The role of the court in enforcement proceedings is very large. The court not only makes a decision on the basis of which the bailiff initiates enforcement proceedings on the basis of the thirtieth article of Federal Law No. 229 “On Enforcement Proceedings”. He also actively participates in the course of discerning actions, if one of the parties declares this.
General information
The role of the court in enforcement proceedings is more of a supervisory one. The judge controls the timely implementation of the necessary actions within the framework of the compulsory document issued by the bailiff - the decision. Compliance with the requirements of the law is also verified within the enforcement proceedings after a court decision.
If the bailiff is inactive or does not take all necessary measures to recover, the relevant penalty is imposed in the framework of the legislation of the Russian Federation. In addition, the role of the court in enforcement proceedings is to resolve disputes arising from the implementation of disciplinary actions.
The essence of the relationship between the court and the bailiff service
When supervising the work of bailiffs from the side of the court, the possibility of committing certain procedural actions is considered only if there is a court sanction. In addition, the court immediately responds to all complaints received from the parties to the actions or inaction of the bailiffs, as well as to claims that arise from legal relations in the framework of the enforcement of a court decision.
Despite the controlling nature of the court’s actions in enforcement proceedings, its relationship with the Office of the Bailiffs and its departments is a procedural partnership. This relationship is a procedural interaction of state bodies (courts) established by law and officials (bailiffs) fulfilling judicial requirements, which is aimed at protecting the legitimate rights and interests of organizations and citizens, as well as ensuring the interests of justice.
The role of the arbitral tribunal in enforcement proceedings is similar to the role of the district. The areas of procedural partnership of subjects in different judicial systems are also identical. The roles of each party are clearly defined in the relevant codes and federal law No. 229.
Key issues decided by the court in the course of the enforcement proceedings
The powers of the court in the field of recovery from the debtor are as follows:
- Issuance of a writ of execution and a duplicate, if necessary (Articles 428, 430, 429 in the Russian Civil Procedure Code).
- Clarification of questions on the interruption or restoration of the statute of limitations (432th article of the code).
- Explanations of the essence of the writ of execution, the possibility of deferring or receiving installment plans, rights to change the order of the collection method, as well as a story about indexing the amount of money awarded (433rd and 434th articles of the code).
- Suspension of enforcement proceedings by the court and its resumption.
- Turn in execution of a decision of a judicial authority (Article 443 of the Code).
- Solving issues of replacement of a party in enforcement proceedings in court by a claimant or debtor (44th article of the code).
- Consideration of applications to challenge illegal actions or failure to take appropriate actions on the part of the bailiff and his supervisor.
- Termination of enforcement proceedings by court. It can be carried out in connection with the voluntary performance by the debtor of his obligations or the conclusion of a settlement agreement by the parties.
- Exercising constant control over the actions of the bailiffs if the parties receive constant complaints about their actions within the framework of the enforcement proceedings in the arbitration court or other judicial bodies.
Types of court rulings
Articles of federal law No. 229 governing issues arising in the course of enforcement proceedings establish the following types of court rulings:
- restoration of the deadline for the applicant to submit an executive document to the bailiff service if the deadline has been missed (Article 16);
- an explanation of the court decision on which the sheet was issued (Article 17);
- deferral or installment plan of the execution of actions under the executive document, changing the order of execution and its method (Article 18);
- postponement of compulsory acts for more than ten days (Article 19);
- resumption of executive proceedings (second paragraph of Article 22);
- shortening the time limit for the suspension of the process (third paragraph, article 22);
- suspension of collection or termination of enforcement proceedings by a court (Article 24);
- foreclosure on the property of the debtor held by unauthorized persons (Article 48);
- payment of an average wage to an employee for a period of involuntary absenteeism or compensation for the difference in wages for the period from the issuance of the judicial decision on reinstatement to the execution of this decision by bailiffs (Article 74).
All of these determinations can be made by a magistrate’s court of enforcement as well as courts of other levels. Despite the direct indication in the law under consideration on the implementation of these actions by the court, their implementation takes place exclusively according to the norms of civil procedure or arbitration procedure legislation.
