Changing the order and method of enforcing a court decision is a frequent occurrence in Russian judicial practice. This is due to the fact that the debtor cannot implement the actions specified in the court decision or pay the specified amount. Taking into account the interests of all parties, the court has the right to make some changes to its decision.
The essence of changing the order and method of execution of a court decision
According to the current legislation, each party to the lawsuit (applicant, defendant, bailiff) can submit a request to provide the debtor with an installment plan for the implementation of the requirements of the judicial act or its deferral in respect of financial payments, which are indicated in the decision.
For example, the parties have the right to file an application to change the order and method of execution of the decision in the civil process during the meeting or after its completion, when the case has already been transferred to the bailiffs.
It is important to know that the new court decision, which determines the technology for implementing the requirements of the executive document, is considered an act of the transformative type. Thus, the new judge’s order to change the order and method of enforcing the court decision under the Code of Civil Procedure of the Russian Federation changes the legal relations that arose during the consideration of the case.
Normative base
The list of regulatory documents that govern the process of changing the order and method of execution of a court decision includes the following acts:
- Arbitration Procedure Code.
- Code of Civil Procedure.
- Code of Administrative Procedure.
- Resolution of the Plenum of the Russian Supreme Court of the Russian Federation No. 50, issued on November 17, 2015.
- The determination of the Russian Supreme Court No. 226-O-O, which was issued in 2010.
The main features of changing the order and method of enforcement of court decisions on the Code of Civil Procedure, agro-industrial complex and other documents
The general elements that determine the relevant provisions are an indication of the reasons for providing the guilty party with a deferral, installment plan or adjustment of the method for implementing the requirements established by the decision, which are indicated in the executive document.
This group of reasons includes circumstances that could not be eliminated until the moment of going to court, if they had a significant impact on the defendant's ability to implement the decision of the judicial authority recorded in the relevant document, subject to the indicated terms and methods of its implementation.
According to Article 434 of the Code of Civil Procedure of the Russian Federation, a change in the order and method of execution of a court decision is carried out in the presence of serious circumstances that impede the implementation of the decision of the judicial authority, by submitting an application from the interested party (debtor, recoverer or bailiff). The petition is submitted to the same judicial authority that issued the decision.
In article 423 of the APC of the Russian Federation, a change in the order and method of execution of a court decision is carried out if there are the same reasons. The Arbitration Code determines the exclusive right of the court to implement such actions, establishes the time and procedure for considering the application without reference to other legal norms and legislative acts.
Grounds for a positive decision on the application
Changing the order and method of enforcement of a court decision is carried out on the fact of the application submitted by the party, which indicates the reasons for the need to amend the judicial act. In order for the court to satisfy the application, the defendant must prove the validity of the reasons presented.
Changing the order and method of execution of a court decision in judicial practice is a replacement of an action established by a decision with some other (for example, replacing a monetary obligation with performance in kind). The applicant is entitled to choose a new version of the implementation of the legal requirements of the plaintiff when filing a claim.
At the same time, an important feature of changing the order and method of execution of a decision of an arbitration court or a court of another type is that it is based on a list of substantive legal requirements. Thus, the object of the trial is not being reviewed, only an option for its implementation.
If, in the course of the conduct of the case, the plaintiff did not state written or oral requirements related to the adjustment of the subject of the dispute, but upon the implementation of the decision of the judicial authority it became clear that it was impossible to correctly comply with the applicant’s requirements, a petition could be made.
In the document on changing the order and method of execution of the court decision (sample application below), submitted by one of the parties, it is necessary to reflect other options for implementing the requirements of the plaintiff.
The reasons indicated by the parties must be documented and objective. For example, the reason may be the inability to give the plaintiff property due to its loss or damage due to the fault of another person.
To change the order and method of execution of the court decision on the Code of Civil Procedure and other acts, it is necessary to submit only a written request and documents confirming the applicant’s words.
Application and Review Process
When applying for a change in the procedure and method for the execution of a decision of an arbitration court or a court of another type, the applicant shall have the right to choose one of the options for correcting the requirements with respect to the defendant:
- collect money in a compulsory form;
- to demand to give a specific thing taken by the defendant;
- oblige the debtor to carry out some actions within the framework of contractual obligations undertaken by the debtor.
In the process of drawing up the application, one must pay attention to the substantive rules of law when determining the real possibility of changing the option for fulfilling the requirements of the plaintiff.
If in the statement of claim the plaintiff asks to seize any thing from the defendant, the final court decision should contain an estimated characteristic of the subject. This will allow, in the future, when changing the order and method of enforcing a court decision or delaying its implementation, translate the real action into a monetary equivalent.
In the process of adjusting the operative part, it is important to ensure that the new version of satisfying the applicant’s claims recorded in the executive document does not adversely affect the content of the decision made by the judge.
The process of amending the operative part of the decision takes place in the same way as the initial meeting itself, with the participation of all parties. The term for a verdict on the adjustment of the content of a judicial act is no more than two months. During the trial, all persons are interviewed, they are given the opportunity to document their position.
The final ruling made by the judge may be appealed in the same manner as any other ruling by sending a private complaint. The term for filing objections is fifteen days from the date of removal.
