Publication date: 07.06.2024
lawyer, 23 years of experience in enforcement.
Measures regarding the temporary suspension of the sale of property in enforcement proceedings.
Only legal grounds can stop forced debt collection and realization of the debtor's property in enforcement proceedings. They include the provisions of Art. Article 34 of the Law on Executive Proceedings.
In accordance with clauses 2, 3, part 1 of Art. 34 of the Law, the executive agent shall cease to participate in the performance of executive actions, in particular, in the case of:
- suspension of enforcement by the court on the basis of an executive letter;
- the court stops the transfer of seized property if the debtor has no other property that can be taxed.
Termination of the recovery process on the basis of an executive document is the authority of the court when reviewing cassation decisions.
The process of foreclosure on the seized property was stopped by the first-instance court, which made a primary decision in the situation.
The court cannot exercise the powers of the state executor, but supervises the execution of the court decision in accordance with Chapter VII of the Criminal Procedure Code of Ukraine.
Persons participating in enforcement proceedings have the right to appeal the court's decision if they believe that their rights or freedoms have been violated by the actions or inaction of the executor or official of the Internal Revenue Service during the enforcement proceedings (Article 447 of the Criminal Procedure Code of Ukraine).
The rules of Articles 149-153 of the Civil Procedure Code of Ukraine, which regulate the procedure for securing a claim (Articles 447-451 of the Civil Procedure Code of Ukraine), cannot be applied when considering a complaint against the actions, inaction or decisions of officials of the state executive authority or executor. of the Civil Code of Ukraine), which are submitted in the order of judicial supervision of the execution of a court decision that has entered into legal force (according to which the collection has not been stopped).
In paragraph 15 of the resolution of the Plenum of the High Specialized Court of Ukraine regarding the consideration of criminal and civil cases, the court refers to the practice of considering complaints against the actions, decisions or inaction of the state executive or other state officials. executive. 6 dated 02.07.2014 clarified that when considering a complaint against the decision, actions or inaction of the executor, the court is not entitled to take actions to defend the complaint (as well as the lawsuit) by stopping the enforcement proceedings, stopping the action of the contested decision, etc., because the person is not authorized by the court to act on their behalf. In addition, before the completion of the final review of the complaint, if there are sufficient grounds, the court may stop the collection proceedings on the basis of the writ of execution.
In accordance with Article 2 of Section 11 of the Procedure for the Sale of Seized Property, approved by the Order of the Ministry of Internal Affairs of Ukraine dated September 29, 2016 No. 2831/5, the grounds for the termination of electronic auctions. (or need to use a specific price) are as follows:
- a court decision to stop the sale of seized property;
- suspension of execution of executive actions in cases provided for by the Law "On Executive Proceedings";
- delay in taking executive actions;
- suspension of the executive process in the event that the court extends the deadline for filing an appeal or accepting an appeal pending consideration, postponement of execution of executive actions;
- the presence of technical factors that prevent the operation of the System, only during the period of its restoration.
In the event of reservations in paragraph 2 of this section, the Organizer shall immediately suspend electronic bidding (auctions at a fixed price) as a whole or for a separate lot, a decision is made to suspend electronic bidding (auctions at a fixed price). a record of the reasons and decisions thereon. From the moment of stopping electronic trading (trading at a fixed price) in general or for a separate lot, the validity period of electronic trading is automatically terminated.
Seized property is considered sold from the moment it is placed on the website of SE "Setam" in accordance with the order received by the executor regarding the sale of property seized by the state. The decision of the executive authority is not mandatory for the start of seizure of the seized property.
According to Clause 3 of Article 2 of the Procedure for Realization of Seized Property, the executor creates a draft statement describing the information provided for in paragraphs three to 16 of this section, which is submitted to the liquidator. The representative of the state executive service submits an application to the directly subordinate head of the department of the state executive service for coordination and transmission to the Organizer. The following documents (in electronic or written form) are attached to the resolution on the description and seizure of property: 1) a copy of the executive document, if any, 2) a certificate from the executor about the total number of documents and the amount that will be collected from them, 3) a copy of the resolution on the description and seizure of the debtor's property, 4) documents confirming the value (estimation) of the property (notification of the parties regarding the determination of the value). of property, act of the executor regarding the determination of the value of the property or the report of the subject of appraisal activity - a business entity on the appraisal of the property, the validity period of which meets the requirements of Part 6 of Article Article 57 of the Law "On Executive Proceedings"); 5) other documents.
This is stated in the resolution of the CEC of the Supreme Court dated July 20, 2022 No. 370/1226/15 (Next actions 6/70/46/20) No. 61-18704св21.
Actions, decisions or inaction of the executor regarding the execution of the court order may be appealed by the parties, other participants or the Code of Civil Procedure itself, which are important in the creation of an executive document (Part 1 of Article 74 of the Law on Enforcement Proceedings, Article 447 of the Code of Criminal Procedure).
Clause 3 of the first part of Article 34 of the Law of Ukraine "On Enforcement Proceedings" establishes that the executor shall stop enforcement actions in the event that the court recognizes the sale of seized property as invalid without other things of the debtor that may be levied.
Part one and part five of Article 35 of the Law of Ukraine "On Executive Proceedings" establish that the executor is obliged to stop execution of executive actions in the cases indicated in clauses 1, 4, 6, 8, 11 of part one of Article 34 of this Law in the shortest possible time, and in the cases specified in clauses 2, 3 and 5 of the first part of Article 34 of this Law - before consideration of the issue, as well as after the elimination of the circumstances that became the basis for the suspension. execution of executive actions, the executor must continue the enforced execution of the decision in the manner specified by this Law, which shall issue a resolution with a corresponding conclusion.
A systematic review of the listed norms allows us to conclude that the suspension of executive proceedings is the suspension of execution of executive actions caused by circumstances that prevent them from being carried out, listed in the norms of the Administrative Code "On Executive Proceedings", which cannot be bypassed by the executor or participants in executive proceedings within a certain time .
When the executive process is suspended, the executive executor has no right to participate in any executive actions committed as a result of the suspension of the executive process, until the conditions are reached that allow the process to be resumed by a court decision. executive agent
The legal service "Consultant" will select a lawyer or an attorney who will conduct a legal analysis of the situation, form an appropriate procedural document (application, statement of claim, petition, etc.), and also help in collecting the evidence base for the most effective resolution of the issue. Service specialists will accompany the process from the beginning to the execution of the court decision. They will also provide advice and help in solving such issues as: preparation of amicable settlement with the creditor, Protection from collections, Arrest for inviolability, removal of seizure from real estate and funds, Removal of attachment from real estate, bankruptcy of an individual, debt reduction, etc.
