Resolution of the plenum of the Supreme Soviet on enforcement proceedings. Federal Arbitration Courts of the Russian Federation. Expert appraisal of property is required
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Within the framework of judicial reform in accordance with the Federal Constitutional Laws "On the Judicial System of the Russian Federation" and "On Arbitration Courts in the Russian Federation" a single judicial system... It includes and arbitration courts having federal status.
Arbitration courts are specialized courts to resolve property, commercial disputes between enterprises. They also consider claims of entrepreneurs to invalidate acts government agencies violating their rights and legitimate interests. These are tax, land and other disputes arising from administrative, financial and other legal relations. Arbitration courts consider disputes involving foreign entrepreneurs.
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The plenum of the Supreme Court of the Russian Federation adopted a resolution designed to answer questions arising in the course of enforcement proceedings. After the editing, the norm on the executive fee disappeared from the document, which was objected to by representatives of the FSSP and the Prosecutor General's Office of the Russian Federation, but some of the most important novellas - about the arrest of the debtor's only housing and foreclosure on the land under it - remained. However, now the sun has specified the limits of such a penalty.
What will change in enforcement proceedings?
Will the debtor be able to travel abroad before the termination of proceedings, and the bailiffs-executors to foreclose on the land from his residential building? Who should compensate for the harm caused by the employees of the FSSP? The answers to these questions are primarily intended to be given by the Plenum's resolution on enforcement proceedings, which will replace the relatively recent resolution of the Supreme Arbitration Court Plenum No. on the same issue, which was released on May 16, 2014. The need for a new document has matured primarily in connection with the entry into force of the Code on September 15 of this year. administrative proceedings RF.
The first time in the Armed Forces discussed this document on November 12, but in the end they decided to send it for revision (see). Today, November 17, the resolution was adopted and it managed to undergo several changes, the most important of which concerns the performance gathering. Also clarified the provisions on the arrest of the only residence of a citizen and the foreclosure on the land under it. The rest of the edits are of a technical nature. Now the decree consists of 88 points. "The adoption of this document will allow to remove many questions, increase the efficiency of judicial protection and shorten the terms," the speaker, the judge of the Supreme Court, said at the meeting today.
The rule about the calculation of the performance fee was excluded
According to the decree, the performance fee is always paid. The debtor cannot be exempted from paying it, even if the claims executive document were in in full executed by him immediately after the expiration of the term for voluntary performance (clause 75). Such actions of the debtor, taking into account the objective reasons for the delay in performance, may be taken into account by the court when resolving the debtor's claims to reduce the amount of the performance fee, but not more than by one quarter.
Initially, the draft resolution also contained paragraph 77, which specified that the performance fee should be levied once in the amount of 7% of the amount to be recovered or the value of the recovered property. As stated there, the total amount of the collected enforcement fee from all joint and several debtors should not exceed 7% of the amount to be collected under executive documents providing for joint and several recovery. However, at the first discussion of the document, the FSSP objected to this approach. In her opinion, it is necessary to collect up to 7% of the amount from each debtor, since this corresponds to the nature of the performance fee as administrative fine... The Prosecutor General's Office of the Russian Federation adhered to the same position. As a result, after the editing of paragraph 77, the resolution was excluded from the text of the resolution. "This is due to the need for additional discussion of this problem," Romanovsky briefly explained at the meeting today. “This is the only reasonable decision,” Sabir Kekhlerov, Deputy Prosecutor General of the Russian Federation, also expressed his opinion.
The only place of residence will be able to be arrested
It was expected from the new resolution that the Armed Forces would permit the arrest of the property specified in Part 1 of Art. 446 of the Code of Civil Procedure of the Russian Federation, namely: the only housing of a citizen and the land under it. Now foreclosure on this property is prohibited by the Code of Civil Procedure of the Russian Federation.
The Supreme Court in paragraph 43 of the document clarified that the arrest or prohibition on the disposal of these objects can be imposed "in order to prevent the debtor from disposing of this property to the detriment of the interests of the claimant." Moreover, such interim measures should not prevent the debtor or his family members from using their property. After the editing, this provision remained in the resolution. And in paragraph 44 (it specifies which property can be seized), it was specified that seizure is possible in relation to property that is in the common joint property of the debtor and other person (persons) until the determination of the share of the debtor or before its separation.
Remained in the resolution and clause 62 of the document, which makes it possible to levy a court claim on the land plots where these objects are located (now they cannot be the subject of collection). But now the wording of this provision has been concretized. Now it says that judicial foreclosure on such land plots is not permissible for the whole thing, but in part clearly exceeding the limit minimum dimensions providing land plots for lands of the respective intended purpose and permitted use, and their actual use is not associated with meeting the needs of the debtor citizen and his family members in providing required level existence. And besides, this is possible only if the debtor's income is clearly disproportionate to the volume monetary claims contained in the executive document, and do not allow meeting these requirements in reasonable time.
Restriction on traveling abroad may get expiration date
The measure of security in the form of a temporary restriction on the departure of the debtor outside the Russian Federation is specified in paragraphs. 46-49 projects. In case of non-fulfillment by debtors of executive documents of non-judicial bodies, the decision not to leave the country can be made only by the court. general jurisdiction... When executing judicial acts or executive documents issued on the basis of a judicial act, a temporary restriction on the departure of the debtor is established not by the court, but by the bailiff - on his own initiative or at the request of the claimant. The arbitration tribunals have the right to accept and consider applications for challenging such actions of the FSSP employees, if the restriction is established within the framework of the enforcement proceedings initiated on the basis of the executive document of the arbitration court.
The ruling says that when a claimant or a bailiff applies to the court to establish a time limit, then its term can be determined by the court, taking into account the specific circumstances of the case. However, he cannot go beyond the time frame specified by the applicant.
The FSSP, in turn, believed that such a restriction, which compels the debtor to execute the document, should not have calendar term and they offered to remove it only when the enforcement proceedings against them were terminated and the debt was fully paid. But in the end, the service's comments on this issue were never taken into account.
Expert appraisal of property is required
In paragraph 50 of the document it is said that in the cases provided for in parts 2 and 3 of Art. 85 of the Law on Enforcement Proceedings, the bailiff is obliged to assess the property of the debtor with the indispensable involvement of a specialist appraiser. The parties have the right to challenge in court both the decision of the bailiff on the appraisal (with the involvement of the appraiser as an interested person) and the cost of the appraisal object indicated by the appraiser in the report, in the manner action proceedings(with the involvement of a bailiff as a third person). And regardless of the formulation of the requirements, the court will have to conclude about the reliability of the assessment made, and indicate the proper assessment of the property in the operative part of the judicial act. It will be required for the bailiff.
According to paragraph 51 of the document court expenses upon satisfaction of the application for disputing the decisions of the bailiff are assigned to the FSSP, and it may already demand their compensation from the appraiser, whose report the court rejected.
It is assumed that this measure will lead not only to faster and more effective protection of rights, but also to procedural savings.
The bailiffs will start collecting taxes
Clause 18 of the document specifies that "the regulations tax authorities(bodies of the PF RF and FSSP RF) on the collection of taxes (insurance premiums) from the property of the taxpayer (payer of insurance premiums) are executive documents that are sent for compulsory execution to the service bailiffs". Wherein FSSP employees does not have the right to demand from the body that sent the executive document any additional papers confirming the absence of information about the debtor's accounts, as well as the presence or absence of money on them sufficient to collect the debt. The bailiff's refusal to initiate enforcement proceedings on the basis that such documents were not presented to him may be recognized as illegal.
The FSSP, for its part, asked to additionally indicate in this paragraph that enforcement can only be applied if the tax authorities (PF RF, FSSP RF) have exhausted their own possibilities to recover from the debtor tax levies or insurance premiums, and the proof of this would be the provision by the indicated bodies of documents justifying the need for compulsory execution. However, these remarks were not included in the final version of the resolution.
