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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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T.V. SOLOVJEVA,
Doctor of Laws, Professor of the Department
of Civil Procedure, Saratov State Legal Academy
The enforcement proceedings principles
as a guarantee for the creditor
and debtor rights implementation
he principles should reflect the standards of fair judicial proceedings which are
T
generally accepted in the democratic state community1.We must say that the
problem of legal principles is relevant in any period of state development. This is
stipulated primarily by the fact that properly formulated principles are a foundational element of effective enforcement proceedings, including proper and timely
implementation of the enforcement measures by the judicial officer (bailiff).
Until now no unified concept of the “principles” was formed in the enforcement proceedings sphere, their meaning is differently defined by both
the academics and practitioners. We should note that the enforcement proceedings principles received their first legislative recognition in the Federal
Law “On enforcement proceedings”2.
The Federal Law “On enforcement proceedings” establishes five principles
of enforcement proceedings, namely, the rule of law; timeliness of enforcement
actions and enforcement measures application; respect of the honor and dignity
of citizens; inviolability of the minimum property necessary for the existence of
the debtor-citizen and members of their family; the correlation of total claims of
the claimant and enforcement measures. However, the Federal Law “On enforcement proceedings” does not disclose the content of these principles.
The first principle which we would like to bring to your attention is the principle of legality. The principle of legality reflects the subordination of the enforcement authorities to the requirements of law, as well as their compliance with
the current legislation provisions during the enforcement authorities’ activities3.
In general, this principle is respected, but cases of the abuse of authority by the
enforcement officers during the enforcement procedure can also take place. Thus,
for instance, taking advantage of legal illiteracy of the citizens, the enforcement
officers give debtors a period five days to voluntarily fulfill the enforcement requirements after the initiation of enforcement proceedings. In case the debtor
fails to fulfill the specified requirements in time, the enforcement officer issues
1
The Concept of the unified Civil procedural code of the Russian Federation / Introduction
by P.V. Krashennikov. M.: Statut, 2015. S. 19.
2
The Federal Law from 02.10.2007 N 229-FZ “On enforcement proceedings” // the RF
Legislation from October 8, 2007. N 41. Art. 4849.
3
See.: Vinnichenko N.A., Smirnov A.F. The Federal Law “On enforcement proceedings”
commentary. October 2, 2007. N 229-FZ. M.: Jurait, 2009.
362
T. Soboleva. The enforcement proceedings principles as a guarantee
an order on collecting the enforcement fee, not taking into account the delivery
time for the resolution of the enforcement proceedings initiation1. Such actions
directly violate the principle of legality and illegally limit the debtor’s rights.
In this regard, we believe that it is necessary to stipulate the fundamental aspects
of the principle of legality in the Federal Law “On enforcement proceedings”.
The next principle we would like to consider is the principle of timeliness
of the enforcement actions. This principle is meant to provide an actual timely
fulfillment of the requirements stipulated in the enforcement document. This
principle is focused, mostly, on the protection of rights of the claimant. However,
this principle is often violated by the judicial officer for a number of reasons.
First of all, the judicial officer does not always possess the information
about the actual location of the debtor or their property. Despite the fact that
the Federal Law «On enforcement proceedings» gives a judicial officer the
right to declare enforcement search of the debtor or their property, the list of
grounds for declaring the enforcement search by budget means is limited by the
provisions of part 3 of art. 65 of the stated law. In all other cases, the search is
carried out only after the advance payment of the claimant. In other words, in
this situation, the satisfaction of the claimant’s requirements within the statutory period is put in direct dependency on the availability of funds of the latest
for advancing the expenses related to the search of the debtor or their property.
Secondly, the workload of the bailiffs does not make it possible to timely
respond to incoming complaints on the enforcement proceedings initiation.
According to the official statistics the average caseload per bailiff in the 1st half
of 2015 totaled 1500 cases. Thus, in Oryol region this indicator was 1 524 cases2,
in Vladimir region – 1344 cases3, in Ryazan region – 1 774 enforcement proceedings cases4. Given such workload rates it is difficult to talk about reasonable
enforcement proceedings time frames. In this regard, the statutory period of the
enforcement proceedings which must equal two months is not effective and is
not complied with. It seems appropriate to establish the real enforcement time
depending on the nature and amount of the requirements set in the enforcement
documents, as well as the behavior of the debtor, i.e. to establish minimum
(e.g., two months) and maximum (e.g., six months) enforcement period.
1
See: Degtyaryova G.V. Issues of the enforcement fee collecting. URL: http://udmurtiya.
arbitr.ru/ (17.10.2015).
2
The analytical report UFSSP of Russia across the Oryol region for 6 months of 2015. URL:
http://r57.fssprus.ru/ (17.10.2015).
3
Analytical report on the activities of the Federal service of court bailiffs of Vladimir region
for 6 months of 2015. URL: http://r33.fssprus.ru/ (dated 17.10.2015).
4
Analytical report on the results of the activities of the Federal bailiff service of Ryazan
region on the work results in the first half of 2015. URL: http://r62.fssprus.ru/ (dated 17.10.2015).
