RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of December 26, 2003 No. 14

About practice of consideration by courts of claims to decisions, actions or divergence of bodies and officials of the public executive service and addresses of participants of enforcement proceeding

N202/98-BP (with subsequent changes) "About the public executive service" (further - the Law N202/98-BP) and of April 21, 1999 N606-XIV (with subsequent changes) "About enforcement proceeding" (further - the Law N606-XIV) is carried by the laws of Ukraine of March 24, 1998 consideration of claims to decisions, actions or divergence of bodies and officials of the public executive service and the solution of number of questions of enforcement proceeding according to addresses of his participants to competence of the courts.

For the purpose of remedial action in consideration of these claims and addresses, and also ensuring the correct and identical application of the relevant legislation the Plenum of the Supreme Court of Ukraine based on Art. 55 of the Law of Ukraine of February 7, 2002 N3018-III "About Judicial System of Ukraine" DECIDES: explanations of questions which arose at judges

1. By hearing of cases according to claims to decisions, actions or divergence of bodies and officials of the public executive service and according to addresses of participants of enforcement proceeding courts shall be guided by provisions of Art. 55 of the Constitution of Ukraine, Art. 6 of the Convention on protection of the rights and fundamental freedoms of the person (Rome, on November 4, 1950; N475/97-BP ratified by the Law of Ukraine of July 17, 1997, the Law N202/98-BP, the Law N606-XIV, hl. 31-G the Code of civil procedure of Ukraine (further - GPK), section XIV of the Economic Procedure Code of Ukraine (further - GPK), other legislation which settles these questions.

Claims are considered by rules of hl. 31-G GPK and Art. 121-2 of GPK if they concern forced accomplishment of documents which list is provided in Art. 3 of the Law N606-XIV, the address - by rules, by the established Law N606-XIV, GPK section V, Articles 89, 118 - 122 GPK if these and other acts of the legislation provide the decision by court of the questions which are brought up in addresses.

The prosecutor finds enforcement proceeding participant status provided that in the cases provided by Art. 36 of the Law of Ukraine of November 5, 1991 N1789-XII "About Prosecutor's Office" it performed representation of interests of the citizen or the state in court and the specified production was open based on the executive document according to its statement (item 2 of Art. 18 of the Law N606-XIV).

Appeal of the decision, action or divergence of the state contractor and other officials of the public executive service to the chief of the relevant department or the boss according to the procedure of subordination of body of this service in the cases provided by the Law N606-XIV cannot be the basis for refusal in adoption of the claim by court as the court jurisdiction extends to these legal relationship (Articles 55, 124 Constitutions).

2. According to articles 248-20, 248-21 GPK, Art. 85 of the Law N606-XIV of the claim to the decision, actions (divergence) of the state contractor or the head of department of the public executive service, the state contractors and officials of Department of the public executive service of the Ministry of Justice of Ukraine (further - Department) and departments of the public executive service of Head department of justice of the Ministry of Justice of Ukraine in the Autonomous Republic of Crimea, regional, Kiev and Sevastopol city justice departments which concern accomplishment of judgments are taken to court which issued the executive document.

Claims concerning accomplishment of other decisions go to local court in the location of the relevant department of the public executive service and if (divergence) of the state contractors and officials of Department and departments of the public executive service of Head department of justice of the Ministry of Justice of Ukraine appealed to action in the Autonomous Republic of Crimea, regional, Kiev and Sevastopol city justice departments, - to Appeal Court in the location of relevant organ of the specified service.

Vzimatel, the debtor or the prosecutor have the right to appeal actions or divergence of bodies of the public executive service concerning accomplishment of decisions, determinations, resolutions of economic courts only in economic court which considered the corresponding case on the first instance (Art. 121-2 of GPK). Considering that forced accomplishment of the judgments made by economic courts according to Art. 4 of the Law N202/98-BP (and Art. 2 of the Law N606-XIV is performed by the state contractors, claims to actions or divergence of the last are considered by economic courts by rules of Art. 121-2 of GPK. As Art. 11-1 of the Law N606-XIV other participants of this production are also given the right of appeal of actions (divergence) of the state contractor of rather forced accomplishment of decisions, determinations, resolutions of economic courts, their claims according to Art. 85 of the Law N606-XIV are subject to consideration by the head of department of the public executive service to which the state contractor, or the relevant economic court is directly subordinated.