Lawsuits to the bailiffs
The resolution delimits the order in which disputes should be considered within the framework of enforcement proceedings, and also clearly defines the competence of courts of general jurisdiction and arbitration courts.
Clause 4 states that if within the framework of the consolidated proceedings, along with the executive documents of arbitration, the same documents issued by the SOYU and / or documents of non-judicial bodies are executed, then applications for challenging decisions, actions (inaction) of the bailiff-executor must be considered court of general jurisdiction.
Clause 9 indicates that the cancellation by a higher official of the contested decision of the bailiff during the period when the case is being considered by the court cannot serve as a basis for terminating the proceedings in this case, if the application of such a decision resulted in a violation of the rights, freedoms and legitimate interests the applicant. The termination or termination of enforcement proceedings by themselves does not prevent the court from considering an application in which the decision or actions (inaction) of the bailiffs are contested.
Clause 11 talks about legal implications missing the deadline for going to court with a statement challenging the decision or actions (inaction) of the bailiffs-executors. For courts of general jurisdiction, they are indicated in Part 2 of Art. 256 of the Code of Civil Procedure of the Russian Federation, but there was no similar norm in the Arbitration Procedure Code of the Russian Federation. The Supreme Court invites the arbitration tribunals to apply the provisions of parts 6 and 8 of Art. 208 of the CAS RF by analogy with the law (part 5 of article 3 of the Arbitration Procedure Code of the Russian Federation).
In clause 12, the Supreme Court explained to whom to make demands if the bailiff is deprived of his powers, whose work the applicant is dissatisfied with. To the official to whom they were transferred, and if they were not transferred - to the senior bailiff of the corresponding unit of the FSSP.
Clause 82 of the resolution clarifies who should be the defendant in claims for compensation for harm caused illegal actions(inaction) of the bailiff-executor. Now the Ministry of Finance of the Russian Federation is often indicated as the defendant, the judges noted during the discussion of the document. The Supreme Court indicates that the claim is being brought against the Russian Federation, on whose behalf the main manager is acting in court budget funds - FSSP of Russia... When the claim is satisfied, it is recommended to indicate in the operative part of the decision that the recovery of the amount of damage is carried out at the expense of the state treasury.
Clause 15 of the document specifies that failure to comply with the requirements of the executive document on time in itself cannot serve as a basis for a conclusion about illegal inaction bailiff. As well as the lack of real performance in itself is not a reason for imposing on the state the obligation to reimburse the amounts not received from the debtor under the executive document (paragraph 86). The inaction of a bailiff can be recognized as illegal if he had the opportunity to take the necessary enforcement actions and apply the necessary enforcement measures aimed at full, correct and timely execution of the requirements of the enforcement document within the time limit established by law, but did not do this, thereby violating the rights and legitimate interests the parties to the enforcement proceedings, is specified in the same place.
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On November 17, 2015, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 50 "On the Application of Legislation by Courts when Considering Certain Issues Arising in the Course of Enforcement Proceedings." The entry into force of the above excluded the application of clause 20 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 2002 No. 11 "On some issues related to the introduction into force of the Arbitration procedural code Russian Federation"; Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 27 "On some issues of the application of legislation on enforcement proceedings."
The resolution of the Plenum of the Supreme Court of the Russian Federation clearly delineates the competence of courts of general jurisdiction and commercial courts, summarizes the approaches previously developed by courts on the application of the provisions of the Law on Enforcement Proceedings and contains a number of important clarifications current legislation on enforcement proceedings.
So, if within the framework of the consolidated enforcement proceedings, along with the executive documents of the commercial courts, the executive documents of the courts of general jurisdiction are executed, then applications for challenging the decisions, actions (inaction) of the bailiff related to the implementation of the consolidated enforcement proceedings as a whole are resolved by the court of general jurisdiction ... The issue of approving an amicable agreement (conciliation agreement) for any enforcement proceedings within the framework of a consolidated one is also resolved by a court of general jurisdiction.
It should be noted that the Plenum of the Supreme Court of the Russian Federation changed legal position Presidium of the Supreme Arbitration Court of the Russian Federation, reflected in Information letter Of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 77 dated June 21, 2004, pointing out the impossibility of the bailiff to cancel his own decision.
Important clarifications were given by the Plenum of the Supreme Court on the issue of seizure as an interim measure, if the court has established the total value of the property subject to seizure. In this case, the composition of the property and the types of restrictions are determined by the bailiff independently according to the rules of Article 80 of the Law on Enforcement Proceedings.
In addition, the said Resolution allows a violation of the proportionality requirement in the seizure of property if the debtor does not have other property or it is illiquid.
The decree establishes the right of the bailiff to perform actions not provided for in article 64 Federal law"On enforcement proceedings", if they comply with the objectives and principles of enforcement proceedings, do not violate the rights of the debtor and other persons protected by federal law. Among such actions, the Plenum of the Supreme Court included the imposition of an arrest "in absentia" in the presence of reliable information about the ownership of the debtor's property. Upon discovery of the property seized in absentia, a second arrest is made in relation to it, according to general rules performing this action.
It should be noted that the only dwelling (or parts of it) suitable for permanent residence may also be subject to arrest, with the right of use reserved for the citizen and his family members.
The decree expanded the powers of the bailiff-executor state registration debtor's rights. So, bailiff has the right not only to apply for state registration of the debtor's ownership of the property, but also has the right to challenge the refusal of such registration, to apply to a party to the transaction with a proposal to carry out state registration, and in case of evasion, to independently file a claim for registration of the transfer of ownership.
The Resolution under consideration limits the immunity of a land plot owned by a citizen on which a residential premises is located, established by Article 446 of the Civil Procedure Code of the Russian Federation, by virtue of which a claim cannot be levied on such a land plot.
Meanwhile, the Plenum of the RF Armed Forces clarified that judicial foreclosure on such land plots is still permissible subject to a number of conditions:
... the size of the land plot clearly exceeds the maximum minimum size of the provision of land plots for lands of the corresponding designated purpose and permitted use;
... actual use is not associated with meeting the needs of the debtor citizen and his family members to ensure the required level of existence, provided that
... the debtor's income is clearly disproportionate to the amount of monetary claims contained in the executive document, and does not allow satisfying these claims within a reasonable time.
The Plenum of the Supreme Court of the Russian Federation in the ruling indicated that the list of grounds for declaring the auction invalid is open.
It is important to clarify the Plenum of the Supreme Court of the Russian Federation on the foreclosure on the movable property of a citizen and items of ordinary home furnishings:
... Presumably belonging to a citizen movable property indoors or on a land plot fenced (protected) from the access of other persons
... The issue of classifying a citizen's property as items of ordinary home furnishings and everyday life is resolved by the bailiff in each case, taking into account specific circumstances.
The Resolution under consideration contains a number of important provisions on the fulfillment of requirements for the transfer of property.
So, by virtue of paragraph 3 of clause 35, the enforcement proceedings are subject to termination due to the impossibility of execution in the event of deficiencies in the individually determined property to be transferred and in the event of the recoverer's refusal to accept it. In relation to property determined by generic characteristics, this rule does not apply, since the debtor retains the obligation to transfer property without defects.
In the event that such shortcomings were identified after the transfer of property to the claimant, then disputes are resolved in claim procedure as not related to enforcement proceedings.
The resolution contains an explanation, important from the point of view of law enforcement practice, that the court's decision to suspend the execution of the contested judicial act does not prevent the initiation of enforcement proceedings. In our opinion, this provision is aimed at protecting the interests of the claimant, is aimed at developing the principle of the timeliness of enforcement actions, and limits the possibility of abuse by the debtor of his procedural rights in order to delay the debt collection process.
