The Plenum decided to collect the debts of the directors from their wives and children. Resolution of the Plenum of the Armed Forces of the Russian Federation on the application of legislation by courts when considering certain issues arising during enforcement proceedings - Rossiyskaya Gazeta Resolution of the Plenum of you
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 during enforcement proceedings.” The document replaced Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 N 27. The new Resolution includes most of the previously effective clarifications of the Supreme Arbitration Court of the Russian Federation, as well as a significant number of novelties. Let's consider some of its provisions.
Issues of jurisdiction. The Supreme Court of the Russian Federation has been heading both branches of the Russian judicial system for more than a year and has been paying considerable attention to the delimitation of the competence of courts of general jurisdiction and arbitration courts. Resolution No. 50 is no exception: in addition to stating the rules of jurisdiction obviously established by procedural codes, in paragraph 4 of the Resolution, the Plenum of the RF Armed Forces determines the procedure for resolving conflicts of jurisdictions in consolidated enforcement proceedings, the writs of execution in which are issued by courts from different systems. According to the Court, challenging the actions and inactions of a bailiff is related to the implementation of enforcement proceedings as a whole and, therefore, falls under the jurisdiction of a court of general jurisdiction. In such proceedings, arbitration courts have jurisdiction only to resolve issues that are not related to the consolidated proceedings as a whole and do not affect the verification of the legality of the actions of the bailiff (for example, the succession of the claimant).
Seizure of the debtor's property. In enforcement proceedings, there is a widespread practice of bailiffs issuing orders prohibiting the disposal and registration of actions in relation to real estate and vehicles of debtors. Such decisions are not directly provided for by the legislation on enforcement proceedings, but are widely used to quickly block the debtor’s withdrawal of assets, bypassing the cumbersome rules on seizure (the need for the bailiff to have direct access to the property; inventory and valuation; participation of witnesses). The Plenum of the RF Armed Forces, in paragraph 42 of the Resolution, confirmed the legality of this practice, and also established the duty of the bailiff to make an arrest according to the rules established by law after the actual discovery of property.
In addition, clause 43 establishes the possibility of arresting the debtor’s only residential premises in order to prevent its alienation to the detriment of the interests of the claimant. Previously, courts often found such arrests illegal due to the fact that the only residential premises were legally protected from foreclosure, which created scope for abuse by debtors. The suppression of this practice by the Supreme Court of the Russian Federation can, in our opinion, only be welcomed.
Foreclosure of land plots - the location of the only residential premises. In paragraph 62 of Resolution No. 50, the Plenum of the Supreme Court of the Russian Federation took the first step towards resolving the long-standing problem of the constitutionality of the unconditional ban on the sale of the debtor’s only residential premises. As is known, Art. 446 of the Code of Civil Procedure of the Russian Federation protects them from foreclosure, regardless of size and cost, which in practice extremely often leads to clearly unfair situations when debtors concentrate significant assets in a single (but extremely expensive) home, protecting them from foreclosure. The need for a differentiated approach was pointed out by the Constitutional Court of the Russian Federation back in 2012, in Resolution No. 11-P of May 14, 2012, which proposed that the federal legislator amend Art. 446 of the Code of Civil Procedure of the Russian Federation, but to this day the problem remains unresolved.
The Supreme Court of the Russian Federation in Resolution No. 50 did not address the issue of the sale of the only housing, but allowed foreclosure on the land plots on which such housing is located, subject to a number of conditions:
The size significantly exceeds the provision standards for the corresponding intended purpose;
The plot is not actually used to ensure the necessary standard of living for the debtor and his family;
The debtor's income is clearly disproportionate to the amount of the debt and does not allow him to repay it within a reasonable time.
Challenging the valuation of the debtor's property. Resolution No. 50 contains a number of important clarifications regarding one of the most problematic stages of enforcement proceedings - the assessment of the debtor's property. Challenging the assessment results is one of the most common ways for a debtor to delay enforcement proceedings. We believe that the clarifications of the Plenum of the RF Armed Forces will be able to somewhat streamline this extremely controversial category of disputes.
Thus, in paragraph 50 of Resolution No. 50, the Plenum determined that the courts are obliged to indicate in the operative part of the judicial act an appropriate assessment of the property, which should be directly used in further enforcement proceedings. Thus, the actual value of property is recognized by the RF Armed Forces as a circumstance that must be established in any case challenging the assessment results. This clarification develops the approach contained in the previously effective Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 27, which established the need to indicate the appropriate assessment in the operative part only if it was determined during the trial. It seems that the approach proposed by the Plenum of the RF Armed Forces will reduce the number of abuses by debtors when challenging an assessment, since for each assessment only one legal dispute will now be possible, establishing the final price of the property.
In addition, at the level of the Plenum of the RF Armed Forces, the procedure for distributing legal costs for this category of disputes is established. According to paragraph 51 of the Resolution, if the application is satisfied, they are reimbursed by the territorial body of the bailiff service. However, the service has the right to file a claim against the appraiser for damages in the amount of such expenses. This clarification answers the question that has long been discussed in the professional community about the fairness of imposing on the bailiff service the costs of challenging the assessment, when the bailiff is deprived of the actual opportunity to verify the accuracy of the appraiser's report submitted to him.
Key provisions of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 50 of November 17, 2015:
If the writ of execution was issued by a court of general jurisdiction, then the dispute will be resolved in a court of general jurisdiction; if the writ of execution was issued by an arbitration court, then the disputes will be resolved in an arbitration court.
In the case of consolidated enforcement proceedings, when cases on enforcement documents of a court of general jurisdiction and an arbitration court are combined, applications to challenge orders of actions (inactions) of a bailiff will be resolved by a court of general jurisdiction. Issues related to the approval of a settlement agreement and a reconciliation agreement will be resolved in the same manner.
In the course of claim proceedings (Civil Procedure Code of the Russian Federation, Arbitration Procedure Code of the Russian Federation), demands may be made for the release of property from arrest (exclusion from the inventory), demands for the lifting of the ban on the disposal of property established by the bailiff, for the return of sold property, for compensation for losses, etc.
In administrative proceedings (CAS of the Russian Federation, Arbitration Procedure Code of the Russian Federation), claims to challenge decisions, actions (inactions) of bailiffs and other officials of the Federal Bailiff Service are considered.
- Parties enforcement proceedings have the right to challenge in a lawsuit the assessment of the debtor's property made by an independent appraiser, or in an administrative manner to challenge the decision of the bailiff on the assessment of the debtor's property (clause 50 Resolution No. 50).
- The list of circumstances that may be considered valid for the courts to restore missed procedural deadlines for filing a lawsuit has been expanded when considering disputes within the framework of enforcement proceedings (clause 11 Resolution No. 50).
Parties to enforcement proceedings have the right to challenge the bailiff's decision on the valuation of property in the manner prescribed by Chapter. 22 CAS RF and ch. 24 Arbitration Procedure Code of the Russian Federation.
When challenging a decision, the court has the right to suspend enforcement proceedings as part of the sale of property that was valued by a bailiff or appraiser.
If the bailiff's decision is declared illegal, the court in its decision obliges the bailiff to issue a new resolution indicating the assessment of the debtor's property, established by the court.
In addition, the Plenum pointed out the possibility of the parties to the enforcement proceedings challenging the value of the valuation object indicated in the appraiser's report within the framework of the claim proceedings.
In particular, a valid reason for missing the deadline for judicial appeal of decisions, actions (inactions) of a bailiff is the untimely consideration or failure to consider the complaint by a higher body or a higher official.
In the event of a change in the name (name) of a party to enforcement proceedings, there is no need to apply to the court with an application for procedural succession. In this case, the bailiff must provide documents that confirm the relevant changes (for example, a certificate of change of name or an extract from the Unified State Register of Legal Entities):
– When initiating enforcement proceedings, the bailiff issues a resolution to initiate enforcement proceedings indicating both the new and the previous name (name) of the claimant or debtor.
– During enforcement proceedings, the bailiff indicates a change in the name (name) of the party to the enforcement proceedings in the relevant resolution, and also, if necessary, makes changes to previously issued decisions (for example, to the resolution to initiate enforcement proceedings).
Actions for such an arrest can be carried out if the following conditions are met:
– This interim measure is necessary to ensure that the debtor cannot dispose of this property to the detriment of the claimants.
