The Supreme Court took the debtor’s side in a dispute with the bailiffs
Photo: Moscow Live The Supreme Court of the Russian Federation gave clarifications in favor of debtors in enforcement proceedings in a new 157-page review of judicial practice, the fourth for 2021 (read about the document also on Legal.Report here).
As the Supreme Court notes, the absence of a sign of illegality in the behavior of a debtor who has not fulfilled the requirement of the writ of execution excludes the possibility of bringing him to liability under Part 1 of Art. 112 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”, in the form of collection of an enforcement fee.
The bailiff was in charge of enforcement proceedings, initiated on the basis of a writ of execution issued in the first case between the debtor and the claimant, with the subject of execution being the collection of debt on lease payments. The resolution on the initiation of enforcement proceedings establishes a five-day period from the date of receipt of this resolution for the voluntary fulfillment of the requirements contained in the enforcement document.
As part of the consideration of another case between the debtor and the collector, the arbitration court approved a settlement agreement and terminated the proceedings. According to the terms of the settlement agreement, the debt on leasing payments in the first case was taken into account in the calculations of the parties in another case, and therefore the court decision in the first case is not subject to execution.
In addition, the debtor and the claimant applied to the arbitration court for approval of the settlement agreement in the first case, which was granted.
Based on the claimant's application to revoke the writ of execution, the bailiff issued a decision to terminate the enforcement proceedings and return the writ of execution to the claimant. However, due to the debtor’s failure to comply with the requirements of the enforcement document within the period established for voluntary execution in the resolution, the bailiff issued a resolution to collect the enforcement fee and initiated corresponding enforcement proceedings.
The debtor applied to the arbitration court to declare the decision to collect the enforcement fee illegal.
By the decision of the court of first instance, upheld by the decisions of the appellate court and the district arbitration court, the amount of the enforcement fee to be collected was reduced, and the rest of the claims were denied.
The Judicial Collegium of the Supreme Court of the Russian Federation overturned the above-mentioned judicial acts and satisfied the debtor's demands on the following grounds.
The execution fee established by Art. 112 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter referred to as Federal Law No. 229-FZ), is not a fiscal payment collected for the commission of legally significant actions by a bailiff, but acts as a measure of public legal liability of the debtor for an offense committed by him in the process of enforcement proceedings, which has the characteristics of an administrative penalty: it has a fixed monetary value established by law, is collected forcibly, formalized by a resolution of an authorized official, is collected in the event of an offense, and is also credited to the budget, funds which are in state ownership.
At the same time, since the penalty is associated with the restriction of the constitutional right of property, the interpretation and application of the provisions of the legislation on enforcement proceedings governing the collection of the enforcement fee must be carried out by the courts, taking into account the criterion of proportionality arising from Part 3 of Art. 55 of the Constitution of the Russian Federation, and should not lead to the suppression of economic independence and initiative, excessive restriction of freedom of entrepreneurship and property rights, which, by virtue of Art. 34 (part 1), art. 35 (parts 1–3) and art. 55 (part 3) of the Constitution of the Russian Federation, unacceptable.
This means that the collection of the enforcement fee as a special measure of public legal liability for violation of the legislation on enforcement proceedings must be carried out in compliance with the principles of fairness of punishment, its individualization and differentiation arising from the Constitution of the Russian Federation, which implies the possibility of the court reducing the amount of the enforcement fee and exemption from its collection taking into account the nature of the offense committed, the amount of harm caused, the degree of guilt of the offender, his property status and other significant circumstances.
The exercise of the right to a peaceful settlement of a dispute within a five-day period of voluntary fulfillment of the requirements of the writ of execution is objectively impossible, since Part 4 of Art. 141 of the Arbitration Procedure Code of the Russian Federation allows the court to consider the issue of approving a settlement agreement concluded in the process of executing a judicial act within a period not exceeding a month from the date the court received an application for its approval.
However, the obligation to voluntarily fulfill the requirements of the executive document cannot be opposed to the right of the parties to enforcement proceedings to resolve the dispute on the basis of mutual concessions by concluding a settlement agreement.
Moreover, in a situation similar to the dispute under consideration, when the debt of the debtor to the debtor, which was the subject of parallel legal proceedings that ended with the conclusion of a settlement agreement, was many times greater than the debt of the debtor to the debtor in the present case. Otherwise it would mean that the enforcement fee is collected contrary to the mutual interests of the claimant and the debtor, as well as contrary to the public legal purpose of this measure of liability.
Accordingly, if the requirement of the executive document is not fulfilled in connection with the exercise of the legal right to resolve the dispute through the conclusion of a settlement agreement, subsequently approved by the court, such behavior of the debtor cannot be regarded as violating the legislation on enforcement proceedings.
Based on the provisions of Part 7 of Art. 141 Arbitration Procedure Code of the Russian Federation, clause 3, part 2, art. 43 of Federal Law No. 229-FZ, approval by the court of a settlement agreement concluded during the execution of a judicial act entails the termination of its execution, is the basis for termination of enforcement proceedings and, in relation to clause 1 of Part 10 of Art. 112 of Federal Law No. 229-FZ, excludes the possibility of a bailiff issuing a resolution to collect an enforcement fee and initiating appropriate enforcement proceedings (Definition No. 305-KG17-23457).
