PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

RESOLUTION

ABOUT APPLICATION

BY THE COURTS OF LEGISLATION WHEN CONSIDERING SOME

ISSUES ARISING DURING ENFORCEMENT PROCEEDINGS

For the purpose of uniform application of legislation by courts when considering certain issues arising during enforcement proceedings, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2, 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ "On the Supreme Court Russian Federation", decides to provide the following clarifications.

The procedure for consideration by courts of claims and issues,

related to the execution of executive documents

1. Judicial protection of the rights, freedoms and legitimate interests of citizens and organizations during the forced execution of judicial acts, acts of other bodies and officials is carried out in the manner of claim proceedings in accordance with the norms of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation) and the Arbitration Procedure Code of the Russian Federation ( hereinafter - the Arbitration Procedure Code of the Russian Federation), administrative proceedings - according to the norms of the Code of Administrative Proceedings of the Russian Federation (hereinafter - the Code of Administrative Procedure of the Russian Federation) and proceedings in cases arising from administrative and other public legal relations - according to the norms of the Arbitration Procedure Code of the Russian Federation, taking into account the distribution of competence between the courts.

The claim procedure has been established to consider claims for the release of property, including exclusive property rights (hereinafter referred to as property), from seizure (exclusion from the inventory) in the event of a dispute related to the ownership of the property; on the abolition of the ban on the disposal of property established by the bailiff, including the ban on performing registration actions in relation to property (for persons not participating in enforcement proceedings); on the return of sold property; on foreclosure on mortgaged property; on recognition of auctions as invalid; on compensation for losses caused as a result of enforcement actions and/or application of enforcement measures, and others (for example, part 2 of article 442 of the Code of Civil Procedure of the Russian Federation, part 2 of article 363 of the CAS RF, part 1 of article 119 of Federal Law of October 2, 2007 N 229 -FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings), paragraph 1 of Article 349, paragraph 1 of Article 449 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

Requirements to challenge decisions, actions (inaction) of bailiffs and other officials of the Federal Bailiff Service (hereinafter referred to as the FSSP of Russia) are considered in the manner prescribed by Chapter 22 of the CAS RF, and in the manner prescribed by Chapter 24 of the Arbitration Procedure Code of the Russian Federation. At the same time, if the determination of the civil rights and obligations of the parties to enforcement proceedings, as well as other interested parties, depends on the resolution of these requirements, these requirements are considered in the manner of claim proceedings.

Complaints against decisions of officials of the FSSP of Russia in cases of administrative offenses, applications for challenging decisions of these officials on bringing to administrative responsibility are considered, respectively, by courts of general jurisdiction according to the rules of the Code of the Russian Federation on Administrative Offenses (hereinafter - the Code of Administrative Offenses of the Russian Federation), arbitration courts - according to the norms of Chapter 25 of the Arbitration Procedure Code of the Russian Federation.

2. Issues of enforcement proceedings falling within the competence of the courts are resolved in accordance with Section VII of the Code of Civil Procedure of the Russian Federation, which regulates proceedings related to the execution of court decisions and decisions of other bodies, with Section VIII of the CAS of the Russian Federation, which regulates the consideration of procedural issues related to the execution of judicial acts on administrative cases and resolved by courts of general jurisdiction, with section VII of the Arbitration Procedure Code of the Russian Federation, which regulates proceedings in cases related to the execution of judicial acts of arbitration courts.

Division of competence of courts of general jurisdiction

and arbitration courts

3. Requirements related to the execution of executive documents and subject to consideration in the procedure of claim proceedings fall within the competence of courts of general jurisdiction based on the rules of Article 22 of the Code of Civil Procedure of the Russian Federation, and arbitration courts, including the Court for Intellectual Rights (hereinafter referred to as arbitration courts) - in in accordance with articles 27, 28, 33 of the Arbitration Procedure Code of the Russian Federation.

The competence of courts of general jurisdiction and arbitration courts in cases of challenging decisions, actions (inaction) of bailiffs is determined in accordance with the provisions of Article 17 of the CAS RF, Article 29 of the Arbitration Procedure Code of the Russian Federation and parts 2 and 3 of Article 128 of the Law on Enforcement Proceedings.

4. If, within the framework of consolidated enforcement proceedings, along with executive documents of arbitration courts, executive documents issued by courts of general jurisdiction, and/or executive documents of non-judicial bodies, the verification of the legality of which falls within the competence of courts of general jurisdiction, are executed, then applications for challenging decisions, actions (inaction) ) by a bailiff related to the implementation of consolidated enforcement proceedings as a whole, are resolved by a court of general jurisdiction.

Issues related to the execution of executive documents specified in Part 2 of Article 128 of the Law on Enforcement Proceedings, which do not affect the consolidated enforcement proceedings as a whole and do not relate to the verification of the legality of decisions, actions (inaction) of the bailiff related to the execution of this executive document, are resolved arbitration court (for example, on the succession of a claimant in enforcement proceedings initiated on the basis of a writ of execution issued by an arbitration court - Article 48 of the Arbitration Procedure Code of the Russian Federation; on deferment (installment plan) of execution - Article 324 of the Arbitration Procedure Code of the Russian Federation, etc.).

The arbitration court is also subject to consideration of an application to challenge the decision, actions (inaction) of the bailiff, if it is accepted for proceedings by the arbitration court before the consolidation of enforcement proceedings into consolidated enforcement proceedings, in which writs of execution issued by courts of general jurisdiction are also executed, and/or executive documents of non-judicial bodies, the verification of the legality of which falls within the competence of courts of general jurisdiction.

5. When conducting consolidated enforcement proceedings, in which, along with executive documents of arbitration courts, executive documents issued by courts of general jurisdiction are executed, the issue of approving a settlement agreement, a reconciliation agreement for any enforcement proceedings included in the consolidated proceeding is resolved by a court of general jurisdiction.

6. Cases regarding claims for the release of property from seizure (exclusion from the inventory) are disputes over claims of a property nature that are not subject to assessment, and are considered by a district court or an arbitration court of a constituent entity of the Russian Federation.

When submitting relevant statements of claim, the state duty is paid in the amount provided for in subparagraph 3 of paragraph 1 of Article 333.19, subparagraph 4 of paragraph 1 of Article 333.21 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation).

7. Issues within the competence of the court that issued the writ of execution (for example, issuing a duplicate of the writ of execution, clarification of the writ of execution, succession, etc.) are subject to resolution by the same court also in the event of a subsequent change in its jurisdiction.

In other cases, including when the jurisdiction of the court that adopted the executable judicial act is divided between several courts, jurisdiction when considering issues of enforcement proceedings is determined based on the jurisdiction of the claims for which such a judicial act was adopted and the writ of execution was issued.

Challenging decisions, actions (inaction)

bailiffs

8. Resolutions, actions (inaction) of the bailiff and other officials of the FSSP of Russia can be challenged in court both by the parties to enforcement proceedings (collector and debtor), and by other persons who believe that their rights and legitimate interests have been violated, created obstacles to the exercise of their rights and legitimate interests or any obligation has been unlawfully imposed on them (part 1 of Article 218, Article 360 ​​of the Code of Arbitration Procedures of the Russian Federation, part 1 of Article 198 of the Arbitration Procedure Code of the Russian Federation, part 1 of Article 121 of the Law on Enforcement Proceedings).

The right to challenge in court decisions, actions (inaction) of the bailiff and other officials of the FSSP of Russia belongs, among other things, to bodies and institutions that are administrators of the revenues of the relevant budget, to whose accounts, according to the executive document, the funds specified in it are subject to crediting (Article 160.1 Budget Code of the Russian Federation (hereinafter referred to as the Budget Code of the Russian Federation).

The prosecutor has the right to challenge in court the decision, actions (inaction) of the bailiff and other officials of the FSSP of Russia in cases provided for by law (part 1 of article 45 of the Code of Civil Procedure of the Russian Federation, part 1 of article 39 of the CAS RF, part 1 of article 52 and part 2 of article 198 Arbitration Procedure Code of the Russian Federation).

In addition, in order to protect the rights and legitimate interests of other persons, the persons specified in Article 46 of the Code of Civil Procedure of the Russian Federation, Article 40 of the CAS of the Russian Federation and articles 53, 53.1 of the Arbitration Procedure Code of the Russian Federation, if provided for by federal laws.

9. Cancellation by a superior official of a contested decision of a bailiff during the period of consideration of a case by a court cannot serve as a basis for termination of 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 (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).

10. At the request of persons participating in enforcement proceedings, or on his own initiative, the bailiff has the right to correct clerical errors or obvious arithmetic errors made in the decision (Part 3 of Article 14 of the Law on Enforcement Proceedings).

