Refusal to initiate enforcement proceedings is the action of the bailiff, indicating the absence of grounds for accepting executive documents for production. The following is a list of reasons for refusal and other related nuances.
Production Features
Enforcement proceedings are a continuation of the judicial process, mainly civil, although the law affects the execution of decisions of arbitration courts, as well as judicial acts adopted as a result of consideration of administrative claims and acts of other bodies.
The actions of the bailiff are regulated by law, by-laws and guidelines. Periodically, the issues of its activities are covered by the PPVS and practice reviews.
Denial of Authority
Refusal to institute enforcement proceedings is an action regulated by law. The bailiff is not entitled to commit it at his discretion. All movements in the case, one way or another, are described in law. The list of grounds for refusal is exhaustive, another thing is that they are not collected in one article.
When a refusal to initiate enforcement proceedings is possible, it is indicated in Art. 31 laws. The grounds can be divided conditionally into two groups:
- the first is formal and recoverable violations;
- the second - the circumstances in principle exclude the proceedings.
In the case of the first category, the applicant may again turn to the bailiffs to open the proceedings; in the case of the second category, the appeal does not make sense unless the court cancels the bailiff's decision.
List of grounds for refusal
The applicant has the right to open a case if:
- the writ of execution arrived without an application or the application does not have the signature of the applicant;
- the application was submitted to the wrong administration (the principle of territoriality is violated);
- Missed deadline for submission of an executive document;
- The executive document does not comply with the requirements of the law;
- production was already underway on the same executive document, and it was discontinued;
- the document on the basis of which the writ of execution was not entered into force;
- the court delayed or ordered the execution of the decision by installments;
- a writ of execution obliges the child to be illegally displaced across the border, but the child has reached the age at which execution is excluded, for example, an 18-year-old. An international agreement may provide for a different age limit.
The list of grounds for refusal to institute enforcement proceedings is wider, and article 31 directly refers to other provisions of the law.
Statement flaws
The initiator of the enforcement proceedings is the claimant who wrote the application. Its form or sample is provided either on the website or in the service department.
Usually, citizens forget to sign or the person representing the interests of the claimant, forgets to attach a copy of the power of attorney. Other disadvantages are the lack of a bank account number to which money transfers are made, information about the collector and debtor, their place of residence, etc. Oddly enough, but writing a statement causes difficulties for citizens.
The principle of territorial work
The bailiff's refusal to initiate enforcement proceedings is possible due to contacting the wrong unit. What does it mean? The distribution of activities is based on zoning.For example, a district court serves the Leninsky district of the city, there is a bailiff unit serving the same territory. And, if the writ of execution was issued by a Leninist court, its execution rests with the department of the FSSP of the same region.
The exception is consolidated production, combining several cases. In this case, the group of bailiffs is not limited to one district. However, the decision to transfer production to the group is taken by management.
Expiration
3 years are given for the execution of a decision that has received legal force. There are other cases, in particular, in child support, in compensation for damage to life and health, where the duration of execution is longer.
If time is lost, the collector appeals to the court with a request to restore it. The statement demonstrates the validity of the reasons for the omission, the fact that the applicant could not apply to the FSSP for objective reasons beyond his control.
This issue is resolved exclusively at the court level, and here the refusal of the bailiff to initiate enforcement proceedings is more than justified.
Executive document does not comply with the law
Art. 13 of the Law on IP indicates requirements for the content of the executive document. For example, what information is indicated on a court decision, a resolution on the search for a child.
Additional requirements relate to cooperation with other countries in the area of enforcement proceedings in accordance with international treaties, in particular, the Minsk and Chisinau Convention between the CIS countries.
If, for example, there is no signature or seal of officials and the body that must be present on the document, the bailiff refuses to open.
The same applies to notarial documents and other securities subject to execution.
Production was previously discontinued
Sometimes production is closed after prescription if the debtor does not have property or income that would serve as a source of debt repayment. The bailiff has the right to close the case for impossibility of recovery.
The grounds for refusal to initiate enforcement proceedings are provided for by a whole series of articles, for example, in the event of the death of the debtor, or the cancellation of the act on the basis of which the penalty was made (Articles 43, Article 103, etc.).
Deferral, installment plan and lack of legal force
The court may make a decision on installments or deferment for good reason, at the request of the defendant. In this case, the execution is postponed, and enforcement is impossible.
It may happen that the judicial act has not yet entered into force, but a writ of execution has been issued for it. If there is no court ruling on the immediate execution of such a decision, then the opening of proceedings will be illegal.
Execution of the decision
The decision on refusal to initiate enforcement proceedings is executed in accordance with the law and departmental instructions, in particular, methodological instructions.
The list of information in the order of the bailiff is as follows:
- name of divisions, office address;
- decision date;
- position, surname, initials of the bailiff;
- production number (usually the one assigned to the case in court);
- resolved issue (on the opening of production);
- reference to legislation;
- the substance of the decision (to refuse to open proceedings on the application of the applicant's full name);
- the procedure and deadlines for filing a complaint against the decision (often distorted and does not comply with the law);
- date and signature.
The document must be signed by the staff of the office.
Appeal Procedure
An appeal against the refusal to institute enforcement proceedings is provided for in two ways:
- by filing a complaint to the head of the bailiff department;
- by filing a complaint with the court in accordance with the CAS procedure (the latter applies to all enforcement proceedings, regardless of which authority issued the writ of execution, except for the arbitral tribunal).
The total appeal period is 10 days from the date of the rejection or from the moment when it became known about it.
Scheme of complaint to the chief
The application is made out as follows:
- name of the official’s body (or simply to the head of the department without indicating the name and initials);
- information about the applicant (address of residence);
- information about the production (number and subject of production);
- a description of the circumstances, the reasons for the reference to the law, why the refusal is illegal;
- request (to cancel the decision on refusal, its number, date, by whom it was issued);
- signature and date.
Court complaint scheme
Procedure for filing a claim:
- plaintiff - applicant information about him;
- defendant - bailiff;
- debtor - a third party and information about him;
- circumstances of the complaint;
- arguments about illegality;
- a request to cancel the decision and oblige to initiate enforcement proceedings;
- list of attached documents;
- signature and date.
The number of copies of documents according to the number of participants in the process. Judges often oblige to pay a state fee, although it is not needed here.
Judicial practice on refusals to initiate enforcement proceedings shows the formality of the actions of the bailiffs. The reasons why they refuse are often far-fetched and related more to the desire to delay the start of new production, as management puts pressure on employees due to statistical indicators.
The term for an appeal is usually counted from the moment when it became known about the decision, in fact from the time the document was received. In order not to run into obstacles, lawyers, insuring themselves, ask to restore the deadline for filing a complaint, citing delays due to poor work of the mail.