We all heard about the executive training, but few people understand the intricacies, unless, of course, he is not a lawyer. Let's look at what it is, what the size of this payment is, where it comes from, and we’ll look at the nuances of this issue.
So, the enforcement fee is a penalty, that is, imposing on a person the obligation to make some kind of additional payment as legal liability that arises from the offenses committed by him during the enforcement proceedings.
What is a recovery order?
The decision on the collection of the enforcement fee is issued in the case when the debtor does not fulfill the requirements indicated in the sheet, within a certain period specified by the bailiff. Moreover, a person must be informed that proceedings have been instituted against him. Documents that confirm the fact of notification are attached to the case.
According to the law, it is necessary to establish the presence of such circumstances in order to decide on the issuance of a decision on the collection of penalties:
- The deadlines set by the debtor for independent voluntary compliance with the requirements of the sheet.
- Confirmation of receipt by a person of a decision to institute proceedings or refusal to receive it.
- Points of the writ of execution are not executed by the citizen.
- The person did not provide conclusive evidence that the execution was impossible due to some extraordinary circumstances.
Deadlines set by the bailiff
The bailiff sets the debtor the deadlines for voluntary compliance with the requirements of the executive documents upon issuance of the decision, which should not exceed 5 days.
In the mentioned document, the contractor must warn the person that for ignoring the positions of the sheet he will have to collect a certain fee.
When determining the period of voluntary fulfillment of the requirements of the sheet, the bailiff should rely on the position of the document itself and set a reasonable time frame prescribed by law. We must not forget that the deadline begins on the day after the person is served the decision, and not from the moment it was issued.
If the last day of this period is a weekend, then the deadline will end on the next business day.
A notice of enforcement proceedings is sent by mail or by other means. Upon receipt of the decision, the debtor should make sure that he has the authority to participate in the enforcement proceedings. Photocopies of papers confirming these rights are attached to the case.
After the decision on the collection of the enforcement fee is issued, it becomes an independent document, which must be implemented in a mandatory manner.
If the collection of the enforcement fee has not been made, and the main case has already been completed, the bailiff will initiate another proceeding according to the unfulfilled or partially executed decision on the collection of fines from the citizen.
This document is sent together with the decision to dismiss the main case. Further, the production goes in the usual manner.
What are the requirements for a collection enforcement order?
The recovery order is an executive document, and it must comply with the norms of the law. It is handed over to the citizen or his representative in the same manner as the production order. It can be appealed to the court within ten days from the date of delivery to the debtor.
Reasons for non-execution of the executive document
There are a number of reasons that are recognized as valid if the requirements of the writ of execution are not fulfilled. These include:
- Insurmountable circumstances.
- Suspension of production in accordance with the federal law “On Enforcement Proceedings”.
On the day when these reasons cease to be valid, the period begins within which the state enforcement fee must be collected. Next, we talk about how much the debtor will have to pay for sanctions.
Executive fee amount
The law strictly defines its volumes. According to Article 112 of the Federal Law (Clause 1), in executive cases, the amount of the executive fee is set as a percentage. For cases of a property nature, the fee is taken in the amount of seven percent of the amount recovered, but not less than a thousand rubles from an ordinary citizen and ten thousand from an enterprise.
For non-property cases, the amount of the executive bailiff fee is set in the form of a fixed amount. If the debtor is an ordinary citizen, then this is five hundred rubles, and five thousand rubles are collected from the organization.
If the amount of the debt is determined in foreign currency, then the bailiff, in accordance with article 72, sets the amount of the fee in rubles. It is calculated at the rate established by the CBRF at the date of the decision.
When fulfilling the positions of the writ of execution on the recovery of money, there may be a situation where a citizen has partially complied with the requirements even before the start of the proceedings. In this case, the bailiff should take into account when issuing the recovery order that the fee is calculated from the amount that is payable at the end of the voluntary execution period. If the debtor provides evidence of repayment of part of the debt before the decision is made, then the size of the enforcement fee should be reviewed.
How is the amount calculated in a case that combines claims of property and non-property nature? One nuance should be taken into account here: the final amount will have to include two parts.
As for the writ of execution for periodic payments, as well as child support, penalties are taken from each debt separately.
Is a decrease in enforcement fees possible?
If the amount of debt is considerable, then, accordingly, the executive fee will be a significant amount. For example, with a debt of one million rubles, the penalty will be seventy thousand rubles. Agree, a lot.
Therefore, debtors often have a question about the possibility of reducing the size of the fee. The answer lies in the very Law “On Enforcement Proceedings”. According to him, a citizen can apply to the court with a statement of claim and challenge the bailiff’s decision on the amount of penalties or file a lawsuit for a deferment, maybe even installment payment. Claims are also possible for a reduction in the amount or even exemption from payment.
It turns out that if the bailiff did not take into account certain circumstances indicated by the debtor, then the citizen can go to court and challenge the enforcement fee of the bailiffs.
In general, if the amount of sanctions is considerable, then the citizen needs to file a claim for a deferral or at least an installment plan of recovery, in addition, there is the possibility of exemption from it or a decrease in the amount. Article 112 states that a court may, given the degree of a person’s guilt over the failure to execute a writ of execution, defer, installment interest. A reduction is also possible, but no more than a quarter of the amount established by law.
If there are no grounds for liability for violations established by the Russian Code, the court has the right to exempt a person from paying such a fee.
Citizens who apply to the court to challenge the bailiff's decision or come with a statement of deferment or installment plan should be aware that if the court accepted the application for consideration, the collection of the fee will be suspended until a decision is made. If the claims are satisfied in part or in full, then this decision shall be accepted for execution.
If the judge decides to reduce the amount of the fee, the bailiff’s decision is automatically changed. If at first the citizen paid the fee, and then he went to court, then the debtor is obliged to return the excessively paid funds.
What is the order of repayment of the amount of the enforcement fee?
According to article 110, the enforcement fee in enforcement proceedings is charged by the bailiff from the debtors and is compensated in the third place. What does it mean? And the fact that the debt is repaid after the full satisfaction of the position of the claimant and compensation for losses in the enforcement proceedings.
The fee for non-property matters is paid in the second place, that is, after the compensation of expenses for all activities.
Collection of fees under amicable agreements
What is a settlement? This is an agreement of several parties, in which we are talking about mutual concessions on duties and rights. The agreement may be concluded both during the trial and during the enforcement proceedings. But in any case, it must be approved by the court.
Since the fee is a sanction imposed on unclaimed debts, the conclusion of an agreement between the collector and his debtor does not relieve the person from liability for failure to comply with the bailiff's instructions on the execution of the sheet.
In a similar way, the issue of claiming the fee after the end of the case is also resolved due to the recall by the collector of the sheet. In fact, the revocation of the document does not give the debtor the right not to pay the amount due.
Instead of an afterword
As part of our article, we tried to highlight the issue of the executive fee. The topic is quite relevant, since many debtors have no idea what it is, and wonder why their debt is growing. After all, they do not know that not only the amount of debts is subject to payment, but also the executive fee for outstanding cases. We hope that our information has clarified the situation a bit and will be useful to you.