The bailiff does not have the right to cancel the decision he has made. The corresponding powers to cancel this resolution are vested in the senior bailiff and his deputy (clause 2 of Article 8, clause 2 of Article 9, clause 2 of Article 10 of the Federal Law of July 21, 1997 N 118-FZ “On Bailiffs” (hereinafter referred to as the Law on Bailiffs) bailiffs), part 5 of article 14, part 9 of article 47, part 4 of article 108, article 123 of the Law on Enforcement Proceedings).

11. An administrative claim, statement (hereinafter referred to as the statement) to challenge a resolution, actions (inaction) of a bailiff is filed with a court or arbitration court within ten days from the day when a citizen or organization became aware of a violation of their rights and legitimate interests (Part 3 of Article 219 of the Code of Arbitration Procedures of the Russian Federation, Part 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation and Article 122 of the Law on Enforcement Proceedings). Missing the deadline to go to court is not grounds for refusing to accept an application by a court of general jurisdiction or returning the application by an arbitration court.

If the resolution, actions (inaction) of the bailiff were appealed in the order of subordination, then the courts of general jurisdiction should take into account the provisions of Part 6 of Article 219 of the Code of Arbitration Code of the Russian Federation that untimely consideration or failure to consider the complaint by a higher body or higher official indicates the presence of a good reason missing the deadline for going to court.

Missing the deadline for going to court without a good reason, as well as the impossibility of restoring the missed deadline for going to court, is grounds for refusing to satisfy the application (Part 8 of Article 219 of the CAS RF).

When considering the above issues, arbitration courts should apply the provisions of parts 6 and 8 of Article 219 of the Code of Arbitration Procedures of the Russian Federation by analogy with the law (Part 5 of Article 3 of the Arbitration Procedure Code of the Russian Federation).

12. In cases of challenging decisions, actions (inaction) of bailiffs, demands are presented by the administrative plaintiff, the applicant to the bailiff, whose decisions, actions (inaction) are being challenged, upon termination of his powers - to the official to whom these powers were transferred , and if powers were not transferred - to the senior bailiff of the corresponding structural unit of the FSSP of Russia (parts 4, 5 of Article 38, Chapter 22 of the CAS of the Russian Federation and Chapter 24 of the Arbitration Procedure Code of the Russian Federation). It is also necessary to involve the territorial body of the FSSP of Russia, in whose structural unit the bailiff performs (performed) the duties of the bailiff, to participate in the case as an administrative defendant, body or official, whose decisions, actions (inaction) are being disputed, since when the applicant’s demands are satisfied legal costs can be reimbursed at the expense of the named territorial body of the FSSP of Russia.

In case of challenging the decisions, actions (inaction) of the bailiff, the other party to the enforcement proceedings (claimor or debtor) is subject to involvement in the case as an interested party.

When one of the collectors challenges the bailiff's decision regarding the order of distribution of funds within the framework of consolidated enforcement proceedings, the court invites the remaining collectors, whose rights and legitimate interests are affected by the contested decision, to participate in the case as interested parties.

Advertisement RF or Chapter 8 of the Arbitration Procedure Code of the Russian Federation. In particular, the application is considered without notifying the persons participating in the case, no later than the next working day after its receipt by the court (Article 141 of the Code of Civil Procedure of the Russian Federation, part 3 of Article 87 of the Code of Arbitration Procedures of the Russian Federation, part 1.1 of Article 93 of the Arbitration Procedure Code of the Russian Federation).

14. When considering an application to challenge decisions, actions (inaction) of a bailiff, the court has the right in the same process to resolve the issue of suspending enforcement proceedings in whole or in part at the request of the claimant, debtor or bailiff (clause 4 of part 2 of Article 39 of the Law on enforcement proceedings). An application for suspension of enforcement proceedings is considered within ten days at a court hearing with notification to the claimant, debtor, bailiff, whose failure to appear does not prevent the resolution of the said application (part 1 of article 440 of the Code of Civil Procedure of the Russian Federation, part 2 of article 358, part 3 of article 359 of the CAS RF, part 2 of article 324, part 3 of article 327 of the Arbitration Procedure Code of the Russian Federation).

Failure to comply with the requirements of a writ of execution within the time period provided for by the said Law cannot in itself serve as a basis for concluding that the bailiff committed unlawful inaction.

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 of the party to enforcement proceedings. For example, the inaction of a bailiff who has established that the debtor does not have any funds, but has not performed all the necessary enforcement actions to identify other property of the debtor that could be seized, in order to execute the executive document (in particular , did not send requests to the tax authorities, to the authorities carrying out state registration of property and (or) rights to it, etc.).

Circumstances related to the organization of the work of a structural unit of the bailiff service, for example, the lack of the necessary staff of bailiffs, the replacement of a bailiff due to his illness, vacation, study, cannot be considered as grounds justifying exceeding the deadlines for the execution of executive documents. being on a business trip, termination or suspension of his powers (parts 4 and 5 of article 6.1 of the Code of Civil Procedure of the Russian Federation, parts 4 and 5 of article 10 of the Code of Arbitration Procedures of the Russian Federation, parts 4 and 5 of article 6.1 of the Arbitration Procedure Code of the Russian Federation).

The burden of proving the existence of good reasons for non-execution of the writ of execution within the period established by law rests with the bailiff.

16. When filing administrative claims, applications to challenge decisions, actions (inaction) of a bailiff, the state fee is not paid (paragraph three of subparagraph 7 of paragraph 1 of Article 333.36 of the Tax Code of the Russian Federation, part 2 of Article 329 of the Arbitration Procedure Code of the Russian Federation).

Initiation of enforcement proceedings

17. Writs of execution are issued on the basis of judicial acts imposing an obligation to transfer funds and other property to other persons or to perform certain actions in their favor or to refrain from performing certain actions, for example, in the cases provided for in Part 2 of Article 206 of the Code of Civil Procedure of the Russian Federation (Part 1 and 3 Article 1 of the Law on Enforcement Proceedings).

Writs of execution on the basis of judicial acts that do not contain the above instructions, for example, in cases of recognition by the court of the right to property, compulsion to enter into an agreement, or determination of the procedure for using property, are not issued by the court.

If the court makes a decision to satisfy claims that are not subject to enforcement, and claims that impose on the party(ies) to the dispute the obligation to transfer funds and other property or to perform certain actions, then on the basis of this judicial act in terms of imposing these obligations may a writ of execution is issued. So, for example, when a court makes a decision to determine the procedure for using a land plot and the transfer (demolition) of buildings, the decision is subject to forced execution only in terms of the transfer (demolition) of buildings and only for the execution of these court orders can a writ of execution be issued.

A court decision on claims made in the manner established by Chapter 22 of the CAS of the Russian Federation, Chapter 24 of the Arbitration Procedure Code of the Russian Federation, to recognize as illegal decisions, actions (inaction) of a government body, local government body, official, state or municipal employee shall be enforced by the court in accordance with parts 8 and 9 of Article 227 of the Code of Arbitration Procedures of the Russian Federation or part 7 of Article 201 of the Arbitration Procedure Code of the Russian Federation, which does not exclude the possibility of its forced execution on the basis of a writ of execution issued by the court, if by a court decision the administrative defendant (body, official) is entrusted with the obligation to commit (refrain from performing) certain actions.

18. By virtue of the provisions of Article 47 of the Tax Code of the Russian Federation and Article 20 of the Federal Law of July 24, 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund", as well as in relation to clause 8 of part 1 of article 12 of the Law on enforcement proceedings, decisions of tax authorities (bodies of the Pension Fund of the Russian Federation and the Social Insurance Fund of the Russian Federation) on the collection of taxes (insurance contributions) at the expense of the property of the taxpayer (payer of insurance contributions) are enforcement documents that are sent for forced execution to the bailiff service.

The bailiff has no right to demand from the body that sent such an executive document the submission of any additional documents confirming the lack of information about the debtor’s accounts, as well as the insufficiency or absence of funds on them.

A bailiff's refusal to initiate enforcement proceedings due to failure to provide the specified documents may be considered illegal.

19. A settlement agreement, a reconciliation agreement, not executed voluntarily, are subject to forced execution on the basis of a writ of execution issued by the court at the request of a party to this agreement (part 2 of article 142 of the Arbitration Procedure Code of the Russian Federation, by analogy with the law by courts of general jurisdiction in civil proceedings on the basis of part 4 of the article 1 Code of Civil Procedure of the Russian Federation, part 9 of article 137 CAS RF).