Statement essence
An application for changing the order and method of execution of a court decision on alimony and other issues can be submitted in the form of a petition. It is a document providing mandatory requirements that must be fulfilled. Revision of the procedure for the implementation of the claim is possible only by sending a written request.
An application of the appropriate type should be filed exclusively in cases where the procedure established by the court to fulfill the requirements of the collector is impossible to implement.Most often, such petitions are related to family issues regarding the procedure for communicating with children due to the adjustment of the work schedule of the separately living parent.
Evidence of the validity of the reasons for submitting the application can be made by employees' work schedules, management orders to change the staffing table or to send an employee on a business trip. If the application is connected with a serious illness of the applicant, this fact can be documented by providing a certificate from a medical institution certified by the head physician.
Peculiarities of filing a petition for changing a variant of the court's claim
A document on changing the order and method of enforcement of a court decision (sample below) is often submitted already at the stage of enforcement measures by the bailiffs.
If the defendant has circumstances that impede the normal implementation of the requirements of the claimant, fixed in the writ of execution, he independently or with the help of the bailiff submits the necessary petition to the court.
You can send a statement at the place of trial or at the place of execution. The defendant in the document must provide, on request, his options for changing the content of the judge’s decision.
The list of conditions for adjusting the implementation of claims
Situations in which the debtor cannot fulfill the requirements of the decision of the judicial authority are quite common. Most often, they arise regardless of the will of the parties or because of the performance by the debtor of special actions for this.
For example, the court decided to seize the car from the defendant for transfer to the plaintiff. Prior to the final decision of the judicial authority, the car was stolen from the debtor. In this regard, the defendant is unable to implement the specified requirement.
The grounds for submitting the relevant application must be valid. The circumstances indicated by the debtor must be inevitable (permanently or temporarily). For example, a temporary change in the work schedule, because of which it is necessary to change the order of communication with children.
The current Russian legislation does not establish an exact list of specific circumstances. Each situation is examined by the court in a separate order. The validity of the reasons stated by the defendant is also verified individually. In this regard, the parties need to stock up with a sufficient amount of evidence that will confirm that the reasons indicated by the debtor are worthy of adjusting the decision of the judicial authority.
Civil court practice
An example of the adjustment of the implementation of claims is a case that was considered in May 2018 in the Zheleznodorozhny District Court of Khabarovsk city to recover a sum of money for damage that was caused by the defendant due to a traffic accident caused by his fault, as well as the amount of expenses for a representative claimant and state duty.
By a court decision in the present case, the applicant's claims were satisfied in full. The defendant did not appear at the hearings, did not send objections or clarifications on the claims.
After the decision made by the judge entered into legal force and was sent for execution to the bailiff department, the defendant filed a motion to change the implementation of the judge’s act due to the impossibility of the exact implementation of the stated requirements.
In the document, the debtor stated that he could not pay the indicated amount due to the lack of income and property that could be withdrawn as a penalty. To prove his position, he presented documents on the absence of registered property rights, as well as a certificate from the employment center on the absence of an official place of employment.
At the same time, he said that he was ready to undertake the full repair of the vehicle, including the repair process and the purchase of parts. Due to the fact that the plaintiff agreed to the terms of the debtor, the judge ruled to satisfy the petition and make appropriate corrections to the writ of execution.
Arbitration practice
In the field of legal proceedings in arbitration courts, the following example is an option for adjusting the implementation of the plaintiff's claims. In August 2018, the Arbitration Court of the Khabarovsk Territory considered a case for the recovery of debt under an agreement on the supply of spare parts concluded between companies in the automotive industry.
By the decision of the Arbitration Court, the debtor company was charged in the amount of three hundred thousand rubles for the damage caused and the obligation to pay the state fee. The judicial act had not yet entered into legal force when the defendant filed a motion to adjust the method of calculation for the specified debt.
The debtor stated that there were no funds in his company’s accounts, but he was ready to transfer spare parts for cars of different brands that could be used in the company’s work for the amount claimed by the collector.
To justify his position, the defendant submitted documents to the court about the lack of funds in the company’s accounts, and also presented invoices that he had the necessary supply of proposed parts with an indication of their price.
According to article 324 of the Arbitration Procedure Code, if the debtor's party has any circumstances that impede the accurate execution of the decision of the judicial authority, one of the participants in the process has the right to apply to the court with a request to change the option for the implementation of these requirements. This document must be sent to the place of trial in the first instance.
Since both parties are transport companies, and the spare parts that the defendant was ready to transfer to the plaintiff are necessary for the work of the exacting party, the plaintiff did not object to the adjustment of the implementation of the decision of the judicial authority. During the consideration of the application, an assessment was carried out, according to which a stock of the necessary parts was determined, which would be sufficient to satisfy the applicant's claims.
Due to the fact that the defendant submitted evidence of the lack of financial resources in his current or personal accounts, and the plaintiff did not object to replacing the monetary penalty with the execution of the decision of the judicial authority in kind, the court ruled to satisfy the request.
Situations when the parties declare the need to change the implementation option of the claimant's requirements often arise in the practice of various types of vessels. Therefore, in the absence of objections from the creditor, the court in most cases satisfies such statements.