3. Claims, statements, representations shall meet the general requirements concerning action for declaration form and content provided by provisions of GPK and HPK and contain the data listed in Items 3 - the 5th p. 3 of Art. 85 of the Law N606-XIV.

In case of lack of special regulation concerning the solution of certain questions which arise by consideration of claims to decisions, actions or divergence of officials of the public executive service provisions of GPK and HPK which settle similar questions, in particular shall be applied to statements (claims, representations) of participants of enforcement proceeding: the Art. 5 GPK - about excitement of civil case in general court; Articles 98, 99 and hl. 14 GPK - concerning the group of people which participate in case, their rights and obligations; Articles 90, 93 GPK - about judicial challenges and messages; hl. 20 GPK - about judicial review; Chapters 40, 41 GPK of rather appeal and cassation appeal of resolutions of the Trial Court; Articles 2, 18, 21, 22, 26, 29, 31, 41, 42, 64, Sections XI, XII, XII-1 HPK and so forth.

4. On contents of the Art. 98 GPK, articles 18 and 121-2 HPK the participant of enforcement proceeding (person involved in carrying out executive actions) who took a legal action with the claim, the statement (representation) participates in their consideration as the applicant, and other participants of this production whose rights and obligations the specified address directly concerns, - as interested persons.

Cases on claims to decisions, actions or divergence of officials of the public executive service are considered by general courts according to Art. 248-23 of GPK with participation as interested persons of the state contractor or other official of the public executive service (including the head of department of this service - in case of appeal of refusal in removal of the state contractor), and economic courts - cases on claims to decisions, actions or divergence of bodies of the public executive service according to Art. 121-2 of HPK - with the assistance of relevant organ of this service (Art. 3 of the Law N202/98-BP).

On contents of Art. 248-23 of GPK absence in judicial session on the specified cases of the applicant or interested person to which it is reported about time and the place of its carrying out does not interfere with consideration of the claim, statement or representation.

5. Courts need to consider that in that case when the special procedure for calculation of circulation periods of the applicant with the claim in court is established by the law (for example, the Art. 26, of the p. 4 of Art. 57 of the Law N606-XIV, Art. 121-2 of GPK, their current shall be determined by these regulations, but not by general rules of Art. 248-22 of GPK. The claim (statement) which passed term on provision is not resumed according to the procedure provided by Articles 85, 89 HPK, remains without consideration. According to Art. 53 of HPK in case of refusal in recovery of the passed term determination is taken out.

The state contractor can take a legal action with representation (statement), and vzimatel, the debtor - with the statement for carrying out in enforcement proceeding of actions, the issue of which is resolved by court, respectively general or economic (in particular, statements about: decision explanation; to issue of the duplicate of the executive document; renewal (recovery) of term of presentation of the executive document to accomplishment; to replacement of the party which was disposed, her legal successor; establishment or change of method and procedure for accomplishment of the decision; delay and payment by installments of its accomplishment; terminations executive production; address of accomplishment; representation about: the announcement of search of the debtor according to executive documents on collection of the alimony of compensation of the damage caused by mutilation or other damage of health or in connection with loss of the supporter; the temporary device in children's or medical institution of the child, selecting whom is carried out the decision) at any moment of this production if the special provision of the law (for example, the Art. of 421 GPK, Art. 120 of HPK do not set restrictions in time.