The absence of information about non-fulfillment of the terms of the settlement agreement, reconciliation agreement, containing the obligations of one or both parties to transfer property or to perform (failure to perform) certain actions, is not a basis for the court’s refusal to issue a writ of execution and for the bailiff’s refusal to initiate an execution. proceedings on the basis of a writ of execution issued by the court for the forced execution of a settlement agreement, a reconciliation agreement, since the circumstances related to the execution are subject to clarification during the enforcement proceedings.

20. A change in the name of an individual or a change in the name of a legal entity that is not associated with a change in the organizational and legal form does not require the court to resolve the issue of procedural succession, since this does not entail the withdrawal of a party to a controversial or court-established legal relationship.

In this case, the bailiff issues a resolution to initiate enforcement proceedings indicating both the new and the previous name (name) of the claimant or debtor, attaching to the materials of the enforcement proceedings documents confirming the relevant changes (for example, a certificate of change of name or extracts from the Unified state register of legal entities). If the name (change of name) of the claimant or debtor is changed during enforcement proceedings, the bailiff indicates this in the relevant resolution, and, if necessary, may make changes to previously issued decisions in relation to Part 3 of Article 14 of the Law on Enforcement Proceedings.

21. After the initiation of enforcement proceedings, the bailiff, if the executive document is unclear, has the right to apply to the court that adopted the judicial act on the basis of which this executive document was issued, with a request for clarification (part 1 of article 433 of the Code of Civil Procedure of the Russian Federation, part 1 of article 355 of the CAS RF, in relation to Part 1 of Article 179 of the Arbitration Procedure Code of the Russian Federation, Article 32 of the Law on Enforcement Proceedings).

22. In accordance with parts 11 and 12 of Article 30 of the Law on Enforcement Proceedings, the period for voluntary fulfillment of the requirements contained in the executive document is five days from the date the debtor receives the decision to initiate enforcement proceedings. The specified period does not include non-working days (Part 2 of Article 15 of the Law). The deadline for voluntary compliance with the requirements of the writ of execution cannot be changed at the discretion of the bailiff. Other deadlines may be established in cases provided for, including by Part 14 of Article 30, Part 5 of Article 103 of the said Law.

During the period for voluntary execution, the use of compulsory execution measures is not permitted. Meanwhile, within the specified period, the bailiff has the right to take certain enforcement actions, for example, to seize the debtor’s property or establish a ban on the disposal of property.

The bailiff does not have the right to satisfy the claimant's request contained in the application to initiate enforcement proceedings to establish a temporary restriction on the debtor's departure from the Russian Federation simultaneously with his issuance of a resolution to initiate enforcement proceedings - before the expiration of the period established in such a resolution for the voluntary execution of the enforcement document, and also before the bailiff receives information that the debtor has information about the enforcement proceedings initiated against him and is evading the voluntary execution of the enforcement document (parts 1, 2 of Article 67 of the Law on Enforcement Proceedings).

23. By virtue of Part 1 of Article 5 of the Law on Enforcement Proceedings and Article 12 of the Law on Bailiffs, enforcement of a court decision on forced hospitalization of patients with contagious forms of tuberculosis in medical anti-tuberculosis organizations is entrusted to bailiffs.

For the direct execution of the said court decision, police officers and employees of relevant medical institutions are involved in order to provide the bailiff with safe access to persons subject to forced hospitalization, as well as specialized medical transport equipped with immunological protection equipment that excludes the possibility of infection of an unlimited number of people (paragraph 35 Part 1 of Article 12 of the Federal Law of February 7, 2011 N 3-FZ “On the Police”).

Postponement or installment plan for the execution of a writ of execution

24. The claimant, debtor, bailiff has the right to apply for a deferment or installment plan for the execution of a judicial act (part 1 of article 37 of the Law on Enforcement Proceedings, article 434 of the Code of Civil Procedure of the Russian Federation, part 1 of article 358 of the Code of Arbitration Procedures of the Russian Federation, part 1 of article 324 of the Arbitration Procedure Code of the Russian Federation ). The application is submitted to the court that considered the case in the first instance and issued the writ of execution, including in the case of cancellation (change) of a judicial act and the adoption of a new judicial act by a court of appeal, cassation or supervisory authority.

In accordance with Article 434 of the Code of Civil Procedure of the Russian Federation, the issue of deferment (installment plan), changing the method and procedure for executing a judicial act can also be raised before the court at the place of execution of the writ of execution.

Applications for deferment (installment plan), change in the method and procedure for executing a decision made by a magistrate are considered by a magistrate of the same judicial district or a magistrate at the place of execution of the relevant writ of execution.

If there are circumstances that prevent the execution of a specific executive document for enforcement proceedings included in the consolidated enforcement proceedings, the issue of deferring or installment execution is resolved in relation to this enforcement document, and not the consolidated enforcement proceedings as a whole.

25. Within the meaning of the provisions of Article 37 of the Law on Enforcement Proceedings, Article 434 of the Code of Civil Procedure of the Russian Federation, Article 358 of the Code of Arbitration Procedures of the Russian Federation and Article 324 of the Arbitration Procedure Code of the Russian Federation, the grounds for granting a deferment or installment plan for the execution of a writ of execution may be circumstances that are unavoidable at the time of applying to the court, preventing the debtor from executing the writ of execution. on time.

The question of the existence of such grounds is decided by the court in each specific case, taking into account all relevant factual circumstances, which, in particular, may include the difficult financial situation of the debtor, reasons that significantly complicate execution, and the possibility of executing a court decision after the expiration of the deferment period.

When granting a deferment or installment plan, the courts must ensure a balance of the rights and legitimate interests of collectors and debtors in such a way that such a procedure for executing a court decision meets the requirements of fairness, proportionality and does not affect the essence of the guaranteed rights of persons participating in enforcement proceedings, including the rights of the collector to enforcement judicial act within a reasonable time.

The presence of a deferment or installment plan for one of the joint and several debtors under a writ of execution is not a basis for granting a deferment or installment plan for execution to other joint and several debtors, since the actual circumstances leading to the possibility of applying such measures are individual in nature.

Advertisement the executor may decide to terminate the deferment or installment plan. The court considers an application to terminate a deferment or installment plan in the same manner as when they were granted.

27. In the event of the departure of a claimant or debtor in enforcement proceedings initiated on the basis of a court-issued writ of execution (death of a citizen, reorganization of a legal entity, assignment of a claim, transfer of debt and other cases of change of persons in legal relations), the issue of legal succession is subject to resolution by the court (Article 44 Code of Civil Procedure of the Russian Federation, Article 44 of the CAS of the Russian Federation, Article 48 of the Arbitration Procedure Code of the Russian Federation, paragraph 1 of Part 2 of Article 52 of the Law on Enforcement Proceedings).

On the issue of succession, the following may apply to the court: a bailiff, parties to enforcement proceedings, a person who considers himself a successor to a retired party to enforcement proceedings.

The court's consideration of the issue of succession of a retired party to enforcement proceedings is carried out in relation to the rules established by Article 440 of the Code of Civil Procedure of the Russian Federation, in accordance with Article 358 of the Code of Arbitration Procedures of the Russian Federation, Article 324 of the Arbitration Procedure Code of the Russian Federation at a court hearing with notification of the bailiff, the parties to enforcement proceedings and the person specified in as legal successor.

28. Property claims and obligations inextricably linked with the personality of a citizen (claimor or debtor), by virtue of Articles 383 and 418 of the Civil Code of the Russian Federation, are terminated for the future in connection with the death of this citizen or in connection with his declaration as deceased.

At the same time, 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. For example, according to subparagraph 3 of paragraph 3 of Article 44 of the Tax Code of the Russian Federation, repayment of the debt of a deceased taxpayer-citizen is carried out by his heirs in relation to transport, land taxes, and property taxes for individuals in the manner established by civil legislation (paragraph 3 of Article 14, Article 15, subparagraph 3 of paragraph 3 Article 44 of the Tax Code of the Russian Federation). The possibility of succession in relation to other taxes, as well as various fees, including state duty, is not provided.

Suspension of execution of a judicial act

and enforcement proceedings

29. According to paragraph 1 of part 2 of Article 39 of the Law on Enforcement Proceedings, enforcement proceedings may be suspended by the court when challenging an executive document or a judicial act on the basis of which the executive document was issued.

In this case, the courts must take into account that when filing an appeal, cassation or supervisory appeal (submission), only the courts of the appellate, cassation and supervisory instances have the right to suspend the execution of a judicial act. The legal consequence of suspending the execution of a judicial act is the suspension of enforcement proceedings initiated on the basis of the relevant executive document.

The issue of suspending enforcement proceedings on the basis of paragraph 1 of part 2 of Article 39 of the Law on Enforcement Proceedings may be resolved by the court of first instance in cases of challenging the enforcement document of a non-judicial body.