The Resolution clarifies the provisions of the Law on Enforcement Proceedings when calculating and collecting the enforcement fee:
... If the debtor has not fulfilled several property and / or non-property claims, including those contained in one enforcement document, by virtue of part 3 of Article 112 of the Law on Enforcement Proceedings, the enforcement fee is established in relation to each of the unfulfilled claims.
... The court has the right, taking into account the degree of the debtor's fault in the failure to fulfill the enforcement document on time, other significant circumstances, to reduce the amount of the enforcement fee by no more than one quarter of the amount established by part 3 of Article 112 of the Law on Enforcement Proceedings, or to release the debtor from its collection as in the resolution of claims on the reduction of the amount of the performance fee or exemption from its collection, and when challenging the decision of the bailiff-executive on the collection of the performance fee.
... Since the court is not bound by the grounds and arguments of the requirements to challenge the decision of the bailiff, it has the right to establish circumstances indicating the need to reduce the amount of the performance fee, to release the debtor from its collection on the basis of court session evidence, even if the parties did not refer to these circumstances.
... Grounds for the release of the subject entrepreneurial activity only force majeure circumstances may arise from collection.
The issue of the obligation to pay the performance fee in the event of succession is resolved differently in relation to individuals and legal entities. The resolution allows the collection of the performance fee from the legal successor of the debtor-organization, however, the resolution on the collection of the performance fee is not subject to execution by the legal successor of the debtor-citizen, since the application of measures of public legal responsibility in relation to individuals is of an individual personified nature.
It should be noted that the Resolution does not enshrine the previous rules of the Resolution of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 27 that in the event of the formation of a plurality of persons on the side of the claimant or the debtor, the court issues several writs of execution instead of those previously issued. In our opinion, the lack of legal certainty in this issue may lead to the emergence of some practical problems.
The resolution of the Supreme Court of the Russian Federation does not contain any provisions on the consequences of the recognition of the auction as invalid, in contrast to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 27, indicating that the buyer of property from the auction is obliged to return it not to the debtor, but to the seller as a party invalid transaction for the purpose of re-bidding; The seller returns the funds to the buyer of the property as a party to the invalid transaction. The funds received as a result of enforcement proceedings cannot be withdrawn from the claimant.
The issue of the need for the bailiff to ensure proportionality when seizing in order to secure a claim was also not resolved by the Plenum of the Supreme Court of the Russian Federation. We believe that the specified gap will be eliminated law enforcement practice formed in the course of the application of legislation.
In general, it should be noted that this resolution is aimed at protecting the interests of the claimant, including by expanding the powers of bailiffs-executors. Nevertheless, the resolution does not contain a number of important clarifications, which will be eliminated by the emerging law enforcement practice or further development of the position of the Supreme Court of the Russian Federation.
- 1. RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION No. 50 Moscow November 17, 2015 On the application of legislation by the courts when considering certain issues arising in the course of enforcement proceedings In order to uniformly apply the legislation by the courts when considering selected issues arising in the course of enforcement proceedings, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2, 5 of the Federal constitutional law dated February 5, 2014 No. 3-FKZ "On the Supreme Court of the Russian Federation", decides to give the following clarifications. Procedure for Consideration by Courts of Claims and Issues Related to the Execution of Executive Documents1. Judicial protection the rights, freedoms and legitimate interests of citizens and organizations in the case of compulsory execution of judicial acts, acts of other bodies and officials is carried out in the manner of action in accordance with the norms of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation) and the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation ), administrative proceedings - in accordance with the norms of the Code of Administrative Procedure of the Russian Federation (hereinafter referred to as the CAS RF) and proceedings in cases arising from administrative and other public legal relations - in accordance with the norms of the Arbitration Procedure Code of the Russian Federation, taking into account the distribution of competence between the courts. The lawsuit procedure is established to consider claims for the release of property, including exclusive property rights (hereinafter referred to as property), from arrest (exclusion from the inventory) in the event of a dispute related to the ownership of the property; on the cancellation of the prohibition on the disposal of property established by the bailiff, including the prohibition on committing registration actions in relation to property (for persons not participating in the executive
- 2. 2 production); about the return of the sold property; on the foreclosure of the pledged property; on the recognition of the auction as invalid; on compensation for losses caused as a result of enforcement actions and / or the application of enforcement measures, and others (for example, part 2 of article 442 of the Code of Civil Procedure of the Russian Federation, part 2 of article 363 of the CAS RF, part 1 of article 119 of the Federal Law of October 2, 2007 No. 229 -FZ "On Enforcement Proceedings" (hereinafter referred to as the Law on Enforcement Proceedings), paragraph 1 of Article 349, paragraph 1 of Article 449 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). other officials of the Federal Bailiff Service (hereinafter - the FSSP of Russia) are considered in the manner prescribed by Chapter 22 of the CAS RF, and in the manner prescribed by Chapter 24 of the Arbitration Procedure Code of the Russian Federation. civil rights and obligations of the parties to the enforcement proceedings, as well as other interested parties, these requirements are considered in the course of action proceedings. Complaints against decisions of officials of the FSSP of Russia in cases of administrative offenses, applications for challenging decisions of these officials on bringing to administrative responsibility are considered, respectively, by courts of general jurisdiction according to the rules of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), arbitration courts - according to the norms of chapter 25 of the APC RF. 2. Issues of enforcement proceedings, referred to the competence of the courts, are resolved in accordance with Section VII of the Code of Civil Procedure of the Russian Federation, which regulates proceedings related to the execution court orders and resolutions of other bodies, with Section VIII of the CAS RF, regulating the consideration of procedural issues related to the execution of judicial acts on administrative cases and resolved by courts of general jurisdiction, with Section VII of the Arbitration Procedure Code of the Russian Federation, regulating the proceedings in cases related to the execution of judicial acts of arbitration courts. Delineation of the competence of courts of general jurisdiction and arbitration courts 3. Requirements related to the execution of executive documents and subject to consideration in the course of action proceedings fall within the competence of courts of general jurisdiction based on the rules of Article 22 of the Code of Civil Procedure of the Russian Federation, and arbitration courts, including the Intellectual Property Rights Court (hereinafter referred to as arbitration courts) - in accordance with Articles 27, 28, 33 of the Arbitration Procedure Code of the Russian Federation. The competence of courts of general jurisdiction and arbitration courts in cases of challenging decisions, actions (inaction) of bailiffs-executors is determined in accordance with the provisions of Article 17 of the CAS RF, Article 29 of the Arbitration Procedure Code of the Russian Federation and parts 2 and 3 of Article 128 of the Law on Enforcement Proceedings.
