situation when non-execution of a certain enforcement document coupled
with waive creditor’s enforcement rights while the creditor possesses valuable
property would mean fragrant deviation of the legality principle. In its
turn, any conflict of legality and proportionality principles is improper as
legality is an absolute constitutional value and though proportionality is
enshrined in legislation it is still a branch law phenomenon. Thus, interpreting
proportionality as impossibility of enforcement is unconstitutional. Then,
we have to interpret proportionality as a certain choice of the best legal
tools to influence the debtor taking into account creditor’s claims. This
solution is believed to be not quite appropriate. So, art. 67 of the Federal
Law “On Enforcement Proceedings” states that temporary restriction on
the debtor to leave the RF can be applied if the debtor fails to timely execute
of his own free will an enforcement writ without good reason, the recovery
claim exceeding 10 000 rubles (as per property). Hence, the proportionality
1
Review of the RF Supreme Court judicial practice for the first quarter of 2013 (approved
by the Presidium of the RF Supreme Court dtd. 3 July, 2013) // Reference and legal system
“ConsultantPlus”.
321
III. National doctrine of enforcement proceedings
principle is somewhat tailored to one enforcement action – temporary
restriction on the debtor to leave the Russian Federation. Yet, it is assumed
that proportionality should be defined quite differently. At present the main
emphasis is made on the balance of execution creditor’s claims and executory
force. In my opinion, we must compare the debtor actions and enforcement
measures applied to him. Even a small amount of debt in case of malpractice
on the part of the debtor must mean feasibility of application of all execution
tools provided by the law. And contrariwise, openness and constructability
of the debtor, even if the amount of his liability is rather large, must limit
to a great extent the duress of the state. It is believed that the principle of
proportionality for such a model is not ideal. Rather, we have to speak about
reasonableness of the court bailiff-executor actions.
Regretfully, the category of “reasonableness” is not developed in the
concept of public law but rather refers to the area of scientific interests in
private law, and it is stipulated in the RF civil law legislation (art. 6, 10, 53,
72, 76, 314, 345 and others). Besides, “reasonableness” is stipulated in the
RF Civil Procedure Code (art. 99, 100, 107, 136), Federal Law dtd. 30 april,
2010 № 68 Federal Law on “Compensation for Violation of the Right to a
Trial within a Reasonable Time or the Right to a Court Ruling Execution
within a Reasonable Time”1.
The meaning of the principle of “reasonableness” is in defining certain
benchmarks for situations when a civil servant, a court bailiff-executor
included, has discretion powers.
The issue of reasonableness is vitally important for the whole system
of civil service in the Russian Federation and it needs serious theoretical
development. Regretfully, reasonableness as a principle of civil servant
activities is not stipulated in legislation now.
V.I. Emelianov truly noted that “the notion of ‘reasonableness’ is used
in normative legal acts texts when it is necessary to define a ‘loating’ margin
of right or obligation”2. At the same time, it should be noticed that in the
framework of the court bailiff-executor’s powers to enforce reasonableness
must relate only to the choice by the placeholder of this or that specific action
(garnishing assets, search, entering living and non-living premises, temporary
restriction on leaving the Russian Federation and others).
1
Compiled statutes of Russian Federation. 2010. N 18. Art. 2144.
2
Emelyanov V.I. The notion of “reasonableness” in Russian civil law // BBAS. 2002. N 10.
In her turn, L.V. Borisova defines reasonableness as “a floating margin of validity” which, in
general, is also correct (Borisova L.V. Relationship of legality and reasonableness in civil proceedings // Jurist. 2007. N 2).
322
V. Gureev. The RF Costitution as a guarantee in enforcement proceedings
In legal literature “reasonableness” is revealed in terms of “an average
person’s actions”1, i.e. actions which a person tends usually to perform. In this
sense reasonable actions are reflected in a person’s standard behavior in a
certain everyday situation.