Enforcement proceedings may be suspended in cases of consideration of an application for review of the judicial act on the basis of which the writ of execution was issued due to new or newly discovered circumstances. The issue of suspending enforcement proceedings is resolved by the court considering such an application.

30. If, after the expiration of the period for filing an appeal, the court of first instance issued a writ of execution for forced execution of the decision, and subsequently, on the grounds provided for by law, an appeal against this decision was accepted for proceedings, then the appellate court has the right to suspend the execution of such a judicial act (for courts of general jurisdiction: in cases considered in administrative proceedings - on the basis of Part 1 of Article 306 of the CAS RF, in cases considered in civil proceedings - by analogy with the law in relation to Part 1 of Article 306 of CAS RF; for arbitration courts - on the basis of Article 265.1 Arbitration Procedure Code of the Russian Federation).

The procedure for suspending enforcement proceedings established by Article 440 of the Code of Civil Procedure of the Russian Federation, Article 359 of the Code of Arbitration Procedures of the Russian Federation and Article 327 of the Arbitration Procedure Code of the Russian Federation does not apply in this case.

If the decision of the court of first instance, on the basis of which the writ of execution was issued, is canceled or changed in whole or in part by the court of appeal, then, within the meaning of paragraph 4 of part 2 of Article 43 of the Law on Enforcement Proceedings, the enforcement proceedings initiated under the specified writ of execution are subject to termination by the court. by the bailiff in the canceled or amended part.

If the court of appeal leaves the appealed judicial act unchanged, a new writ of execution is not issued; execution of the relevant judicial act is carried out on the basis of a previously issued writ of execution.

31. The consequences of suspending enforcement proceedings are to prevent the application of enforcement measures provided for in Part 3 of Article 68 of the Law on Enforcement Proceedings during the period of suspension of enforcement proceedings until its resumption (Part 6 of Article 45 of the Law).

Taking into account the provisions of Part 1 of Article 64 of the Law on Enforcement Proceedings, during the period of suspension of enforcement proceedings (suspension of the execution of a judicial act), in order to ensure the execution of the executive document, the bailiff may carry out certain enforcement actions, for example, imposing an arrest, establishing a ban on the disposal of property.

32. In the event that enforcement proceedings have not been initiated, a court ruling to suspend the execution of the appealed judicial act does not prevent the claimant from filing an application with the bailiff service to initiate enforcement proceedings. The bailiff does not have the right to refuse to initiate enforcement proceedings only on the grounds that the execution of the judicial act for which the writ of execution was issued has been suspended. In the decision to initiate enforcement proceedings, the bailiff simultaneously indicates the suspension of execution of the judicial act by the relevant court and the suspension of enforcement proceedings, therefore the period for voluntary fulfillment of the requirements contained in the writ of execution is established by the bailiff from the moment the enforcement proceedings are resumed.

33. By virtue of Part 4 of Article 359 of the Code of Arbitration Procedures of the Russian Federation, Part 4 of Article 327 of the Arbitration Procedure Code of the Russian Federation and within the meaning of Part 3 of Article 440 of the Code of Civil Procedure of the Russian Federation, court rulings on both the suspension or termination of enforcement proceedings and the refusal to suspend or terminate enforcement proceedings can be appealed.

Completion and termination of enforcement proceedings

34. The list of grounds for ending enforcement proceedings provided for in Part 1 of Article 47 of the Law on Enforcement Proceedings is exhaustive.

The debtor's lack of property that can be foreclosed on entails the end of enforcement proceedings only if the bailiff took all measures permitted by law to find such property and they were unsuccessful.

Enforcement proceedings for the collection of periodic payments can be completed by virtue of clause 3 of part 1 of Article 47 of the Law on Enforcement Proceedings in connection with the return of the writ of execution on the grounds provided for in clauses 3 - 6 of Article 46 of the said Law, not earlier than the end of the period for collection of periodic payments.

35. The end of enforcement proceedings (including summary proceedings) in connection with the actual fulfillment by the debtor or one of the joint and several debtors of the requirements contained in the executive document is carried out if the bailiff has data confirming the fact of execution.

Actual fulfillment may be recognized as the fulfillment of the obligation to transfer directly to the claimant cash in a specific amount or other specified property, or the performance of specific actions in favor of the claimant or abstention from performing these actions.

If deficiencies are identified in individually determined property that is subject to transfer by the debtor, and if the claimant refuses to accept such property, the bailiff issues a resolution to terminate the enforcement proceedings and to return the writ of execution to the claimant due to the impossibility of execution (clause 2 of part 1, part 3 Article 46, paragraph 3 of part 1 of Article 47 of the Law on Enforcement Proceedings).

The return of the writ of execution in this case does not prevent the claimant from applying to the court with an application to change the method of execution of the judicial act by replacing the transfer of property in kind with the recovery of its value, unless otherwise provided by law, or filing another property claim. Similar rules can be applied in connection with obvious difficulties in the execution of judicial acts on the recovery of disputed property from someone else’s illegal possession, restitution and other judicial acts on the transfer of an individually defined thing.

If defects in property are identified during the execution of a court decision obliging the debtor to transfer property determined by generic characteristics (for example, when replacing goods of inadequate quality with a similar one), as stated by the claimant before accepting the property, enforcement proceedings cannot be considered completed actual execution, since the debtor retains obligation to transfer property without defects. If deficiencies are discovered after the transfer of property to the claimant, disputes arising in connection with this are resolved through a lawsuit as not related to enforcement proceedings.

36. The actual execution of an executive document (in whole or in part) may take place when the bailiff carries out an offset of counter-similar claims, confirmed by executive documents for the collection of funds, on the basis of which enforcement proceedings were initiated (Article 88.1 of the Law on Enforcement Proceedings).

The offset of these claims by a bailiff may be recognized by the court as unlawful if the order of satisfaction of the claims of other claimants in consolidated enforcement proceedings is violated or the prohibition established by law on the offset of individual claims (in particular, for compensation for harm caused to life or health; for the collection of alimony ; about lifelong maintenance).

The initiation of enforcement proceedings in several divisions of the FSSP of Russia and its territorial bodies does not prevent bailiffs from offsetting counter homogeneous claims.

37. If the enforcement proceedings were completed on the basis of paragraph 1 of part 1 of Article 47 of the Law on Enforcement Proceedings in connection with the actual fulfillment of the requirements contained in the executive document (including requirements of a periodic nature), but subsequently during the period of presentation of the enforcement document for execution, the debtor stopped performing actions, fulfilling requirements of a periodic nature or violated the ban on performing actions in respect of which a writ of execution was issued, the senior bailiff or his deputy (on his own initiative or at the request of the claimant) has the right, by virtue of Part 9 of Article 47 of the said Law, to cancel the decision on termination of enforcement proceedings with an indication of the need to repeat enforcement actions and apply enforcement measures.

38. A court decision on the reinstatement of an illegally dismissed employee, on the reinstatement of an employee illegally transferred to another job to his previous job, is subject to immediate execution no later than the first working day after the date of receipt of the writ of execution by the bailiff service (Article 396 of the Labor Code of the Russian Federation ( hereinafter referred to as the Labor Code of the Russian Federation), Article 211 of the Code of Civil Procedure of the Russian Federation, Part 4 of Article 36 of the Law on Enforcement Proceedings).

According to Part 1 of Article 106 of the Law on Enforcement Proceedings, the executive document on reinstatement at work is considered executed upon confirmation of the cancellation of the order (instruction) on the dismissal (transfer) of the claimant, as well as the employer taking measures necessary for the actual admission of the employee to perform previous job duties, including measures on compliance with the conditions of admission to work in positions, upon appointment to which citizens are issued access to state secrets or to work during which employees undergo mandatory preliminary and periodic medical examinations, etc.

Enforcement proceedings under a writ of execution containing, along with a requirement for reinstatement at work, also a requirement for payment of average earnings for the period of forced absence or the difference in earnings for the period of performing lower-paid work (Article 234, parts one and two of Article 394 of the Labor Code of the Russian Federation), can be completed by a bailiff in connection with the actual execution, and the employee was reinstated to his previous job upon the employer’s fulfillment of all the requirements contained in the writ of execution, including the obligation to pay the employee the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing the lower-paid work.

If, after the end of enforcement proceedings in connection with the actual execution of the writ of execution by the employer, the order (instruction) by which the employee was reinstated at work by canceling the order (instruction) on dismissal (transfer), the order of the bailiff on the completion of enforcement proceedings on the request for reinstatement is cancelled. at work can be canceled by the senior bailiff or his deputy on his own initiative or at the request of the claimant if it is necessary to repeat enforcement actions and apply, including repeated, enforcement measures (Part 9 of Article 47 of the Law on Enforcement Proceedings).

