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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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G. Uletova. New concepts in the sphere of enforcement proceedings
all the best that the Federal Law “On Enforcement Proceedings” contains
now and that has proven its practical efficacy1.
In our opinion, legal science must play a more significant role in perfecting
state policy conception of enforcement proceedings as well as raising the
RFBS activity importance since interpreting, propaganda, popularization
of state enforcement policy should be incident to scientific approach to its
formation. To this end, decline in law and legal science causes anxiety that
was expressed by a famous native scientist S.S. Alekseev at the beginning of
this century. The scientist stated while giving reasons for commercialization
of science, its direct dependence on market requirements that its outcome
is “loss of awareness and understanding of law identity as highly significant
social reality, its view-formation, intellectual and practical value”2. This
conclusion can hardly be found outdated today including the sphere of
enforcement proceedings. Legal science is a most essential component of
1
According to the Russian Federation President's regulation of 28, November 2000
N 534- RP there was formed a task group to reform the Russian judicial system within the
framework of which it was decided that it was necessary to further improve enforcement
proceedings legislation taking into account the best practices of applying special federal laws
“On Court bailiffs” and “On Enforcement proceedings”. Later with the RF Ministry for
Justice there began to work a task group on developing the draft of the RFCEP which within
quite a short period of time managed to work out and publish in different legal editorial
houses the structure and summary of the draft. Codification impulse was given by All-Russia
scientific-practical conference “Constitutional basic framework of organization and operation
of public authority institutions in the Russian Federation” (20–21, April 2000, Yekaterinburg)
sponsored by civil procedure department of Ural State Law Academy. Participants of an international scientific-practical conference “Problems of protecting rights and lawful interests
of citizens and organizations” that took place in Sochi on May, 23–26 2002 approved model
structure of the RFCEP draft proposed by the task team and thought it reasonable to speed
up the draft development. General requirements to the draft of the Code were formulated
at the conference: structuredness, consistency, availability to the enforcer and enforcement
procedure participants, conformity with economic basis of modern Russian society. The task
team kept actively working at the project and by October 2004 the development of the first
codified source in the sphere of enforcement – the draft of the RFCEP was completed. It was
presented at a regular international scientific-practical conference “Doctrine of civil arbitration process and enforcement proceedings: theory and practice” that took place in Sochi on
October, 20-23 200 4.The leader of the task group, professor V.M. Shestuk, took the floor on
the outcome of the RFCEP draft development. The Conference participants approved the
RFCEP draft, thought it reasonable to publish it so that it could be widely discussed by legal
community; they also decided to send the draft and the Conference recommendations to
the RF State Duma. For further details see the history of development and discussion of the
RFCEP: Conception of judiciary system development as well as the system of free-will and
forced execution of the RF Constitutional court decisions and decisions of general jurisdiction courts, arbitration, mediation courts and the European court of human rights: col. of sc. art.
Krasnodar, St. Petersburg: Legal press center, 2007.
2
Alekseev S.S. Ascending to law. Search and solution. M. 2001. P. 522.
341
III. National doctrine of enforcement proceedings
state policy, and if it loses its tools of affecting the public, policy and law
it should not go unnoticed on the part of the researcher or the state. Legal
views and conceptions are of utmost importance for shaping the model of
legal regulation, updating legislation, improving methodology of interpreting
legal norms, law enforcement process, the process of execution of taken
decisions, first and foremost, of jurisdictional acts the fulfillment of which
ensures protection of violated rights and freedoms1.
1
Conception of judiciary system development as well as the system of free-will and forced
execution of the RF Constitutional court decisions and decisions of general jurisdiction courts,
arbitration, mediation courts and the European court of human rights: col. of sc. art. Krasnodar,
St. Petersburg: Legal press center, 2007.
D.B. ABUSHENKO,
Doctor of Laws, Associate Professor
of the Urals State Legal University
On the issue of admissibility
of a civil-law offset at the initiative
of a court bailiff-executor
n accordance with art. 410 of the Russian Federation Civil Procedure Code1
I
(hereinafter – RF CPC) “liability ceases wholly or partially by means of
a setoff of a counter claim of the same kind the term of which is mature or is
not stated or is determined on call. An application of one party is enough for
the setoff”. At the stage of executing a judicial act p. 1 of art. 88 of the Federal
Law “On Enforcement Proceedings”2 provides that following the petition of
the creditor or the debtor or at his own initiative the court bailiff-executor sets
off the counter claims of the same kind that are confirmed by enforcement
documents on recovery of monetary resources on grounds of which enforcement proceedings were initiated with the exception of cases stipulated in the
Russian Federation legislation3. How admissible is termination of judgment
execution specified by the court on grounds of a unilateral deed of the court
bailiff executor?