Consideration of complaints of unlawful actions or inaction of bailiffs in the course of enforcement proceedings by an arbitration court or a court of another level takes place in accordance with Section 90 of the law within ten days from the date of the commission of an illegal action or refusal to perform a lawful action of a discerning nature.
Types of decisions of bailiffs to be appealed
Considering the legality of the actions of bailiffs in enforcement proceedings, the court is obliged to consider the following statements of a disputing nature under federal law No. 229:
- On the initiation of proceedings (Article 9).
- On the return of an executive document (Article 10, 26).
- On the postponement of court actions (Article 19).
- On the refusal to search for the debtor with its property or to recover the costs of the search (Article 28).
- On the obligation of a bank or other credit-type organization to sell a debtor’s foreign currency or transfer it to a bank that is entitled to sell it on the domestic foreign exchange market (Article 47).
- On the collection of incurred performance expenses, the allocation of these expenses to the federal budget account or the reimbursement to a person or authority who incurred these expenses (Article 84).
- On imposing penalties on the debtor due to failure to perform the actions indicated by the bailiff for valid reasons or refusal to refrain from such actions within the time period established by the official (Article 85).
- On imposing penalties for refusing to comply with the lawful requirements of the conscript service in the person of a bailiff and other violations of Russian law (Article 87).
A court decision on enforcement proceedings for the above reasons may be made on the basis of a statement of claim submitted by the party. The supervisory functions carried out by the court are highly effective due to the presence of a special type of legal guarantees - procedural arbitration or civil form.
The role of the court in enforcement proceedings is realized in three directions:
- adoption of definitions that have a certain impact on the case;
- handling complaints of unlawful acts or omissions by bailiffs;
- consideration of claims for enforcement proceedings.
Deferral of enforcement of judgment
If the court has established that the execution of its decision or the resolution of other bodies is difficult due to the lack of assets of the debtor, he has the right to delay the execution of the court decision, change its method and order of execution, or index the awarded monetary amount. Such a decision can be made if strong evidence is found that confirms the deplorable financial position of the debtor. The indicated evidence may be provided by the claimant, debtor or officer of the bailiff service.
Other circumstances may also be the reason for the delay in the enforcement of the judgment. If the court considers the evidence weighty, it has the right to decide whether to postpone the beginning of compulsory actions to another date.
The legislation determines that a decision to postpone the execution of actions, in contrast to the end of the enforcement proceedings by the court, cannot be taken by the parties independently due to the fact that the right to grant a postponement of the enforcement of a coercive act can be exercised by the court only in accordance with the civil procedure and arbitration clauses - procedural codes. In these acts, the conclusion of agreements of this type between the parties is not provided.
The court shall take a decision to postpone the execution of actions at a meeting where the bailiff and parties involved in the case are invited. If the parties failed to appear, such a statement will be refused.
The Code of Civil Procedure does not establish a time limit for the consideration of such applications. The Code of Arbitration Procedure in Article 324 establishes the obligation to consider such a statement within a month from the moment it is received.
The postponement of the enforcement of a judgment is in a sense similar to the concept of installments, but it is not identical. In this regard, the concept of installment should be considered separately.
Installment plan
Installment is a method of fulfillment of obligations, which implies that the lump-sum payment of the awarded cash is impossible and can only be made by establishing periodic payments over a certain period of time. The exercise of the right to installments is regulated by Article 37 of the Law and is deciphered in the Decree of the Plenum of the Supreme Court of the Russian Federation No. 50 of November 2015.
The grounds for obtaining installments may be as follows:
- difficult financial situation, which is associated with the deprivation of the debtor's work, unstable or low income;
- respectful family circumstances;
- the presence of more significant debt-type obligations;
- the need for immediate financing of treatment services for yourself and your family;
- the ability to preserve property from sale by bailiffs.
To receive installments, the debtor must submit documents confirming one of the above circumstances.