Statements for renewal (recovery) of the passed term for presentation to accomplishment of the order issued based on the decision, determination or the resolution of economic court, the statement or idea of delay or payment by installments, change of method and procedure for accomplishment of the decision, determination or the resolution of economic court, approval of the voluntary settlement in case of accomplishment of the last, addresses of accomplishment, the claim to actions or divergence of bodies of the public executive service concerning accomplishment of the specified decisions, determinations, resolutions go to economic court which made the decision, according to the procedure, determined in HPK (Articles 119, 121, 121-2, 122).

6. Courts should mean that the ten-day term of consideration of the case on the claim to decisions established p.1 by Art. 248-23 GPK, actions or divergence of officials of the public executive service according to general rules of Art. 148 of this Code is calculated from the day following after the end of preparation of case for judicial review.

Statements, representations concerning carrying out in enforcement proceeding of actions, the solution of question on which is carried to competence of general court, shall be considered by it in limits of certain item 3 of the Art. 148 GPK of fifteen-day term, and in cases when for their consideration other term is established (for example, Articles 23, of 28, 33 Laws N606-XIV), - during this term.

Consideration of the specified claims, statements, representations by economic court is performed in the terms determined in Articles 69, 121 HPK if another is not established by the Law N606-XIV.

7. By results of consideration of the claim the general court passes the decision, and economic - determination which shall meet the requirements according to Articles 202, of 203, 248-24 GPK and Articles 86, 121-2 HPK.

Statements, representations of participants of enforcement proceeding decide general and economic courts motivated determinations according to requirements of Articles 232 - 234 GPK and Articles 86, 121-2 HPK. Proceeding from contents of Art. 248-24 of GPK in case of recognition illegal decisions, actions or divergence of the state contractor or other official of the public executive service the court obliges them to eliminate the allowed violations or some other way renews the violated rights or freedoms of the applicant. At the same time the court has no right to oblige specified persons to making of those actions which according to the Law N606-XIV can be performed only by the state contractor or the corresponding official of the public executive service (for example, to take out determination about enforcement proceeding stop in the cases provided by Art. 35 of the Law N606-XIV), however can bring the production stop term determined by the state contractor into accord with the law or reduce it (the p. 3 of Art. 36 of the Law N606-XIV).

8. In case of determination of cognizance it must be kept in mind that general courts in the place of accomplishment of the decision consider applications (representations) about: refusal of vzimatel of collection or approval of the voluntary settlement of the parties about the termination of enforcement proceeding (part 2, 3 articles 11-1 of the Law N606-XIV, the Art. 352 GPK; determination of particle of the debtor in common property on property (the p. 8 of Art. 50 of the Law N606-XIV); withdrawal at other persons of means and property, and also means who are on accounts in organizations of banks and other financial institutions and belong to the debtor (to part 4, of the 5th Art. 53 of the Law N606-XIV); the temporary device of the child in children's or medical institution (the p. 2 of Art. 78 of the Law N606-XIV, the Art. 354 GPK.

Applications of vzimatel for renewal of term for presentation to accomplishment of the executive document issued by court are considered by court in the place of accomplishment of the decision or court which accepted it (the p. 2 of Art. 23 of the Law N606-XIV), the Art. 350 GPK, Art. 119 of HPK. Question of delay or payment by installments of accomplishment, establishment or change of method and procedure for accomplishment of the decision (p.1 Art. 33 of the Law N606-XIV, the Art. of 351 GPK, Art. 121 of HPK, about its further accomplishment (the p. 8 of Art. 79 of the Law N606-XIV, decision explanation (Art. 28 of the Law N606-XIV, the Art. 215 GPK, Art. 89 of HPK, issue of the duplicate of the executive letter (Art. 353 of HPK or the order (Art. 120 of HPK, the address of accomplishment of the decision (Article 420 - 422 GPK, 122 HPK are considered by court which made the decision and issued the executive document.

In certain Art. 42 of the Law N606-XIV cases the state contractor can appeal with idea of the announcement of search of the debtor to the relevant court in the place of accomplishment of the decision, or in the last known place of residence (stay) of the debtor or the location of its property, or in the place of residence (stay) of vzimatel. The specified representation is considered by rules of section V of GPK.