– This interim measure should not limit the citizen-debtor and members of his family in the right to use this property.
Actions for such collection are possible subject to the following conditions:
– It is possible to foreclose on a land plot only to the extent that clearly exceeds the maximum minimum amounts for the provision of plots for lands of the corresponding intended purpose and permitted use.
– If the use of the plot (on which it is proposed to foreclose) is not related to meeting the needs of the debtor and his family members in ensuring the necessary level of subsistence.
– If the debtor’s income is clearly disproportionate to the volume of demands contained in the executive documents and does not allow them to be satisfied within a reasonable time.
This is permissible in the case where the debtor did not provide the bailiff with information about the presence of other property that can be foreclosed on, or if the debtor does not have other property, its illiquidity or low liquidity.
When the debtor has no other property, it is possible to foreclose on a share in common property (joint or shared).
If it is impossible to separate the debtor's share from the joint property, the size of the share is determined by the court.
The court has the right, taking into account the degree of guilt of the debtor for failure to fulfill the writ of execution on time, and other significant circumstances, to reduce the amount of the enforcement fee by no more than ¼ of the amount established by Part 3 of Article 112 of the Federal Law of October 2, 2007 No. 229-FZ “ On enforcement proceedings."
In this case, the only reason for a debtor’s failure to pay the enforcement fee is the occurrence of force majeure circumstances. In other cases, the debtor is exempt from paying the fee if he has taken all measures to comply with the requirements of the writ of execution. If such measures were not taken, then the debtor’s lack of funds in itself is not a basis for exempting him from paying the fee.
The debtor has the right to compensation for damage if:
– The bailiff illegally seized property from the debtor, which was later lost (damaged).
– The debtor had to repay the debt at the expense of the property of a third party, since the debtor’s property, which was transferred to the bailiff for storage, was lost (damaged).
– The damage was caused as a result of the illegal removal of the seizure of the debtor’s property by a bailiff.
– The only property of the debtor was lost (damaged), at the expense of which the requirements under the executive documents could be satisfied.
– In relation to pledged property, damages are subject to compensation to the claimant-pledgee in the amount of the value of this pledged property.
The proper defendant in the case of compensation for damage caused by illegal actions (inactions) of a bailiff is the Russian Federation represented by the Federal Bailiff Service of Russia.
The Supreme Court of the Russian Federation has updated clarifications on issues arising during enforcement proceedings
The resolution contains answers to the following questions, including:
delimitation of the competence of courts of general jurisdiction and arbitration courts;
challenging decisions, actions (inaction) of bailiffs;
initiation of enforcement proceedings;
deferment or installment plan for the execution of a writ of execution;
suspension of execution of a judicial act and enforcement proceedings;
completion and termination of enforcement proceedings;
seizure of the debtor's property;
assessment and storage of the debtor's property;
powers of the bailiff to carry out actions aimed at state registration of rights to property;
foreclosure of the debtor's property and pledged property, sale of the debtor's property at public auction, collection of enforcement fees.
In particular, it is clarified that the arrest as an interim measure of residential premises owned in whole or in part by a debtor-citizen, which is the only one suitable for permanent residence of the debtor himself and his family members, as well as the establishment of a ban on the disposal of this property, including a ban on occupancy and registration other persons, cannot in themselves be considered illegal if these measures are taken by a bailiff in order to prevent the debtor from disposing of this property to the detriment of the interests of the claimant. The seizure or establishment of a corresponding ban should not prevent the debtor citizen and members of his family from using such property.
Clause 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 2002 N 11 “On some issues related to the implementation of the Arbitration Procedure Code of the Russian Federation”, as well as the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 N 27 “On some issues of application” were recognized as not subject to application legislation on enforcement proceedings."
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The Plenum of the Supreme Court of the Russian Federation issued new clarifications on issues of enforcement proceedings
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 during enforcement proceedings.” This resolution not only reproduces the previously voiced legal positions of higher courts (including the Supreme Arbitration Court of the Russian Federation), but also specifies a number of provisions of the legislation on enforcement proceedings and judicial practice, which until now have been controversial.
The first two chapters of the Resolution contain detailed provisions on the division of competence between judicial authorities on issues related to enforcement proceedings. The need for these clarifications is caused by the recent introduction into force of the Code of Administrative Procedure of the Russian Federation. In addition, these chapters also address pre-existing questions about the competence of courts. Thus, the priority of courts of general jurisdiction in considering disputes related to the implementation of consolidated enforcement proceedings is confirmed.
A notable innovation is the prohibition on the bailiff to cancel his decision. The authority to cancel decisions is vested in senior bailiffs and their deputies. It is interesting that these provisions contradict the previously existing positions of the Supreme Arbitration Court and established law enforcement practice.
A number of important provisions of Resolution No. 50 concern challenging decisions and actions (inaction) of a bailiff in court. In particular, the Plenum established that untimely consideration of a complaint against the actions of a bailiff by higher authorities and officials is a valid reason for skipping going to court in such cases. At the same time, the circle of defendants in such claims is clearly established. The defendant may be the bailiff himself, whose actions are being disputed, or, in the event of termination of his powers, the official to whom the said powers were transferred (or the senior bailiff, if the powers were not transferred). In addition, the territorial body of the FSSP, in which the defendant serves, must also be involved in the case as a third party. It is worth noting that these provisions can significantly prevent red tape caused by high staff turnover in the FSSP system and the resulting frequent transfer of cases from one bailiff to another (due to the possibility of involving the head of the bailiff service department as a defendant in the event of a long-term failure to appoint a responsible person bailiff). At the same time, the need to involve several representatives of the FSSP in the case may make it difficult to consider the case if any of the parties or third parties fail to appear.
A notable innovation was the consolidation in the resolution of signs of illegal inaction of the bailiff. At the same time, the Supreme Court indicated that exceeding the two-month period for the execution of a court decision does not in itself indicate the illegal inaction of the bailiff, which was what representatives of the FSSP and the Ministry of Justice sought during the discussion of the draft resolution. The circumstances related to the organization of the work of the bailiff service, however, were not recognized as justifying exceeding the deadlines, as indicated in paragraph 15 of the Resolution.
The Supreme Court also resolved a number of issues related to succession in enforcement proceedings that had caused problems in practice. Thus, the Plenum confirmed that the issue of succession at the stage of enforcement proceedings is considered only by the courts on the basis of an application from the parties, a person who considers himself a successor, or the bailiff himself. At the same time, the Resolution once again reproduces the position of the Supreme Arbitration Court on changing the name of an individual or changing the name of an organization, often ignored by law enforcement officials. The court indicated that these changes do not require succession and are formalized by a decree of the bailiff, and can also be mentioned both in further acts of the bailiff and in previously issued decisions in the relevant case.
On the other hand, the Resolution does not contain the previously existing legal positions of the Supreme Arbitration Court, according to which, in the event of a plurality of persons on the side of the claimant or debtor, the court issues several writs of execution in replacement of the previously issued ones. It seems that this problem, which is of great practical importance, should be resolved by the Supreme Court in the future.
The Supreme Court also considered the controversial issue of applying compulsory enforcement measures and taking enforcement actions before the expiration of the period for voluntary execution. The court indicated that the use of enforcement measures within the specified period is not permitted, although individual enforcement actions may be taken (for example, seizure of the debtor’s property). In addition, the Plenum confirmed that it is not allowed to restrict the debtor’s travel outside the Russian Federation until the expiration of the period for voluntary execution and the bailiff receiving information that the debtor has information about the initiation of enforcement proceedings against him. It is interesting that the court did not specify in what specific form the information should be received, which provides wide opportunities for interpretation of this provision.
The Plenum resolved a previously existing problem related to the exclusion of an inactive debtor organization from the Unified State Register of Legal Entities by decision of the registering authority on the basis of Art. 21.1 Federal Law “On state registration of legal entities and individual entrepreneurs. Collectors who, for certain reasons, missed the moment of liquidation of their debtor, now have the right to apply to the court with an application to appoint a procedure for the distribution of property left after the debtor, if any is discovered.