363
III. National doctrine of enforcement proceedings
The next principle, we need to pay attention to is the principle of respect
of honor and dignity of a citizen. Honor and dignity of a citizen are the most
important social and legal values, their implementation and protection is the
foundation on which the modern society is built1. We should note that despite
the establishment of the principle of honor and dignity in the Federal Law “On
enforcement proceedings”, its content is not disclosed. Its implementation becomes complicated in course of the enforcement action, since every restriction
of rights causes a negative attitude on the part of such individual. In relation
to the enforcement proceedings the principle of respect of honor and dignity
has to be considered from several points, namely, respect of honor and dignity
of the debtor, creditor and judicial officer. In this regard there is the need for
legislative consolidation of this principle meaning, i.e. the indication that the
principle of respect of honor and dignity during the enforcement proceedings
establishes the judicial officer, the creditor, the debtor and other parties’ duty
to use their rights and fulfill their obligations in strict accordance with the law
without humiliating the honor or compromising the dignity of all parties of the
enforcement proceedings and other individuals whose rights are affected by the
enforcement proceedings.
The next principle we are going to consider is the inviolability principle of
the minimum property of the debtor-citizen and members of their family. It is
well known that property listed in art. 446 of the Civil Procedural Code (CPC)
of the Russian Federation is not subject to seizure. Let’s take a closer look at to
the application of § 7, p. 1, art. 446 of the CPC of the Russian Federation (food
and money in the amount not less than the subsistence minimum of the debtor
and their dependents). In practice this principle is often ignored, for example,
in the definition of Perm regional court from 11.02.2015 in case N 33-1216-2015
it is stated that “low pensions, their incompatibility with the cost of living, do
not exclude the possibility of foreclosure on the debtor's pension and cannot
be considered a circumstance excusing the debtor from the judicial decision
enforcement”2. Moreover, the provisions of cl. 7, p. 1, and art. 446 of the CPC
of the Russian Federation do not apply to bank deposits. In other words, not
only the bailiffs, but the judges do not necessarily follow this principle, giving
priority to the protection of the claimant’s rights. We believe that this circum-
1
See.: Barsukov V.N. Guarantee of the constitutional right of honor and dignity during the
enforcement search // Search of debtors and their assets: national regulation and international
cooperation. The collection of 5 materials of the International scientific-practical conference.
9–11 September 2014, Vladikavkaz / Executive editors A.O. Parfenchikov, V.A. Gureev. Vladikavkaz: Olympus. 2015. P. 207–218.
2
See: Sevastyanova J. Is the bailiff obliged to respect the subsistence minimumof the debtor
in course of the debtor’s income seizure? URL: http://zakon.ru/ (21.10.2015).
364
T. Soboleva. The enforcement proceedings principles as a guarantee
stance is caused by the lack of clear definition of § 7, p. 1, and art. 446 of the
CPC of the Russian Federation.
We think that it is necessary to add the content of art. 446 of the CPC of
the Russian Federation to the Federal Law “On enforcement proceedings”,
as well as define conditions for the application of § 7, p. 1, art. 446 of the CPC
of the Russian Federation regulations, in particular, to oblige the judicial officer to identify and make sure the debtor has sufficient means of subsistence
for themselves and their family members, including bank accounts.
Regarding the principle of correlation of total claims of the claimant and
enforcement measures we can say the following. This principle is primarily aimed
at protecting the rights of the debtor, and it states that property of the debtor, the
value of which exceeds the amount of the claims of the claimant is not subject
to seizure. However in some cases the enforcement officers do not comply with
this principle, for example, when the debtor has only one property available for
foreclose, but its cost significantly exceeds the amount of requirements specified
in the enforcement document. It would be appropriate to set a maximum percentage of difference between the debtor's available assets (if it is their only property
and it is subject to foreclosure) and the amount of requirements of the claimant.
For example, the difference between the value of property seized on the basis of
the enforcement document and property claims of the claimant shall not exceed
twenty percent, otherwise the property is not subject to seizure.
The analysis of stated principles shows that they are aimed both at protecting the rights of the creditor and debtor. Thus, despite the prevalence of the
imperative nature of the enforcement proceedings, the debtor has a number
of protection means, aimed at securing a decent standard of living.
It is clear that the main guarantor of the observance and implementation
of the enforcement proceedings principles is the enforcement officer and in
some cases the court. The enforcement proceedings quality and in particular
full protection of the rights of the creditor and debtor, also depend on the
nature of parties behavior, i.e. the parties must fulfill their obligations and
use their rights in good faith.
The science of procedural law increasingly focuses on the notion of «the
abuse of right». In theory of the civil procedure law this notion is applied to
a civil procedure offence, which essence is a wrongful, unfair and improper
use of procedural rights for a selfish or personal motive1.
Any abuse of right by either judicial enforcement officers or the parties
of the enforcement proceedings leads to the violation of the basics of the
1
See: Judin A.V. Procedural rights abuse in civil enforcement proceedings. SPb.: the Law
faculty of the SPU, 2005. С. 340.
365
III. National doctrine of enforcement proceedings
enforcement proceedings, unlawful restriction of rights of the enforcement
proceedings parties, as well as preventing effective court order enforcement.