It is necessary to stress that reasonableness is not a synonym of reliability.
Thus, some actions could be quite reasonable but not reliable.
It is hardly justifiable to equate reasonableness of the court bailiff’executor’s actions with their legality. Being a general legal constitutional
principle (art. 15 of the RF Constitution), the principle of legality is enshrined
in legislation on enforcement proceedings (art. 4 of the Federal Law “On
Enforcement Proceedings”) as it has been mentioned above. Also, legality
as a legal principle is often interpreted in its narrow sense meaning strict
observance by all subjects of requirements contained in articles of normative
legal acts. Hence, each separate action of the court bailiff-executor can be
formally in accordance with the law but unreasonable in a given specific
situation. Also, reasonableness is a prerequisite of observing the law in a
wide sense which means not only to formally keep by the book but also to
make decisions in harmony with it. The decision taken by a civil servant in
keeping with the principle of reasonableness can be defined as discretion
stipulated in articles of a normative legal act that the court bailiff-executor
must follow properly by reference to the targets of the Federal Court Bailiff
Service. Thus, it should be concluded that only reasonable actions of the
court bailiff-executer must be considered legal.
Advisability of enshrining in legislation the principle of reasonableness for
court bailiff-executer activities in order to compel enforcement is accounted
for by the necessity to take into account specific situations with multiple and
variable circumstances, which is utterly impossible within the framework of
a legal norm formalized in a law article. At the same time, it is obvious that
discretion of any civil servant must not be unsupervised. Otherwise, it is sure
to cause an increase in corruption risks and, inevitably, a violation of rights
and lawful interests of the parties involved in enforcement proceedings.
So, legislation must provide for effective tools of judicial and
administrative supervision of proceeding decisions taken by the court bailiffexecuter within the framework of enforcement. At present the said tools are
developed (appeal in an administrating proceeding and contest in an action
at law), function, yet they are to be further improved. Only when this is the
case introduction of the principle of reasonableness and enhancing the role
1
Ivanova S.A. Some problems of implementing the principle of social justice, reasonableness
and bona fide in binding law // Legislation and economics. 2005. N 4.
323
III. National doctrine of enforcement proceedings
of discretion will become justifiable and will not cause destabilization of law
enforcement practice.
The issue of feasibility of enshrining the principle of reasonableness for
court bailiff-executer’s activities is virtually the issue of maturity of the court
bailiff profession. In my opinion, a settled social status of a civil servant
which leads to his/her desire to remain in the profession for a long time, on
the one hand, and his/her professionalism which is traditionally made up
of educational standards envisaged for an applicant and his/her experience
(length of service), on the other hand, can attest to the latter.
Thereupon, the balance of interests in enforcement proceedings must be
ensured not by proportionality of execution creditor claims but the debtor
behavior, actions within the framework of enforcement.
Today the debtor is protected by property (execution) privilege from
arrest – a provision that defines kinds of property exempted from recovery
(art. 446 of the RF CPC).
The RF Constitutional Court maintains its position that the rights lawful
interests of participants in civilian circulation must be adequately (proportionally) protected on the basis of the balance of constitutional values.
At the same time, now execution property exemption makes it, in fact,
impossible to levy recovery on the debtor only dwelling fit for habitation even
if its quality and quantity specifications greatly exceed minimum generally
recognized social inhabitance standards. The RF Constitutional Court in its
Resolution dtd. 14 May, 2012 N 11-P “On the case of checking constitutional
nature of a provision contained in § 2, part 1, art. 446 of the RF Civil Procedure Code in connection with the complaints of citizens F.H. Gumerova and
U.A. Shikunov” enacted that the given article was not contradictory to the
Main Law, yet, it drew attention to the fact that lawmakers needed to clarify
it. However, the RF Constitutional Court first stated this problem in its Ruling
dtd. 4 Dec., 2003 № 456-O. Yet, no legal changes followed suit. Certain social
and political factor is most likely to take place her, but, seemingly, it encourages
unjustifiable limitations to creditors’ rights rather than ensures true balance of
interests of the parties in enforcement proceedings.
