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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. Schwartz. Limits and consequences of the debtor rights limitations
must not be heir pawn, and ensuring its efficiency and effectiveness must not
be achieved at any cost. If debtors receive part of their salary “off the books”
and by means of it evade enforced execution of their liabilities the problem
of “illegal” salaries must not be solved by enforcement proceeding measures
and the court bailiff-executor must not be held responsible for non-execution
of the judgment due to the given reasons and rack his mind what to invent
to make the debtor pay out of this “illegal” salary. Enforcement proceeding
cannot be a tool of affecting behavior of economic agents since being an extension of justice it is beyond economy and beyond policy. It is unreasonable
to try to execute the judgment, so to speak, at any cost. In the long run, low
efficiency of judicial acts execution is also a factor of affecting the behavior
of economic relations’ parties that will encourage each other to legalize their
profits and so on out of fear of refusal to enter economic exchange (the way
it happens in Russia now when if your balance-sheet is in the red nobody is
going to give a loan or supply goods thus making them show profits in their
balance sheets and pay taxes).
The context of the topic of our conference makes us come back to the
issue raised by our colleague from Kazakhstan in his yesterday’s report: how
many personal limitations can be applied to the debtor – one or several? If the
debtor has a driving license and a hunting license is it possible to restrict his
right to leave the country and the right to drive and the right to hunt or can
only one of these rights be restricted? And if the debtor does not have any
special rights is itenough to restrict his right to leave the country? And if it
is possible to restrict only one right what right should it be? Is it the one that
is most painful for him? What about the equality of all before the law then?
One has only to start this line of reasoning and searching for the most morbid
means of influence will turn out to be extremely attractive for the court bailiffexecutor and we can only guess what it can lead to.
Why have I linked it to perpetuity of personal limitations? Because even
now there is such a reason for ceasing enforcement proceeding as nonpossibility of execution due to the fact that the debtor has no property. But
possibility to apply personal limitations gives grounds to raise a question if the
court bailiff-executor will cease enforcement proceeding in case the debtor
proved to have no property. It is not difficult to suggest that he will not as
ceasing enforcement proceeding means abandoning personal limitations.
If enforcement proceeding ceases because of non-existence of property the
term of application of personal limitations is very short and, thus, inefficient.
It means that enforcement proceeding will continue exclusively to apply these
noneconomic personal limitation measures to affect the debtor. And this, in
turn, will mean transfer the focus of influence from property to personality
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III. National doctrine of enforcement proceedings
making an individual the object of influence. And all this will be done for
the sake of enforcement proceeding efficiency. This line is dangerous.
Enforcement proceeding is not aimed at protecting the creditor from the risk
of non-execution of the claim, this risk goes along with pecuniary turnover
and will always do. Hence, limits of affecting the individual, if such influence,
in general, is recognized as admissible must be very constrained. It is nonconstitutional to continue enforcement proceeding for the sake of being able
to affect the person after non-existence of property is established.
G.D. ULETOVA,
Doctor of Laws, Professor,
The Russian Presidential Academy
of National Economy and Public Administration
New instruments of legal regulation
and the Concept of the development
of enforcement proceeding in Russia
n the context of ongoing judiciary reform carried out in modern Russia and
I
insufficient satisfaction of the society with its midterm results the problem
of trust to judicial power has become quite vital1. However, it is obvious that
not only judiciary but also court enforcement bodies are responsible for its
results. The Russian society constitutional stability now depends to a large
extent on the effective work of judiciary and court enforcement bodies.
In the face of global challenges and threats both judges and court enforcersbailiffs, who launch real mechanism of protecting violated rights through
court enforcements proceedings, being aware of their mission and duty in the
society, have to improve the efficiency of their activities in order to strengthen
protection of civil, labor, family and other socio-economic and political rights,
thus warranting confidence of Russian citizens in tangible force of law.
Background history of developing justice testifies to the fact that alienation
and mistrust for fundamental state institutions arises from insufficiently
effective interaction of the individual and the state. Different scientific
conceptions offer various options of developing interaction and restoring
trust towards state institutions including enforcement bodies. In our opinion,
the concepts of morale and fairness, reasonable balance of personal and
publicinterests, interests of the individual and the state, the debtor and the
creditor (in terms of enforcement proceedings) must be determinative in any
modern conception. They should take into account high humanistic mission
of the individual, which ultimatelyis manifested in people’s confidence for
the authorities and the authorities’ confidence in people that is confirmed
and tested by efficient supervision institutions established in the state. Such
an approach is quiet crucial for Russia, especially at present in the face of
unprecedented challenges not only for the statebut for the whole Russian
society.