The Resolution resolved the issue of seizing and prohibiting the disposal of the debtor's property. As the court indicated, arrest as an enforcement action can be imposed by a bailiff in order to ensure the execution of a writ of execution containing demands for property penalties (according to clause 7, part 1, article 64, part 1, article 80 of the Federal Law "On Enforcement Proceedings" "). The arrest must be proportionate to the volume of the claimant's demands. At the same time, a formally disproportionate seizure is permissible if the debtor has not provided the bailiff with information about the presence of other property that can be foreclosed on, or if the debtor does not have other property, its illiquidity or low liquidity. The court also indicated that set out in Part 1 of Art. 64, the list of enforcement actions is not exhaustive and the bailiff has the right to perform other actions necessary for the timely, complete and correct execution of enforcement documents, if they comply with the tasks and principles of enforcement proceedings and do not violate the rights of the debtor and other persons protected by federal law. Among such actions, the Plenum includes, in particular, the establishment of a ban on the disposal of property belonging to the debtor (including a ban on performing registration actions in relation to it. This ban is considered in fact as a procedure preceding the arrest. After discovering the actual location of the property, the bailiff is obliged to seize it.
An important innovation is the possibility of seizing or prohibiting the disposal of property, which, in accordance with Art. 446 of the Civil Procedure Code cannot be levied. As an example, Decree No. 50 indicates the debtor’s only home. At the same time, such measures should be taken by the bailiff in order to prevent the debtor from disposing of this property to the detriment of the interests of the claimant, and the seizure itself or the establishment of a corresponding ban should not prevent the debtor citizen and members of his family from using such property. The possibility of seizure of jointly owned property was also established.
Part of the provisions of the Resolution concerns the seizure of funds in the debtor’s bank accounts. It is interesting that arrest can be imposed not only on funds located or received in the debtor’s account, but also on funds that will be received in the name of the debtor in the future to the correspondent account of the bank servicing him, if other measures cannot ensure the execution of the adopted judicial act . At the same time, it is indicated that only a court can impose such an arrest.
A number of the legal positions of the Supreme Court set out in the Resolution concern the issues of foreclosure on the debtor’s property. Of interest is the presumption enshrined by the Plenum that the debtor owns movable property located on the premises or on a plot of land fenced off from access by other persons, owned or possessed by the debtor. The burden of proving otherwise falls on the interested parties. At the same time, it is worth keeping in mind that the seizure by a bailiff of the debtor’s movable property during a visit to his place of residence or location is a very common and effective measure from the bailiffs’ arsenal. At the same time, foreclosure on the land plots themselves, according to Art. 278 of the Civil Code and paragraph 58 of the Resolution, is allowed only on the basis of a court decision. Such cases are considered in the manner of claim proceedings in compliance with the rules of exclusive jurisdiction.
Another important provision is the possibility, confirmed by the court, of foreclosure on the pledged property to satisfy the claims of a claimant who is not a mortgagee. Foreclosure can be made by a bailiff if there is no property other than the pledged property that can be foreclosed on. Foreclosure in this case is carried out taking into account the rules for the sale of property encumbered with the rights of third parties (according to paragraph 1 of Article 353, Article 460 of the Civil Code of the Russian Federation, Article 38 of the Law “On Mortgage”).
Finally, the last chapter of Resolution No. 50 addresses issues of compensation for damage caused by illegal actions (inaction) of a bailiff. The Plenum considers as a mandatory condition for compensation for harm the preliminary recognition of the actions of the bailiff that caused the harm as illegal. It is also impossible to refuse compensation for harm due to the impossibility of establishing the specific amount of harm. The position of plaintiffs in disputes over compensation for harm is made even stronger by the provisions that place the burden of proving the legality of their actions in such cases on the bailiff.
In connection with the adoption of Resolution No. 50, Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 27 “On some issues of application of legislation on enforcement proceedings” became invalid. It should be noted that the new legal positions of the Supreme Court on issues of enforcement proceedings specify the provisions of the legislation in more detail and expand the rights of the claimant and the capabilities of the bailiff within the framework of enforcement proceedings. The Lex group of law firms has already begun to introduce the most noticeable innovations into its practice.
The Supreme Court adopted a resolution on enforcement proceedings
The Plenum of the Supreme Court of the Russian Federation adopted a resolution designed to answer questions arising during enforcement proceedings. After editing, the norm on the enforcement fee, which was objected to by representatives of the FSSP and the Prosecutor General's Office of the Russian Federation, disappeared from the document, but one of the most important novelties - about the arrest of the debtor's only home and foreclosure on the land under it - remained. True, the Supreme Court has now clarified the limits of such a penalty.
What will change in enforcement proceedings?
Will the debtor be able to travel abroad until the termination of proceedings, and the bailiffs will be able to foreclose on the land with his residential building? Who should compensate for the damage caused by FSSP employees? First of all, the resolution of the Plenum of the Supreme Court of the Russian Federation on enforcement proceedings is intended to provide answers to these questions, which will replace the relatively recent resolution of the Plenum of the Supreme Arbitration Court No. 27 on the same issue, which was published on May 16, 2014. The need for a new document has arisen primarily in connection with the entry into force of the Code of Administrative Procedure of the Russian Federation on September 15 of this year.
The Supreme Court discussed this document for the first time on November 12, but in the end decided to send it for revision (see “The Supreme Court sent the resolution on enforcement proceedings for revision”). Today, November 17, the resolution was adopted and it managed to undergo several changes, the most important of which concerns the enforcement fee. The provisions on the seizure of a citizen’s only home and foreclosure on the land underneath it were also clarified. The remaining edits are of a technical nature. Now the resolution consists of 88 points. “The adoption of this document will resolve many issues, increase the efficiency of judicial protection and shorten the time frame,” the speaker, Supreme Court Judge Sergei Romanovsky, said at the meeting today.
The rule about calculating the performance fee was excluded
According to the resolution, the enforcement fee is always paid. The debtor cannot be exempted from paying it, even if the requirements of the writ of execution were fully fulfilled by him immediately after the expiration of the period for voluntary execution (clause 75). Such actions of the debtor, taking into account the objective reasons for the delay in execution, may be taken into account by the court when resolving the debtor’s demands to reduce the amount of the enforcement fee, but not by more than one quarter.
– Initially, the draft resolution also included clause 77, which specified that the enforcement fee should be charged once in the amount of 7% of the amount to be collected or the value of the property being collected. As stated there, the total amount of the enforcement fee collected from all joint and several debtors should not exceed 7% of the amount to be collected under enforcement documents providing for joint and several collection. However, during 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 enforcement fee as an administrative fine. The Prosecutor General's Office of the Russian Federation adhered to the same position. As a result, after editing, paragraph 77 was excluded from the text of the resolution. “This is caused by the need for additional discussion of this problem,” Romanovsky briefly explained at the meeting today. “This is the only reasonable solution,” Sabir Kekhlerov, Deputy Prosecutor General of the Russian Federation, also expressed his opinion.
The only place of residence can be seized
It was expected from the new resolution that the Supreme Court would allow the seizure of 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 the Code of Civil Procedure of the Russian Federation prohibits foreclosure on this property.
– The Supreme Court in paragraph 43 of the document explained that a seizure or ban 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 editing, this provision remained in the resolution. And in paragraph 44 (it clarifies what property can be seized) it was specified that seizure is possible in respect of property located in the common joint property of the debtor and another person (persons) until the debtor’s share is determined or before its allocation.
– Remained in the resolution and paragraph 62 of the document, which makes it possible to apply judicial foreclosure on the land plots where these objects are located (now they cannot be the subject of foreclosure). But now the wording of this provision has been specified. Now it says that foreclosure in court on such land plots is permissible not for the entire thing, but in part, clearly exceeding the maximum minimum sizes for the provision of land plots for lands of the corresponding intended purpose and permitted use, and their actual use is not related to meeting the needs of the debtor citizen and his family members in ensuring the necessary level of subsistence. And besides, this is only possible if the debtor’s income is clearly disproportionate to the volume of monetary claims contained in the writ of execution and does not allow these claims to be satisfied within a reasonable time.
Restriction on traveling abroad may expire
The measure of security in the form of a temporary restriction on the debtor’s travel outside the Russian Federation is specified in paragraphs. 46–49 of the project. If debtors fail to comply with enforcement documents issued by non-judicial bodies, a decision not to travel abroad can only be made by a court of general jurisdiction. When executing judicial acts or writs of execution issued on the basis of a judicial act, a temporary restriction on the debtor’s departure is established not by the court, but by the bailiff - on his own initiative or at the request of the claimant. Arbitration courts have the right to accept and consider applications challenging such actions of FSSP employees if the restriction is established within the framework of enforcement proceedings initiated on the basis of a writ of execution of the arbitration court.