- 3. 3 4. If, within the framework of a consolidated enforcement proceeding, along with executive documents of commercial courts, executive documents issued by courts of general jurisdiction and / or executive documents of non-judicial bodies are executed, the verification of the legality of which falls within the competence of courts of general jurisdiction, then applications for challenging decisions, actions (inaction) of the bailiff-executor related to the implementation of consolidated enforcement proceedings as a whole are permitted by a court of general jurisdiction. Issues related to the execution of enforcement documents specified in part 2 of Article 128 of the Law on Enforcement Proceedings, which do not affect the consolidated enforcement proceedings as a whole and do not concern the verification of the legality of decisions, actions (inaction) of the bailiff-executor related to the execution of this enforcement document, are resolved by an arbitration court (for example, on the succession of a claimant in enforcement proceedings initiated under a writ of execution issued by an arbitration court - Article 48 of the Arbitration Procedure Code of the Russian Federation; on the deferral (payment by installments) of execution - Article 324 of the Arbitration Procedure Code of the Russian Federation, etc.). The arbitration court shall also consider an application for challenging the decision, actions (inaction) of the bailiff-executor, if it is accepted for proceedings by the arbitration court before the consolidation of enforcement proceedings into consolidated enforcement proceedings, in which orders of execution issued by courts of general jurisdiction are also executed, and / or executive documents of non-judicial bodies, the verification of the legality of which is within the competence of courts of general jurisdiction. 5. When conducting consolidated enforcement proceedings, in which, along with executive documents of arbitration courts, executive documents issued by courts of general jurisdiction are executed, the issue of approving a settlement agreement, an agreement on conciliation for any enforcement proceedings included in the consolidated court is resolved by a court of general jurisdiction. 6. Cases on claims for the release of property from seizure (exclusion from the inventory) are disputes over claims property nature not subject to assessment, and are considered district court or by an arbitration court of a constituent entity of the Russian Federation. Upon presentation of the relevant statements of claim, the state duty is paid in the amount provided for in subparagraph 3 of paragraph 1 of article 33319, subparagraph 4 of paragraph 1 of article 33321 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation). 7. Issues within the competence of the court that issued the writ of execution (for example, issuing a duplicate of the writ of execution, clarification of the writ of execution, succession, etc.) are subject to resolution by the same court also in the event of a further change in its jurisdiction. In other cases, including when the jurisdiction of the court that adopted the executed judicial act is divided between several courts
- 4.4 the jurisdiction in considering the issues of enforcement proceedings is determined on the basis of the jurisdiction of the requirements for which such a judicial act was adopted and issued performance list ... Challenging decisions, actions (inaction) of bailiffs-executors 8. Resolutions, actions (inaction) of the bailiff-bailiff and other officials of the FSSP of Russia may be challenged in court both by the parties to enforcement proceedings (the claimant and the debtor), and by other persons who believe that their rights and legitimate interests have been violated, that obstacles have been created to the exercise of their rights and legitimate interests, or that they have been illegally assigned any obligation (Part 1 of Article 218, Article 360 of the CAS RF, Part 1 of Article 198 of the Arbitration Procedure Code of the Russian Federation, Part 1 of Article 121 Of the Law on Enforcement Proceedings). The right to challenge in court the decisions, actions (inaction) of the bailiff and other officials of the FSSP of Russia belongs, among other things, to the bodies and institutions that are administrators of the revenues of the corresponding budget, to whose accounts, according to the executive document, the funds indicated in it are to be credited (Article 1601 Of the Budget Code of the Russian Federation (hereinafter - the BC RF) .The prosecutor has the right to challenge in court the decision, actions (inaction) of the bailiff and other officials of the FSSP of Russia in cases provided for by law (Part 1 of Article 45 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 39 CAS RF, part 1 of article 52 and part 2 of article 198 of the Arbitration Procedure Code of the Russian Federation) .In addition, in defense of the rights and legitimate interests of other persons in court with a demand to challenge the decisions, actions (inaction) of the bailiff, other officials of the FSSP of Russia may apply to the persons specified in Article 46 of the Code of Civil Procedure of the Russian Federation, Article 40 of the CAS RF and Articles 53, 531 of the Arbitration Procedure Code of the Russian Federation, if this is clause provided by federal laws. 9. Cancellation by a higher official of the contested decision of the bailiff-executor during the hearing of the case by the court cannot serve as a basis for termination of the proceedings in this case, if the application of such a decision has led to a violation of the rights, freedoms and legitimate interests of the applicant (administrative plaintiff). The termination or termination of enforcement proceedings by themselves does not prevent the court from considering on the merits an application for challenging a specific decision or actions (inaction) of the bailiff-executor, which entailed unfavorable consequences for the applicant (administrative plaintiff). 10. At the request of the persons participating in the enforcement proceedings, or on his own initiative, the bailiff is entitled to correct the clerical errors or obvious arithmetic errors made by him in the ruling (part 3 of Article 14 of the Law on Enforcement Proceedings).
- 5. 5 The bailiff-executor has no right to cancel the decision made by him. The senior bailiff and his deputy (paragraph 2 of Article 8, paragraph 2 of Article 9, paragraph 2 of Article 10 of the Federal Law of July 21, 1997 No. 118-FZ "On Bailiffs" (hereinafter - the Law on Bailiffs bailiffs), part 5 of Article 14, part 9 of Article 47, part 4 of Article 108, Article 123 of the Law on Enforcement Proceedings). 11. An administrative statement of claim, a statement (hereinafter referred to as the statement) on challenging the decision, actions (inaction) of the bailiff-executor is filed with the court, the arbitration court within ten days from the day when the citizen, the organization became aware of the violation of their rights and legitimate interests (Part 3 of Article 219 of the CAS RF, Part 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation and Article 122 of the Law on Enforcement Proceedings). Missing the deadline for applying to the court is not a reason for refusing to accept the application by a court of general jurisdiction or for returning the application to the arbitration court. If the decision, actions (inaction) of the bailiff-executor were appealed in the order of subordination, then the courts of general jurisdiction should take into account the provisions of part 6 of Article 219 of the CAS RF that the untimely consideration or non-consideration of the complaint by a higher authority, a higher official indicates the existence of a valid reason missing the deadline for going to court. Missing the deadline for going to court without a good reason, as well as the impossibility of restoring the missed deadline for going to court, is the basis for refusing to satisfy the application (part 8 of Article 219 of the CAS RF). Arbitration courts, when considering the above issues, should apply the provisions of parts 6 and 8 of Article 219 of the CAS RF by analogy with the law (part 5 of Article 3 of the Arbitration Procedure Code of the Russian Federation). 12. In cases of challenging decisions, actions (inaction) of bailiffs-executors, the requirements are presented by the administrative plaintiff, the applicant to the bailiff, whose decisions, actions (inaction) are challenged, upon termination of his powers - to the official to whom these powers have been transferred , and if powers were not transferred - to the senior bailiff of the corresponding structural unit FSSP of Russia (parts 4, 5 of article 38, chapter 22 of the CAS RF and chapter 24 of the Arbitration Procedure Code of the Russian Federation). To participate in the case as an administrative defendant, body or official whose decisions, actions (inaction) are challenged, it is also necessary to involve the territorial body of the FSSP of Russia, in the structural unit of which the bailiff is fulfilling (fulfilling) the duties of the bailiff, since upon meeting the applicant's request legal costs can be reimbursed at the expense of the named territorial body of the FSSP of Russia. In case of challenging the decisions, actions (inaction) of the bailiff-executor, the other party of the enforcement proceedings