For one thing, overall Russian legislation admits penetration of public
subjects into mechanics of termination of civil law obligations. Paragraph 1 of
art. 417 of the RF CPC contains a general reference blanket rule (“obligation
terminates wholly or partially on grounds specified in the current Code, other
laws, other legal acts or an agreement”), which, certainly, makes it possible de
jure and as per delegated acts to determine specific grounds for termination
including ones connected with willingness of public subjects. The RF CPC
itself also contains a specific norm – p. 1 of art. 417 of the RF CPC envisages
that if as a result of issuance of a state body act the execution of an obligation
becomes impossible wholly or partially, the obligation terminates wholly or
partially in the relevant part. Yet, it is clear that the given norm is meant for a
specific case-the state body act itself creates a legal hindrance for executing the
obligation. On the contrary, there are no legal obstacles for proper executing
the obligation in offsetting of counter claims. At the same time, referring to
the content of part 1 of art. 88.1 of the FZ “On Enforcement Proceedings”
1
Collection of the RF legislation. December 5. 1994. N 32.
2
In FL ver. of 23 December 2013 N 441-FZ “On Amendments into Federal Law of On
Enforcement Proceedings” (Collection of the RF legislation. December 30. 2013. N 52 (part 1),
art. 7006).
3
Let us also note that the right to set off counter claims of the same right confirmed by
enforcement documents on pecuniary recovery is referred to enforcement actions by the FZ
“On Enforcement proceedings” (p. 16.1 part 1 art. 64 of the given law).
344
D. Abushenko. A civil-law offset at the initiative of a court bailiff-executor
one can note that the legislator logics suggests that the stage of enforcement
proceedings grants the court bailiff-executor quite special powers –he himself
can implement civil law tools without declaration of willingness of the creditor
or the debtor. How warranted is such granting?
Indeed, the logics of executing judicial acts by enforcement bodies calls for
performing such actions that could lead to achieving target legal effect with
maximum speed and minimal costs. In this respect, the court bailiff-executor
must have a wide range of tools including those that directly involve private
law sphere of the debtor. Indeed, if the debtor due to some reasons does not
execute a judicial act of his free will, it is necessary to affect not only his will
(through indirect enforcement) but also to directly penetrate his pecuniary
sphere. In the latter case, it will be quite reasonable and justified to forcibly
withdraw the debtor property (in view of later sale), to perform actions aimed
at state registration of the debtor property etc. In this regard, civil law offset is
the most “harmless” measure- eventually, it is needless to take enforcement
measures at all. Ignoring private interest (let us repeat: we mean cases when
neither the debtor nor the creditor are not willing to set off) seems outwardly
quite justified – authoritative powers prevail in enforcement proceedings;
as a rule, the debtor wiliness is not taken into account when enforcement
measures are implemented.
However, let us ask a question: does the offset institute really allow to
ignore the will of the parties in cases when obligation terminates at the stage
of executing a judicial act? It is clear that we do not mean current legal
regulation, it is necessary to discuss doctrinal interpretation of the problem –
are there any reasons that could be considered as a principal hindrance to
implement a civil law offset carried out solely at the discretion of a court
bailiff-executor?
The first thing we would like to pay attention to is – ignoring the will of
the creditor (recoverer).
On the one hand, it is within the framework of traditional Russian civil law
construction of a setoff that can be implemented following petition of any party
including that of the debtor. But there is a radical difference – the counterparty
to the deal does not want to terminate the obligation either! Therefore, the
situation must be considered at another angle; the creditor due to some reason
thinks that it is in his interest to execute the obligation the way the court ruled1,
the debtor (who, at the same time, is the creditor in the counterclaim) similarly
1
The framework of this article does not enable us to specify motives of such behavior of the
creditor, yet, let us notice that, overall, they can be divided into two main groups:
– the first one concerns some or other reasons that give the creditor grounds to assume
that the counterclaim (in which he is the debtor) does not really fit the offset despite its judicial
345
III. National doctrine of enforcement proceedings
does not want to implement the offset institute, but at this time a public entity
penetrates civil legal relations, and at its discretion they are wholly or partially
terminated. Can such termination take place in defiance of the creditor will?