39. The exclusion of a debtor-organization from the Unified State Register of Legal Entities by decision of the registering authority on the basis of Article 21.1 of the Federal Law of August 8, 2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs” in accordance with paragraph 7 of Part 2 of Article 43 of the Law on Enforcement Proceedings entails constitutes a termination of enforcement proceedings.

If a liquidated debtor-organization has unrealized property left, at the expense of which the claims of creditors can be satisfied, then the claimant who has not received execution under the writ of execution, another interested person or an authorized state body has the right to apply to the court with an application to appoint a procedure for distributing the discovered property among the persons having the right to do so, in accordance with paragraph 5.2 of Article 64 of the Civil Code of the Russian Federation.

Seizure of the debtor's property

40. An arrest as an enforcement action can be imposed by a bailiff in order to ensure the execution of an executive document containing demands for property penalties (clause 7 of part 1 of Article 64, part 1 of Article 80 of the Law on Enforcement Proceedings).

As a measure of compulsory execution, arrest is imposed during the execution of a judicial act on the seizure of the property of the defendant, administrative defendant (hereinafter referred to as the defendant, in enforcement proceedings - the debtor), located with him or with third parties (Part 1, paragraph 5 of Part 3 of Article 68 of the said Law).

In pursuance of a judicial act to seize the property of the defendant, the bailiff makes the seizure and establishes only those restrictions and only in relation to the property that are specified by the court.

If the court has taken an interim measure in the form of seizure of the defendant’s property, establishing only its total value, then the specific composition of the property subject to seizure and the types of restrictions in relation to it are determined by the bailiff according to the rules of Article 80 of the Law on Enforcement Proceedings.

In cases where the debtor prevents the execution of a judicial act on the seizure of property under a judicial act on the seizure of the debtor's movable property, including by refusing to accept the seized property for storage, the bailiff has the right to transfer the seized property for safekeeping to members of the debtor's family , the recoverer or the person with whom the territorial body of the FSSP of Russia concluded a storage agreement, taking into account the requirements established by Article 86 of the Law on Enforcement Proceedings.

41. When seizing property in order to ensure the execution of a writ of execution containing demands for property penalties, the bailiff has the right, by virtue of Part 1 of Article 80 of the Law on Enforcement Proceedings, not to apply the rules of priority for foreclosure on the debtor’s property, which in itself is not relieves the bailiff from the obligation to subsequently carry out actions to identify other property of the debtor, which may be foreclosed on in the previous turn.

In this case, the bailiff is obliged to be guided by Part 2 of Article 69 of the said Law, which allows foreclosure on property in the amount of the debt, that is, the seizure of the debtor’s property, as a general rule, must be proportionate to the volume of the claimant’s claims.

For example, the seizure is disproportionate in the case where the value of the seized property significantly exceeds the amount of debt under the writ of execution in the presence of other property that may subsequently be foreclosed on. At the same time, such an arrest 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 identification, arrest and initiation of the procedure for the sale of other property of the debtor cannot in themselves serve as a basis for lifting a previously imposed arrest until the requirements of the writ of execution are fully met.

42. The list of enforcement actions given in part 1 of Article 64 of the Law on Enforcement Proceedings is not exhaustive, and the bailiff has the right to perform other actions necessary for the timely, complete and correct execution of enforcement documents (clause 17 of part 1 of the said article), if they comply with the objectives and principles of enforcement proceedings (Articles 2 and 4 of the Law on Enforcement Proceedings), they do not violate the rights of the debtor and other persons protected by federal law. Such actions include establishing a ban on the disposal of property belonging to the debtor (including a ban on performing registration actions in relation to it).

A ban on the disposal of property is imposed in order to ensure the execution of a writ of execution and to prevent the disposal of property, which may subsequently be subject to foreclosure, from the possession of the debtor in cases where the bailiff has reliable information about the presence of individually defined property in the debtor's possession, but at the same time It is difficult to detect and/or make an inventory of such property for one reason or another (for example, when a vehicle belonging to the debtor is hidden from collection).

The bailiff must send a resolution to impose a ban on the disposal of property to the relevant registration authorities.

After discovering the actual location of the property and the possibility of inspecting it and making an inventory in order to foreclose on it, the bailiff is obliged to take all necessary actions to seize the specified property of the debtor according to the rules provided for in Article 80 of the Law on Enforcement Proceedings.

43. An arrest as an interim measure or a ban on disposal may be established on the property belonging to the debtor-citizen listed in paragraphs two and three of part 1 of Article 446 of the Code of Civil Procedure of the Russian Federation.

For example, 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 the occupancy and registration of other persons, themselves cannot 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.

44. In order to ensure the rights of the creditor on the basis of parts 1 and 4 of Article 80 of the Law on Enforcement Proceedings, it is possible to seize or establish a ban on disposal (ban on performing registration actions) in relation to property that is in common joint ownership of the debtor and another person (persons) , before determining the debtor's share or before its allocation.

45. By virtue of parts 3 and 6 of Article 81 of the Law on Enforcement Proceedings, arrest may be imposed on funds, both those located in a bank or other credit organization on existing bank accounts (settlement, deposit) and in the deposits of the debtor, and on funds that will be credited 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 the 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 on 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 arrested the funds.

Establishing a temporary restriction on the debtor’s departure

from the Russian Federation

46. ​​If a citizen fails to comply with enforcement documents of non-judicial bodies, a temporary restriction on the debtor’s departure from the Russian Federation, regardless of his status (individual, individual entrepreneur, official), is established by a court of general jurisdiction (Part 4 of Article 67 of the Law on Enforcement Proceedings).

When executing enforcement documents issued on the basis of a judicial act or which are judicial acts, a temporary restriction on the debtor’s departure from the Russian Federation is established not by the court, but by the bailiff at the request of the claimant or on his own initiative (parts 1 - 3 of Article 67 of the Law on Enforcement Proceedings ).

Consideration of an application to challenge a bailiff's decision on a temporary restriction on the debtor's departure from the Russian Federation falls within the competence of the arbitration court, if such a restriction is established within the framework of enforcement proceedings initiated on the basis of a writ of execution of the arbitration court, and if such a restriction is established within the framework of enforcement proceedings initiated on the basis of an executive document of a court of general jurisdiction - to the competence of a court of general jurisdiction.

47. According to Article 67 of the Law on Enforcement Proceedings, a temporary restriction on leaving the Russian Federation may be established in relation to citizens who are debtors in enforcement proceedings.

A temporary restriction on leaving the Russian Federation cannot be established in relation to the manager or employees of the debtor organization.

48. If each of the property claims not fulfilled by the debtor does not exceed the minimum amount of debt determined by part 1 of Article 67 of the Law on Enforcement Proceedings, in the presence of which a temporary restriction on the debtor’s departure from the Russian Federation may be established, and the total amount of property claims not fulfilled by the debtor under the consolidated enforcement production exceeds this amount, then, within the meaning of Articles 4, 64 and 67 of the said Law, the establishment of a temporary restriction on the debtor’s departure from the Russian Federation is permissible.

49. In cases where, in accordance with paragraph 4 of Article 67 of the Law on Enforcement Proceedings, a recoverer or a bailiff applies to the court with an application to establish a temporary restriction on the debtor’s departure from the Russian Federation, the validity period of such a temporary restriction, as a general rule, is established by the court with taking into account the specific circumstances of the case, but not more than the period specified by the applicant.

The end of enforcement proceedings, in particular in connection with the actual fulfillment of the requirements contained in the executive document, or the termination of enforcement proceedings entails, by force of law, the cancellation by the bailiff of the restrictions established for the debtor, even in the case where a temporary restriction on the debtor’s departure from the Russian Federation Federation was established by the court (part 1 of article 44, part 4 of article 47 of the Law on Enforcement Proceedings).

Valuation and storage of the debtor's property

50. In the cases provided for by parts 2 and 3 of Article 85 of the Law on Enforcement Proceedings, the assessment of the debtor’s property, which is subject to foreclosure, is carried out by a bailiff with the mandatory involvement of a specialist who meets the requirements of the legislation on valuation activities (hereinafter - the appraiser).

The value of the object of assessment, indicated by the appraiser in the report, is mandatory for the bailiff, who makes a decision on the valuation of the thing or property right no later than three days from the date of receipt of the appraiser's report and, at the same time, sends a copy of the appraiser's conclusion to the parties to the enforcement proceedings.