However, the noncompliance with or violation of the principles of enforcement proceedings, as a rule, is not liable to any specific provisions, which
is related to the absence of clear definition of the principles in the Federal
Law “On the enforcement proceedings”. In most cases, the application of
liability measures during the enforcement proceedings, as a rule, is left at the
discretion of the bailiff or the court.
Evidently it is impossible to foresee all possible violations of this or that
principle, but we believe that the detailed consolidation of each principle essence will lead to a more effective prosecution of the responsible parties.
In this regard, we believe that currently there is a need to change the constructive approach to the concept and principles of the enforcement proceedings.
Firstly, it is necessary to establish the meaning of these principles in the
Federal Law “On enforcement proceedings”. It is necessary because these
principles stipulate the improvement process of the legislation which regulates the enforcement proceedings, and due to the fact that these principles
ensure the correct law enforcement by judicial and enforcement authorities1.
In addition, they provide sufficient protection of rights and interests of the
enforcement proceedings parties.
Secondly, legality, being the basis of all activities of the legal state subjects
determines a specific behavior model, which shall comply with the requirements of normative legal acts and move in the same direction with them in the
future. Moreover, when applied to the enforcement proceedings, this behavior
model is unified for all parties, including the judicial officer; enforcement
proceedings parties; assisting individuals. Thus, legality, as a principle of the
enforcement proceedings, should reflect the following notions:
– the government establishes a behavior model for the enforcement
proceedings parties;
– the enforcement proceedings parties must use their rights and fulfill
their obligations within the framework of this model;
– each party of the enforcement proceedings possesses equal opportunities
for the application of material and procedural law;
– the bailiff acts within the law, i.e., within a particular model of the
enforcement proceedings;
– in case of the established behavior model violation the liability is
enforced by the state.
1
See: the Federal Law “On enforcement proceedings” commentary (V.V. Jarkov). М.:
Norma, 2009.
366
T. Soboleva. The enforcement proceedings principles as a guarantee
Thirdly, we should note the fairness principle stated in art. 9 of the Code
of Administrative Court Procedure of the Russian Federation. We believe that
this principle should be reflected in the content of the Federal Law “On enforcement proceedings”. The decree of the constitutional Court of the Russian
Federation of 12.07.2007 № 10-P1 also indicates the need to ensure fairness
while restricting the rights of possession, possession and disposal of property,
freedom of entrepreneurship and freedom of contracts. In our opinion the
formulation of art. 9 of the Code of Administrative Court Procedure of the
Russian Federation is not quite correct, since the notion of “justice” is not
defined, it is only indicated that justice ensures compliance with legislation,
the right application and interpretation of its provisions, and judicial protection of the parties. We can make a conclusion that justice is meant as aim
for administrative proceedings. Based on this provision, we suppose that the
principle of justice in the enforcement proceedings should provide protection
for the parties by means of proper and timely application of the legislation
regulations based on the existing law enforcement practice.
Fourthly, in relation to the growth of different kinds of right abuse by the
enforcement proceedings parties the principle of good faith should be stated in the
legislative provisions. We should note that the principle of good faith in Russian
legislation is stated in art. 1 of the civil code, which states that «while establishment,
implementation and protection of civil rights and during performance of civilian
duties the parties of civil relations should act in good faith» and further art. 10
of the Russian Federation Civil Code states that «the integrity of the parties of
civil legal relationship and their actions rationality are assumed». We suppose
that this enforcement proceedings principle should have a slightly different
connotation, i.e. it should reflect the specifics of the legal relations in course of
the enforcement proceedings. In this regard, the principle of good faith in the
enforcement proceedings should oblige the parties to use their rights in a fair,
accurate and open manner and fulfill their obligations. To ensure the actual
functioning of this principle it is necessary to provide a regulation, which could
be applied in case of fraudulent behavior of the enforcement proceedings parties.
Thus, the society development, and as a consequence, the continuous
improvement of the legislation stipulate the necessity for the existing principles improvement and introducing changes to the enforcement proceedings
that will provide adequate guarantees for the protection of rights and interests
of the enforcement proceedings parties.
1
The decision of the constitutional Court of the Russian Federation dated 12 July 2007
N 10-P “The case of constitutionality examination of § 3, part one, art. 446 provision of the Civil
procedural code of the Russian Federation related to the citizens complaints V.V. Bezmenov and
N.V. Calabun” // Collected legislation of the Russian Federation 23 July 2007, N 30. Art. 3988.
ОГРАНИЧЕНИЕ ПРАВ ДОЛЖНИКА:
НОВЕЛЛЫ ЗАКОНОДАТЕЛЬСТВА
И ПРАКТИКА ПРИМЕНЕНИЯ
Сборник материалов 6-й Международной
научно-практической конференции,
8–10 сентября 2015 г.,
г. Улан-Удэ, Республика Бурятия
THE RESTRICTION
OF THE RIGHTS OF THE DEBTOR:
THE LATEST LEGISLATIVE CHANGES
AND THEIR IMPLEMENTATION
Publication of the 6th International
scientific and practical conference,
8–10 September 2015,
Ulan-Ude, Republic of Buryatia
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