Article 446 of the Code of Civil Procedure of the Russian Federation establishes a list of values that cannot be enforced in the course of enforcement proceedings. Its functional purpose is to provide the debtor and its dependents with the conditions necessary for their normal life. Let us consider in more detail the list that Article 446 of the Civil Code of the Russian Federation fixes , with commentary by analysts.
Part one
Part 1 of Article 446 of the Code of Civil Procedure of the Russian Federation establishes the following types of property that are not subject to foreclosure under an executive document:
- A room (part of it), if for the debtor and his relatives living in it together, it is the only place to live. The exception is real estate acting as a mortgage subject and for which foreclosure, in accordance with the law, may be imposed.
- The parcel of land on which the object is located in the previous paragraph. The exception is real estate located in a mortgage and which may be foreclosed.
- Household items, home furnishings, personal use items (shoes, clothes, etc.). An exception is established for jewelry and other luxury goods.
- Property used for professional activities of the debtor. An exception is provided for items whose value exceeds 100 minimum wages, established by law.
- Material assets used for purposes not related to business, dairy, working, breeding cattle, rabbits, poultry, deer, bees, feed, which are necessary for keeping animals before pasture on pastures (removal to an apiary), farm buildings in which they are contained.
- Seeds for the next sowing.
- Food products and money, the total amount of which is not less than the subsistence level of the debtor and his dependents.
- Fuel for heating throughout the season and cooking.
- Transport and other valuables required by the debtor in connection with disability.
- State awards, prizes, signs (commemorative / honorary) with which the subject was awarded.
As for the property of legal entities that cannot be enforced, its list is determined by federal law.
Norm 446 Code of Civil Procedure of the Russian Federation: comment
When implementing the provisions that do not allow foreclosure on housing and on plots where immovable objects are located, it is necessary to take into account a number of nuances. First of all, the premises, within the meaning of para. 1 h. 1 tbsp. 446 Code of Civil Procedure of the Russian Federation, must be residential, that is, intended to live the debtor, be registered in the Unified State Register.
Accordingly, this list does not include garden houses, other buildings used for temporary residence of citizens, as well as non-residential buildings. Article 446 of the Code of Civil Procedure of the Russian Federation stipulates that foreclosure is not possible if the immovable object is the only one for the debtor.
Meanwhile, this rule also applies to cases when a citizen has 2 living spaces. Moreover, one of them will be the only place of residence for his family members. In this case, the fact of cohabitation is important. It is determined by registration of persons at the address of residence. If she is absent, then the court can establish it. Part of the premises for foreclosure shall be obligatorily allocated in kind. The corresponding requirement follows from the essence of part 1 of the 16th norm of the LCD. According to the provisions, a dwelling includes a house, an apartment and their parts, as well as rooms, but not a share in the law.
Plot
As Article 446 of the Code of Civil Procedure of the Russian Federation establishes , no foreclosure is imposed on the allotment belonging to the debtor on which the premises / structure is the only place of his residence. This requirement is aimed at implementing the principle of the unity of the fate of the earth and the objects firmly connected with it. The ownership of the allotment is subject to registration in the Unified State Register.
Mortgage
The transfer of rights to the pledged construction (premises) and the site is made according to the rules of the Federal Law No. 102 and par. 2 chap. 23 Civil Code. Issues related to foreclosure on such property shall be decided in court. It will not matter if the property is the only place for the debtor to live or not. It should be noted that in accordance with paragraphs 1 and 2 of Article 78 of the Federal Law No. 102, the foreclosure on a mortgaged house (premises) and the sale of these objects act as a basis for terminating the rights to use the property of persons cohabiting with the mortgagor and his relatives (former including). The release of housing is carried out according to the rules enshrined in the LCD. The specifics of foreclosure on objects located in a mortgage is determined in accordance with Federal Law No. 214.
Housewares and personal items
Their list is not specified in Art. 446 Code of Civil Procedure of the Russian Federation . In this regard, the assignment of certain values to household items and personal items is left to the discretion of the bailiff who is collecting. However, the implementation of this right by the FSSP employee does not exclude the possibility of judicial review on the basis of a statement by interested parties. The court determines which things relate to luxury goods and which belong to objects of ordinary furnishings and household goods.
Analyzing Art. 446 Code of Civil Procedure of the Russian Federation with expert comments , it can be noted that experts indicate that when applying its rules, some provisions of the Tax Code should be taken into account. In particular, as indicated in sub. 4 points 5 of the 48th norm of the Code, withholding of a fine, penalty, tax is not allowed due to valuables intended for everyday individual use by the debtor or his relatives. As for state awards and prizes, then, by virtue of the first part of Art. 446 Code of Civil Procedure of the Russian Federation , they are not levied, regardless of whether they contain precious stones (precious metals) or not.
Property of legal entities
When applying the blanket provision, which is present in part 2 of norm 446 of the Code of Civil Procedure of the Russian Federation , it is necessary to take into account that certain federal laws fix restrictions on the recovery of material assets of organizations. For example, they are provided for in Law No. 193. In the 37th norm of the act, in clause 7 it is established that the collection of debts of a cooperative cannot apply to property belonging to it, except for those values that are attributed to indivisible funds, work horses, productive, pedigree cattle, animals, poultry on fattening and cultivation, agricultural machinery and vehicles (except for cars), fodder and seeds. When applying part two of norm 446 of the Code of Civil Procedure of the Russian Federation, the following provisions must also be taken into account:
- Federal Law No. 125 of 09/26/1997 . In accordance with its requirements, real estate and movable objects of divine service cannot be levied according to the requirements of creditors.
- Federal Law No. 69. According to him, the penalty does not apply to the values withdrawn from circulation. They are property for which transactions are prohibited. Types of objects are fixed by law. For example, the Federal Law governing the sphere of nature protection refers natural state reserves and other objects of special value to the values taken out of circulation.
Property used for professional occupations
As the norm establishes 446 Code of Civil Procedure of the Russian Federation, the collection does not apply to such values. Moreover, the provisions contain a clause that the value of such property should not exceed 100 minimum wages. As you know, many citizens carry out professional activities at home. Moreover, they can use office equipment, computers and other means. Accordingly, if their value is within the limits defined by law, the bailiff is not entitled to impose a penalty on them. Property valuation may be carried out with the assistance of professional specialists.
Additionally
It seems quite logical that the norm 446 of the Code of Civil Procedure of the Russian Federation prohibits the recovery of funds necessary for the normal functioning of the debtor and his relatives living with him. The amount must not be less than the cost of living. A citizen and his relatives should be enough for essentials, including food, things, shoes, etc.
Conclusion
The list of material values fixed by norm 446 of the Code of Civil Procedure of the Russian Federation is considered to be exhaustive. The provisions are not subject to extensive interpretation. The list applies to material assets that are individually owned by the debtor and are common property. This provision follows from the norms of the Civil Code, fixing the possibility of bailiffs to recover the share of the subject in the property of some organizations. For example, this applies to a full partnership, a production cooperative, and a limited partnership. All other material values not indicated in the list may be levied. The legislation establishes certain rules for carrying out this procedure. Mandatory must be an inventory. The debtor is always given the opportunity to voluntarily repay arising obligations. If he does not fulfill the requirements, property that may be enforced will be sold at auction. The funds that will be received based on their results will go to repay the debt. If any amount remains after all creditors' requirements have been fulfilled, it will be returned to the former owner of the sold property.