– The resolution states that when a recoverer or bailiff applies to the court with an application to establish a temporary limitation, its period can be determined by the court taking into account the specific circumstances of the case. However, it cannot go beyond the time frame specified by the applicant.
The FSSP, in turn, believed that such a restriction, which forces the debtor to execute the document, should not have a calendar period and proposed to remove it only when the enforcement proceedings against them are terminated and the debt is fully paid. But in the end, the service’s comments on this issue were never taken into account.
Expert assessment of property is required
– Paragraph 50 of the document states that in cases provided for in parts 2 and 3 of Art. 85 of the law on enforcement proceedings, the bailiff is obliged to conduct an assessment of the debtor’s property with the indispensable involvement of a specialist appraiser. The parties have the right to challenge in court both the bailiff's decision on the valuation (with the involvement of the appraiser as an interested party) and the value of the valuation object indicated by the appraiser in the report, in the manner of litigation (with the involvement of the bailiff as a third party). And regardless of the wording of the requirements, the court will have to make a conclusion about the reliability of the assessment made, and in the operative part of the judicial act indicate the proper assessment of the property. It will be mandatory for the bailiff.
– According to paragraph 51 of the document, legal costs in satisfying the application to challenge the bailiff’s decision are assigned to the FSSP, and it can already demand reimbursement from the appraiser, whose report the court rejected.
It is expected that this measure will lead not only to faster and more effective protection of rights, but also to procedural savings.
Bailiffs will begin collecting taxes
– Clause 18 of the document clarifies that “resolutions of tax authorities (bodies of the Pension Fund of the Russian Federation and the Federal Bailiff Service of the Russian Federation) on the collection of taxes (insurance contributions) at the expense of the property of the taxpayer (payer of insurance premiums) are executive documents that are sent for enforcement to the bailiff service " At the same time, FSSP employees do not have the right to demand from the body that sent the writ of execution any additional papers confirming the lack 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 have not been presented to him may be considered illegal.
The FSSP, for its part, asked to additionally indicate in this paragraph that forced collection can only be applied if the tax authorities (RF RF, FSSP RF) have exhausted their own capabilities to collect tax fees or insurance premiums from the debtor, and evidence of this would be provision by the specified bodies of documents justifying the need for compulsory execution. However, these comments were not included in the final version of the resolution.
Claims against bailiffs
The resolution delineates 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 consolidated proceedings, along with executive documents of arbitration, the same documents issued by the SOJ and/or documents of non-judicial bodies are executed, then applications for challenging decisions, actions (inaction) of the bailiff must be considered by a court of general jurisdiction.
– Clause 9 states that the cancellation by a higher official of the disputed decision of the bailiff during the consideration 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 led to a violation of the rights, freedoms and legitimate interests of the applicant. The completion or termination of enforcement proceedings in themselves does not prevent the court from considering an application challenging the decision or actions (inaction) of the bailiffs.
– Clause 11 talks about the legal consequences of missing the deadline for filing a petition in court to challenge a decision or actions (inaction) of bailiffs. For courts of general jurisdiction, they are indicated in Part 2 of Art. 256 of the Civil Procedure Code of the Russian Federation, but there was no similar rule in the Arbitration Procedure Code of the Russian Federation. The Supreme Court proposes that arbitrations, when considering these issues, apply the provisions of Parts 6 and 8 of Art. 208 CAS RF by analogy with the law (part 5 of article 3 of the Arbitration Procedure Code of the Russian Federation).
– In paragraph 12, the Supreme Court explained to whom to make demands if a 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 relevant division of the FSSP.
– Clause 82 of the resolution makes it clear who should be the defendant in claims for compensation for damage caused by illegal actions (inaction) of a bailiff. Nowadays, the Ministry of Finance of the Russian Federation is often cited as a 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 of budgetary funds, the FSSP of Russia, is speaking in court. When satisfying a claim, 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 clarifies that failure to comply with the requirements of the writ of execution on time cannot in itself serve as a basis for concluding that the bailiff was unlawfully inactive. Just as the absence of actual performance in itself is not a basis for imposing on the state the obligation to compensate amounts not received from the debtor under the writ of execution (clause 86). The inaction of a bailiff may be considered illegal if he had the opportunity to take the necessary enforcement actions and apply the necessary enforcement measures aimed at the full, correct and timely fulfillment of the requirements of the executive document within the period established by law, but did not do so, thereby violating the rights and legitimate interests parties to enforcement proceedings, specified there.
WITH complete text resolutions Plenum Sun "ABOUT application courts legislation at consideration some questions arising V progress executive production" you can familiarize Here.
The main question that arises when looking at the impressive lists of publications published by law firms is why they do this. After all, there are many successful consultants who do without this line of work, which requires significant investments, both time and financial. However, book publishing companies are confident that the approach is effective. There are few current books, and each is a long-term asset and a long-term advantage. “The company encourages the authorship of lawyers, we support publishing projects both from an organizational and financial point of view, and we see in this not only a manifestation of loyalty to employees, but also business potential, since all these books are in great demand among readers,” - says Sergey Pepelyaev, managing partner of Pepelyaev Group, a company that, according to colleagues in the shop, is a leader in the field of book publishing among consultants.
Firstly, it allows you to attract new and increase the loyalty of old customers - after all, the company publicly demonstrates its expertise and declares itself as an intellectual leader. Professionalism can also be shown to foreign clients - this is what AB EPAM does, for example, which in 2010–11 took part in the publication of books in English - reviews of the legislation of the CIS countries in various fields of law.
“The books were intended for foreign investors and their legal advisers,” the company says. The project was successful, but did not develop - it turned out to be too difficult to administer the publication of collections with a large number of participants. At EPAM, manual books that address practical aspects of law are published, as a rule, under the bureau’s brand and meet the objectives of positioning the company in the market. The authors are usually experts from flagship practices: judicial arbitration, international disputes, corporate law and M&A.
“We believe that the practical experience accumulated by our lawyers over the years of working on a wide variety of projects will be useful to colleagues in corporate legal departments and law firms. The demand for books confirms this,” EPAM admits.
The Pepeliaev Group argues in a similar way, where they annually publish a collection of articles, “Rules for Business,” which contains information about litigation that is important for practice and law enforcement issues that are relevant to business, as well as practical recommendations for resolving controversial issues. “This book is very much appreciated by our clients, since they find answers to many legal questions there,” notes Sergey Pepelyaev.
In most cases, books can be purchased; some publications, the number of which is much smaller, can be downloaded for free. Companies also distribute books to customers.
Leadership and education
Consultants also see publishing as a way to exchange experience with colleagues - this is the goal, judging by the responses of representatives of law firms "Pravo.ru", pursued by the majority of those who choose publishing.
Pepeliaev Group is convinced that the status of a leading player obliges us to pay attention not only to legal practice and directly to client work. “We strive to create something tangible that will subsequently become the property of the entire legal industry and a legal “classic.” This is why many of our lawyers teach at universities and thus pass on their knowledge and experience to future generations, which is why we invest in popularizing the history of Russian law by supporting museums and participating in restoration and publishing projects,” says Sergey Pepelyaev. Last year, the company released the second volume of the textbook “Tax Law. A special part." It took three years to prepare, and 19 authors took part in the work.
In any case, lawyers have experience that can be useful to colleagues, and to a wide variety of categories. The so-called knowledge-sharing - transfer of knowledge - can have several levels depending on the preparedness of the knowledge recipients, recall the SBP. At a basic level, these may be students for whom in 2015 the Faculty of Law of the National Research University Higher School of Economics opened the Department of Practical Jurisprudence. At a higher professional level, these are practicing lawyers, judges, legislators - the usual exchange of knowledge at this level is carried out in the form of publishing articles, small scientific materials, and infographics. And books are an exchange of the highest level. The company itself has come to the understanding that the accumulated experience and knowledge is enough to move to a new level - the publication of full-fledged books, both practical and raising deep theoretical questions, in 2016. As the managing partner of the company, Egor Batanov, says, in the practical part, the company plans to publish books related to the company’s specialization, about the tools that are used in corporate conflicts. The theoretical block will be narrower and mainly related to issues of justice.