Failure to comply with a bailiff's order will result in up to 15 days of arrest.
On May 30, bill No. 720900-7 was submitted to the State Duma, which proposes to amend paragraph. 2 hours 2 tbsp. 17.3 “Failure to comply with the order of a judge or bailiff to ensure the established procedure for the activities of courts” of the Code of Administrative Offenses of the Russian Federation.
According to the proposed amendments, failure to comply with a lawful order of a bailiff to stop actions that violate the rules established in court may result in administrative arrest for up to 15 days. Currently, such actions are punishable only by an administrative fine in the amount of 500 to 1 thousand rubles.
As follows from the explanatory note, in terms of the degree of public danger, such an offense is the same as failure to comply with a lawful order of a judge to stop actions that violate the rules established in court (Part 1 of Article 17.3 of the Administrative Code). Therefore, establishing different responsibilities for them is unfounded.
According to the developers of the amendments, based on judicial practice, the current version of Part 2 of Art. 17.3 of the Code does not encourage participants in legal relations to behave legally. To substantiate their thesis, the authors of the project referred to statistical data from the Judicial Department under the RF Armed Forces on administrative offenses for 2015, as well as the peculiarities of law enforcement practice in the Kaliningrad region.
Thus, in this region, the majority of cases of administrative offenses under Part 2 of Art. 17.3 of the Code of Administrative Offenses of the Russian Federation was due to the presence of persons in the courthouse intoxicated, smoking in unauthorized places, speaking in a raised voice and using profanity, rude and obscene statements addressed to employees and visitors of the court. The violators also refused to present identification documents when arriving at the court, and also did not agree to have their hand luggage checked. In addition, some persons refused to voluntarily hand over weapons and other prohibited items to court.
The amendments, according to the authors, “will make it possible to ensure the formation of a responsible attitude towards legal regulations in the field of protecting institutions of state power, based on an awareness of the importance of their unconditional implementation, to impose a punishment corresponding to the degree of public danger of the offense committed, and to reduce the number of offenses committed.”
Lawyer of Law Firm "YUG" Sergei Radchenko noted that there is no need for such a bill. “The Kaliningrad Regional Duma claims that the composition of parts 1 and 2 of Art. 17.3 of the Code of Administrative Offenses of the Russian Federation have the same social danger, but this is not so. Part 1 of this article deals with violations of order in a court hearing - this is a direct and immediate obstacle to justice, humiliation of the dignity of the judge, and often the representatives of the parties. In turn, part 2 of the above article covers events occurring in the court corridor, and, therefore, they do not affect the administration of justice,” he explained.
According to the expert, the difference between these compositions also lies in the fact that the judge cannot and should not force the participants in the process to maintain order. “The judge does not have a baton or handcuffs; his mere word addressed to a troublemaker in a meeting should make the latter tremble, and such an effect is possible only by the threat of arrest. The bailiff has the ability to use both force and special means, he can quickly and effectively suppress unrest in court, the threat of arrest is simply unnecessary here,” believes Sergei Radchenko. In his opinion, the problem that Kaliningrad legislators write about is far-fetched and does not require tougher sanctions by arrest.
In turn, lawyer of the Moscow Administration Svyatoslav Pats believes that the legislative initiative of the Kaliningrad Regional Duma essentially represents only an equalization of responsibility for failure to comply with a legal order of a bailiff to ensure the established procedure for the activities of courts with responsibility for failure to comply with a lawful order of a police officer: “It is morally difficult to approve tightening of legislation, especially when it comes to the introduction of new, more severe sanctions, but in this case this is a kind of restoration of justice: sanctions for failure to comply with legal orders coming from persons performing similar law enforcement functions should be the same.”
“Of course, the legislative initiative to include a rather severe sanction in the rule establishing liability for failure to comply with a legal order of a bailiff to ensure the established procedure for the activities of courts also raises the question of possible abuses by bailiffs if the law is adopted,” noted Svyatoslav Pats. In his opinion, there is no right that cannot be abused, therefore, the suppression of these abuses is ensured not so much by the legislator and an increase or decrease in sanctions, but by competent work in recruiting personnel and organizing control over their activities.
Bad bailiff
Recently, cases have become more frequent when the so-called bailiffs act outside the legal framework, using the law of the strong: they take away the personal property of citizens and drive them out of their own homes.
In Moscow and the Moscow region, they came up with a new scheme to squeeze personal vehicles from citizens for debts. These comrades act as follows. For example, a person has accumulated debts, fines, non-payment of taxes, etc. Enforcement proceedings immediately appear.
They impose restrictions on the registration of a car, often even a credit car, and try to collect it. If they come across a competent person and fight back, then one morning he discovers that his vehicle is missing from the parking lot near his house. After reporting the theft to the police, it turns out that the car was seized by bailiffs (...yeah, late at night without witnesses, orders, etc.)...