9. As the rights determined by the Law N606-XIV and obligations of the Parties in enforcement proceeding (Art. 11-1), including the right of vzimatel to submit the declaration of abandonment of collection and the right of the parties to sign the voluntary settlement about the terminations of enforcement proceeding, concern all executive documents which are subject to accomplishment by the public executive service, edited the Art. 352 GPK about the voluntary settlement and refusal of forced accomplishment of the decision shall be applied by general court in enforcement proceeding both according to judgments, and according to other executive documents.

The question of approval of the voluntary settlement in the enforcement proceeding opened by order of economic court is solved economic court which made the relevant decision, by rules of Art. 121 of HPK.

Taking into account the rights of persons who participate in civil or economic case statements and representation anyway shall be considered in judicial session (with the obligatory message on time and the place of its carrying out to the applicant and interested persons).

10. In case of the solution of statements of the state contractor or the party on delay or payment by installments of accomplishment of the decision, establishment or change of method and procedure for its accomplishment the court should mean that according to the Art. of 351 GPK and Art. 121 of HPK their satisfaction is possible only in exceptional cases which the court determines proceeding from special nature of circumstances which complicate or exclude accomplishment of the decision (disease of the debtor or members of his family, lack at it of property which shall be by a court decision transferred to vzimatel, natural disaster, other extraordinary events and so forth).

In case of the address of the state contractor with representation concerning determination of procedure for further accomplishment of the decision on eviction of person from the occupied room with provision of another on condition of its failure to carry out by the obliged person (the p. 8 of Art. 79 of the Law N606-XIV) court depending on the actual circumstances and in the presence of the consent of person (persons) which is subject to eviction, can take out determination about replacement of premises which shall be provided in case of eviction, to others.

11. Vzimatelyam which on reasonable excuses passed term for presentation of the executive document to accomplishment court can renew it only concerning the writs of execution issued based on the decision, determination, the resolution on civil case and sentence, determinations, resolutions on criminal case.

The passed term for presentation to accomplishment of the order of economic court can be resumed by court which passed the judgment, in the presence of the conditions provided by Art. 119 of HPK.

Statements for renewal (recovery) of the passed terms for presentation to accomplishment of other executive documents are not subject to judicial review.

12. The debtor's particle in common property with other persons is determined by representation of the state contractor according to provisions of the legislation which regulates the property right.

Such representation shall be considered with obligatory challenge in judicial session not only the state contractor, the debtor, vzimatel and the prosecutor (in cases of implementation of representation of interests of the citizen by the last or the states in court), but also participants of common property on property and with observance of requirements of the Art. 29 GPK concerning admissibility of evidentiary facts.

13. In cases on claims to decisions, actions or divergence of the state contractor or other officials of the public executive service decisions, actions or divergence of the state contractor or other official of the public executive service (actions or divergence of bodies of the public executive service concerning accomplishment of decisions, determinations, resolutions of economic courts) can be cognizance item.

Courts consider cases on such claims in the provided hl. 31-G GPK and Art. 121-2 of HPK procedure irrespective of availability at the parties of dispute on the right which is subject to consideration in claim production. Such dispute cannot be the basis to leave the claim without consideration or somehow to influence the last.

14. The state contractor refuses opening of enforcement proceeding in that case when fixed term for presentation of the executive document to accomplishment expired, or it is not given, or the document which is not specified in Art. 18-1 of the Law N606-XIV is filed or other stipulated by the legislation circumstances which exclude possibility of implementation of enforcement proceeding (Art. 26 of the Law N606-XIV) are available.

Checking adherence to deadline for presentation of the executive document to accomplishment, the court shall proceed both from provisions of Art. 21 of the Law N606-XIV, and from other acts of the legislation which settle this question.