We believe that it is truly wrong to ignore the creditor (recoverer) will in this
case. If the will of the debtor can really be ignored (he does not execute a
judicial act of his own free will and must face negative pecuniary consequences
including the case of termination of counterclaims against his will) but the will
of the creditor (recoverer) here is determinant. To a certain extent, enforcement
proceeding is dependent on the creditor (recoverer) will, and certainly, it is
not for a court bailiff-executor to search any other ways of terminating the
court – ruled obligation instead of the creditor.
Secondly, the very availability for the court bailiff-executor of the power to
implement setoff as per enforcement orders handled by him (no matter what
we think it to be – an additional advantage for the parties of the enforcement
proceeding or, vice versa, a disadvantagethat makes legal “being” of the
obligation less predictable) puts other subjects of enforcement proceeding in
one-sided situation. Whom do we mean here? The thing is that the content of
norm p. 1 art. 88.1 of FZ “On enforcement proceedings” seems to envisage
that “back-to-back” enforcement writs were filed with one department of
the court bailiff service, and moreover, enforcement proceedings initiated
according to them are handled by one and the same court bailiff-executor.
But quite different situations are possible:
– enforcement proceedings are in one department the court bailiff service
but they are initiated by different court bailiff-executors;
– enforcement proceedings are in different departments of the court
bailiff service;
– enforcement proceeding is initiated in respect of only one of counter-
claims while an enforcement writ in respect of another claim is filed
with a bank or another credit organization1.
confirmation – for example, if he is convinced in unlawfulness or invalidity of judgment, or if
the creditor believes that there are substantive limitations to the offset;
– the second group is explained by purely economic reasons – for instance, the creditor is
sure that the court decision where he is the recoverer will be executed, yet, accessory obligations
that ensure its enforcement, due to prolonged period of non-execution, will make it possible to get
material gains or at a certain moment enforcement might be unprofitable for the creditor taking
into account public legal obligations of the creditor himself arising due to such enforcement (for
example, because of taxation it might be more profitable for the creditor to get payment several
days later in the next fiscal period).
1
As per part 1 of art. 8 of the FZ “On enforcement proceedings” the enforcement document
on withdrawal of monetary assets or their arrest can be submitted to the bank or some other
credit organization by the recoverer himself.
346
D. Abushenko. A civil-law offset at the initiative of a court bailiff-executor
It is evident that the law can be changed to enable the court bailiffexecutor to implement setoff even in cases when enforcement proceeding
on a counter claim is handled by a different court bailiff-executor or when
an enforcement order is filed with a bank or another credit organization.
But that does not radically change the above given thesis of one-sided situation – the court bailiff-executor can learn de facto about availability of
“back-to-back” enforcement writ and the declared will of the recoverer to
enforce it only from the parties of enforcement parties. Unless the parties
directly inform him (without interest to offset by both parties they are hardly
motivated to give such information) the norm on the right of the court bailiffexecutor to implement setoff will be of little effect. Thus, even if grounds for a
court bailiff-executor to implement setoff are formally extended the subjects
will remain de facto in one-sided situation – counterclaims of some will be
“in sight” of the court bailiff-executor (and so forcibly terminated) while
existence of counterclaims with other subjects will remain unknown to the
court bailiff-executor (and that will mean that each of the initiated enforcement proceedings will be executed in the” routine” way).
Finally, the third thing is connected with predictability and stability of
turnover. It is not a norm for private legal sphere when clearness in existence
of civil law obligations is not defined by the court or the parties themselves
but by a certain public subject. It is obvious that in certain cases the public
subject should have powers the implementation of which, in one way or
another, will affect emergence, change or termination of civil legal relations.
But minimization of costs in enforcement proceedings (and in our opinion, it
seems to be the main and, essentially, the only motive for a Russian legislator
to grant the court bailiff-executor this specific power), surely, cannot be a
self-contained cause of it.
We believe that the above stated grounds cast doubt on reasonableness of
the current legal regulation. Yet, let us put a more practical question: are there
any other reasons but purely doctrinal ones to substantiate inferiority of the
construction proposed by the legislator? In our opinion, if we are to assume
that the court bailiff-executor can, of his own free, exercise civil law offset
of counter claims it will cause a great number of action-oriented problems.