At any rate, international experience of property exemption application
attests to the following approaches:
– it is possible to levy recovery on the only dwelling if at the same time
the debtor gets another habitation or retains the right to use the dwelling
(Austria, Germany, Portugal, Slovakia);
– it is possible to levy recovery on a part of the debtor only dwelling
on condition a prorata share can be detailed at the site (Bulgaria,
Uzbekistan);
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V. Gureev. The RF Costitution as a guarantee in enforcement proceedings
– it is impossible to levy recovery on the debtor only dwelling (Belarus,
Brazil, Sweden, Uzbekistan);
– there is no legislative regulation of levying recovery on the debtor only
dwelling (Armenia, Spain, Italy, Kazakhstan, Latvia, France, Switzerland, Estonia)1.
Certain judges of the RF Constitutional Court are quite right to state
that linear design of application stipulated in our domestic legislation is not
ideal, does not reflect modern views on the institution of property (execution)
exemption, does not contain tools of “balancing” rival constitutional values
and does not ensure their proper balance2.
When we avoid violating the debtor rights we thereby violate the creditor
rights and property interests. Regrettably, сonstitutional-legal mechanism of
matching legal norms with constitutional-legal values failed this time.
I would like to say a few words about the period of execution in enforcement proceedings. The execution period, as it is, appears to be of great importance in the mechanism of limiting the debtor rights and that of ensuring
the creditor rights. At that, the execution period can influence the extent to
which the creditor rights and interests are protected. Now the Federal Law
«On enforcement proceedings provides for a two-month period of execution
and enforcement measures. It should be noted that the given period isnot
preclusive. At the same time, legislation stipulates as a general rule a freewill execution period which at present is 5 days. The above rules do not seem
to ensure in practice the balance of interests of the parties to enforcement
proceedings. On the one hand, a rather short term of free-will execution is
ineffective in cases of large property (pecuniary) claims, but an execution
fee in the amount of 7% of the sum of the debt levied after 5 days and the
lack of powers for the court bailiff-executor to approve on line the schedule
of settling the debt is likely to encourage the debtor to hide to hide his/her
property. Surely, we are talking of bona fide debtors. The state must grant
maximum tools to personalize legal actions against the debtor, enforcement
proceedings included, at the same time, it should define mala fides behavior
of the debtor (violation of settlement schedule, hiding property from the
1
See: Levying recovery as per execution documents on the only dwelling in international and
cross-border law and judicial practice of constitutional supervision // Cross-border practice of
constitutional supervision. The Russian Federation Constitutional Court. 2012. Issue 189. P. 7–9.
2
See: Dissenting opinion of the RF Constitutional Court judge N.S. Bondar on the Ruling
of the RF Constitutional Court dtd. 14 May, 2012 N 11-P “On the case of supervising validity
of a provision contained in § 2, part 1, art. 446 of the Russian Federation Civil Procedure Code
in connection of complaints filed by citizens F.H. Gumerova and U.A. Shikunov” (Vestnik of
the RF Constitutional Court. 2012. N 4).
325
III. National doctrine of enforcement proceedings
court bailiff-executor, etc.), apply rather serious state enforcement measures
(limitations to both property and privacy spheres). So far, we per se waive
the first the first stage claiming that execution proceeding is synonymic to
state enforcement. Being perfectly aware of the level and perception pattern
of their obligations by a lot of debtors it is still thought to be valid to pay more
attention to the possibility of introducing into legislation tools of personalization of legal enforcement.
Taking into account the above, it seems quite reasonable to consider a
two-month term for execution actions and applying enforcement measures.