The parties to enforcement proceedings have the right to challenge in court the order of the bailiff on the assessment of the debtor's property in the manner prescribed by Chapter 22 of the CAS RF and Chapter 24 of the Arbitration Procedure Code of the Russian Federation, or, no later than ten days from the date of their notification of the assessment, to challenge the value of the object in a lawsuit. assessment indicated by the appraiser in the report (clauses 3, 4 of part 4 of Article 85 of the Law on Enforcement Proceedings).

When considering disputes about challenging a bailiff's decision to assess the debtor's property based on an appraiser's report, the appraiser who compiled the relevant report should also be involved in the case as an interested party. Likewise, when challenging in court the value of the valuation object indicated by the appraiser in the report, it is necessary to involve the bailiff who indicated this value in the decision on the valuation of the thing or property right to participate in the case as a third party. In this case, the court makes a conclusion about the reliability of the assessment made, regardless of how the applicant formulated the demand - challenging the result of the assessment or challenging the decision of the bailiff, since in both cases this circumstance is significant for the dispute.

When challenging a bailiff's decision on an assessment, transfer of the debtor's property for sale, or when challenging the value of an appraised object indicated by the appraiser in the report, the court has the right to suspend enforcement proceedings or take a measure of preliminary protection, an interim measure in the form of establishing a ban on the commission of actions aimed at sale of the relevant property (clause 2 of part 1, clause 4 of part 2 of article 39 of the Law on Enforcement Proceedings, part 2 of article 85 CAS, clause 2 of part 1 of article 91 of the Arbitration Procedure Code of the Russian Federation).

When considering a case challenging a bailiff's decision on the assessment of property or property rights of a debtor, the court has the right to order a forensic examination, which may serve as a basis for suspending the proceedings (clause 5 of part 1 of Article 191 of the Code of Arbitration Procedures of the Russian Federation, clause 1 of Article 144 of the Arbitration Procedure Code of the Russian Federation).

In the operative part of the judicial act in cases of challenging a bailiff's decision on an assessment or in cases of challenging the results of an assessment, the court indicates the proper assessment of the debtor's property, which must subsequently be used in enforcement proceedings.

In the event that the bailiff's decision on the assessment is declared illegal, in the operative part of the judicial act the court also obliges the bailiff to issue a new resolution indicating the assessment of the debtor's property established by the court.

A court decision that has entered into legal force, adopted in the procedure of litigation based on the results of challenging the value of the appraisal object indicated by the appraiser in the report, is the basis for the cancellation of the corresponding decision of the bailiff by the senior bailiff.

51. If an application to challenge a bailiff’s decision to assess the debtor’s property is satisfied, legal costs in the case are subject to reimbursement by the territorial body of the FSSP of Russia involved in the case, in which the specified official carries out (carried out) official activities.

In the event that the basis for canceling the bailiff's decision on the assessment of the debtor's property were violations committed by the appraiser, the territorial body of the FSSP of Russia as the customer of the assessment has the right in accordance with Article 24.6 of the Federal Law of July 29, 1998 N 135-FZ "On Valuation Activities in the Russian Federation" to demand from the appraiser compensation for losses caused, including in the amount of legal costs incurred in the case of challenging the bailiff's decision on the valuation of property.

52. Real estate can be transferred for protection, and movable property - for storage only to the persons specified, respectively, in part 1 and part 2 of Article 86 of the Law on Enforcement Proceedings.

When transferring property for storage (protection) to a debtor organization, the order of the bailiff must indicate a specific official of this organization responsible for storage (protection) of this property.

Seized property, both movable and immovable, is transferred for storage (under protection) to the debtor and his family members free of charge, and to persons with whom the territorial body of the FSSP of Russia has concluded an agreement - on a reimbursable basis.

Movable property may be transferred for storage to the claimant at his request or with his consent. Such storage is carried out only on a gratuitous basis, but this does not exclude reimbursement to the claimant of the necessary expenses incurred to ensure the safety of the property at the expense of the debtor, and not at the expense of the treasury of the Russian Federation (Article 117 of the Law on Enforcement Proceedings).

The powers of the bailiff to commit

actions aimed at state registration

property rights

53. Based on the provisions of parts 1 and 2 of Article 66 of the Law on Enforcement Proceedings, the bailiff has the right not only to apply for state registration of the debtor’s ownership of property, as well as other property rights belonging to him that are subject to state registration, but also to challenge in court suspension and refusal of state registration of rights.

Within the meaning of the provisions of paragraph 17 of part 1 of Article 64 and Article 66 of the Law on Enforcement Proceedings, if it is impossible to obtain from the debtor the documents requested and necessary for state registration of his rights to real estate, the bailiff may apply to the authorized bodies for the preparation of such documents.

The bailiff also has the right to contact the other party to a transaction for the alienation of real estate, in which the acquirer is the debtor, with a proposal to take actions aimed at state registration of the transfer of ownership. If the other party to the transaction agrees to carry out these actions, the registration authority, along with its application, is presented with a resolution of the bailiff, issued in accordance with Part 3 of Article 66 of the Law on Enforcement Proceedings.

If the other party refuses to perform such actions, state registration of the transfer of ownership of real estate to the debtor is carried out in the manner of claim proceedings at the request of the bailiff in accordance with paragraph 3 of Article 551 of the Civil Code of the Russian Federation.

The court decision to satisfy the specified requirement of the bailiff by virtue of paragraph six of paragraph 1 of Article 17 of the Law on State Registration of Rights to Real Estate is the basis for state registration of the transfer of rights to real estate.

54. The costs of registration and execution of documents for state registration of the debtor’s right to real estate are considered expenses for carrying out enforcement actions and can be paid both from the federal budget and from the funds of the claimant or other persons participating in enforcement proceedings (Part 6 Article 66, part 1 and paragraph 5 of part 2 of Article 116 of the Law on Enforcement Proceedings). Subsequently, these expenses are reimbursed at the expense of the debtor according to the rules of Article 117 of the said Law.

Foreclosing on the debtor's property

55. According to Article 24 of the Civil Code of the Russian Federation, a citizen is liable for his obligations with all the property belonging to him, with the exception of property that cannot be foreclosed on in accordance with the law. This norm establishes the full property liability of an individual, regardless of the status of an individual entrepreneur, and does not delimit the property of a citizen as an individual or as an individual entrepreneur.

When foreclosure is applied to the property of a debtor - an individual entrepreneur according to the requirements of an executive document not related to the implementation of entrepreneurial activities, the priority rules provided for in Article 69 of the Law on Enforcement Proceedings are applied.

At the same time, when a bailiff-executor forecloses on the property of a debtor - an individual entrepreneur according to requirements related to his business activities (clause 3 of Article 23 of the Civil Code of the Russian Federation), it is necessary to observe not only the order established by Article 69 of the Law on Enforcement Proceedings, but also other provisions of laws determining the priority of collection taking into account such status of the debtor, in particular the provisions of Article 94 of the said Law.

56. According to parts 2, 3 of Article 99 of the Law on Enforcement Proceedings, when executing a writ of execution (several writs of execution), no more than fifty percent of wages and other income may be withheld from a debtor-citizen; the specified limitation on the amount of deduction from wages and other income of a debtor-citizen does not apply when collecting alimony for minor children, compensation for harm caused to health, compensation for harm in connection with the death of a breadwinner and compensation for damage caused by a crime. In these cases, the amount of deduction from wages and other income of the debtor-citizen cannot exceed seventy percent.

In case of foreclosure on the amount of pension payments, the amount of wages paid to the employee or other income of the debtor transferred to his account, it should be borne in mind that only the corresponding percentage of the amount of the last payment credited to the account is exempt from withholding (Part 4 of Article 99 of the Law on the Executive production).

57. The rules governing the amount of deduction from wages and other income of a debtor-citizen and the procedure for its calculation, provided for in Article 99 of the Law on Enforcement Proceedings, apply to those types of insurance coverage for compulsory social insurance (pensions, benefits and payments) for which As an exception, a penalty may be imposed (clause 9 of part 1 of Article 101 of the said Law).

Unemployment benefits are not considered by law to be a type of provision for compulsory social insurance, therefore such benefits may be subject to recovery under a writ of execution.

58. According to Article 278 of the Civil Code of the Russian Federation, foreclosure on land plots within the framework of enforcement proceedings 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 (Article 30 of the Code of Civil Procedure of the Russian Federation and Article 38 of the Arbitration Procedure Code of the Russian Federation).

The right to file a claim with the court to foreclose on a land plot belongs to persons interested in applying this enforcement measure, that is, the claimant and the bailiff.

