Initiation of Enforcement Proceedings

Part 1 of Article 16 of the Arbitration Procedure Code of the Russian Federation enshrines the principle of binding judicial acts. In accordance with this principle, judicial acts of an arbitration court that have entered into legal force are binding on state authorities, local authorities, other bodies, organizations, officials and citizens and are subject to execution throughout the territory of the Russian Federation.

However, in practice, the issuance of a court decision does not guarantee its actual execution, since even a case won in court does not always mean that the debtor will voluntarily execute the decision. In this regard, the recoverer has to turn to the state enforcement mechanism.

Such a mechanism includes the stage of enforcement proceedings, which is the final stage of protection of violated or disputed rights enshrined in a judicial act or an act of another body. The task of this procedure is to ensure the actual execution by the losing party of the decisions that have entered into force.

Legal regulation

Legal regulation is carried out primarily by the Federal Law of 02.10.2007 No 229-FZ "On Enforcement Proceedings" (hereinafter referred to as the Law on Enforcement Proceedings), as well as the provisions of the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and certain provisions of other legislation are applied.

The key role in this process is played by the Federal Bailiff Service, whose powers include the obligation to ensure the execution of judicial and other acts.

Thus, in accordance with Part 1 of Article 12, Article 13 of the Federal Law of 21.07.1997 No 118-FZ "On Bailiffs", Articles 2 and 4 of the Law on Enforcement Proceedings, the bailiff is obliged to take all necessary and sufficient measures aimed at the timely, complete and correct execution of the requirements of the enforcement document, preventing infringement of the rights and legitimate interests of citizens and organizations in his activities.

In accordance with Article 6 of the Law on Enforcement Proceedings, the legal requirements of the bailiff are mandatory for all state bodies, local authorities, citizens and organizations and are subject to strict compliance throughout the territory of the Russian Federation.

In the event of failure to comply with the lawful demands of the bailiff, he shall apply the measures provided for by this Federal Law.

To initiate enforcement proceedings, it is necessary to submit an application to the Federal Bailiff Service, after which the work of the bailiff begins.

Enforcement proceedings: mechanism, documents, deadlines

The basis for initiating enforcement proceedings is the receipt of an enforcement document. Types of enforcement documents are listed in Article 12 of the Law on Enforcement Proceedings. For example, one of these documents is writs of execution issued by the courts on the basis of judicial acts adopted by them.

In accordance with Parts 1 and 3 of Article 319 of the Arbitration Procedure Code of the Russian Federation, a writ of execution on the basis of a judicial act adopted by the commercial court of first instance is issued by this commercial court, except for cases of interim measures taken by the court, imposition of a fine.

A writ of execution is issued after the judicial act enters into force, except for cases of immediate execution. In these cases, a writ of execution is issued immediately after the adoption of such a judicial act or its application for immediate execution. The writ of execution is issued at the request of the claimant or at his request is sent for execution directly by the arbitration court.

By virtue of paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17.11.2015 No 50 "On the application of legislation by the courts when considering certain issues arising in the course of enforcement proceedings", 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 refraining from performing certain actions.

In order to initiate enforcement proceedings, in addition to obtaining an enforcement document, it is necessary to comply with the deadlines established by law.

The norms of the current procedural legislation do not contain restrictions on the period within which a writ of execution for the enforcement of a judicial act must be issued.

A similar legal position is presented in the resolution of the Arbitration Court of the Moscow District dated 31.08.2017 in case No A41-79256/2016, the resolution of the Tenth Arbitration Court of Appeal dated 27.02.2018 in case No A41-18836/09, the resolution of the Twelfth Arbitration Court of Appeal dated 19.02.2019 in case No A57-7797/2018, the decision of the Twentieth Arbitration Court of Appeal dated 24.07.2019 in case No A62-3753/2017.

However, the current legislation fixes the terms for the presentation of such a writ of execution for execution.

Thus, by virtue of Clause 1 of Part 1 of Article 321 of the Arbitration Procedure Code of the Russian Federation, a writ of execution may be presented for execution within the following periods:

1) within three years from the date of entry into force of the judicial act, or from the day following the date of adoption of the judicial act subject to immediate execution, or from the date of expiry of the period established for the postponement or installment of the execution of the judicial act.

2) within three months from the date of the ruling on the restoration of the missed deadline for presenting the writ of execution for execution in accordance with Article 322 of this Code.

At the same time, the legislator enshrined the possibility for the claimant to restore the deadline for presenting the writ of execution for execution, which was missed for a good reason, by applying to the commercial court of the first instance that considered the case with an application for the restoration of the missed deadline, if the restoration of the said period is provided for by federal law (Part 1 of Article 322 of the Arbitration Procedure Code of the Russian Federation).