The list of executive documents provided in Art. 18-1 of the Law N606-XIV which are carried out by the public executive service is not exhaustive. In the cases provided by the law are subject to forced accomplishment the decision and other public authorities if it is assigned to the specified service.

It is possible to carry to other circumstances which can be the basis for refusal in opening of enforcement proceeding, in particular, the request for accomplishment of the decision of the International commercial Arbitration Court under Chamber of Commerce and Industry of Ukraine with violation of requirements of Articles 35, 36 Laws of Ukraine of February 24, 1994 of N4002-XII "About the International Commercial Arbitration" of rather previous appeal of vzimatel to competent court with the petition for recognition and accomplishment of the decision of the called reference tribunal.

15. Courts shall mean that in case of accomplishment of decisions on money recovery the state contractor according to Art. 50 to the Law N606-XIV first of all turns collection at the expense of the debtor in hryvnias and foreign currency, other values, including means on accounts and deposits in organizations of banks and other credit institutions, and also into accounts in securities in depositaries of the last, and only in case of absence at the debtor of means and values - on other property belonging to it, except for on what according to the law collection cannot be turned.

Provided in amendment to the Law N606-XIV List of Types of Property of Citizens on which collection according to executive documents cannot be turned, is single for all cases of the address of collection on the specified property.

Collection on real estate (the house, the apartment, the room, the parcel of land) addresses in case of absence at the debtor of sufficient means or personal estate with observance of rules of Art. 62 of the Law N606-XIV. In case of introduction by the special provision of the law of the moratorium on forced realization of certain property the enforcement proceeding is subject to stop.

The debtor has the right to specify those types of property or objects on which it is necessary to turn collection first of all (Art. 56 of the Law N606-XIV). The refusal of the state contractor meet the specified requirement of the debtor can to be acknowledged judicially unreasonable if it is obvious that this requirement did not violate the interests of vzimatel and did not complicate accomplishment of the decision.

16. In cases on claims of vzimatel or the debtor checks compliance of these actions to provisions of Articles for the actions of the state contractor connected with arrest and withdrawal of property and its assessment, court 55, 57 Laws N606-XIV. At the same time it is necessary to consider that assessment of property of the debtor is performed by the state contractor if the property value does not exceed 100 tax-free minima of the income of citizens at market prices on the date of its carrying out, except cases when regulated prices are applied. In case of complexity of assessment or availability at vzimatel or the debtor of objections against its results the expert (specialist) is involved in participation in enforcement proceeding and creation of the conclusion.

For evaluating real estate, vehicles, air, ocean, river crafts, and also property which cost exceeds 100 tax-free minima of the income of citizens the state contractor shall recruit in enforcement proceeding of the appraiser who performs the activities according to the Law of Ukraine of July 12, 2001 of N2658-III "About Assessment of Property, Property Rights and Professional Estimative Activity in Ukraine".

Requirements of other persons concerning accessory it, but not to the debtor of property which it is seized decide by presentation by them according to rules of jurisdiction (the Art. 24 GPK, Art. 12 of HPK of the claim to the debtor and person for the benefit of whom it is seized, about recognition of the property right to property and release it from under arrest. In the same procedure requirements of persons which are not owners of property are considered, but own it on legal causes.

17. Considering claims to the actions of the state contractor connected with realization of distrained property, the court shall check their compliance to both provisions of Art. 61 of the Law N606-XIV, and regulatory legal acts adopted according to this Law, in particular: To procedure for seizure of securities (it is approved by the resolution of the Cabinet of Ministers of Ukraine of September 22, 1999 N 1744); To Regulations on procedure and storage conditions and realization of money, including foreign currency, securities, jewelry and other household products from gold, silver, platinum and metals of platinum group, gemstones and pearls, and also scrap and separate parts of such products which it is seized (it is approved by the resolution of board of the National Bank of Ukraine of October 4, 1999 N489 (with subsequent changes) registered in the Ministry of Justice of Ukraine (further - Ministry of Justice) on October 29, 1999 for N740/4033); To provisional regulations for procedure for carrying out the public biddings on realization of the arrested real estate (N68/5 is approved by the order of Ministry of Justice of October 27, 1999 (with subsequent changes), it is registered in Ministry of Justice on November 2, 1999 under N745/4038); To the Procedure for realization of distrained property (it is approved by the order of Ministry of Justice of July 15, 1999 N42/5 (with subsequent changes) registered in Ministry of Justice on July 19, 1999 under N480/3773).