Why do we need it? On the one hand, both legislation and law enforcement
practice assume that a two-month term is often not enough for complete
execution unless we deal with fairly simple cases. On the other hand, we have
enshrined in our legislation an approach which brings about introduction into
domestic legislation the category of reasonable execution periods interpreted
in terms of the European Court of Human Rights practice. Thus, fixed
period does not involve any meaningful execution functions. The category
of a reasonable execution term is seen to be preferable, as with due judicial
supervision, it is more likely to elicit the real scope of the court bailiffexecutor work in each enforcement case. At the same time, to minimize
possible abuse on the part of the creditor it is viable to determine that in any
case the reasonable period cannot be less than 2 months. In other words, if
in the opinion of the creditor, the period is clearly beyond reasonable he has
the right to seek legal redress. On analyzing the scope of execution actions of
the court bailiff-executor the court will take an adequate decision of violating
the reasonable term of enforcement.
Such a model of execution periods in enforcement proceedings is certain
to assume a high level of trust to both the judicial system and court bailiff
service authorities, yet its implementation ensures, to a greater extent, the
balance of interests, guarantees the creditor rights, and, in terms of free-will
execution, it also creates more justifiable prerequisites of forthcoming state
enforcement.
M.Z. SCHWARTZ,
PhD, Associate Professor,
Saint Petersburg University
Limits and consequences
of restrictions on the debtor’s rights
he topic of the present conference is of great interest not only per se but
T
for me as a participant of the first conference in St. Petersburg it is of
special interest since their topics coincide.
During this period the Russian legislation has made progress in understanding the phenomenon of the debtor non-property rights limitation. It is
enough to cite the Russian Federation Constitution Court Ruling of 03 July
2014 N 1561-O which, in essence, confirmed the thesis stated at the St Petersburg conference on inadmissibility of establishing restriction to leave the
country as injunctive relief.
The legislator has also updated the given institute over this time.
Yet, it is clear that interpretation of the institute of the debtor rights
limitation has not been fully completed either by the Constitution Court or
theory. Such interpretation becomes quite vital at the threshold of extending
the list of ways of such limitation.
In this connection, I think it necessary to propose the respected audience
to discuss several interrelated thesis as per the topic of the conference.
First. It is necessary to define the notion “the debtor rights limitation”.
I believe that this notion does not have to be limited by only immediate
tools of affecting the debtor, his property (arrest of property) or personal
freedom (limitation of his right to leave the country or prohibition of driving
the vehicle). Making data on availability of enforcement proceedings
started against the debtor public information is also limitation of his rights.
If provisions of art. 6.1 of Federal Law “On enforcement proceedings” are
to be considered in the light of principles and ideology of legislation on
protection of personal data it becomes obvious to conclude that in general
constitutional-legal context public availability of such information is the
debtor rights limitation on his inviolacy of privacy, the right to block out
such data from outsiders. Yesterday our German colleagues reported that
information listed in the debtor register is available to third persons only if
lawful interest in acquiring it is confirmed. In Russia such information is
available to third persons without limitations. Certainly, such availability
ensures protection of interests of prospective creditors enabling them to
prudently avoid any deals with the party the information on which is in the
database enforcement proceedings. Yet, it is also evident that such availability
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M. Schwartz. Limits and consequences of the debtor rights limitations
of quite personal data is limitation on respect of privacy, makes it possible
to collect and distribute information on an individual without limitation, it
affects the debtor reputation and not only his legal relations with prospective
or existing contractors but also his personal relations. Therefore, it would be
unreasonable to confine the notion of “the debtor rights limitation” only to
certain measures of influence on the part of the court bailiff-executor or the
court. While defining whether the debtor is restricted in his rights or not we
are obliged to decide this issue taking into account cumulative legal impact
of affecting him since the moment of starting enforcement proceedings
including indirect effect and such limitation of rights which does not look
so outwardly but in reality restricts his rights.