V.D. Zorkin, the chairman of the Russian Federation Constitutional
Court, while delivering his lecture “Civilization of law” at the IV Inter-
1
This is confirmed by the data of public opinion polls. In particular, “only 27% of the
Russian citizens trust judicatory authorities while 38% do not trust judiciary authorities” //
Conception of the federal guideline program “The development of judicial system in Russia for
the period of 2013–2020”. Approved by the RF government regulation of 20, September 2012
N 1735-r // LRS “Consultant Plus”.
334
G. Uletova. New concepts in the sphere of enforcement proceedings
national Forum in Petersburg “outlined main concepts of upgradeable
paradigm of law stressing the necessity” to preserve a share of healthy
conservatism within the meaning of internal correlation of law, morale and
religious values. Premature burst of this rooted in centuries internal correlation of basic social regulators can prove to be crippling for societies with
traditional ethnic, ancestral, family, confessional, moral standardization”1.
Let us bring into focus special importance of such a notion for the Russian
legal system as a whole and court enforcement proceedings as its constituent in particular. In view of the above described tendencies one must pay
special attention to coordinated interaction of activities of lawmaking and
law enforcement bodies, civil society institutions, development of a better
doctrine of juristic elaboration2, training top-qualification judiciary staff
who must be targeted at ensuring protection of personal rights and freedoms in all spheres without exception. The Russian Federal Bailiff Service
(RFBS) plays a special role in the mechanism of protecting rights, which
makes actual the magnitude of its activities in the context of ensuring full
and timely execution of jurisdictional bodies judgments and enhancing
authority of both the judiciary powers and the state as a whole. To achieve
this purpose an ongoing process of updating the system of enforcement
proceedings is taking place in the country but, unfortunately, it is not always
based on systematic approach and circumspect state policy in the sphere
of enforcement proceedings. Taking into account the above it seems quiet
crucial to present scientific substantiation of further updating the given state
policy conception. In our opinion, in contemporary Russian environment
it should meet the following requirements:
1) be based on the rule of RF Constitution and generally accepted
principles and norms of international law;
2) be in line with the judiciary reform as well as reforms in civil, civil
procedure, administrative and administrative procedure legislation
taking place in the country;
3) be based on the principles of fairness, lawfulness, equality and be the
basis of responsible interaction of the individual and the state, reflect
civility of these interactions;
4) differ in form, structure, directions and levels;
1
Zorkin V.D. Civilization of law: modern context. URL: http//pravo.ru/news/view/42653/
2
A cardinal change in the conception of legal education and legal instruction of population must gain top priority, yet, the conference organizers do not review this issue due to the
prescribed volume of the article. For further details, see: Yakovlev V.F. On priority measures to
improve the quality of higher education (Speech at the All-Russia Conference of Russian Lawyers
Association. Moscow, May, 26 2009) / Lawful state; issues of formation. M., 2012. P. 472–475.
335
III. National doctrine of enforcement proceedings
5) include elements of strategy and tactics as well as have an anti-crisis
concept (option) of its development.
Execution of judicial acts as well as acts of other bodies in respect of
debtors-citizens and debtors-organizations must remain one of priority
areas of the Federal Bailiff Service activities1, which, in our opinion, puts
on the agenda the issue of relieving enforcement bodies from redundant
and nonrelevant functions and granting them some additional ones due to
technological characteristics of enforcement. To carry out state policy in
the sphere of enforcement it is necessary to establish as soon as possible a
more modern and efficient (state) organizational mechanism of executing
jurisdictional acts able to change to adapt to changing social and economic
environment which is impossiblewithout solving the issue of serious motivation for court bailiff-executors’ activities (it is high time for our legislators to
realize that). Facing the lack of desire on the part of the state to adequately
motivate court bailiff-executors’ activities (taking into account experience
of the countries with more successful cases of judgment enforcement) one
must not exclude, in perspective, possibility to put into life the offered conceptions on flexibility of organizational models of enforcement proceedings
and competitive competence of various enforcement bodies2. It is necessary
to enhance responsibility and commitment of State government bodies
and administration at different levels and with different functions in timely
execution of judgments as well as to legalize and promote private structures
rendering services in execution of judgments granting them certain additional
powers in the sphere of voluntary and forced execution of judiciary acts and
other jurisdictional acts (on condition their activities are in accord with
generally accepted principles of enforcement proceedings) while the state
retains its supervision functions.
It is important that the conceptual component of the reviewed state
policy as a most significant politico-legislative and politico-economical
category must be correlated with the problems of strengthening confidence
in the state, the authority of law, judicial power since interaction of the
of the individual and the state should be its focus and notional meaning. It should be manifested in state policy in the sphere of enforcement
1
Parfenchikov A.O. Problem aspects of enforcing judgments and acts of other bodies in
respect of legal entities in Russian Federation // Enforcement of acts of courts and other bodies
in respect of legal entities (organizations and businessmen). Problem aspects: col. of materials
of Intern sc.-pr. conf. / Exec. ed. Parfenchikov A.O and Valeev D.H. M.: Statut, 2013. P. 8.
