A change in the way a court decision is enforced is a common occurrence in the judicial practice of Russian courts. This is due to the fact that it is sometimes impossible to carry out the actions specified in court decisions by the debtor or pay certain amounts. In this case, based on the interests of the parties and the need to comply with the requirements contained in the act, the court may amend the decision.
The essence of the concept of “changing the way the court decision is enforced”
According to the current legislation, each of the parties in the judicial process (the plaintiff, defendant and bailiff) has the right to file a petition on the need to provide the debtor with installments or deferrals in the execution of judicial claims of a monetary nature specified in the decision. So, the parties can submit an application to change the way the court decision is executed or the order of its execution at the hearing or after the decision is made through the exacting body - the bailiff.
You need to know that the issued new court decision, which defines a new technology for the execution of the requirements contained in the executive document, is a legal transformative act. This means that the court decision to change the method of execution of exacting actions changes the legal relationship previously established during the course of the proceedings.
Many do not know what the mechanism of this legal transformation is. In addition, it is important to understand what can be obtained in the process of changing the order and method of execution of a court decision, as well as how to draw up a corresponding petition.
Before submitting a petition, it is necessary to determine how legitimate it is to state such requirements, by what regulatory legal acts this is regulated.
Regulatory framework
The documents of a regulatory nature governing the issues of changing the order and method of enforcement of a court decision are the following legislative acts:
- The Code of Civil Procedure of the Russian Federation.
- Arbitration Procedure Code of the Russian Federation.
- Code of Administrative Procedure of the Russian Federation.
- Resolution No. 50, issued by the Plenum of the Supreme Court of the Russian Federation on November 17, 2015.
- Decision No. 226-O-O, issued in February 2010.
The main provisions on changing the way the court decision is enforced
Common features defining these provisions are indications of grounds to provide a party with an installment plan, a delay or adjustment of an option (order) for fulfilling the requirements indicated in the executive document. These include circumstances that it was impossible to eliminate before applying to the judicial authority, and affecting the ability of the debtor to comply with judicial requirements recorded in the writ of execution, in compliance with the terms and method of execution.
Article 434 in the Code of Civil Procedure says that if there are circumstances that impede the execution of a court order or other bodies, one of the parties to the process (debtor, recoverer or bailiff) can file a claim with the court that examined the case, changing the way the court decision is executed or order of its implementation.
Article 324 in the Code of Arbitration Procedure offers a similar solution to difficulties in meeting judicial requirements. At the same time, the Code determines the exclusive rights of the arbitral tribunal to change the method of execution of the decision or the procedure for its implementation, as well as determines the procedure and time for consideration of such a petition without reference to other articles.
Unlike previous regulatory legal acts, the period for consideration of such applications has been reduced to ten days (in other codes such applications are considered within a month).
If the parties did not appear in the process for any reason, the court will consider the petition filed to change the way the court’s decision is executed under the Code of Civil Procedure of the Russian Federation (or another act) based on the evidence submitted by the applicant. The absence of any interested person is not an obstacle to the consideration of the case.
According to the Code of Civil Procedure, CAS and the APC of the Russian Federation, a change in the method of enforcement of a court decision is indicated in the determination and sent to all parties for information on the next business day after its adoption.
Grounds for Satisfying the Application
In the case when a judicial body, when considering a statement of claim, makes a decision that provides for the fulfillment of requirements with a specific order and within a certain time frame, all these conditions are prescribed in the operative part of the decision.
The same requirements are duplicated in full in the writ of execution, which is issued to the claimant or sent by the court for execution to the bailiff service independently (if there is a relevant claimant's statement).
This is necessary so that the interests of the plaintiff and the rights of the defendant are not violated by the incorrect interpretation of the requirements specified in the court decision.
A change in the way a court decision is executed in practice is a replacement of one action with another (for example, replacing the actual performance of an obligation with an action with a monetary equivalent). The applicant has the right to choose a method of restoring the violated right at the time of filing the claim.
You should be aware that the requirements that are associated with a change in the enforcement of a court decision must be based on a list of legal material requirements. It follows that the subject of the proceedings itself is not subject to change.
If the applicant during the trial did not submit a petition related to the change of the subject of consideration, but during the execution of the requirements indicated by him it became clear that it was difficult or impossible to fulfill them in the manner established in the decision, the plaintiff should again apply to the court with a request to change the way the decision is executed court. A sample of such a statement can be taken in court.
The reasons why the recovery in strict accordance with the instructions in the writ of execution cannot be carried out should be objective and be documented. For example, the objective reason for the impossibility of transferring property by a court decision is its loss or rendering it unusable by a third party (not through the fault of the defendant).
Another common example of a change in the way a court decision is enforced in judicial practice is a petition to change the way children communicate. If, according to the plaintiff’s application, the court sets a certain schedule for visiting children living separately with their father (mother), but the defendant cannot observe it due to objective reasons (for example, due to being in the workplace at that time), he also has the right to submit a corresponding application .
To change the way the court ruling on the Code of Civil Procedure and other acts is enforced, it is necessary to provide only a written and documented statement.
Application preparation and review process
When applying to the court, the plaintiff has the right to independently determine the list of claims and indicate them in the petition. In most cases, the law allows the selection of one of the following alternative methods to satisfy the applicant's requirements.
- To claim the collection of financial assets by force.
- Demand the return or seizure of the defendant's specific property.
- Oblige the debtor to perform certain actions that were provided for within the obligations undertaken.
The method chosen by the applicant will be indicated in the motivation section of the judge’s decision in civil proceedings. If in the course of the proceedings it is established that it is impossible to satisfy the claims made by the plaintiff, the applicant has the right to file a motion to change the subject of the claim. If such circumstances are established after the court makes a final decision, it will be possible to fulfill the stated requirements only by changing the way the court decision is executed.
