Valeryia Silchanka,
Associate
Associate
Initiation of the enforcement proceedings in Russia based on the decision of the economic court of Belarus
04.04.2020
Published in the journal "Lawyer". - 2020. - No 4.
Satisfying of the claims in the process does not automatically mean that the execution creditor will receive money from the debtor. Especially when this debtor is on the territory of another state.
Let's consider the procedure for initiating enforcement proceedings when the debtor is the resident of the Russian Federation, and in the possession of the execution creditor is a judicial act of the Belarussian economic court. It seems that the order is similar but there are nuances.
Let's consider the procedure for initiating enforcement proceedings when the debtor is the resident of the Russian Federation, and in the possession of the execution creditor is a judicial act of the Belarussian economic court. It seems that the order is similar but there are nuances.
Legal regulation
The execution of the judicial acts (primarily, executive documents) of the Belarusian economic courts on the territory of the Russian Federation, in addition to procedural legislation, is regulated by the Federal Law of the Russian Federation "On enforcement procedures" dated 02.10.2007 No. 229-ФЗ (hereinafter – Law) and by the Agreement between the Republic of Belarus and the Russian Federation on the Procedure for the Mutual Enforcement of Judicial Acts of Economic Courts of the Republic of Belarus and arbitration courts of the Russian Federation, concluded in Moscow on January 17, 2001 (hereinafter – Agreement).
Article 1 of the Agreement states that the judicial acts of the competent courts of the Republic of Belarus do not require a special procedure and are executed on the territory of Russia in the same manner as national judicial acts on the basis of the executive documents of the courts that made decisions.
The execution of the judicial acts (primarily, executive documents) of the Belarusian economic courts on the territory of the Russian Federation, in addition to procedural legislation, is regulated by the Federal Law of the Russian Federation "On enforcement procedures" dated 02.10.2007 No. 229-ФЗ (hereinafter – Law) and by the Agreement between the Republic of Belarus and the Russian Federation on the Procedure for the Mutual Enforcement of Judicial Acts of Economic Courts of the Republic of Belarus and arbitration courts of the Russian Federation, concluded in Moscow on January 17, 2001 (hereinafter – Agreement).
Article 1 of the Agreement states that the judicial acts of the competent courts of the Republic of Belarus do not require a special procedure and are executed on the territory of Russia in the same manner as national judicial acts on the basis of the executive documents of the courts that made decisions.
Almost all in the same
Russian Federation serving the debtor in case an execution creditor has an information about the debtor's accounts and the availability of its funds.
If collecting organization does not have this information or there are not enough funds on the debtor's accounts to pay the debt in full, an executive document shall be sent (or at his direction by the bank) to the executive officer for the enforcement in accordance with the legislation of the Party, i.e. in our case, the Russian Federation.
Therefore, acts issued by domestic economic courts are subject to enforcement in Russia in the same manner as in Belarus, without a recognition procedure: if the debtor's accounts are known, the executive documents are sent to the bank. If collecting organization does not have such information the documents are sent to the executive officer for execution.
It is recommended to send the package of documents both to the bank and executive officer using recorded delivery correspondence (for example, a registered letter with return receipt with an enclosure list) or, if there's a chance, to take all documents in person and hand them over to the secretariat against signature of receipt. The executive document is attached in the original.
Russian Federation serving the debtor in case an execution creditor has an information about the debtor's accounts and the availability of its funds.
If collecting organization does not have this information or there are not enough funds on the debtor's accounts to pay the debt in full, an executive document shall be sent (or at his direction by the bank) to the executive officer for the enforcement in accordance with the legislation of the Party, i.e. in our case, the Russian Federation.
Therefore, acts issued by domestic economic courts are subject to enforcement in Russia in the same manner as in Belarus, without a recognition procedure: if the debtor's accounts are known, the executive documents are sent to the bank. If collecting organization does not have such information the documents are sent to the executive officer for execution.
It is recommended to send the package of documents both to the bank and executive officer using recorded delivery correspondence (for example, a registered letter with return receipt with an enclosure list) or, if there's a chance, to take all documents in person and hand them over to the secretariat against signature of receipt. The executive document is attached in the original.
Important!
