The main reward of a private enforcement officer is one of the essential guarantees of his activity.
In accordance with Part 3 of Art. 45 of the Law of Ukraine “On Enforcement Proceedings”, the basic remuneration of a private executor is collected in the manner prescribed for the collection of enforcement fees, which in turn is defined in Art. 27 of the same Law.
Not surprisingly, debtors are looking for different ways to avoid this payment. The most popular way is attempts to challenge the actions of executors, procedural documents of enforcement proceedings in court.
We managed to protect the rights of the private executor and confirm the legitimacy of his actions to recover from the debtor the main fee in cassation court.
Thus, the Supreme Court on August 4, 2020, Kyiv, considering the case № 200/13920/19-a (administrative proceedings № K/9901/4147/20), made, in particular, the following conclusions: according to the Law of Ukraine “On Enforcement Proceedings”, the recovery of the debtor’s enforcement fee in the initiate enforcement proceedings decision is the duty of the private executor. Since at the time of the opening of enforcement proceedings the private enforcement officer did not have information about the debtor’s full execution of the court decision voluntarily, the private enforcement officer was entitled to collect the basic remuneration of the private enforcement officer simultaneously with the opening of enforcement proceedings.
The beginning of enforcement
The beginning of enforcement of the relevant executive document is the filing of the claimant’s application for the decision enforcement, which results in the decree for opening of enforcement proceedings, including the recovery of basic remuneration indicating the fee to be recovered. The legislator linked the possibility of receiving by the executor of the enforcement fee (basic remuneration) not only with the performance by the executor of certain enforcement actions during the entire duration of enforcement proceedings, which led to the physical recovery of funds in favor of the debt collector. The amount of the basic remuneration in the amount of 10 percent is determined and collected based on the amounts of funds subject to enforcement under the executive document, and it does not depend on the enforcement actions taken after the opening of enforcement proceedings. Determination of the amount of remuneration is connected with the fact of the beginning of compulsory execution according to the executive document.
The debtor tried to avoid paying the basic remuneration to the executor by obtaining a decision in the commercial court to reschedule the execution of the judgment, with the decision to initiate enforcement proceedings was made on 05.02.2019, and the court decision to defer the execution of the judgment on 06.02.2019. The Supreme Court gives the following assessment to this fact: installment execution of a court decision does not change the main obligation specified by the executive document, in addition, such installment took place after the opening of enforcement proceedings and the decision to recover debtor’s enforcement fee on 05.02.2019, ie after enforcement of the enforcement document and the commission of certain enforcement actions, including the seizure of the debtor’s funds contained in the debtor’s open accounts within the amount of recovery, taking into account the enforcement fee / principal remuneration of the private executor, enforcement costs, fines.
The conclusions of the first instance court were found to be unreasonable and inconsistent with the norms of substantive and procedural law in this case, as stated in the decision of the court of appeal. In connection with the debtor’s cassation appeal, the case was considered by the Supreme Court as a panel of judges of the Administrative Court of Cassation, which assessed and explained the approaches to the correct application of the Law of Ukraine “On Enforcement Proceedings”, which became the subject of dispute.