If the above conditions are met, the claimant has the right to file an application with the Federal Bailiff Service for the initiation of enforcement proceedings in accordance with the rules of Article 30 of the Law on Enforcement Proceedings.

As a general rule, the claimant must submit a separate application for the initiation of enforcement proceedings for each enforcement document.

In accordance with Clause 2 of Article 30 of the Law on Enforcement Proceedings, the application shall be signed by the claimant or his/her representative. The representative shall attach to the application a power of attorney or other document certifying his/her powers. The application may contain a petition to seize the debtor's property in order to ensure the execution of the requirements for property penalties contained in the enforcement document, as well as to impose restrictions on the debtor, provided for by this Federal Law. The recoverer may indicate in the application for the initiation of enforcement proceedings the information about the debtor known to him, as well as attach to the application documents containing information about the debtor, his property status and other information that may be important for the timely and complete execution of the requirements of the enforcement document.

In addition, in the application, the recoverer must indicate the details of a bank account with a Russian credit institution or its treasury account, to which the recovered funds should be transferred.

It is necessary to be prepared that, often, debtors carry out various actions to evade collection, for example, the transfer of assets to other persons, change of address, etc., which, unfortunately, can complicate and delay the terms of bailiffs' activities. In this regard, when initiating enforcement proceedings, it is extremely important to be prompt in the actions taken, including on the part of the recoverer himself.

The writ of execution and the application shall be submitted by the claimant at the place of execution of enforcement actions and the application of enforcement measures, determined in accordance with Article 33 of the Law on Enforcement Proceedings.

Thus, if the debtor is a citizen, then enforcement actions are performed and enforcement measures are applied by the bailiff at his place of residence, place of stay or location of his property.

If the debtor is an organization, then enforcement actions are performed and enforcement measures are applied at its legal address, the location of its property or at the legal address of its representative office or branch.

The claimant's application and the enforcement document are handed over to the bailiff within three days from the date of their receipt by the bailiff's unit.

Then, the bailiff is obliged, within three days from the date of receipt of the writ of execution, to issue a decision to initiate or refuse to initiate enforcement proceedings and to send it no later than the day following the day of the said decision to the recoverer, the debtor, as well as to the court, other body or official who issued the writ of execution.

If the writ of execution has been received by the bailiff service for the first time, the decision to initiate enforcement proceedings shall establish a five-day period from the date of receipt by the debtor of the order to initiate enforcement proceedings for the debtor to voluntarily fulfill the requirements contained in the writ of execution, and the debtor shall be warned of the enforcement of these requirements upon the expiration of the period for voluntary execution with recovery from him enforcement fee and costs for the performance of enforcement actions.

Meanwhile, the legislator has limited the possibility of voluntary execution of an enforcement document within the above period if there are grounds specified in paragraph 14 of Article 30 of the Law on Enforcement Proceedings, for example, if the enforcement document is subject to immediate execution (for example, containing non-property conditions).

Refusal to initiate enforcement proceedings is possible on the grounds listed in paragraph 1 of Article 31 of the Law on Enforcement Proceedings, including, for example, the presentation of an enforcement document without the claimant's application or signature, the presentation of an enforcement document not at the place of execution of enforcement actions, the deadline for presenting an enforcement document for execution has expired and has not been restored by the court, the enforcement document does not meet the requirements specified in the Article 13 of the Law on Enforcement Proceedings, the enforcement document was previously presented for execution and the enforcement proceedings under it were terminated or terminated, and others.

If the enforcement proceedings were initiated by a bailiff, the requirements contained in the enforcement document must be fulfilled within two months from the date of initiation of enforcement proceedings (Article 36(1) of the Law on Enforcement Proceedings).

At the same time, the expiration of the terms for the performance of enforcement actions and the application of compulsory enforcement measures is not a ground for termination or termination of enforcement proceedings (paragraph 8 of the same article).

In practice, due to the peculiarities of the work of the Federal Bailiff Service, the recoverer should monitor the process of conducting enforcement proceedings and, if necessary, file petitions for the application of specific measures, since bailiffs often do not take the initiative in implementing any measures.

Finally, the Law on Enforcement Proceedings distinguishes between the grounds for termination and termination of enforcement proceedings (Articles 43 and 47 of the Law on Enforcement Proceedings), where the first involves the final termination of enforcement proceedings, after which re-initiation on the same grounds is impossible, while the second - the completion of enforcement proceedings under a specific enforcement document, but without losing the possibility of re-presenting the document (except for individual cases).

To sum up, the initiation of enforcement proceedings is an important procedural step, on which the effectiveness of the court's decision depends. In turn, legally competent documents, compliance with deadlines and understanding of the procedure for initiating enforcement proceedings allow the recoverer to achieve the execution of a judicial act faster, which ultimately provides real protection of the interests of citizens and businesses.