Second. I think it inadmissible to develop the institute of the debtor
rights limitation until the mechanism of natural individuals’ insolvency is
introduced. Let me make a loud statement: until the law on natural persons’
insolvency is introduced current rules on temporary restriction of the right to
leave the country are non-constitutional as long as they are not temporary but
perpetual. If the citizen cannot pay to all his creditors but still has some money
he will not be able to leave the country until he settles in full all his debts. Such
limitation cannot be recognized as proportional. In advanced law and order
systems the citizen in similar circumstances can get free of debts declaring
bankrupt and acquires the chance to travel. There is no such possibility in
Russia, so the impossibility to leave the country becomes perpetual. I believe
that further development of the institute of the debtor rights limitation is
inacceptable until the law on natural individuals’ insolvency is introduced
and applied at full capacity; until that time limitation of the right to leave the
country cannot be implemented.
Third. Enforcement proceedings in general is a very specific mechanism
of motivating to execute judgmental responsibilities in the sense that the
nature of this responsibility, as a rule, becomes impersonal. The way I see
it impersonality means that, on the whole, it makes no difference for the
court bailiff-executer what debt is to be recovered – be it a loan debt, a
tort liability debt, an income tax debt or a pension contribution debt. As a
rule, we think of the nature of the debt in enforcement proceedings at the
stage of distributing the recovered sum among creditors to define priority of
their satisfaction. Certainly, there are other rules of differentiating execution
process depending on the nature of liability to be enforced but, in general,
enforcement proceedings make impersonal claims to be executed.However,
such impersonality is inacceptable in regard of limitation of the debtor nonproperty rights. Let me give an example. As for proportionality there are no
objections to limitation on the right to leave the country or drive a vehicle
329
III. National doctrine of enforcement proceedings
to motivate the debtor to execute his maintenance obligations (coming back
to the previous thesis let me add: alimony payments do not cease in case
the citizen declares bankrupt, therefore to enforce him to settle the debt by
perpetual limitation of the right to leave the country must be recognized as
proportional to the nature of the debt and counter to the creditor interest).
Yet, such limitations introduced to motivate the tax-payer to execute his tax
obligations in relevant enforcement proceedings must be assessed not only
in the context of enforcement proceedings principles but rather within the
principles of tax law. In other words, the question must be formulated in the
following way: does the nature of a tax liability allow for such noneconomic
enforcement to settle the debt or does the state as a tax-creditor have no right
to strive for its settlement using such stimulation techniques? The same is true
for recovery of administrative fines. In general, any form of noneconomic
non-property enforcement must be assessed taking into account its agreement
with the nature of the protected right. This nature is different, the best proof
of which is priority of satisfying claims that vividly demonstrates different
“weight” of subjective rights, their value in respect of each other. It is
impossible to ignore this differentiation while seeking a solution to the issue
of admissibility of these or those measures of limitation of the debtor rights
as we are talking of affecting not only the debtor property but also the person
himself.
Fourth. The problem of perpetual personal limitations highlights another
aspect of the problem. The tendency to develop non-property means of affecting the debtor i.e. personal limitations, as it was repeatedly stressed yesterday, is determined among other factors by the fact that nowadays measures
of pecuniary influence tend to lose their efficiency. It is an understandable
and justified reason for raising the issue. However, extending the list of such
measures and possibilities of their application must not cause denial of the
fundamental rule of both civil pecuniary turnover and tax law – in contemporary law obligated right-holders are liable for their obligations to the extent
of their property but not their personality. Loss of efficiency of pecuniary
enforcement measures cannot justify denial of this principle and shift of the
center of balance to the personality. Yet, the tendency to develop non-property limitations leads to the fact that the debtor is becoming more and more
evidently the object of enforcement remaining the subject of enforcement
proceedings only in respect of procedure. However, the debtor is and must
remain the subject of enforcement proceeding in all respects but not only as
“a participant of enforcement proceeding” as the procedure the rules of which
the court bailiff-executor applies. Being a touchstone, a most demonstrative
indicator of the state of legal and economic relations enforcement proceeding
330
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