As a “test balloon,” SBP has already released a translation into Russian of Benjamin N. Cardozo’s work “On the Nature of Judicial Activities.”
“Despite the fact that this is a profound work from the first half of the 20th century, with complex language, the book was a success. Its copies were sent to leading law faculties in Russia, as well as to many practicing lawyers,” shares Egor Batanov.
Less than a year later, SBP adviser Radik Lotfullin published the book “Subsidiary liability of persons controlling the debtor in bankruptcy.” It is published in paper and printed formats, which are distributed free of charge (can be downloaded from the link). “This work is intended to help colleagues with the “wilds” of new legislative norms and clarifications of the Plenum of the RF Armed Forces on subsidiary liability,” the company says.
At the same time, SBP partner Sergei Savelyev completed work on a manuscript about a precedent in Russia, which is being prepared for publication. “This will be a special book designed to record the achievements of YOU in building a precedent culture in the arbitration court system. The court provided a significant amount of material for research, which should not be neglected. The book is intended to refresh the image of bold innovative power in the memory of lawyers,” notes Batanov. Also, during 2018, a book will be prepared based on a joint study by Yulia Mikhalchuk (adviser at SBP) and Dmitry Stepanov (partner at Egorov, Puginsky, Afanasiev and Partners) regarding the recovery of losses from directors. At the very beginning of work, a book by Sergei Konovalov, as well as a new work by Radik Lotfullin, is currently underway, but the company is not yet ready to publicly disclose the topics of new publications.
AB Bartolius has been dedicated to promoting publishing activities, both monographic publications and serious scientific journals, for more than 10 years. “The paper version of books for lawyers will always – or for a very long time – be relevant, since, unlike just literature, we read it with a pencil, a marker, and often return to the book in our work many years after the initial reading,” says Yuliy Tai, Managing Partner of Bartolius Bank.
The company is an example of the fact that the publication of books can be a logical continuation of the scientific work carried out by the company’s employees. In the bureau, 7 people have scientific degrees, are engaged in science and teaching legal disciplines, the company explains. “In addition, all the partners of the Bureau are bibliophiles (each has a very rich personal library, as well as an office one), we are very inspired by the personal example of the outstanding lawyer and scientist Vladimir Saurseevich Yem, who, with his dedicated twenty-year feat of book publishing, including the legendary series “Russian Classics” civil law”, demonstrated how this can and should be done, and most importantly, what positive changes this leads to in the minds of young lawyers,” says Yuliy Tai.
The main incentive in book publishing for the company’s consultants, according to him, is the desire to convey knowledge to Russian lawyers, both young and experienced, and through this process to increase the level of both doctrinal and practical professional discussion.
On the other hand, such activities benefit the authors themselves, consultants admit. “Working on monographs, as well as on chapters in compiled commentaries on laws and textbooks, develops analytical skills and skills in structuring information, so we always welcome such initiatives from experts,” EPAM says.
Charity, culture and hobbies
Education and an application for leadership can be combined with other goals - for example, with charity, as they do at the company “Nektorov, Savelyev and Partners”. “We promote the concept of smart philanthropy. That is, we stimulate and “accustom” the legal community to spend part of their money, not always their own, but, for example, clients’ money, on charity. Who, if not you and me?” – says the managing partner of Nektorov, Savelyev and Partners, Alexander Nektorov.
Recently, the company has released a couple of small book brochures, which are distributed in exchange for a contribution of any amount to a children's charity fund (the books can be downloaded for a donation here or here), and held a major legal conference in the retail sector (together with the law firms Gaffer&Gaffer and Arta , now – “Kosenkov & Suvorov”). NSP is inspired by the successes of its colleagues in the market for charity: “It’s impressive to see such a cool project as Legal Run. It doesn't quite fit with our concept of 'smart philanthropy', but it is work that deserves respect and we try to support this event year after year."
Pepeliaev Group also implements cultural and historical publishing projects with the State Historical Museum. In 2017, as part of this cooperation, the album “Ancient Charters: The First Documents of Russian Law” was released, containing the most significant charters, most of which have never been published (this and other books can be purchased here). Work is already underway on the next album, which is scheduled for release at the end of 2018, the company said.
“Certificates are the oldest type of legal documents in Russia. Not only do they carry deep historical significance and serious legal value, but they are also works of art from the point of view of artistic design. This is what we demonstrated on the pages of the album. The book presents the most significant letters, most of which have never been published,” says Pepelyaev about the joint project with the museum.
“When choosing which specific book we want to publish, we are guided, of course, by a very subjective and rational assessment, scientific and practical value, relevance and benefit for lawyers,” says Yuliy Tai about his vision of the issue. However, there is also a place for entertainment literature in legal publishing. Thus, the Law Office “ZKS” has published one book today, and this is not a scientific monograph, but a collection of stories on legal and semi-legal topics called “Criminal Legal Chronicles.” The author of the stories is company partner Andrey Grivtsov.
“It all started with an ordinary hobby: sometimes in my free time from work I made some literary sketches and posted them on social networks. Many readers liked it. And so, when enough literary material had accumulated, the book was published,” he says. “Whether the book turned out well is up to the readers to decide, but this experience should definitely be considered useful and the hobby fascinating,” says Grivtsov and emphasizes that the main merit belongs to his colleagues.
In the meantime, the bureau is planning to publish another book - “already serious,” notes Grivtsov. It should be devoted to practical recommendations for lawyers specializing in criminal defense. “It is planned that the book will consist of sections with practical recommendations for defense at each stage of criminal proceedings. For now, my partners and I are working on the material, and, I hope, it will be accumulated in a few years. I would like the future book to be useful for young colleagues who are just learning the basics of criminal defense,” he notes.
Natalya Chernenko* decided to get money for a low-quality product. To do this I had to go to court. The defendant was Samsung Electronics Rus Company LLC, which was required in court to return the cost of the defective product, a penalty, compensation for moral damages and reimbursement of legal expenses.
On December 19, 2016, the first instance, the Komsomolsky District Court of Tolyatti, decided to partially satisfy the applicant’s demands. The company did not agree with the decision and tried to challenge it, but ran into a problem. The complaint, filed after more than a month, which is given by law for an appeal in such cases, ended up in court later than it should have. Although the company representative asked to reinstate the missed deadline, the Samara Regional Court refused. The applicant indicated as a valid reason for missing the deadline that the motivation came from the court too late, but the appeal decided that the party had enough time to prepare the complaint.
The two authorities agreed that with such a chronology of events, there is no need to talk about the validity of the reasons for missing the appeal deadline. After all, the company received a copy of the decision a week before the end of the appeal period, and the courts concluded that it had the opportunity to file an appeal on time. In addition, the courts referred to the fact that the appeal, in violation of Ch. 39 of the Code of Civil Procedure was sent not to the district court, but to the Samara Regional Court, but this will not be a valid reason for missing the appeal period.
However, the Civil Collegium of the Supreme Court did not agree with this approach (case No. 46-КГ18-3). In the ruling on the case, the Supreme Court recalled the deadlines for appeal and indicated how the institution of restoring procedural deadlines works. The party that missed it may resume the right to restore the deadline for good reasons in accordance with Part 1 of Art. 112 Code of Civil Procedure. How to specifically apply these norms is explained by clause 8 of the Plenum of the Supreme Court No. 13 “On the application by courts of the norms of civil procedural legislation governing proceedings in the court of appeal.”
The Supreme Court reminded: the court has no more than five days from the date of the decision to send copies of the decision to the participants in the case who were not present at the court hearing. However, the court made a copy of the decision a day later, and sent it another 15 days later. The defendant did not have enough time to prepare the complaint and send it on time, the Supreme Court concluded: untimely preparation and submission of the motivation excludes the possibility of compliance with procedural deadlines for the disputant.
* names and surnames of the participants in the dispute have been changed by the editors
The main question in the case
Is it possible to challenge the dilution of pledged shares under bankruptcy rules, or are there corporate rules with a three-month statute of limitations?
Management Company "Regiongasification" took 183 million rubles. on loan from Rosgazification, and pledged its only valuable asset as collateral - shares of CJSC Teplocentral Belokurikha in the amount of 63.1%. At the end of 2014, when the borrower was placed under surveillance, he, as the majority shareholder, decided to issue an additional share. The shares went to the offshore Finesse Services Corporation through private subscription, and the pledged stake was diluted to 2.6%.