2
See: Yletova G.D. Sources of enforcement law in the Russian Federation: Syn. of dis. ... dr. in
jurisp. M., 2007. P. 50–56; Yletova G.D. The draft of a Federal Law “On enforcement operation of
the private court bailiff-executor” (author’s). 2 pub. rev. and enl. ed.: sc. pub. St. Petersburg, 2006.
336
G. Uletova. New concepts in the sphere of enforcement proceedings
proceeding as it reflects the balance of interests of the individual and the
public, the state and the citizen, being an enforcement implementer of
their legitimate claims confirmed by a court decision. Our approach to
such an interpreting of state policy essence in the sphere of enforcement
proceedings presents humanistic understanding of the law goal itself, its
application, functioning of the state and its bodies which determines the
magnitude of voluntary execution of court decisions, a moral aspect in
court bailiff-executor activities, unforced forms of court decision execution
(by means of intensified development and application ofpretrial settlement
and mediation in enforcement proceedings).
We think that a peremptory conceptual requirement for the given policy
is that it must necessarily be based on current legislation, take into account
the content of constitutional principles and goals of legislation acts reflecting interests of the individual and the state. The laws cannot be aimed at
enforcing drastically adverse interests, contradict one another, creating
favorable environment for abuse. The law is made to be obligatory for all
which is crucially important for execution of inherently diverse jurisdictional
acts. The state policy in enforcement proceedings must not be based on
contradictory, conflicting norms and principles that are every so often
attained on industry codes and other regulatory legal acts. Otherwise, it will
be inefficient and inconsistent, and in that case the legislator must share
responsibility for the state of affairs in this sector so important for the country
and society. The director of FBS, principal bailiff of the Russian Federation,
A.O. Parfenchikov justly takes notice of lack of correlation between legislation
norms on bankruptcy and legislation on enforcement proceedings (and not
only), statingthat “today a bottleneck in enforcement proceedings in respect
of legal entities is also the conflict of two procedures of satisfying creditor’
claims towards debtor-organizations – within the framework of bankruptcy
procedure and enforcement”1. The court bailiff-executor virtually loses
all powers to carry out enforcement including attachment of property and
retains only powers to execute a limited number of execution documents2.
In our opinion, the court bailiff-executor must have more powers to supervise
solvency officers’ activities taking into account the RFBS functional purport
as well as a great number of fraudulent bankruptcies of legal entities and
businessmen with the only purpose – to avoid obligations and terminate
enforcement proceedings due to lack (non-existence) of property. We believe
that the legislator is obliged to create a legal backstop for malevolent market
1
Parfenchikov A.O. See above. P. 11–12.
2
Ibid. P. 12.
337
III. National doctrine of enforcement proceedings
participants-debtors against whom the court bailiff-executor initiated an
enforcement proceeding.
The author fully agrees with the opinion of professor U.A. Tihomirov
that we need a modern scientific conception which makes it possible to
envisage dynamics of Russian legislation development, correlation of its
branches and sub-branches, as well as to choose near-term priority laws and
an order of priorities for creating other laws in the interests of the state and
citizens, economic needs, social and political realms. The conception must
reflect both the tasks connected with transition period of market economy
formation, creation of new institutions of the state and civic society, insurance of citizens’ rights and strategic tasks of strengtheningefficiency of
legal means of influencing public relations1. Thus, the given sphere of state
policy due to its close interrelation with judiciary and the sphere of protection of rights, freedoms and lawful interests of citizens and organizations
cannot be separated from constitutional and other branch legislation, international private law and international civil procedure, economic realms
directly correlated with standards (quality) of executing court and other
decisions. Taking into account the above, “legislation shape”, “economy
shape”, “the level of citizens’ law awareness” which can be assessed with
the help of a number of indices must be pointed out as categories defining
the content of its conception. They are: a) the level constitutional principles
are expressed in legislation on enforcement proceedings; b) availability
of benchmark hard-and-fast guidelines; c) correspondence of domestic
legislation to generally accepted norms and principles of international
law; d) high degree of responsibility of enforcement bodies (their officials)
and personal responsibility of every court bailiff-executor in case of law
violation; e) conformity with current tasks of economic, social and political development, safeguards for the rights of citizens, rewards for court
bailiff-executors; f) openness and availability to the public data on the state
of affairs in enforcement proceedings.
Efficacy of the above factors determines stable necessity to update
legislation on enforcement proceedings which eventually must lead to
shaping new legislation and law enforcement, improving quality and
standards of executing jurisdictional acts. The period since the time when
federal laws “On Enforcement Proceedings” and “On Court bailiffs”
were adopted can be characterized as the period of ongoing and consistent
updating of legislation on enforcement proceedings and its application,
1
Tikhomirov U.A. General conception of Russian legislation development // Conception
of Russian legislation development. M., 1998. P. 5.