- 6. 6 (the claimant or the debtor) is subject to involvement in the case as an interested person. When one of the claimants contested the decision of the bailiff-executor concerning the order of distribution of funds within the framework of the consolidated enforcement proceedings, the court shall involve other claimants, whose rights and legitimate interests are affected by the contested decision, to participate in the case as interested persons. 13. Suspension by the court of the contested decision of the bailiff as a measure of preliminary protection or interim measure (part 1 of Article 140 of the Code of Civil Procedure of the Russian Federation, Article 223 of the CAS RF and part 3 of Article 199 of the Arbitration Procedure Code of the Russian Federation) is carried out on the grounds and in the manner prescribed by Chapter 7 of the CAS RF or chapter 8 of the APC RF. In particular, the application is considered without notifying the persons participating in the case, no later than the next working day after its receipt by the court (Article 141 of the Code of Civil Procedure of the Russian Federation, part 3 of Article 87 of the CAS RF, part 11 of Article 93 of the Arbitration Procedure Code of the Russian Federation). 14. When considering an application for challenging the decisions, actions (inaction) of the bailiff-executor, the court has the right in the same process to resolve the issue of suspension of enforcement proceedings in whole or in part at the request of the claimant, debtor or bailiff-executor (paragraph 4 of part 2 of Article 39 of the Law on enforcement proceedings). An application for the suspension of enforcement proceedings is considered within ten days in a court session with the notification of the recoverer, the debtor, the bailiff, the failure of which does not impede the resolution said statement(Part 1 of Article 440 of the Code of Civil Procedure of the Russian Federation, Part 2 of Article 358, Part 3 of Article 359 of the CAS RF, Part 2 of Article 324, Part 3 of Article 327 of the Arbitration Procedure Code of the Russian Federation). 15. The requirements contained in the enforcement document must be fulfilled by the bailiff-executor within the time limits established by parts 1-6 of Article 36 of the Law on Enforcement Proceedings. Failure to comply with the requirements of the executive document within the time period stipulated by the said Law, in itself, cannot serve as a basis for a conclusion about the illegal inaction committed by the bailiff. The inaction of the bailiff-executor can be recognized as illegal if he had the opportunity to perform the necessary enforcement actions and apply the necessary enforcement measures aimed at full, correct and timely execution of the requirements of the enforcement document within the time period established by law, but did not do this, thereby violating the rights and legitimate interests of the party to the enforcement proceedings. For example, the inaction of the bailiff-executor, who established that the debtor does not have any Money, but did not complete all the necessary enforcement actions to identify other property of the debtor, which could have been foreclosed, in order to execute the enforcement document (in particular, did not send requests to the tax
- 7. 7 bodies, bodies that carry out state registration of property and (or) rights to it, etc.). Circumstances related to the organization of the work of a structural unit of the bailiff service, for example, the lack of the necessary staff of bailiffs, the replacement of a bailiff due to his illness, vacation, stay at school, cannot be considered as grounds justifying the exceeding of the deadlines for the execution of enforcement documents, being on a business trip, termination or suspension of his powers (parts 4 and 5 of article 61 of the Code of Civil Procedure of the Russian Federation, parts 4 and 5 of article 10 of the CAS RF, parts 4 and 5 of article 61 of the Arbitration Procedure Code of the Russian Federation). The burden of proving the existence of valid reasons for non-execution of a court order within the time limit established by law rests with the bailiff. 16. When filing administrative statements of claim, applications for challenging decisions, actions (inaction) of the bailiff-executor National tax not paid (paragraph three of subparagraph 7 of paragraph 1 of article 33336 of the Tax Code of the Russian Federation, part 2 of article 329 of the Arbitration Procedure Code of the Russian Federation). Initiation of enforcement proceedings 17. Writs of execution are issued on the basis of judicial acts imposing the obligation to transfer funds and other property to other persons or to commit them in their favor certain actions or refraining from performing certain actions, for example, in the cases provided for by part 2 of Article 206 of the Code of Civil Procedure of the Russian Federation (parts 1 and 3 of Article 1 of the Law on Enforcement Proceedings). Writs of execution on the basis of judicial acts that do not contain the above instructions, for example, in cases of recognition by the court of the right to property, compulsion to conclude an agreement, determination of the procedure for using property, are not issued by the court. If the court makes a decision to satisfy the requirements that are not subject to compulsory execution, and the requirements that impose on the party (parties) to the dispute the obligation to transfer funds and other property or to perform certain actions, then on the basis of this judicial act in terms of imposing these obligations may a writ of execution should be issued. So, for example, when the court makes a decision to determine the procedure for using land plot and the transfer (demolition) of buildings is subject to compulsory execution only in terms of the transfer (demolition) of buildings, and only for the execution of these court orders a writ of execution may be issued. The court's decision on the requirements stated in the procedure established by Chapter 22 of the CAS RF, Chapter 24 of the Arbitration Procedure Code of the Russian Federation, on the recognition of illegal decisions, actions (inaction) of the body state power, a local government body, an official, a state or municipal employee applies to execution by a court in accordance with parts 8 and 9 of Article 227 of the CAS RF or part 7 of Article 201 of the Arbitration Procedure Code of the Russian Federation, which does not exclude
- 8.8 the possibility of its compulsory execution on the basis of a writ of execution issued by the court, if by a court decision against the administrative defendant (body, executive) the obligation is assigned to perform (refrain from performing) certain actions. 18. By virtue of the provisions of Article 47 of the Tax Code of the Russian Federation and Article 20 of the Federal Law of July 24, 2009 No. 212-FZ "On Insurance Contributions to the Pension Fund of the Russian Federation, the Fund social insurance Of the Russian Federation, the Federal Mandatory Medical Insurance Fund ", as well as in relation to clause 8 of part 1 of Article 12 of the Law on Enforcement Proceedings, resolutions of tax authorities (bodies of the Pension Fund of the Russian Federation and the Social Insurance Fund of the Russian Federation) on the collection of taxes (insurance contributions) at the expense of property the taxpayer (payer of insurance premiums) are executive documents that are sent for compulsory execution to the bailiff service. The bailiff is not entitled to demand from the body that sent such a court order to submit any additional documents confirming the absence of information about the debtor's accounts, as well as the insufficiency or absence of funds on them. Refusal of the bailiff-executor to initiate enforcement proceedings due to failure to submit these documents may be illegal. 19. Settlement agreement, a conciliation agreement that has not been voluntarily executed is subject to compulsory execution on the basis of a writ of execution issued by a court at the request of a party to this agreement (Part 2 of Article 142 of the APC RF, by analogy with the law by courts of general jurisdiction in civil procedure on the basis of part 4 of article 1 of the Code of Civil Procedure of the Russian Federation, part 9 of article 137 of the CAS RF). The lack of information about non-fulfillment of the terms of the settlement agreement, the agreement on reconciliation, containing the obligations of one or both parties to transfer property or to commit (fail) certain actions, is not a reason for the court's refusal to issue a writ of execution and for the bailiff-executor's refusal to initiate an enforcement proceedings on the basis of a writ of execution issued by a court on the compulsory execution of an amicable agreement, an agreement on conciliation, since the circumstances related to the execution are subject to clarification in the course of enforcement proceedings. 20. Change of name of an individual, change of name legal entity that is not associated with a change in the organizational and legal form, do not require a court to resolve the issue of procedural succession, since this does not entail the withdrawal of a party in a disputed or court-established legal relationship. In this case, the bailiff-executor issues a resolution on the initiation of enforcement proceedings indicating both the new and
- 9. 9 the previous name (title) of the recoverer or the debtor with attachment to the materials of enforcement proceedings, documents confirming the relevant changes (for example, certificates of name change or extracts from the Unified State Register of Legal Entities). When changing the name (changing the name) of the claimant or the debtor in the course of enforcement proceedings, the bailiff shall indicate this in the relevant resolution, and, if necessary, may amend the previously issued resolutions in relation to Part 3 of Article 14 of the Law on Enforcement Proceedings. 21. After the initiation of enforcement proceedings, the bailiff, in case of ambiguity of the executive document, has the right to apply to the court that adopted the judicial act on the basis of which this executive document was issued, with an application for its clarification (Part 1 of Article 433 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 355 of the CAS RF, in relation to part 1 of Article 179 of the Arbitration Procedure Code of the Russian Federation, Article 32 of the Law on Enforcement Proceedings). 22. In accordance with parts 11 and 12 of Article 30 of the Law on Enforcement Proceedings, the period for voluntary fulfillment of the requirements contained in the enforcement document is five days from the date of receipt by the debtor of the decision to initiate enforcement proceedings. The specified period does not include non-working days (part 2 of Article 15 of the Law). The deadline for the voluntary fulfillment of the requirements of the court order cannot be changed at the discretion of the bailiff. Other terms may be established in the cases provided for, including by part 14 of Article 30, by part 5 of Article 103 of the said Law. During the period for voluntary execution, the application of enforcement measures is not allowed. Meanwhile, within the specified period, the bailiff-executor has the right to perform certain enforcement actions, for example, to seize the debtor's property, to establish a ban on the disposal of the property. The bailiff is not entitled to satisfy the claimant's petition, contained in the application for initiation of enforcement proceedings, to establish a temporary restriction on the debtor's departure from the Russian Federation simultaneously with his issuance of a resolution to initiate enforcement proceedings - until the expiration of the period for voluntary execution of the enforcement document established in such a resolution, and also until the bailiff-executor receives information that the debtor has information about the enforcement proceedings initiated against him and evades the voluntary execution of the enforcement document (parts 1, 2 of Article 67 of the Law on Enforcement Proceedings). 23. By virtue of part 1 of Article 5 of the Law on Enforcement Proceedings and Article 12 of the Law on Bailiffs, the enforcement of a court decision on involuntary hospitalization patients with infectious forms of tuberculosis in medical anti-tuberculosis organizations are assigned to bailiffs-executors.