The decision of the general meeting of shareholders on the additional issue must be declared invalid according to bankruptcy rules, because it disguised the sale of shares to an offshore company for 300,000 rubles. instead of market 39 million rubles. And 63.1% of the shares of the heating plant should be returned as collateral to Rosgazification. Such demands were filed in 2016 by the bankruptcy trustee Vladimir Shirokov and Rosgazifikatsiya as part of the bankruptcy case of the Management Company Regiongazifikatsiya.
Decisions of the general meeting of shareholders are challenged according to corporate, not bankruptcy rules. In addition, there is a special three-month limitation period. The plaintiffs missed it.
Position of three authorities
The defendants were supported. The manager's claims must be considered in a separate case according to corporate rules. The additional issue was not carried out by the debtor and not at the expense of the debtor, and this does not allow it to be challenged within the framework of bankruptcy.
Position of the Supreme Court
The decision of the general meeting of shareholders of another person (not the debtor) and its additional issue cannot be challenged in bankruptcy - as a general rule. But in exceptional cases this is possible if corporate procedures are used for the sole purpose of causing harm to the debtor’s creditors. Here, the debtor, as a majority shareholder, actually managed the subsidiary and made the decision on the additional issue. Whether he abused his right must be clarified during a new trial of the case.
In the case, bankruptcy relations collided with corporate ones. In essence, the debtor, on the eve of bankruptcy, transferred his majority stake in the subsidiary to another person without receiving anything in return. Formally, this was the decision of the subsidiary’s general meeting on the additional issue. Of course, such alienation of the main valuable asset, which was also pledged, influenced the interests of the debtor’s creditors. Despite the legislative convergence of the legal regime for challenging transactions and decisions of the general meeting, the Supreme Court nevertheless made an important reservation about the exclusivity of the situation in which a corporate decision can be challenged as a transaction on bankruptcy grounds.
Irina Nikolaevna* graduated from law college, then from one of the leading legal universities in the country, worked as a court secretary for two years, as an assistant for nine years, and then was appointed a magistrate. More than three years later, in October 2017, she received a position in one of the district courts. There she considers civil cases.
The court where Irina Nikolaevna works moved to a new, large, separate building several years ago. Now each judge has his own spacious conference room (several of them are equipped with a video conferencing system), a personal office and a separate conference room, prosecutors have a prosecutor’s room, and other participants in the process have rooms for witnesses and mediators. However, little is actually used for its intended purpose. The witness room was littered with some things, and the mediation room was turned into a room for reviewing the cases. “After January 1, 2011, when the law on mediation came into force, such a mediator appeared in court. He actively advertised his services, but, as far as I know, not a single case was resolved with his help. Now the mediator conducts free consultations in our court once a week, but I doubt that he is often contacted,” said the judge. Separate meeting rooms are also usually not used - most of them do not yet have computers, which means it is impossible to print decisions there. And only in the prosecutors' room is work in full swing - all the necessary equipment is installed there, and documents are laid out on the tables. “Although many court premises are not used, it is still a pleasure to work in such a building. Before the move, judges resolved cases right in their offices,” the judge said.
All the halls and corridors of the new court are equipped with video cameras that continuously record, displayed on the monitors of the bailiffs. The sound is not recorded, so each judge was given a personal voice recorder for audio recording. The servants of Themis themselves are monitored through personal computer cameras, but this recording is no longer for the bailiffs, it is stored on the server and viewed only if the need arises.
Judges' offices are taboo; visitors are forbidden to look into them. “Currently, ordinary judges do not receive citizens at all - this is prohibited. Only the chairman of the court and his deputies receive,” said Irina Nikolaevna. However, citizens constantly turn to secretaries and assistants: either to report their presence, or to familiarize themselves with the case materials, or to ask a question, or to pick up a subpoena. During the 20 minutes that the judge was in the deliberation room, four visitors came to see the secretary.
Secretaries and assistants are a separate pain for each judge. “In a federal court, the salary of a secretary with minimal work experience is about 12,000 rubles, and an assistant’s salary is up to 15,000 rubles. At the end of the year or before the holidays, they may be given a small bonus. In magistrates' courts, the salaries of secretaries and assistants (they are called chiefs of the court staff there) are almost twice as much. Another plus is that the state pays for training for many of them. Nevertheless, no one wants to work under such conditions; there are vacancies in almost every court. I'm lucky: I have both an assistant and a secretary. True, the secretary is currently on exams, and the assistant is working double duty,” the judge said.
In 2016, the Plenum of the Supreme Court proposed to distinguish the judicial service as a special type of public service and even prepared a corresponding bill. It stipulates that employees of the apparatus will receive special social guarantees, but most importantly - higher earnings. However, the Cabinet of Ministers Commission on Legislative Activities gave a negative review of the bill (see “The Government is against the emergence of “judicial officials”). Since February 2017, the document has been under consideration by the relevant Duma Committee on State Construction and Legislation, chaired by Pavel Krasheninnikov, and has not yet passed a single reading in the State Duma (see “The head of the Judiciary told how to solve the problem of manning the courts”).
Court hours: Monday to Thursday from 09:00 to 18:00, Friday - from 09:00 to 16:45, Saturday and Sunday - days off. Irina Nikolaevna admits: “From the moment I was appointed as a federal judge, I forgot about rest; in all that time I never took sick leave. It’s not that the workload of magistrates and federal judges is different – no, it’s approximately the same. But due to the fact that I now consider cases of other categories, I have to spend a lot of time studying legislation and practice. Six months ago I didn’t have enough time for anything at all, but now it’s easier. I’m sure that in another six months I’ll be able to do everything.”
Today there are 15 cases scheduled: from 09:40 to 16:30 with breaks of 20-30 minutes between each. At 08:50 the judge was already at work: checking the protocols and getting acquainted with the newly received materials. “Over the past few days, 110 new claims have been submitted to me for consideration - this is due to the fact that many judges are now going on vacation. In total, I have about 250 cases in progress,” said Irina Nikolaevna. According to her, 200 cases is a common picture: “All judges have such a workload.” Moreover, within five days from the date of receipt of the claim, the court must accept it for proceedings, and before the expiration of two months, consider and resolve it (Articles 133, 154 of the Code of Civil Procedure).
The judge is planning a three-week vacation in the near future: “But it’s unlikely that I’ll be able to go anywhere: I’ll definitely be writing off decisions in about two weeks. I always submit resolutions, and only then prepare the full text. I think everyone does it." The court is given another five days to prepare a reasoned decision (Part 2 of Article 199 of the Code of Civil Procedure).
Many standard solutions are written by assistants, but it all depends on their qualifications and workload. Judges handle more complex cases themselves. Writing the reasoning part of the decision, according to the judge, can take from 10 minutes to several days, depending on the complexity of the case: “During the consideration of the dispute, I use a pencil in the margins to put all sorts of ticks, crosses and other symbols that only I can understand, so that, based on them, , then quickly write down the solution. But if a lot of time has passed since the announcement, the circumstances are still forgotten, and then you have to study the material again.” The judge usually does this on Fridays and outside of working hours: “I try not to assign cases to Friday - this day is occupied by a morning meeting with the chairman, which lasts from half an hour to an hour, and drawing up decisions. Plus, secretaries and assistants also need time to put case materials in order, draw up minutes of meetings, print agendas and requests. Friday is perfect for this.” But sometimes even this day turns out to be busy - every one and a half to two months it is necessary to go to meetings and training seminars at a higher court.
Exactly at 09:40, the judge appeared in the courtroom and announced the decision - the case itself was considered the day before. Then the preliminary hearing began. The announcement of the composition of the court, the reading of rights, the filing of motions and the giving of explanations took an average of 15–20 minutes. On this day there were several preliminary hearings, the rest of the cases were considered on their merits. As a rule, about two or three people came to each dispute; many spoke without representatives, did not bring witnesses, behaved quite calmly, and refused to participate in the debate. In five cases, the defendant had the same person on his side - a representative of an insurance company located in the territory under the jurisdiction of this court.
On average, each meeting lasted 20–30 minutes, and the adoption and announcement of the decision lasted the same amount. “In general, everything is individual. If I have already understood for myself what the decision will be, then I can retire to the meeting room for 3-5 minutes - this time is usually enough to print a resolution. But if the case is complicated, I can spend an hour studying all the circumstances,” says Irina Nikolaevna. After she announced the decisions, some of the participants in the process thanked for a fair trial, others were interested in where and in what time frame they could file a complaint.