Requirements for a foreign executive document to be executed in Russia in accordance with international treaties are established by the foreign legislation not Russian. Such requirements are contained in Article 11 of the Law of the Republic of Belarus "On enforcement procedure" dated 24.10.2016 No. 439-З.
Requirements for a foreign executive document to be executed in Russia in accordance with international treaties are established by the foreign legislation not Russian. Such requirements are contained in Article 11 of the Law of the Republic of Belarus "On enforcement procedure" dated 24.10.2016 No. 439-З.
Let's consider the order of the actions depending on…
- Situation 1.There is an information about a bank accountIn case an execution creditor knows about the debtor's bank accounts or it is known that there are funds on them, as it has already been said, an executive document can be sent directly to the bank. At the same time together with an executive document a collecting organization files an application, as well as the document verified the powers of the representative of the execution creditor.
After receiving the documents for collection, the bank must (parts 5, 8 and 9 of Article 70 of the Law):- if there is money on the debtor's account – to transfer it to the bank account of the collecting organization and inform it within 3 days about it;
- if there is not enough money – to transfer the available amount of money to the bank account of the collecting organization and to transfer further as soon as money is received at the debtor's account, each time informing the collecting organization about the transfers;
- if there is no money at all or it is seized, or operations with it are suspended, or the account is closed – the collecting organization shall be notified about it. Then the execution creditor has the right to withdraw an executive document from the bank and turn to the executive officer.
- Situation 2.If the accounts are unknownIf collecting organization does not know about the debtor's bank accounts or there are insufficient funds on them, an executive document shall be sent to the executive officer.
Where shall the execution creditor go?
The enforcement of judicial acts in Russia is remained with the Federal Bailiffs Service of the Ministry of Justice of the Russian Federation.
An executive officer is obliged to accept for further execution an executive document from the court that issued it, or from the collecting organization and to initiate the proceedings provided that the document complies with the requirements for the execution documents and a three-year term for presenting it for execution has not expired.
The collecting organization shall submit an executive document together with an application on the initiation of enforcement proceedings (hereinafter – application) to the office of the executive officers at the place of execution of the enforcement actions and enforcement measures.
If an execution creditor does not have an information about the debtor's registered office, its property, then the Law provides for the execution of enforcement actions and enforcement measures at a last known place of residence (stay) of the debtor.
In addition, if the execution creditor does not know in which department of the Federal Bailiffs Service an enforcement proceedings shall be initiated, the execution creditor can send an enforcement document and an application to the territorial body of the Federal Bailiffs Service (hereinafter – FBS), i.e. to the chief executive officer of the corresponding subject of the Russian Federation, at the place of the execution of the enforcement actions and enforcement measures.
The Chief Executive Officer in its turn sends the specified documents to the appropriate department within 5 days from the date of its receipt, and if an executive document is subject to immediate execution – on the day of its receipt.
Important!
On the website fssprus.ru it is possible to determine the department of the Federal Bailiffs Service where the application shall be sent to.
It is noteworthy that FBS creates and maintains (including in electronic form) a data bank containing the information necessary to carry out tasks for the enforcement of the judicial acts.
Having become acquainted with the indicated information, it is possible to make a preliminary conclusion about the solvency of the debtor and, in some cases, to predict the possible course of proceedings.
On the website fssprus.ru it is possible to determine the department of the Federal Bailiffs Service where the application shall be sent to.
It is noteworthy that FBS creates and maintains (including in electronic form) a data bank containing the information necessary to carry out tasks for the enforcement of the judicial acts.
Having become acquainted with the indicated information, it is possible to make a preliminary conclusion about the solvency of the debtor and, in some cases, to predict the possible course of proceedings.
What to write in the application and what to attach?
If an application for the initiation of the enforcement proceedings is signed by the representative of the execution creditor than it shall a document, verified its powers, in other words – a power of attorney.
Any information about the debtor can be specified in the application, as well as the documents regarding the debtor or its financial situation or any other information that may affect the success of the execution can also be attached to the application. What documents can be attached? Any documents on debtor's financial situation.
Please bear in mind that when filing an application, an executive creditor may apply for an enforcement measures, for example, seizure of the property or a temporary restriction on departure of the debtor abroad (part 2 of Article 80 of the Law).