As the actions of the state contractor connected with realization of distrained property is the basis for emergence of the civil laws and obligations, general provisions about protection of the civil laws by presentation of the claim in this connection in this part the court determination leaves the claim to actions of the state contractor without consideration shall be applied to such legal relationship and explains to the applicant possibility of dispute decision in claim production.

18. Courts need to consider that the state contractor shall determine the size of debt on the executive document on collection of the alimony proceeding from rules of Art. 74 of the Law N606-XIV, the relevant standards of the family legislation, and also the resolution of the Cabinet of Ministers of Ukraine of February 26, 1993 N146 (with subsequent changes) "About the list of income types which are considered in case of determination of the size of the alimony for one of spouses, children, parents, other persons". At the same time it cannot resolve issue of complete or partial exemption of debt.

19. By hearing of cases according to claims to resolutions of the state contractor or the chief of the relevant department of the public executive service about imposing of the penalties provided by Articles 87, 88 Laws N606-XIV, the court shall recognize what they is not administrative punishment, but the sanction for failure to carry out of the requirements specified in these Articles. Such resolutions were appealed by rules of hl. 31-G GPK.

20. According to Articles 45, 46 Laws N606-XIV expenses of enforcement proceeding and executive collection are levied under the resolution of the state contractor on the debtor if the last did not execute the decision voluntarily in the time established for this purpose and it was executed compulsorily.

The court can recognize collection of executive collection unreasonable if the term established by the state contractor for voluntary accomplishment of the decision was not approved with the terms established in the p. 2 of Art. 24 of the Law N606-XIV and was unreal.

21. Explain to courts the right of vzimatel provided by Art. 86 of the Law N606-XIV to address with the claim the legal entity who shall perform money recovery from the debtor, extends also to cases of failure to carry out by legal entities of decisions on collection of the alimony, and also decisions based on which deduction according to executive documents from the salary, pension, grant and other income of the debtor is performed.

On content of this regulation responsibility of the legal entity can be applied both in case of impossibility, and in case of difficulty of accomplishment of the decision because of the specified person.

Guilt of the legal entity in failure to carry out of the decision 30 GPK are proved according to Art. provisions and can consist in not carrying out money recovery from the debtor as specially, and owing to negligence including in case of nonpayment to it earnings (income) on which collection addresses.

Do not pass the obligation of the debtor according to executive documents to the legal entity. The means awarded from it for benefit of vzimatel have compensation nature.

By consideration of claims of physical persons and legal entities for compensation of the damage (losses) caused by actions (divergence) of the state contractor, courts shall proceed from provisions of Art. 11 of the Law N202/98-BP, Art. 86 of the Law N606-XIV and to consider that in such cases by defendants there can be relevant departments of the public executive service in which the state contractors, and the relevant territorial authorities of the State Treasury of Ukraine work.

22. Claims to decisions, actions or divergence of officials of the public executive service are paid with the state fee according to the Decree of the Cabinet of Ministers of Ukraine of January 21, 1993 N7-93 "About the State Fee".

Other expenses connected with consideration of such claims, including also the expenses for provision of legal aid, and also expense connected with trips according to Art. 248-25 of GPK, the p. 5 of Art. 49 of HPK are assigned by court in case of satisfaction of claims - to department of the public executive service, and in case of refusal in it is on the applicant.

 

Chairman Supreme Court of Ukraine

V. T. Malyarenko

Secretary Plenuma Verkhovnogo Vessels of Ukraine

I. P. Dombrovsky

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