Taking into account the norms of Article 43 of the Civil Procedure Code of the Russian Federation and Article 51 of the Arbitration Procedure Code of the Russian Federation, persons whose rights and obligations may be affected by a court decision (for example, the owner of a building located on a land plot owned by the debtor) should also be involved in the case.

After a court decision is made to foreclose on a land plot, the land plot is assessed by a bailiff according to the rules of Article 85 of the Law on Enforcement Proceedings.

59. Until otherwise proven by interested parties, the debtor-citizen’s ownership of movable property that can be foreclosed on the premises or on a fenced (protected) land plot from access by other persons, owned and (or) in the possession of the debtor, is presumed.

60. Items of ordinary home furnishings and household items, by virtue of paragraph four of part 1 of Article 446 of the Code of Civil Procedure of the Russian Federation, are property that cannot be foreclosed on under enforcement documents. Such items may include the minimum necessary property required by the debtor-citizen and members of his family to ensure a real opportunity to meet everyday household needs for food, rest, treatment, and hygiene. At the same time, antiques, things of artistic, historical or other cultural value, regardless of their intended purpose, cannot be classified as these items.

The issue of classifying certain property of a debtor-citizen as items of ordinary home furnishings and household items is resolved by the bailiff, taking into account specific circumstances relating to the purpose of the property, its price, actual use, availability or possibility of replacement with similar property of lesser value, as well as local customs.

61. The issue of foreclosure on the debtor’s property held by third parties is subject to resolution by the court upon the application of the claimant or bailiff (parts 1 and 2 of Article 77 of the Law on Enforcement Proceedings). The burden of proving that the property belongs to the debtor in this case rests with the applicant.

Lawful possession and use of the debtor's property by third parties does not prevent the resolution of the issue of foreclosure on him, however, these circumstances can be qualified as an encumbrance on this property and taken into account when assessing its value.

62. Paragraph three 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 members of his family 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.

63. If the debtor has no (insufficient) other property, foreclosure may be applied to the debtor’s share in the common (shared or joint) property in the manner prescribed by Article 255 of the Civil Code of the Russian Federation.

For the purpose of executing the writ of execution, the bailiff, along with the debtor's creditor (collector), has the right to legally demand the allocation of the debtor's share in kind from the common property and foreclosure on it. In this case, the remaining co-owners must be involved in the case.

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 co-owner has the right to purchase the debtor’s share at a price commensurate with the market value of this share (paragraph two of Article 255 of the Civil Code of the Russian Federation).

In the event that the participants in common property were not notified of the foreclosure of the debtor's share and their right to purchase this share before the public auction was violated by its sale to other persons at a public auction, then such right is restored in the manner provided for in paragraph 3 of Article 250 of the Civil Code RF.

64. The collector and the bailiff have the right to apply to the court to change the method of execution of a judicial act by foreclosure on the debtor’s share in the authorized capital of a limited liability company, the debtor’s share in the joint capital of a general partnership, limited partnership, or the debtor’s share in a production cooperative (Part 3 of Article 74 of the Law on Enforcement Proceedings). When considering such an application, the court must evaluate the evidence presented by the applicant about the absence of other property by the debtor to fulfill the requirements of the writ of execution (for example, an act drawn up by a bailiff). If this fact is confirmed, the court has the right to issue a ruling to change the method of execution of the court decision and to foreclose on the corresponding share (share) of the debtor.

Foreclosure of mortgaged property

Other laws may establish additional rules for posting information about public auctions to the generally mandatory procedure.

For example, the Law on Mortgage (Part 3 of Article 57 of the Law) stipulates that information on public auctions for the sale of mortgaged real estate, in addition to its placement on the Internet, is subject to publication in the prescribed manner in a periodical, which is the official information body of the executive authority of a constituent entity of the Russian Federation. Federation, at the location of the real estate. If a constituent entity of the Russian Federation has established its own state language, then the publication of information in the official information body must be carried out in this language and in the state language of the Russian Federation - Russian.

The procedure for publishing information about public auctions is considered to be observed if the requirements of Part 3 of Article 90 of the Law on Enforcement Proceedings and paragraph 4 of Article 449.1 of the Civil Code of the Russian Federation are simultaneously met, and in relation to mortgaged real estate - additionally, the requirements of Part 3 of Article 57 of the Law on Mortgage.

73. If, in court, a public auction is declared invalid and the consequences of the invalidity of the transaction concluded at the auction are applied, the decision to complete enforcement proceedings can be canceled by the senior bailiff or his deputy on his own initiative or at the request of the claimant in the manner provided for in Part 9 of Article 47 of the Law on enforcement proceedings. In this case, the bailiff must carry out enforcement actions to organize new public auctions, since the proper foreclosure of the debtor’s property has not been completed.

Collection of enforcement fees

74. 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, other significant circumstances, to reduce the amount of the enforcement fee by no more than one quarter of the amount established by part 3 of Article 112 of the Law on Enforcement Proceedings, or to release the debtor from collecting it not only when resolving demands for a reduction in the amount of the enforcement fee or exemption from its collection, but also when resolving claims to challenge the decision of the bailiff to collect the enforcement fee.

Since the court is not bound by the grounds and arguments of the requirements to challenge the decision of the bailiff, it has the right to establish circumstances indicating the need to reduce the amount of the enforcement fee, to release the debtor from its collection on the basis of the evidence examined at the court hearing, even if the parties did not refer to these circumstances (parts 6, 7, 9 of Article 112 of the Law on Enforcement Proceedings, part 3 of Article 62 of the Code of Arbitration Procedures of the Russian Federation, part 4 of Article 200 of the Arbitration Procedure Code of the Russian Federation).

A court's reduction in the amount of the enforcement fee does not entail recognition of the bailiff's decision to collect the enforcement fee as illegal. This resolution is considered amended accordingly (Part 9 of Article 112 of the Law on Enforcement Proceedings).

75. When applying the provisions of paragraph 7 of Article 112 of the Law on Enforcement Proceedings on the release of the debtor from collection of the enforcement fee, the courts should proceed from the fact that the basis for releasing a business entity from collection can only be force majeure circumstances (clause 3 of Article 401 of the Civil Code of the Russian Federation).

Other persons may be exempt from paying the enforcement fee based on the provisions of paragraph 1 of Article 401 of the Civil Code of the Russian Federation if they have taken all measures to properly fulfill the requirements contained in the enforcement document. If such measures were not taken, then the lack of the debtor, including a state (municipal) authority or budgetary (municipal) institution, with the necessary funds to fulfill the requirements of the enforcement document does not in itself constitute grounds for exemption from paying the enforcement fee.

The debtor cannot be exempted from paying the enforcement fee, even if the requirements of the enforcement document were fully fulfilled by him immediately after the expiration of the period for voluntary execution, however, 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 size of the enforcement collection, but not more than one quarter.

76. In case of partial execution by the debtor of a writ of execution for property penalties, as well as in case of installment execution of the writ of execution, the enforcement fee must be calculated based on the amount of unfulfilled (overdue) claims on the day following the day of expiration of the period for voluntary execution of the writ of execution.

If the debtor fails to fulfill several property and/or non-property demands, including those contained in one enforcement document, by virtue of Part 3 of Article 112 of the Law on Enforcement Proceedings, an enforcement fee is established in relation to each of the unfulfilled demands.

Advertisement on the collection of an enforcement fee, the amount of which is calculated only from the amount to be collected (parts 2, 3 of Article 112 of the Law on Enforcement Proceedings).

When the executive document contains one requirement to foreclose on the pledged property, in the resolution to initiate enforcement proceedings, the bailiff invites the debtor, within the deadline for voluntary execution, to submit the documents necessary for the sale of property, to provide access to the property to draw up an inventory of the property, or to perform other actions necessary to foreclose on the pledged property under such a writ of execution.

Failure by the debtor to perform these actions without good reason within the prescribed period is the basis for issuing a resolution to collect an enforcement fee, the amount of which is determined according to the rules established for enforcement documents of a non-property nature (Part 3 of Article 112 of the Law on Enforcement Proceedings).

78. Within the meaning of Part 1 of Article 112 of the Law on Enforcement Proceedings, the enforcement fee has the properties of an administrative penalty, when applied, the debtor is obligated to make a certain additional payment as a measure of his public legal liability arising in connection with the offense he committed in the process of enforcement production.

Thus, the issuance of a resolution to collect the enforcement fee and/or its collection from the legal successor of the debtor-organization is permissible in relation to the rules for bringing legal entities to administrative liability established by parts 3 - 8 of Article 2.10 of the Code of Administrative Offenses of the Russian Federation.

Since the application of measures of public legal liability in relation to individuals is of an individual, personalized nature, the decision to collect the enforcement fee is not subject to execution by the legal successor of the debtor-citizen.