A written request must be sent by one of the parties to the trial to the court that was considering the case. An application for changing the court decision is submitted to the same court, regardless of whether appeals or cassation appeals against the issued act were filed.
When drawing up an application, it is necessary to pay special attention to substantive law, that is, to determine whether it is actually possible to change the way the court decision is implemented.
Considering in practice a change in the way the court decision is executed, the following example can be cited: if the petitioning part of the statement of claim contains a demand for the return or forced seizure of any property, it is important to calculate and indicate its value in the court decision. This is necessary so that in the future it would be possible to make adjustments to the motivation part, to replace the return of property with the payment of an equivalent amount of money.
When changing the way the court ruling is executed in bankruptcy or for other reasons, it is necessary to observe the legal norms that the new way of fulfilling the requirements of the court satisfied by the court, which are indicated in the document of the executive nature of the recoverer, does not affect the content of the decision already made by the court, does not cause the appearance of a list of other requirements to the defendant.
The process of changing the order of the court decision should be held in court with the invitation of the parties. The total maximum period for consideration of such applications is two months. An invitation to the process must be received by all participants in the initial trial.
Each called party has the right to raise objections or petitions, to use in full all the rights of the participant in the process fixed by the corresponding code.
A ruling made following the outcome of the proceedings may be appealed by the parties in the form of a private complaint within fifteen days after the ruling comes into force. If no complaints are received from any of the parties during this period, the execution of the judgment on the writ of execution will be implemented according to the new rules.
Statement on the adjustment of the enforcement order
Since the court's decision does not only imply the resolution of an existing dispute in an official manner, but also implies binding requirements, their review is possible only by submitting an appropriate application.
The document on adjusting the procedure for implementing the applicant’s requirements does not imply a request to change the subject of the dispute, but to change the totality of actions necessary to fulfill the requirements of the court.
The corresponding application should be submitted only if it is not possible to comply with the procedure established by the court or the parties. A common example of such petitions is a change in the schedule of communication with a child by a parent who lives separately. The reasons may be a change in the work schedule, the need to go on a business trip, or a serious illness that excludes the possibility of moving.
Each of these circumstances must be documented. For example, a change of schedule can be confirmed by order of the head, an employment contract or other document confirming the changes. Being in hospital for treatment can be confirmed by a certificate signed by the head physician, and so on.
Request for amendment of judicial claim
An application for changing the way the court decision is executed, a sample of which is presented below, is most often submitted at the stage of compulsory recovery by the bailiffs.
If the debtor has the conditions that impede the fulfillment of the requirements listed in the executive document, he himself or the bailiff in the bailiff service (if these circumstances were established by the indicated person during the verification of the property) submits the corresponding application.
The application can be submitted both at the place of trial, and at the location of the bailiff, which carries out the recovery. Regardless of the place of filing the document, the applicant must propose in the application the option of fulfilling the requirements of the collector in a form convenient for the applicant, which will not change the content of the court decision.
Variants of conditions for changing the execution of a judicial claim
Situations when during the course of executive actions it is established that the debtor is unable to comply with the claims made by the plaintiff (or the court bailiff is unable to enforce the appropriate recovery) are common.
In some cases, this is due to the debtor taking deliberate actions to achieve this goal, in others - regardless of the will of the parties. For example, the court ruled to seize the vehicle from the defendant and transfer it to the plaintiff. At the time of the final verdict of the judge and the entry into force of the decision, the defendant sold the car (or it was stolen).
The grounds for submitting the relevant application must be valid. They may be various circumstances, which are an obstacle to the fulfillment of the requirements specified in the executive document or other decisions made by certain authorities.
The current legislation does not determine the range of possible circumstances that impede the normal execution of the judgment. Each case is examined separately by the judicial authority. Whether the circumstance presented by the party is valid and real - the court determines independently. Therefore, the parties must maximally reliably and convincingly prove that it is impossible to directly fulfill the requirements contained in the writ of execution, and in the near future such an opportunity will not be presented.
Despite the absence of a specific list of reasons for changing the option to fulfill the applicant's requirements, the adjustment of the implementation of the judicial claim has its limits. The court cannot always change the way of recovery, since such possibilities are clearly regulated by Russian law.
Judicial practice under the Code of Civil Procedure of the Russian Federation
An example of a change in the execution option of a judicial claim can be the case considered in July 2018 in the Leninsky District Court of the city of Komsomolsk-on-Amur in the Khabarovsk Territory on recovering the amount of material damage that was caused due to an accident of a road-transport nature, losses and expenses judicial type.
The Lenin court, by a decision of July 10, 2018, satisfied the claimant's claims for compensation for material damage that was caused due to a traffic accident, losses and expenses of the judicial type in full.
As a result of the decision made by the judge, the defendant was obliged to pay the plaintiff a total of about two hundred thousand rubles, of which one hundred eighty thousand was the amount of material damage. The defendant did not appear at any court hearing, did not submit evidence on his part or objections.
After the bailiff instituted enforcement proceedings and imposed a penalty on the property of the defendant, he sent a petition to the court, which indicated a request to change the way the judgment is implemented.
In a statement, the defendant indicated that the property that was collected was not to be sold on account of the debt, since it belonged to another person. He also asked to replace the payment of material damage with another way of compensation - by repairing the damaged plaintiff’s car at his own expense. In support of his request, he said that he owns a car repair shop, but it does not bring income.
In support of his arguments regarding the seizure of property, the defendant submitted documents confirming that all the items indicated in the list were bought by another person who is not related to him. In support of the loss-making nature of his enterprise, the debtor submitted an extract from the workshop’s bank account.
All interested parties appeared at the hearing. The plaintiff did not object to replacing the cash payment with a repair, since carrying it out was a priority for the claimant.
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