338
G. Uletova. New concepts in the sphere of enforcement proceedings
search for new, more efficient tools of enforcement. Meanwhile, over 50
federal laws on modifications, different in nature, content and importance
have been passed.
While improving state policy conception of enforcement proceedings
one must take into account different stages of legislation development
but focusing on the main goal of its development which is in accord with
legislation and law enforcement principles formed as a matter of practice
and confirmed theory; it should also take notice of modern economic
realities sprung from rigid sanctionpolicy in respect of Russia on the part
of some states. In this connection, it is quite reasonable that tendency to
strengthening “constitutional dominant” is manifested more and more
clearly due to modern challenges which are necessarily to be met by means
of efficient legal tools1. Firstly, the Constitution as the Fundamental law is
the leader in the law system and branch laws. Secondly, the Constitution
has the highest legal efficacy –all other legal acts are issued on the basis and
to implement its provisions, and in instances of disaccord the Constitution
norms prevail. Thirdly, the Constitution is a powerful reformatory factor
thanks to both the direct force of its norms and as a law creating instrument
in legislation. Fourthly, constitutional definitions are the principal
regulatory benchmark of interpretation and application of all legal acts,
improvement of legal actions. Regretfully, the given Constitution features
which reflect its generalities and specifics in the system of Russian legislation
are hardly fully used in law-making, law enforcement and execution of
jurisdictional acts.
In view of the foregoing, of special importance are legal contradictions
that deprive state policy of such a significant quality as uniformity which
is necessary in law enforcement and execution of jurisdictional acts. Being
an integral part of a mechanism for protecting violated or disputed rights of
citizens and organizations, state enforcement policy is thought to integrate
individual, state, public interests into a general system of complex, mutually
dependent components of legal, economic and social existence. Therefore,
it is necessary to have permanently functioning mechanisms of monitoring
for complying state policy in the sphere of executing jurisdictional acts as
well as in other areas of state policy with, the goals and tasks of humane
development of the society, the state, the individual (including non-state).
Such statutory prescribed monitoring is carried out bylegislative bodies,
1
Zorkin V.D. Constitution against crime // Law in the environment of global changes:
Monograph. M., 2013. P. 356–363; Tikhomirov U.A. General conception of Russian legislation
development // Conception of Russian legislation development. M.,1998. P. 5–8.
339
III. National doctrine of enforcement proceedings
courts, the prosecution office and the system of specialized bodies for executing jurisdictional acts. The quality of state enforcement policy largely
depends on their joint and efficient activities. It seems that the public by
means of its non-state institutions could more effectively influence the
state of affairs in enforcement proceedings (social councils, communities,
Councils of Elders, etc.).
Every person in Russia is guaranteed judicial protection of his rights and
freedoms. All people on the territory of the Russian Federation have the
right to resort to Russian national judicial authorities as well as international
judicial authorities of human rights protection when all administrative
remedies within the country are exhausted). The right to relief in court is
deemed natural and inalienable. Responsibility for handling applications
(claims) of citizens and organizations to restore violated or disputed rights
is imposed on general jurisdiction courts and arbitration courts within the
framework of a unified judicial system of Russia. Every citizen has the right
to appeal any actions (omission of action) and decisions that violate his rights
and freedoms in court.
Unfortunately, citizens every so often abuse the right to relief in court
including the stage of executing a court decision. The public has the right to
expect fair judgments when any court bailiff-executor actions and decisions
are appealed due to pointless grounds with the only illegal aim – to prolong
(delay) execution of the court decision; regretfully, it is not always the case
which does not only degrades the authority of enforcement bodies as they
are unable to execute the court decision within prescribed deadlines but
judicial power as the guarantor of citizens’ rights and freedoms. Sometimes,
judiciary officers do not think over the consequences of their decisions
for the creditors who have to wait for execution of the decisions taken by
them for years.
At the beginning of the XXI century judiciary reform in Russia has gained
new dynamics improving and updating native legislation, the proof of which
are new codified laws (Criminal Procedure, Civil Procedure and Arbitration
Procedure Codes, Administrative Procedure Rules) that regulate procedural
operation of courts aimed at its ultimate result-protection of violated or
disputed rights.
In our opinion, this list is not complete since it lacks a codified regulatory
act – the Russian Federation Code of Execution Procedure (hereinafter –
RFCEP) which is very important for enhancing enforcement proceedingefficiency. The Russian Federation Ministry for Justice has been working at
the draft since 2000, the code draft developers and the FBS of Russia are to
complete this difficult but essential task. The Code must retain and take in
340
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