They are also searching for accounts and the debtor’s place of work to send to the individual entrepreneur’s employer with threats of administrative liability. Well, as they do... Pension fund... And they begin to deduct from the pension.
Although many, of course, wonder why they deduct from the pension, leaving the amount below the subsistence level? And here is the answer... you do not receive a pension, but an insurance part, or, more simply, interest like in a bank, which is why the so-called pension is income, but not a social benefit! In this regard, the bailiffs are collecting 50% from you.
However…
Legal requirements of the bailiff - as an instrument for the execution of a writ of execution
To achieve the goals of the FSSP employee, certain tools are used. Let me remind you that the bailiff can carry out enforcement measures after the expiration of the deadline for voluntary execution. The allotted time is 5 days. Failure to comply with the requirements of this document within this period entails the imposition of an enforcement fee. I described how to cancel such a fee in this article.
Afterwards, the debtor will face seizure of funds and property (how property is described, I described in this article), deduction from wages and pensions, seizure of receivables, restrictions on travel abroad (how to cancel the restriction on travel? More details here). In general, the bailiff in enforcement proceedings is king and god, an independent official, no one has the right to tell the bailiff what to do, the main thing is that it is legal. It is worth answering that some decisions are approved by a senior bailiff. Get to the point.
What the law says
According to Art. 29 of the Federal Law of December 28, 2013 No. 400-FZ (as amended on March 6, 2019) “On Insurance Pensions”, withholding is made only by a lawful court decision, and such a decision must be formalized in accordance with the legislation of the Russian Federation. And also in such a decision it must be clearly stated that it is from the pensioner.
Have you ever seen a court decision that made a pensioner a debtor?
Any other interpretation, such as “debtor”, etc., refers to illegal and criminal decisions of both courts and executive bodies, collectors.
By the way, let's return to the fact that the first thing the bailiffs do is search for accounts and make arrests. In order to avoid this and protect yourself from these unlawful actions on their part, you need to open an account or get a debit card for salaries, etc., in a bank that is not included in the top 300 according to the official rating. Bailiffs send letters to the largest banks. Or get a “Kukuruza” card from Svyaznoy, but not connect to additional services. Or open an account and get a regular card using a military ID. We'll talk about this in the next article.
Complaint about non-execution of a writ of execution
07/29/2020 to VTB Bank (PJSC), at the address: Primorsky Territory, Vladivostok, st. Svetlanskaya, 13 (hereinafter referred to as the Bank), the representative of the claimant submitted an application along with a writ of execution, series FS No. *****3255 for execution by the bank. As of today, the writ of execution has not been executed, although all deadlines established by law have passed. The Bank's call center and the Bank's branch did not provide information on the status of the verification of the writ of execution; the Bank responded to email requests that it did not respond to the progress of consideration of the application. In response to repeated emails sent to the bank, the Bank requires you to write a request by mail to the address 109147, Moscow. st. Vorontsovskaya, 43, building 1.
On 08/17/20, the claimant sent a request by Russian post in the form of a pre-trial claim about the progress of the consideration of enforcement proceedings at the address in Moscow. st. Vorontsovskaya, 43, building 1 and it was received by the Bank on 08/21/20. The claimant has still not received a response regarding the progress of the enforcement proceedings.
On 08/17/20, the claimant received a response from the department during a personal visit, where the writ of execution was submitted, that it was necessary to make a request to the place where the documents were sent to Barnaul. On 08/24/20, by phone, an employee of the Bank branch said that the documents had not yet been reviewed by the Bank, you need to wait until 08/28/20 to find out the status of the application.
Thus, it is impossible to obtain any information since July 29, 2021 about the progress of enforcement proceedings, or about the reasons for refusal to execute. To date, the Bank has not transferred funds from the debtor organization, thereby avoiding the execution of the writ of execution. In accordance with Part 5 of Art. 70 of the Federal Law of 02.10.2007 N229-FZ “On Enforcement Proceedings”, a bank or other credit organization servicing the debtor’s accounts immediately fulfills the requirements contained in the writ of execution or the order of the bailiff for the collection of funds, about which within three days from the date of their execution informs the claimant or bailiff. Failure to fulfill, within the period established by law, an executive document containing requirements for the collection of funds from the debtor, by a bank or other credit organization servicing the debtor’s accounts, failure by the bank to fulfill the requirement contained in the executive document for the collection of funds from the debtor’s account (subject to the availability of sufficient funds in this account) amount of funds) is the basis for bringing the bank not only to administrative liability for committing an offense under Part 2 of Art. 17.14 Code of Administrative Offenses of the Russian Federation and judicial fine under Part 1 of Art. 332 Arbitration Procedure Code of the Russian Federation. Please give a reasoned answer at what stage the execution of the writ of execution is. Otherwise, I will be forced to file appropriate complaints with the Central Bank of the Russian Federation (Bank of Russia) and the judicial authorities to resolve this issue on the merits, with the application of liability measures against the perpetrators for non-execution and evasion of execution of the executive document.