79. The legislation on taxes and fees does not provide for the payment of state fees when filing applications to the court for a deferment (installment plan) of collecting the enforcement fee, for reducing its size or for exemption from its collection.

Compensation for damage caused by illegal actions

(inaction) of the bailiff

80. Protection of the rights of the claimant, debtor and other persons when committing enforcement actions is carried out according to the rules of Chapter 17 of the Law on Enforcement Proceedings, but does not exclude the application of civil liability measures for harm caused by illegal decisions, actions (inaction) of the bailiff (Civil Code of the Russian Federation) .

81. A claim for compensation for damage caused by an illegal resolution, actions (inaction) of a bailiff is brought against the Russian Federation, on behalf of which the main manager of budget funds - the FSSP of Russia - acts in court (clause 3 of Article 125, Civil Code of the Russian Federation, subclause 1 of clause 3 of Article 158 of the Budget Code of the Russian Federation).

Incorrect identification by the plaintiff of the defendant or a government body acting on behalf of the Russian Federation cannot entail a refusal to accept the statement of claim, its return, abandonment or refusal of the claim only on this basis. The court, at the stage of preparing the case for trial, in a judicial act indicates the Russian Federation as the defendant, attracts the appropriate state body to participate in the case - the FSSP of Russia, which is empowered to act on behalf of the Russian Federation in court on claims against the Russian Federation for compensation for damage caused by illegal actions ( inaction) of the bailiff.

When satisfying a claim for compensation for damage, in the operative part of the decision, the court indicates the recovery of the amount of damage from the Russian Federation, represented by the FSSP of Russia, at the expense of the treasury of the Russian Federation.

82. In cases of compensation for harm, the court must establish the fact of causing harm, the guilt of the harm-doer and the cause-and-effect relationship between the illegal actions (inaction) of the bailiff and the causing of harm.

The fact that the actions (inaction) of the bailiff were not declared illegal in a separate court proceeding is not a basis for refusing a claim for compensation for damage caused by these actions (inaction), and the court evaluates their legality when considering a claim for compensation for damage .

83. If property illegally seized from the debtor is lost or damaged, or if after the loss or damage of property legally seized and transferred for storage, the debtor fulfilled his obligations to the claimant at the expense of other property, the damage caused is subject to compensation to the debtor, with the exception of cases where the property was transferred to storage (under protection) by the debtor himself or members of his family.

Damage caused as a result of loss or damage to seized property transferred by the bailiff to the debtor himself for storage (protection) or legally seized from the debtor and transferred for storage (protection) to other persons is subject to compensation to the claimant only if the debtor there is no other property at the expense of which the requirements under the writ of execution can be satisfied. The damage is also subject to compensation to the claimant if the bailiff illegally lifted the seizure of property that was subsequently alienated by the debtor, and the debtor does not own any other property. The burden of proving that the debtor has other property rests with the defendant.

If in these cases the lost property was the subject of a pledge, which was foreclosed by the court, the damage is subject to compensation to the claimant-mortgagee in the amount of the lost pledged property, without taking into account the fact whether the debtor has other property that can be foreclosed on. In this case, the plaintiff only needs to prove the fact of loss of such property.

Within the meaning of Part 1 of Article 89 of the Law on Enforcement Proceedings, in the event of the loss of seized property transferred for sale to the territorial bodies of the Federal Agency for State Property Management (hereinafter - Rosimushchestvo), the territorial bodies of the FSSP of Russia have the right to demand from the Rosimushchestvo (including in court) a transfer to the deposit accounts of the structural divisions of the bailiff service that transferred the property for sale, its market value for further crediting of funds to collectors in enforcement proceedings.

84. A claim for compensation for damage when it is confirmed that it was caused by the actions (inaction) of the bailiff cannot be refused only on the grounds that the specific amount of damage cannot be determined (for example, in the event of the loss of the debtor’s property that was not assessed or improperly assessed , loss of securities whose market value fluctuates). In this case, the amount of damage to be compensated is determined by the court with a reasonable degree of certainty, taking into account all the circumstances of the case, based on the principle of fairness and proportionality of liability (clause 5 of Article 393 of the Civil Code of the Russian Federation).

85. If during the enforcement proceedings the bailiff did not carry out the necessary enforcement actions to execute the writ of execution at the expense of the debtor’s funds or other property, which later turned out to be lost, then the plaintiff in the claim for compensation for damage caused by the illegal inaction of the bailiff - the executor cannot be charged with proving the fact that the debtor does not own other property that can be foreclosed on.

At the same time, the lack of actual execution in itself is not a basis for imposing on the state the obligation to reimburse amounts not received from the debtor under a writ of execution, since the responsibility of the state in the field of execution of judicial acts issued against private individuals is limited to the proper organization of the forced execution of these judicial acts and does not imply the obligation of a positive result if it is due to objective circumstances depending on the debtor.

86. The provisions of Part 5 of Article 356 of the CAS, Part 4 of Article 321 of the Arbitration Procedure Code of the Russian Federation and Part 3 of Article 22 of the Law on Enforcement Proceedings, which grant the claimant the right to repeatedly present a writ of execution for execution after its return, do not prevent the claimant who has lost the opportunity to receive the amounts due from the debtor ( property) in connection with the disposal of this property due to illegal actions (inaction) of the bailiff, file a claim in court for damages.

87. Within the meaning of Article 1081 of the Civil Code of the Russian Federation, the Russian Federation, by way of recourse, has the right to recover the amount of compensation from the person responsible for causing it, for example, in the event of loss of property - from the person to whom the property was transferred for storage (custodian or debtor), when using an unreliable assessment property of the debtor, if this assessment was carried out by an appraiser, - from the appraiser.

Since the FSSP of Russia acts as the representative of the defendant in the main obligation to compensate for damage from the Russian Federation at the expense of the treasury of the Russian Federation, the FSSP of Russia has the right to bring a claim on behalf of the Russian Federation in recourse against the person guilty of causing harm.

Final provisions

88. In connection with the adoption of this resolution, the following are recognized as not subject to application:

paragraph 20 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 2002 No. 11 “On some issues related to the implementation of the Arbitration Procedural Code of the Russian Federation”;

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.”

Chairman of the Supreme Court

Russian Federation

V.M.LEBEDEV

Secretary of the Plenum,

Supreme Court judge

Russian Federation

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 of a debtor-citizen of movable property that can be foreclosed on the premises or on a fenced (protected) land plot from access by other persons, owned and (or) in the possession of the debtor, 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 resolution!

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 Armed Forces of the Russian Federation 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:

The jurisdiction of judicial disputes related to the execution of judicial acts has been clarified (clauses 3-5 of Resolution No. 50):

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.

The procedure for consideration by courts of separate disputes within the framework of enforcement proceedings, which is possible within the framework of claims (Arbitration Procedure Code of the Russian Federation and Civil Procedure Code of the Russian Federation) and administrative proceedings (CAS RF and Arbitration Procedure Code of the Russian Federation) is explained (clause 1 of Resolution No. 50):

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).

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.

• 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).

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.

When changing the name (name) of the claimant or debtor within the framework of enforcement proceedings, it is not necessary to apply to the court with an application for procedural succession (clause 20 of Resolution No. 50).

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).

It has become possible to seize or establish a ban on the disposal of the only residential premises of a debtor-citizen, as well as the land plot under this residential premises (clause 43 of Resolution No. 50).

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.

It has become possible for a bailiff, under certain conditions, to foreclose on a plot of land under the only residential premises of a debtor-citizen (clause 62 Resolution No. 50).

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.

The bailiff has the right to seize the debtor’s property, the value of which significantly exceeds the amount of the debt (clause 41 Resolution No. 50).

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.

The bailiff has the right to legally demand the separation of the debtor's share from the common property and subsequently foreclose on it (clause 63 Resolution No. 50).

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 procedure for reducing the performance fee has been clarified (clauses 74,75Resolution No. 50).

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 procedure and some features of compensation for damage caused by illegal actions (inactions) of a bailiff in connection with the improper performance of their duties are explained (clauses 15, 81, 83 Resolution No. 50).

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 bailiff has the right to establish a temporary restriction on the debtor’s departure from the Russian Federation only if there is information about the debtor’s awareness of the enforcement proceedings initiated against him, as well as after the expiration of the period for the voluntary execution of a judicial act (paragraph 3, paragraph 22 of Resolution No. 15) .

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 harm 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, hopefully, we will accumulate some 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 court chiefs of staff) 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 Against the Appearance 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.

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 the bailiff (clauses 3-7, paragraph 3, clause 46), the procedure for such a challenge (paragraphs 8-16), etc.