Five-minute breaks had to be announced in several cases at once - the lawyers could not calculate and voice the amount of demands. “Not so long ago, in civil proceedings, it became possible to declare breaks. It is very comfortable. Now I announce breaks to reconcile the parties, clarify the position on the dispute, provide additional documents, or when I myself need time to study the legislation on the issue under consideration,” said Irina Nikolaevna. During the breaks, she managed to do some small things, for example, sign requests and writs of execution.
From 13:00 to 13:45 lunch, which took the judge about half an hour - fortunately, the dining room is located right in the building. It is open to everyone, and judges here dine side by side with visitors, but do not engage in any conversations.
After lunch, the administration of justice continued. Despite active work throughout the day, the schedule for consideration of cases gradually shifted, and the last meeting began 40 minutes later than planned. At 17:50 the last participants in the process left the hall. In total, out of 15 cases per day, 9 were resolved with a decision, 2 were terminated, 1 was suspended due to the appointment of an examination, 1 was postponed and in two cases a main hearing was scheduled. Not a single reasoning decision was written.
The judge went home closer to 19:00, saying that today we could finish earlier. Today she worked 10 hours.
So, colleagues, it’s done. The Supreme Court of the Russian Federation adopted at its plenum the first resolution in its history regarding enforcement proceedings, erasing the legacy of the Supreme Arbitration Court of the Russian Federation.
Basically, the resolution is aimed at protecting the rights of collectors and the official interests of bailiffs. The rules of the game for debtors have become tougher. There are fewer loopholes left.
The resolution (which has changed little since the time of its draft) contains 88 points; let’s look at the most interesting of them.
I was very pleased paragraph 9, according to which
Cancellation by a higher official of a contested decision of a bailiff during the period of consideration of the case by the court cannot serve as a basis for termination proceedings in this case, if the application of such a decision led to a violation of rights, freedoms and legitimate interests applicant (administrative plaintiff). The completion or termination of enforcement proceedings in themselves does not prevent the court from considering on the merits an application to challenge a specific decision or actions (inaction) of a bailiff that entailed adverse consequences for the applicant (administrative plaintiff).
When discussing the draft resolution, the FSSP was, as expected, fiercely opposed, but common sense prevailed. The bailiffs' favorite trick has been stopped. It remains to be hoped that the Supreme Court of the Russian Federation will reproduce a similar position in its resolution on the practice of considering disputes under Art. 125 of the Code of Criminal Procedure of the Russian Federation in relation to similar prosecutorial practice.
I also pleased with my short stories paragraph 45:
By virtue of parts 3 and 6 of Article 81 of the Law on Enforcement Proceedings, a seizure may be imposed on funds held in a bank or other credit organization in existing bank accounts (settlement, deposit) and in the deposits of the debtor, as well as for funds that will go to the accounts and deposits of the debtor in the future. In this case, the execution of the bailiff's decision to seize funds is carried out as they arrive in accounts and deposits, including those opened after the bank received this decision.
The seizure of funds in the bank accounts of the debtor means a prohibition of their write-off within the amount specified in the executive document, as well as a prohibition for a bank (credit organization) to declare the offset of its claim against the debtor, who is its client, therefore the court has the right, at the request of the bailiff or the creditor to seize the received funds, as well as funds that will be received in the name of the debtor in the future to the correspondent account of the bank servicing him, if other measures cannot ensure the execution of the adopted judicial act (for example, the presence of seizure of funds on the client’s current account). At the same time, the seizure of funds in a correspondent account does not relieve the bank (credit organization) from the obligation to credit the seized funds to the client’s current account, for which the bailiff also seized the funds.
Paragraph 50 contains a long-awaited clarification that within the framework of the CAS of the Russian Federation (and not necessarily in a claim procedure), it is possible to appoint a forensic appraisal examination when appealing the very decision of the bailiff approving the appraiser's report.
Paragraph 59, finally, consolidated the previously existing (but not for everyone) unspoken rule according to which
Until otherwise proven by interested parties, the ownership and (or) possession of the debtor of movable property, which can be foreclosed, on the premises or on a fenced (protected) land plot from access by other persons, belongs to the debtor-citizen, is presumed
This is especially interesting in relation to debtors - owners of land plots used for parking lots.
Paragraph 62 introduces a rule according to which
The third paragraph of Part 1 of Article 446 of the Code of Civil Procedure of the Russian Federation establishes a ban on foreclosure under writs of execution on land plots on which the objects specified in the second paragraph of Part 1 of the said article are located.
At the same time, judicial foreclosure of such land plots is permissible to the extent that it clearly exceeds the maximum minimum amounts for the provision of land plots for lands of the corresponding intended purpose and permitted use, if their actual use is not related to meeting the needs of the debtor citizen and his family members in ensuring the necessary level of subsistence, provided that the debtor’s income is clearly disproportionate to the volume of monetary claims contained in the writ of execution and does not allow satisfying these claims within a reasonable time
It can be assumed that now each suitable plot of land will be “trimmed” to 4.5 acres with the help of a cadastral engineer (the usual minimum size for most land plots), and the rest will be auctioned off.
With just a wonderful clarification, the Supreme Court burst into paragraph 68
The sale of pledged property in the absence of the required notice and its acquisition by a person who did not know and should not have known that the property is the subject of a pledge, by virtue of subparagraph 2 of paragraph 1 of Article 352 of the Civil Code of the Russian Federation, entails termination of the pledge. In this case, the pledgee has the right to demand compensation for losses from the person who is responsible for providing information about the encumbrance of the property
This clause will allow administrative claims to be brought against unscrupulous bailiffs, which we will use this week in one of the cases.
Paragraph 82 resolution, consolidates and more fully formulates the position of procedural economy, according to which
The fact that the actions (inaction) of the bailiff were not declared illegal in a separate judicial proceedings, n is not grounds for refusal in a claim for compensation for damage caused by these actions (inaction), and their legality, the court evaluates when considering a claim on compensation for harm
Good luck using such a useful ruling!
Good afternoon, colleagues. Nowadays, general directors of Russian companies, be they micro-businesses, small businesses, medium-sized businesses or large businesses, have a very difficult responsibility. Nowadays, it is already meaningless to say that the owner of a business is responsible only for the amount of the authorized capital, or the general director of a company is responsible only for the amount of wages to the budget. Over the past year I have referred to 62nd Resolution of the Plenum of the Supreme Arbitration Court of July 30, 2013 and he said many times that the times have come when the general director of any company, any sole executive body of the company bears personal financial responsibility with all his property to the country’s budget.
The algorithm there is quite complex, but in short, the idea of this economy is quite simple. The tax authorities came and assessed additional arrears, penalties and fines on the company, but the company is not able to pay these arrears. The general director, due to lack of education or lack of knowledge in this area, was unable to file this company for bankruptcy in a timely manner, and the tax authorities automatically learned through the courts to hold this general director to the so-called subsidiary liability, and a huge number of negative court decisions appeared. Simply a huge number, for each federal arbitration district. And in accordance with this huge number of negative court decisions, CEOs are again and again forced to bear responsibility with all their personal property for underpaid taxes. At the same time, the wording here is very interesting. In this case, the general director does not repay the tax arrears to the budget: he repays the so-called damage caused to the budget to the budget.
And that, colleagues, is not all. The main thing is this. I was waiting for this document to take effect. And he began to act, and practice appears based on this document. This is Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 17, 2015 No. 50 “On the application of legislation by courts when considering certain issues arising during enforcement proceedings.” And, accordingly, our general director will be responsible with his personal property for all the company’s debts. Just the other day, a businessman from Yaroslavl contacted me about this. And the last case that I came across was this: the tax authorities decided to collect 16 million rubles from the general director from his personal property to pay off arrears, penalties and fines for the company that he headed. And the justification there was completely simple: the general director did not show due diligence in choosing contractors, the company was associated with gray and cash-out companies, and additional arrears, penalties and fines were accrued to it. The company was unable to fully pay the budget, and the CEO was given this responsibility. The penultimate case that I encountered a few days ago was the recovery of 48 million rubles.