- 10. 10 For the direct execution of this court decision, police officers and employees of the relevant medical institutions are involved in order to provide the bailiff-executor with safe access to persons subject to compulsory hospitalization, as well as specialized medical vehicles equipped with immunological protection, excluding the possibility of infection of an unlimited number of persons (Clause 35 of Part 1 of Article 12 of the Federal Law of February 7, 2011 No. 3-FZ "On the Police"). Postponement or installment plan of execution of a court order 24. A claimant, a debtor, a bailiff has the right to apply for a deferral or an installment plan for the execution of a judicial act (part 1 of Article 37 of the Law on Enforcement Proceedings, Article 434 of the Code of Civil Procedure of the Russian Federation, part 1 of Article 358 of the CAS RF, Part 1 of Article 324 of the APC RF). The application is submitted to the court that considered the case in the first instance and issued the executive document, including in the case of cancellation (change) of the judicial act and the adoption of a new judicial act by the court of appeal, cassation or supervisory instance. In accordance with Article 434 of the Code of Civil Procedure of the Russian Federation, the issue of deferral (payment by installments), changing the method and procedure for the execution of a judicial act can also be brought before the court at the place of execution of the executive document. Applications for a deferral (installment plan), change in the method and procedure for the execution of the decision made by the magistrate are considered by the magistrate of the same judicial area or by the magistrate at the place of execution of the relevant enforcement document. If there are circumstances that prevent the execution of a specific enforcement document for enforcement proceedings included in the consolidated enforcement proceedings, the issue of deferral or payment by installments is resolved in relation to this executive document, and not in the consolidated enforcement proceedings as a whole. 25. Within the meaning of the provisions of Article 37 of the Law on Enforcement Proceedings, Article 434 of the Code of Civil Procedure of the Russian Federation, Article 358 of the CAS RF and Article 324 of the Arbitration Procedure Code of the Russian Federation, the grounds for granting a deferral or installment plan for the execution of an enforcement document may be circumstances that cannot be eliminated at the time of applying to the court that prevent the debtor from executing an enforcement document on time. The question of the existence of such grounds is decided by the court in each specific case, taking into account all relevant factual circumstances, which, in particular, may include the grave financial situation of the debtor, reasons that significantly complicate the execution, the possibility of executing the court decision after the expiry of the grace period. When granting a deferral or an installment plan, the courts must ensure a balance of the rights and legitimate interests of claimants and debtors in such a way that such a procedure for the execution of a court decision meets the requirements of fairness, proportionality and does not affect the substance.
- 11. 11 guaranteed rights of persons participating in enforcement proceedings, including the right of a claimant to execute a judicial act within a reasonable time. The presence of a deferral or an installment plan for one of the joint and several debtors under an executive document is not a basis for granting a deferral or an installment plan for the execution of other joint and several debtors, since the actual circumstances entailing the possibility of applying such measures are individual in nature. 26. If the circumstances, due to which the person was granted a deferral or an installment plan for execution, changed or disappeared before the expiration of the term for their provision, or the debtor violates the established procedure for granting an installment plan (terms, amounts of payments, the volume of actions performed), the court at the request of the claimant or the bailiff - the contractor can decide on the termination of the deferral or installment plan. The consideration by the court of an application for the termination of a deferral or an installment plan is carried out in the same manner as in the case of their provision. 27. In the event that a claimant or a debtor leaves in enforcement proceedings initiated on the basis of a court order issued by a court (death of a citizen, reorganization of a legal entity, assignment of a claim, transfer of debt and other cases of change of persons in legal relations), the issue of legal succession shall be resolved by the court (Article 44 Code of Civil Procedure of the Russian Federation, article 44 of the CAS RF, article 48 of the Arbitration Procedure Code of the Russian Federation, paragraph 1 of part 2 of article 52 of the Law on Enforcement Proceedings). On the issue of legal succession, the following persons can apply to the court: a bailiff, a party to an enforcement proceeding, a person who considers himself the legal successor of a retired party to an enforcement proceeding. The consideration by the court of the issue of the succession of the withdrawn party to the enforcement proceedings is carried out in relation to the rules established by Article 440 of the Code of Civil Procedure of the Russian Federation, in accordance with Article 358 of the CAS RF, Article 324 of the Arbitration Procedure Code of the Russian Federation in a court session with the notification of the bailiff, the parties to the enforcement proceedings and the person specified in as the assignee. 28. Property claims and obligations inextricably linked with the personality of a citizen (claimant or debtor), by virtue of Articles 383 and 418 of the Civil Code of the Russian Federation, are terminated for the future in connection with the death of this citizen or in connection with the announcement of his deceased. At the same time, if the property obligations related to the personality of the debtor-citizen were not fulfilled during his lifetime, as a result of which a debt for such payments was formed, then the legal succession for the obligations to repay this debt in cases provided for by law is possible. For example, according to subparagraph 3 of paragraph 3 of Article 44 of the Tax Code of the Russian Federation, the debt of a deceased taxpayer-citizen is repaid by his heirs in relation to transport, land taxes, property tax of individuals in the manner prescribed by civil law (paragraph 3 of Article 14, Article 15, subparagraph 3
- 12, clause 3 of article 44 of the Tax Code of the Russian Federation). The possibility of succession in relation to other taxes, as well as various charges, including state duty, is not provided. Suspension of execution of a judicial act and enforcement proceedings 29. Pursuant to clause 1 of part 2 of Article 39 of the Law on Enforcement Proceedings, enforcement proceedings may be suspended by a court in the event of challenging an executive document or a judicial act on the basis of which the executive document was issued. In this case, the courts should take into account that when filing an appeal, cassation or supervisory complaints(submissions) only courts of appeal, cassation and supervisory authorities... The legal consequence of the suspension of the execution of a judicial act is the suspension of the enforcement proceedings initiated on the basis of the relevant enforcement document. The issue of suspension of enforcement proceedings on the basis of paragraph 1 of part 2 of Article 39 of the Law on Enforcement Proceedings may be resolved by the court of first instance in cases of challenging the executive document of a non-judicial body. Enforcement proceedings may be suspended in cases of consideration of an application for revising a judicial act on the basis of which a writ of execution was issued, due to new or newly discovered circumstances. The question of the suspension of enforcement proceedings is decided by the court considering such an application. 30. If after the expiry of the deadline for submission appeal the court of first instance issued a writ of execution for compulsory execution of the decision, and subsequently, on the grounds provided for by law, an appeal against this decision was accepted for proceedings, then the court appellate instance has the right to suspend the execution of such a judicial act (for courts of general jurisdiction: in cases considered in administrative proceedings - on the basis of part 1 of Article 306 of the CAS RF, in cases considered in civil proceedings - by analogy with the law in relation to part 1 of Article 306 CAS RF; for arbitration courts - on the basis of Article 2651 of the Arbitration Procedure Code of the RF). The procedure for the suspension of enforcement proceedings established by Article 440 of the Code of Civil Procedure of the Russian Federation, Article 359 of the CAS RF and Article 327 of the Arbitration Procedure Code of the Russian Federation, in this case does not apply. In the event that the decision of the court of first instance, on the basis of which the writ of execution was issued, is canceled or changed in whole or in part by the court of appeal, then, within the meaning of paragraph 4 of part 2 of Article 43 of the Law on Enforcement Proceedings, the enforcement proceedings initiated under the said writ of execution shall be terminated by the court. the bailiff-executor in the canceled or changed part.