In case of refusal to satisfy the application for interim measures, the executive officer must indicate in its order on initiation of enforcement proceedings the reasons for such refusal, i.e. to motivate it (part 9 of Article 30 of the Law).
If an application for the initiation of the enforcement proceedings is signed by the representative of the execution creditor than it shall a document, verified its powers, in other words – a power of attorney.
Any information about the debtor can be specified in the application, as well as the documents regarding the debtor or its financial situation or any other information that may affect the success of the execution can also be attached to the application. What documents can be attached? Any documents on debtor's financial situation.
Please bear in mind that when filing an application, an executive creditor may apply for an enforcement measures, for example, seizure of the property or a temporary restriction on departure of the debtor abroad (part 2 of Article 80 of the Law).
In case of refusal to satisfy the application for interim measures, the executive officer must indicate in its order on initiation of enforcement proceedings the reasons for such refusal, i.e. to motivate it (part 9 of Article 30 of the Law).
After filing an application of the initiation of enforcement proceedings
Before proceedings will be initiated, an executive officer performs a series of actions, namely, decides whether there are grounds for initiating proceedings or whether an application shall be refused.
As a result, an executive officer makes an order on initiation of the proceedings or refusal of the initiation of such proceedings within 3 days from the day of receipt of an application with an original executive document (part 8 of Article 30 of the Law), that can be appealed to the higher official or to the appropriate court within 10 days from the day such order was issued (part 4 of Article 14, part 4 of Article 123, part 4 of Article 128 of the Law).
After the initiation of the proceedings, an executive officer notifies the debtor providing him with a 5-day period (from the day the debtor received an order on the initiation of the proceedings) for voluntary execution – part 12 of Article 30 of the Law (in Belarus – 7 days). If the debtor does not use the latter, an executive officer begins the process of enforcement.
Before proceedings will be initiated, an executive officer performs a series of actions, namely, decides whether there are grounds for initiating proceedings or whether an application shall be refused.
As a result, an executive officer makes an order on initiation of the proceedings or refusal of the initiation of such proceedings within 3 days from the day of receipt of an application with an original executive document (part 8 of Article 30 of the Law), that can be appealed to the higher official or to the appropriate court within 10 days from the day such order was issued (part 4 of Article 14, part 4 of Article 123, part 4 of Article 128 of the Law).
After the initiation of the proceedings, an executive officer notifies the debtor providing him with a 5-day period (from the day the debtor received an order on the initiation of the proceedings) for voluntary execution – part 12 of Article 30 of the Law (in Belarus – 7 days). If the debtor does not use the latter, an executive officer begins the process of enforcement.
According to FBS's report for 2019 on average there are 4300 enforcement proceedings for one executive officer which is 16,3 times higher than the established norm for the executive officer.
Therefore, an executive officer remembers only those proceedings about which he is reminded. If possible, every week (though like an executive officer on Belarus).
Alternatively, you can conclude an agreement with local law office and assign it to control over the collection of the debts from the debtor.
Therefore, an executive officer remembers only those proceedings about which he is reminded. If possible, every week (though like an executive officer on Belarus).
Alternatively, you can conclude an agreement with local law office and assign it to control over the collection of the debts from the debtor.
Important!
Often executive officers do not notify about the results of the proceedings therefore it should be borne in mind that a collecting organization must control this process on its own.
Often executive officers do not notify about the results of the proceedings therefore it should be borne in mind that a collecting organization must control this process on its own.
Conclusion
It is possible to approach an executive officer in Russia with an enforcement document of the economic court of Belarus. The procedure is much the same.
It is very important to note, that the debt collection is a long process and it would make sense to conclude an agreement with a local (domestic) law office that will control the whole process. If not, an execution creditor will need to control itself the process of the enforcement proceedings which is possible via the Internet.
It is possible to approach an executive officer in Russia with an enforcement document of the economic court of Belarus. The procedure is much the same.
It is very important to note, that the debt collection is a long process and it would make sense to conclude an agreement with a local (domestic) law office that will control the whole process. If not, an execution creditor will need to control itself the process of the enforcement proceedings which is possible via the Internet.
Valeryia Silchanka,
Associate
Associate
info@lextorre.com
Tel. +375 17 25 090 26
Tel. +375 17 25 090 26
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