But why did I decide to go through this today? Resolution of the Plenum of the Supreme Court No. 50? But the thing, colleagues, is that seizure can be imposed even on those assets of the director that do not belong to him, but which also belong to his family and at the same time to him. That is, if previously our practice was such that they could not take away our director’s last home, now the situation has changed. If the bailiff service is trying to recover from him the 16 million that I mentioned, then in accordance with paragraph 28 of the Resolution of the Plenum of the Supreme Court No. 50, and also in accordance with paragraph 42, 43, 44, 45, Seizure may also be imposed on the only residence of this general director. The bailiff service will not be able to take this housing, because it is the only one, but this property will be seized. Accordingly, our general director will not be able to dispose of this property, he will not be able to register anyone else there, he will not be able to sell it, donate it, etc.
The question arises: how long will this arrest last? Until the debt is repaid. Including, dear colleagues, this arrest will remain in place even if the owner of the property, the co-owner of the property, dies. In this case, the arrest will still remain. And the heirs who have taken ownership of this property will be required to pay off the debts of the deceased. For example, according to paragraph 28, “if the property obligations associated with the personality of the debtor-citizen were not fulfilled during his lifetime, resulting in the formation of a debt for such payments, then succession in obligations to repay this debt in cases provided for by law is possible.”
I don’t see any point in burdening you with all these quotes, although I can also touch on interim measures. Paragraph 48: “Arrest, as an interim measure, owned in whole or in part, by a debtor-citizen of residential premises, which are the only suitable for permanent residence of the debtor himself and his family members, as well as the establishment of a ban on the disposal of this property, including a ban on occupancy and registration other persons, cannot in themselves be considered illegal if these measures are taken by the bailiff in order to prevent the debtor from disposing of this property to the detriment of the interests of the claimant and to the detriment of public interests (i.e. the state).” Please note that the bailiff has the right to make this decision.
Therefore, dear colleagues, when at literally every seminar I read morals to businessmen about legal work and convince them that the period when it was possible to treat the budget with impunity has ended, I myself feel awkward, and sometimes I see a somewhat negative reaction from many businessmen to your address. Something like: “There is a preacher here who tells how to live.” My dears, the question is not about me. I haven’t quoted everything from here to you yet. There are simply masterpieces here. The question is that I am trying to warn you in this way. So that later there won’t be such miracles as the guy from Yaroslavl who wrote to me yesterday: “Is it really true that I have an apartment and all this for life?” I answered him: “Yes, my dear, it’s true, and not only the truth. The truth is that your heirs will bear the burden of these debts. At least think with your head before you contact these filthy cashing companies. If you pay these “20 kopecks”, come to the seminar, and I’ll tell you how you can ultimately secure these assets, if you really like to continue messing around.”
Regarding items of ordinary home furnishings. This is also interesting. This paragraph 60. The question arises: will household items be taken away? Paragraph 60, 61 so muddy... It is written here, on the one hand, that “everyday household items, due to paragraph 4 of part 1 of article 446 of the Civil Procedure Code are property that cannot be levied under enforcement documents,” but “such items may include the minimum necessary property required by the debtor.” But who decides this? The bailiff decides. I once gave examples at a seminar. A businessman, for example, Ivan. When all his “equipment” was taken out of the house, including the refrigerator. He says: “How are we going to live?” And the bailiffs answer: “In accordance with this norm, there is no need for refrigerators in our time, food can be bought every day. You don’t have to have a refrigerator.” And they took it away. His daughter comes in at the moment when all the property is being taken out of the house. And her dad gave her a gold chain for her 15th birthday, and the chain hangs around her neck. The bailiffs removed it because it is not a vital necessity. The result, naturally, is tears and hysterics. How come they take the chain? So adults should think with their heads before getting involved with cashing offices and all this nonsense. In the end, they must demand from their deputies that they learn to work legally, without harming the pocket of the business owner. It's time.
I quote: “The issue of classifying certain property of a debtor-citizen as items of ordinary home furnishings and household items is resolved by bailiffs, taking into account specific circumstances relating to the purpose of the property, its price, actual use, etc.” Moreover, colleagues, there are still paragraph 61. I was waiting for this resolution to work, and it worked. And now, even if this property was mortgaged, it can also be taken away and capitalized to pay off debts to creditors, and in this case I’m talking about the budget. I quote paragraph 61: “The lawful possession and use by third parties of the debtor’s property does not prevent the resolution of the issue of foreclosure against him. However, these circumstances can be classified as an encumbrance on this property and are taken into account when assessing its value.” And then, in the next paragraph, it is explained how and what can be taken, including land. This ruling is too thick to be quoted in full. And a little more from paragraph 63: “The bailiff, for the purpose of executing a court document, along with the creditor of the debtor - the collector, has the right to judicially demand the allocation of the debtor's share in kind from the common shared property and foreclosure on it. In this case, the remaining owners should be involved in the matter. If it is impossible to separate the debtor's share from joint property in kind, the court should decide the issue of determining the size of this share. If the allocation of a share in kind is impossible, or the remaining participants in the common property object to this, the interested owner has the right to purchase the debtor’s share at a price commensurate with the market value of this share.”
In general, being in debt to anyone in our time is becoming dangerous. Being in debt to the budget is slowly becoming fatal these days. By “fatal” I mean that wives, children and grandchildren begin to answer for the debts of “uncles and aunts” who are directors of companies. And these are mostly questions for these “men and women” who head their companies. I'm not saying that these are questions for the state. You know, I have not yet seen soft states. And in our time, any state in the world, including ours, is increasingly inclined to believe that non-payment of taxes will be considered the most serious act that is possible. For the survival of the state and the officials leading it depends on the payment or non-payment of taxes, and whether these officials will be in power or not. And in order for officials to feel calm while in power, they will certainly be forced to collect these taxes by any means. Unfortunately, these methods and paths are often overwhelming. I mean that it is difficult for a business to develop in these conditions. And you will have to forget about cashing out. I've been saying this for three years now. He is no more. Forget about cashing out. We'll have to work differently. And, of course, once a week from different cashers from all over the country who come to my
On November 17, 2015, the Resolution of the Plenum of the Supreme Court of the Russian Federation “ On the application of legislation by courts when considering certain issues arising during enforcement proceedings».
This Resolution clarifies some aspects of enforcement proceedings, simultaneously introducing a number of novelties. You can download it on our website.
One of the main features of the issued Resolution is the rules related to the seizure of the debtor’s property (clauses 40-45). The Supreme Court explains that the debtor’s only home and the land under it can now also be seized as an interim measure (clause 43). However, this should not prevent the use of seized property. Many perceived the introduction of this measure as a way to confiscate the last housing, but this is not the case. The arrest does not provide for the sale of property, but only facilitates the observance of the rights of the claimant, prohibiting the debtor from any actions with this property (sale, moving in new persons, etc.)
In general, Resolution of the Plenum of the RF Armed Forces No. 50 of November 17, 2015 tightens and expands the possible actions of the bailiff, giving fewer grounds for appealing them, however, the Resolution does not forget about respecting the rights of the debtor.
Okay, now The bailiff is not obliged to apply the rules of priority(clause 41). In general, this is a correct position, since the bailiff does not always have complete information about the availability of the debtor’s property, and also cannot always objectively assess the value of this or that already known property. However, attention is focused on the fact that the bailiff does not have the right to seize if the value of the seized property is clearly disproportional to the owner’s debt.
The possibilities for collecting funds by the bailiff and from the debtor’s bank accounts are expanding (clause 45). If before the Resolution the bailiff could only write off the available money from open current accounts, now, the execution of the bailiff’s decision to seize funds can be carried out as they arrive in accounts and deposits, including those opened after the bank received this resolution. This rule will help avoid a situation where the debtor constantly opens accounts in different banks for a short period of time and the bailiff simply does not have time to find out about their opening and write off the funds received from them.
One of the interesting innovations is that, despite the prohibition of taking enforcement measures within the deadline for voluntary execution (five days), The bailiff has the right to immediately seize the debtor's property, establish a ban on the disposal of property without waiting for the requirements to be fulfilled voluntarily (clause 22).
In addition to the above, Resolution of the Plenum of the Supreme Court of the Russian Federation No. 50 dated November 17, 2015 clarifies a number of technical issues, such as the jurisdiction for appealing decisions, actions (inaction) of a bailiff (clauses 3-7, paragraph 3, clause 46), the procedure for such a challenge (paragraphs 8-16), etc.
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