Suspension of enforcement proceedings by court
The first part of the 39th article in federal law No. 229 establishes that the court has the right to suspend proceedings in the following circumstances:
- The debtor or the recoverer filed a lawsuit for release from property seizure imposed by the bailiff, or for the exclusion of certain things from the census.
- The result of the assessment of property seized by bailiffs is disputed by the parties.
- The decision of the bailiff to recover the collection of the performing nature is disputed by the debtor.
This list also includes other cases provided for by Russian applicable law.
The second part of the 39th article of the law in question determines that the execution penalty may be suspended by the court in full or in part, if there are the following reasons:
- the parties disputed the writ of execution or the court decision, which served as the basis for the issuance of the relevant writ of execution;
- the parties contest the act of the body or official authorized to consider cases of administrative offenses;
- the debtor is on an official business trip;
- the court considers the application to challenge the documents issued by the bailiff, his actions or inaction;
- the court or the bailiff considers the application submitted by the parties for clarification of the content of the issued executive document and the order (method) of execution.
The legislation in article 40 of the law also establishes other cases of suspension of the execution of a court decision by a debtor.
Suspension of production by the bailiff
The first part of the fortieth article of the federal law under consideration establishes cases when the bailiff is obliged to suspend the exacting proceedings partially or completely. These cases include:
- Death of a debtor citizen, declaration of death or recognition as missing if the obligations or requirements of an act drawn up by an authorized person allow the possibility of succession.
- Loss of legal capacity by the debtor.
- Finding a debtor in a war zone in the Russian Armed Forces, performing military or emergency tasks, or requesting a claimant in a similar life situation.
- Revocation of a license from a debtor - a credit institution to engage in banking activities (if it cannot be suspended according to the norms of the federal law on banking activities).
- Implementation by the court (arbitration) of procedures for bankruptcy of the debtor-organization, the procedure for which is established by Article 96 of the Law.
- Consideration by the court of a claim from the debtor about the possibility of deferring or applying by installments the payment of the performance fee, as well as reducing the amount or exempting it from payment in full.
- Submission by the bailiff to the Federal Tax Service or the Russian Bank of a notice that an arrest has been imposed on the property rights used by the debtor in the work (production of goods, performance of work, provision of services) and on the property itself (real estate with a manufacturing purpose, materials and raw materials , equipment and machines, securities and other means of the main type).
The second part of the fortieth article of the federal law under consideration determines other cases when the bailiff is obliged to suspend the exacting proceedings partially or completely:
- the debtor's stay in a hospital inpatient treatment;
- search measures against the debtor, his property or against the child;
- a statement from the debtor to suspend enforcement proceedings if he is a member of the armed forces;
- sending a document to the bailiff in another unit of the bailiff service with an order to conduct certain procedural actions or apply separate coercive measures (according to the sixth part of the 33rd article of the law under consideration).
In addition to the bailiff conducting the case, authority to suspend enforcement proceedings is vested in the main bailiff of the Russian Federation, the main bailiff for the subjects or their deputies, if they have written complaints about the decisions, actions or omissions of their subordinate employees.
According to article 41 of the law, if it is an administrative offense, the court, other body or official issuing the writ of execution may suspend enforcement proceedings instituted on the basis of it.
The possibility of reversing the enforcement of a judgment
Article 443 of the Code of Civil Procedure of the Russian Federation provides that the cancellation of the enforcement proceedings by the court due to the cancellation of the decision made by it (adoption of a new decision, refusal of the claim partially or in full or leaving the application pending) entails the obligation to return to the defendant all that was recovered by the canceled court decision in favor of the applicant. Such a rule is defined in law as a turnaround in the enforcement of a judgment.
The third part of Article 445 of the Code of Civil Procedure of the Russian Federation defines the categories of cases for which compensation is not provided for the defendant in any case:
- Collection of alimony.
- Recovery of the amount of money for claims arising from labor relations.
- Compensation for damage caused by any damage to the health or death of the sole breadwinner.
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