- 13. 13 If the court of the appellate instance leaves the contested judicial act unchanged, a new writ of execution is not issued; the execution of the relevant judicial act is carried out on the basis of a previously issued writ of execution. 31. The consequences of the suspension of enforcement proceedings are to prevent the application of the enforcement measures provided for by part 3 of Article 68 of the Law on Enforcement Proceedings during the period of suspension of enforcement proceedings until their resumption (part 6 of Article 45 of the Law). Taking into account the provisions of Part 1 of Article 64 of the Law on Enforcement Proceedings during the period of suspension of enforcement proceedings (suspension of the execution of a judicial act) in order to ensure the execution of the enforcement document by the bailiff-executor, certain enforcement actions may be carried out, for example, the imposition of an arrest, the imposition of a ban on the disposal of property. 32. In the event that enforcement proceedings have not been initiated, the court's ruling to suspend the execution of the contested judicial act does not prevent the claimant from applying to the bailiffs service to initiate enforcement proceedings. The bailiff is not entitled to refuse to initiate enforcement proceedings only on the grounds that the execution of the judicial act on which the writ of execution was issued has been suspended. In the decision to initiate enforcement proceedings, the bailiff-executor simultaneously indicates the suspension of the execution of the judicial act by the relevant court and the suspension of the enforcement proceedings, therefore, the period for voluntary fulfillment of the requirements contained in the writ of execution is established by the bailiff-executor from the moment of the resumption of the enforcement proceedings. 33. By virtue of part 4 of article 359 of the CAS RF, part 4 of article 327 of the Arbitration Procedure Code of the Russian Federation and within the meaning of part 3 of article 440 of the Code of Civil Procedure of the Russian Federation, court rulings both on the suspension or termination of enforcement proceedings and on refusal to suspend or terminate enforcement proceedings can be appealed. Termination and termination of enforcement proceedings 34. The list of grounds for termination of enforcement proceedings provided for in part 1 of Article 47 of the Law on Enforcement Proceedings is exhaustive. The debtor's lack of property on which a claim can be levied entails the end of enforcement proceedings only on the condition that the bailiff-executor took all the measures allowed by law to find such property and they turned out to be ineffectual. Enforcement proceedings on the collection of periodic payments may be terminated by virtue of paragraph 3 of part 1 of Article 47 of the Law on Enforcement Proceedings in connection with the return of the enforcement
- 14. 14 documents on the grounds provided for in paragraphs 3-6 of Article 46 of the said Law, not earlier than the end of the period for collection of periodic payments. 35. The end of the enforcement proceedings (including consolidated ones) in connection with the actual performance by the debtor or one of the joint and several debtors of the requirements contained in the executive document is made if the bailiff-executor has data confirming the fact of execution. Actual performance may be recognized as the fulfillment of the obligation to transfer directly to the recoverer of funds in a specific amount or other specific property, or the commission of specific actions in favor of the recoverer or refraining from performing these actions. If deficiencies are identified in the individually defined property to be transferred by the debtor, and if the claimant refuses to accept such property, the bailiff-executor issues a resolution on the end of the enforcement proceedings and on the return of the execution document to the claimant due to the impossibility of execution (paragraph 2 of part 1, part 3 Article 46, paragraph 3 of part 1 of Article 47 of the Law on Enforcement Proceedings). The return of the executive document in this case does not prevent the claimant from applying to the court with an application to change the method of execution of the judicial act by replacing the transfer of property in kind with the recovery of its value, unless otherwise provided by law, or by filing another property claim. Similar rules can be applied in connection with obvious difficulties in the execution of judicial acts on the reclamation of disputed property from someone else's illegal possession, restitution and other judicial acts on the transfer of an individually defined thing. If the defects of the property are revealed during the execution of a court decision obliging the debtor to transfer property determined by generic characteristics (for example, when replacing goods of inadequate quality with a similar one), as declared by the claimant before accepting the property, the enforcement proceedings cannot be considered completed actual execution, since the debtor retains the obligation to transfer property without defects. If defects are discovered after the transfer of property to the claimant, the disputes arising in connection with this are resolved in a claim procedure as not related to enforcement proceedings. 36. The actual execution of the enforcement document (in whole or in part) may take place when the bailiff-executor carries out the offset of similar counter claims, confirmed by executive documents on the collection of funds, on the basis of which enforcement proceedings were initiated (Article 881 of the Law on Enforcement Proceedings).
- 15. 15 Carrying out of the bailiff-executor offset of the specified requirements may be recognized by the court unlawful if the order of satisfaction of the claims of other recoverers in the consolidated enforcement proceedings or the statutory prohibition on offsetting individual claims (in particular, on compensation for harm caused to life or health) is violated; on the recovery of alimony; on life support). The initiation of enforcement proceedings in several divisions of the FSSP of Russia and its territorial bodies does not prevent bailiffs-executors of offsetting counter homogeneous claims. 37. If the enforcement proceedings were terminated on the basis of clause 1 of part 1 of Article 47 of the Law on Enforcement Proceedings in connection with the actual fulfillment of the requirements contained in the enforcement document (including requirements of a periodic nature), but subsequently, during the period of submission of the enforcement document for execution, the debtor ceased to perform actions, comply with periodic requirements or violated the prohibition on the commission of actions in respect of which a writ of execution was issued, the chief bailiff or his deputy (on his own initiative or at the request of the claimant) has the right, by virtue of part 9 of Article 47 of the said Law, to cancel the decision on the end of the enforcement proceedings, indicating the need to repeat enforcement actions and the application of enforcement measures. 38. A court decision on the reinstatement of an unlawfully dismissed employee at work, on the reinstatement of an employee who was illegally transferred to another job at his previous job shall be subject to immediate execution no later than the first working day after the day of receipt of the enforcement document by the bailiff service (article 396 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), article 211 of the Code of Civil Procedure of the Russian Federation, part 4 of article 36 of the Law on Enforcement Proceedings). According to part 1 of Article 106 of the Law on Enforcement Proceedings, the executive document on reinstatement at work is considered executed upon confirmation of the cancellation of the order (order) on dismissal (transfer) of the claimant, as well as the employer taking measures necessary for the actual admission of the employee to the performance of previous labor duties, including measures on compliance with the conditions of admission to work in positions, upon appointment to which citizens are issued admission to state secrets or to work, during which employees undergo compulsory preliminary and periodic medical examinations, etc. Enforcement proceedings under an executive document containing, along with the demand for reinstatement at work, also a demand for the payment of average earnings during the forced absence or the difference in earnings during the performance of lower-paid work (Article 234, parts one and two of Article 394 of the Labor Code of the Russian Federation), may be terminated judicial
- 16.16 by the bailiff in connection with the actual performance, and the employee was reinstated in his previous job when the employer fulfills all the requirements contained in the executive document, including the obligation to pay the employee average earnings for the entire time of forced absenteeism or the difference in earnings for the entire time of performing lower-paid work. If, after the end of the enforcement proceedings in connection with the actual execution of the executive document, the employer canceled the order (order) by which the employee was reinstated at work by canceling the order (order) for dismissal (transfer), the decision of the bailiff-executor on the end of the enforcement proceedings upon the request for reinstatement at work can be canceled by the senior bailiff or his deputy on his own initiative or at the request of the claimant if it is necessary to repeat enforcement actions and apply, including repeated, enforcement measures (part 9 of Article 47 of the Law on Enforcement Proceedings). 39. Exclusion of the debtor-organization from the Unified State Register of Legal Entities by the decision of the registering authority on the basis of Article 211 of the Federal Law of August 8, 2001 No. 129-FZ "On State Registration of Legal Entities and individual entrepreneurs»In accordance with clause 7 of part 2 of Article 43 of the Law on Enforcement Proceedings shall entail the termination of enforcement proceedings. If the liquidated debtor-organization has unrealized property at the expense of which it is possible to satisfy the claims of creditors, then the recoverer who has not received execution under the executive document, another interested person or an authorized state body has the right to apply to the court with an application for the appointment of a procedure for distributing the discovered property among persons, having the right to do so, in accordance with paragraph 52 of Article 64 of the Civil Code of the Russian Federation. The seizure of the debtor's property 40. The seizure as an enforcement action may be imposed by a bailiff-executor in order to ensure the execution of a writ of execution containing claims for property penalties (clause 7 of part 1 of Article 64, part 1 of Article 80 of the Law on Enforcement Proceedings). As a measure of compulsory execution, arrest is imposed in the execution of a judicial act on the seizure of the property of the defendant, the administrative defendant (hereinafter - the defendant, in the enforcement proceedings - the debtor), which is with him or with third parties (part 1, paragraph 5 of part 3 of Article 68 of the named Law). In pursuance of a judicial act on the seizure of the defendant's property, the bailiff-executor shall arrest and establish