Firstly, it is important to define; is the offset exercise by the court bailiffexecutor his right or duty? If it is his right, then this discretion causes an evident
uncertainty (one court bailiff-executor will set off, another will not). If it is his
duty, then what are the consequences of its omission? Can other interested
persons (for instance, other recoverers in consolidated enforcement proceeding)
demand that the court bailiff executor should perform this duty and if he does
not resort to judicial protection ( a complaint against lack of action)?
347
III. National doctrine of enforcement proceedings
Secondly, inadmissibility of setoff can be implied by the law or agreement
(art. 411 the RF CPC), but the court bailiff-executor is not even aware of the
content or character of the legal relations ruled by the court – the delivered
enforcement writs contain only resulting summery of judicial acts. How must
the court bailiff-executor get hold of relevant information? How admissible is
it at all for the court bailiff-executor to qualify civil legal relations of the parties when the court rule does not contain express statement on admissibility
(inadmissibility) of setoff1?
Thirdly, “the offset of counter claims can affect interests of third persons
who take a privileged position or have priority right over some of the parties
to offset legal relations to satisfaction at the expense of the debtor”2. How
must the court bailiff-executordetermine that the offset does not affect the
interests of such persons?
Fourthly, what is to be done with the order of priorities of terminating
obligations – how is the court bailiff-executor to know what part of the sum
to be recovered must be terminated foremost as the main obligation or, vice
versa, collateral?
There may be other difficulties worth mentioning3. However, in our opinion, what has been stated above is enough to raise the question of necessity
to amend the current version of p. 1 art. 88.1 of the FZ “On Enforcement
proceedings”. Premature penetration into private law sphere does not only
infringe some abstract notions of reasonable legal regulation but also will
ultimately cause infringement of legal rights and bring about new lawsuits.
1
Let us note that some researchers have already paid attention to this aspect (see, for
instance: Galperin M.L. New law on enforcement proceeding: optimal procedure institutes or
break of the substantive basis? // Law. 2014. N 4. LRS “ConsultantPlus”).
2
Sarbash S. Termination of obligations by set off in arbitration practice // Economy and
law. 2001. N 10. P. 83.
3
For example, in some cases the court bailiff-executor will have to define the content of
foreign law norms “To offset” (ref. Galperin M.L. Ibid.).
А.А. PARFENCHIKOVA,
Post-graduate Student of the Civil Procedure Department
at the Ural State Legal University
Limitations of the debtor personal rights
in terms of international legal standards
ntroduction provisions. The problem of searching for the most effective tools
I
of execution of court decisions and acts of other jurisdictional bodies is of
utmost importance in enforcement proceedings. Unfortunately, limitations
of pecuniary nature are not always fruitful, so nowadays there is a need to
develop additional methods of enforcement for dishonest debtors in order
to restore the creditor violated rights.
By virtue of their specifity limitations of the debtor personal rights – the
so called measures of indirect enforcement – take a special place among the
toolkit of enforcement measures that are at the disposal of the court bailiffexecutor to prevent the debtor from avoiding execution of court decisions and
other acts. Affecting solely the debtor personal rights, measures of indirect
enforcement are meant to motivate unassisted execution of prescribed
requirements and in this sense, they are stimulating as the court bailiffexecutor is only to issue a writ of imposing a relevant limitation and it is the
debtor who freely executes this or that act which makes it possible to avoid
long procedures of recovering property.
Today temporary restriction on leaving the Russian Federation is widely
applied in Russian enforcement proceedings (art. 67 of the Federal Law “On
Enforcement Proceedings”), besides, on January, 15 2016 amendments that
enable the court bailiff-executor to temporary restrict the debtor’s right to drive a
vehicle come into force, therefore, it is quite reasonable to state that the Russian
system of enforcement proceedings tends to expand application of just such-like
measures. Conventions and declarations. While talking of restricting personal rights
it is quite natural to raise an issue of admissibility of such limitations as well as
whether they correspond to basic standards of human rights and freedoms. Since
personal rights are doubtlessly ranking among top-priority ones, their limitation
must not be wanton or contrary to fundamental legal principles.
It should be noted that limitations of citizens’ personal rights are
intrinsically due to the fact that each individual lives in society andindividual
freedom is manifested in interaction with its other subjects. Thus, not all
guaranteed rights and freedoms are absolute or unlimited as each citizen has
obligations to other people, society and the state.
International law provides for a possibility to limit individual rights and
freedoms under certain conditions.
350
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