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Publication date: 13.03.2024
Лоер
Pre-trial settlement of disputes with the creditor: Preparation and conclusion of a settlement agreement
Resolving disputes using a pre-trial mechanism, in particular by concluding a settlement agreement with the creditor, is an important stage in the legal process, which allows you to avoid further litigation and conflicts between the parties.
According to the opinion of the Constitutional Court of Ukraine dated July 9, 2002 No. 15-рп/2002 (in the case regarding pre-trial settlement of disputes), choosing a method of legal protection, including pre-trial settlement of a dispute, is a right and not an obligation of a person who uses it voluntarily , based on their own interests. Thus, the possibility of using pre-trial settlement of disputes becomes an additional means of legal protection, which the state provides to the participants of certain legal relations, preserving the principle of justice exclusively by the court. The right to judicial protection does not exclude the possibility of pre-trial settlement of disputes for subjects of legal relations. This can be provided for in a civil law contract, when the parties voluntarily choose a way to protect their rights.
Regarding economic legal relations, the Economic Procedural Code of Ukraine stipulates that the parties may apply measures of pre-trial settlement of an economic dispute by mutual agreement. This provides an opportunity for the parties to conclude an agreement on pre-trial settlement of the dispute within the framework of the contract.
Pre-trial settlement of disputes can also take place at the will of each of the participants in the legal relationship and without appropriate clauses in the contract. Courts of cassation instance support this approach, as evidenced by the decision of the Supreme Economic Court of Ukraine dated December 22, 2009 No. 12/1278 and October 24, 2006 No. 2/238. These courts did not annul the decision of the district court and the appellate instance only on the basis that the parties did not comply with the requirements of the contract on pre-trial settlement of the dispute.
Sometimes there are exceptions to the general rule. For example, the decision of the Higher Specialized Court of Ukraine for consideration of civil and criminal cases dated November 16, 2011 No. 6-22276св11 indicates that the pretrial demand was not submitted to the guarantor, therefore the court did not take this circumstance into account. This was crucial to the court decision.
Both the creditor and the debtor can initiate the pre-trial settlement procedure. In the event that the parties decide to try to resolve the dispute amicably, they should choose the method that will be most beneficial to both parties.
One of the most common ways is negotiation. For successful negotiations, it is important to convince the creditor of their necessity. Sometimes letters to the bank may remain unanswered, but after a meeting with the bank's representative in court, it turns out that the option for resolving the conflict proposed by the debtor is correct. In such a case, the court may order an adjournment for the bank to review the proposed settlement.
Let's consider various possible options for agreements between the creditor and the debtor.
Provision of postponement of the obligation
To obtain a deferment, you must contact the bank with a letter addressed to the management, explaining the reason for the temporary insolvency and requesting a deferment of the loan payment without penalty.
The bank decides on deferment by assessing creditworthiness based on such criteria as: self-sufficiency, the borrower's reputation and the evaluation of his products or services.
Complete or partial termination of the main obligation (novation)
Novation is the replacement of the original obligation with a new one by agreement of the parties. It can consist of a change in the interest rate, an extension of the debt repayment period or a change in the repayment schedule.
Provision of installments of existing debt
After receiving a notification from the bank about the debt, the debtor should find out the amount and period of the debt and submit a request to the bank to provide acts of reconciliation of mutual settlements.
Then the debtor can apply to the bank to pay off the debt for a certain period, presenting information about his income, activities and receipts for the payment of the debt.
All negotiated agreements are usually backed by security, such as a bond.
The specified conflict resolution procedure can save time, save financial resources and preserve the reputation of the parties. However, there are risks, such as insufficient guarantee of the interests of the parties, so a combination of out-of-court and judicial procedures is often used. For example, a creditor can go to court, but at the same time negotiate with the debtor about an out-of-court settlement, which can lead to a settlement agreement.
The key role in this process belongs to the lawyer who acts as the debtor's representative.
The main stages of pre-trial dispute resolution and the conclusion of a settlement agreement include:
Negotiations: The debtor's lawyer negotiates with the creditor in order to reach mutually acceptable terms and avoid litigation.
Determination of the legal position: The lawyer analyzes the legal situation, assesses the possibilities of resolving the dispute and determines the strategy for reaching a compromise.
Preparation of the contract: After reaching the agreed conditions, the lawyer prepares a draft of the settlement agreement, which contains the terms of settlement of the dispute and the mutual obligations of the parties.
Signing: After agreeing on the text of the contract, the parties sign the settlement agreement.
The settlement agreement, that is, the legal position with the creditor is a legally binding document that establishes the mutual obligations of the parties and determines the terms of debt repayment. It is the result of constructive negotiations and mutually acceptable conditions that satisfy the interests of both parties, that is, both the debtor and the creditor are present here.
Therefore, the pre-trial settlement of disputes and the conclusion of an amicable agreement with the creditor requires professional training and the ability to effectively conduct negotiations in order to achieve a constructive solution that takes into account the interests of all parties.
This article is intended to provide general information and is not intended to serve as legal advice. It is recommended to contact a qualified lawyer for individual advice on social law issues.