- 17. 17 only those restrictions and only in relation to the property, which are indicated by the court. If the court took an interim measure in the form of the seizure of the defendant's property, establishing only its total value, then the specific composition of the property subject to seizure and the types of restrictions in relation to it are determined by the bailiff in accordance with the rules of Article 80 of the Law on Enforcement Proceedings. In cases where the debtor interferes with the execution of a judicial act on the seizure of property under a judicial act on the seizure of the debtor's movable property, including by refusing to accept the seized property for storage, the bailiff has the right to transfer the seized property to safekeeping family members of the debtor, the recoverer or a person with whom territorial body FSSP of Russia entered into a storage agreement, taking into account the requirements established by Article 86 of the Law on Enforcement Proceedings. 41. When seizing property in order to ensure the execution of a court order containing claims for property penalties, the bailiff-executor has the right, by virtue of part 1 of Article 80 of the Law on Enforcement Proceedings, not to apply the rules of the order of foreclosure on the debtor's property, which in itself does not frees the bailiff-executor from the obligation in the future to carry out actions to identify other property of the debtor, which can be foreclosed in the previous turn. At the same time, the bailiff is obliged to be guided by part 2 of Article 69 of the said Law, which allows foreclosure on property in the amount of debt, that is, the arrest of the debtor's property, as a general rule, should be proportional to the volume of the claims of the recoverer. For example, the seizure is disproportionate in the case when the value of the seized property significantly exceeds the amount of the debt under the writ of execution in the presence of other property, which can subsequently be foreclosed. At the same time, such an arrest is permissible if the debtor has not provided the bailiff with information about the presence of other property that can be foreclosed, or if the debtor has no other property, its illiquidity or low liquidity. The identification, seizure and commencement of the procedure for the sale of other property of the debtor by themselves cannot serve as a basis for lifting the previously imposed seizure until the requirements of the enforcement document are fully fulfilled. 42. The list of enforcement actions given in part 1 of Article 64 of the Law on Enforcement Proceedings is not exhaustive, and the bailiff is entitled to perform other actions necessary for the timely, complete and correct execution of enforcement documents (paragraph 17 of part 1 of the named article), if they comply with the objectives and principles of enforcement proceedings (Articles 2 and 4 of the Law on Enforcement Proceedings), do not violate those protected by federal
- 18. 18 by law the rights of the debtor and other persons. These actions include the establishment of a ban on the disposal of the property owned by the debtor (including a ban on registration actions against him). A ban on the disposal of property is imposed in order to ensure the execution of a writ of execution and to prevent the disposal of property, which can subsequently be foreclosed, from the possession of the debtor in cases where the bailiff-executor has reliable information about the presence of the debtor's individually defined property, but at the same time it is difficult to find and / or make an inventory of such property for one reason or another (for example, when the debtor's property vehicle he hides from collection). The bailiff is obliged to send the decision on imposing a ban on the disposal of property to the appropriate registering authorities. After discovering the actual location of the property and the possibility of its inspection and inventory for the purpose of levying execution on it, the bailiff is obliged to take all the necessary actions to seize the specified property of the debtor in accordance with the rules provided for in Article 80 of the Law on Enforcement Proceedings. 43. Arrest as an interim measure or a ban on the order may be established on the property listed in the second and third paragraphs of Part 1 of Article 446 of the Code of Civil Procedure of the Russian Federation, which belongs to the debtor-citizen. For example, the arrest as an interim measure of a living quarters belonging in whole or in part to the debtor-citizen, which is the only one suitable for permanent residence of the debtor himself and his family members, as well as the imposition of a ban on the disposal of this property, including a ban on the move in and registration of other persons, by themselves cannot be recognized as illegal if these measures are taken by the bailiff-executor in order to prevent the debtor from disposing of this property to the detriment of the interests of the claimant. The imposition of seizure or the establishment of an appropriate prohibition should not prevent the debtor citizen and his family members from using such property. 44. In order to ensure the rights of the creditor on the basis of parts 1 and 4 of Article 80 of the Law on Enforcement Proceedings, seizure or prohibition on disposal (prohibition on registration actions) is possible in relation to property that is in a common joint ownership the debtor and other person (persons), until the determination of the share of the debtor or before its separation. 45. By virtue of parts 3 and 6 of Article 81 of the Law on Enforcement Proceedings, seizure may be imposed on funds that are in a bank or other credit institution on existing bank accounts (settlement, deposit) and in the debtor's deposits, and on funds that will be credited to the accounts and deposits of the debtor in the future. In this case
- 19. 19 execution of the order of the bailiff-executor on the seizure of funds is carried out as they are received on accounts and deposits, including those opened after the bank receives this order. The seizure of funds in the bank accounts of the debtor means the prohibition of their write-off within the amount specified in the executive document, as well as the prohibition of the bank (credit organization) to declare the offset of its claim against the debtor, who is his client, therefore the court has the right at the request of the bailiff-executor or the recoverer to seize the received funds, as well as the funds that will be transferred to the debtor's name in the future to the correspondent account of the bank serving him, if other measures cannot ensure the execution of the adopted judicial act (for example, the presence of the seizure of funds on the client's current account). At the same time, the seizure of funds on the correspondent account does not release the bank (credit organization) from the obligation to credit the seized funds to the client's current account, on which the bailiff also seized the funds. Establishing a temporary restriction on the debtor's departure from the Russian Federation 46. In the event of a citizen's failure to comply with executive documents of non-judicial bodies, a temporary restriction on the debtor's departure from the Russian Federation, regardless of his status ( individual, individual entrepreneur, official) is established by a court of general jurisdiction (part 4 of Article 67 of the Law on Enforcement Proceedings). When executing executive documents issued on the basis of a judicial act or being judicial acts, a temporary restriction on the debtor's departure from the Russian Federation is established not by the court, but by the bailiff-executor at the request of the claimant or on his own initiative (parts 1-3 of Article 67 of the Law on Enforcement Proceedings). Consideration of an application to challenge the decision of the bailiff-executor on a temporary restriction on the debtor's departure from the Russian Federation falls within the competence of the arbitration court, if such a restriction is established within the framework of the enforcement proceedings initiated on the basis of the executive document of the arbitration court, and if such a restriction is established within the framework of the enforcement proceedings , instituted on the basis of an executive document of a court of general jurisdiction - to the competence of a court of general jurisdiction. 47. Under article 67 of the Law on Enforcement Proceedings, a temporary restriction on leaving the Russian Federation may be imposed on citizens who are debtors in enforcement proceedings. A temporary restriction on leaving the Russian Federation cannot be established in relation to the manager, employees of the debtor-organization.