The problem of the enforcement of decisions is considered key in the practice of the domestic judicial system. Quite often, the person who won the case cannot achieve the implementation of the decision. This situation is caused by many reasons. For example, this may be due to insufficient activity of the bailiff, who, due to the heavy workload, is simply not able to perform the entire amount of work. However, the main reason is still the respondent’s reluctance to execute the decision. 
Astrant Institute
Not all turnover participants are willing to voluntarily repay their debts. Existing measures aimed at enforcing decisions are not always effective. All these problems led to the fact that YOU introduced the institute of astrant. Its essence lies in forcing the defendant to pay the plaintiff a certain amount of money for each day or week / month, etc., delay in the execution of the resolution stipulating the obligation to commit one or another action or to refrain from it.
Appointment
Astrent was normatively fixed by the Decree of the Plenum of the Supreme Commercial Court of Ukraine No. 22 of 2014. In addition to this act, the concept is also mentioned in some documents adopted by the Presidium of the Court. The accumulated experience in the use of astrant by the authorities was systematized. Subsequently, it was implemented in Art. 308.3 of the Civil Code. According to this norm, astrant is considered as a judicial penalty. The Civil Code of the Russian Federation provides that it is charged at the request of the creditor in case of default by the debtor of his existing obligation in kind. We turn to the normative interpretation. The Code provides that if the debtor does not fulfill the obligation, the creditor may demand through the court to pay it in kind, unless otherwise established by the Civil Code, another law or contract, or does not follow from the essence of the legal relationship. Instance at the request of the interested party may impute to the second participant a certain amount of money. The size of the judicial penalty It should be established on the basis of the principles of proportionality, justice, and the inadmissibility of deriving benefit from unfair or unlawful behavior. The assigned amount must be accrued until the obligation is paid off (execution of the decision). In this way, You can formulate a goal for which a judicial penalty has been introduced. Civil Code of the Russian Federation considers it as a way stimulating the debtor to speedy performance of appropriate actions. 
Application features
As art. 308.3, recovery of a judicial penalty allowed if the creditor has the right to submit a claim for the performance of the obligation in kind. In this regard, the Armed Forces indicated that the rules for applying the institute of astrant do not apply to monetary debts. It follows from this that it cannot be charged penalty for alimony. Judicial practice waiver from satisfying the relevant requirement, he substantiates this by the fact that the Code already stipulates liability for failure to fulfill such obligations (Articles 317.1 and 395). However, it is worth considering one nuance. Alimony obligations may also be awarded in non-monetary form. For example, the defendant, by order of the court, must transfer some property in favor of the plaintiff. In this case, in the event of default court judgment.
General rules
Imputation requirement judicial penalty may be filed both with the issuance of a decision on compulsion to repay the obligation in kind, and in the future, as part of the enforcement proceedings. In accordance with the adopted acts, individual ILs are issued. Judicial Decisions shall be executed only at the end of the period established for the repayment of the main obligation in kind. The fact of non-performance or improper performance is determined by the bailiff.
Term
If the debtor is charged judicial penalty, the resolution on this should contain an indication of the period in which the entity must repay the obligation in kind. After its expiration, in case of non-execution of the act, the calculation of the amount for the delay begins. When determining the period in which a person is obliged to comply with the requirements, the authority must take into account the defendant's capabilities, the level of difficulty in implementing the requirements, other factors that can be called significant. In this regard, the obligated person must provide evidence with which he substantiates the real period within which he will be able to fulfill the requirement. For example, if the debtor is entrusted with the obligation to transfer some things with certain generic characteristics, and some of them are absent from the defendant, he can provide documents or other materials confirming the period in which he will receive the items from third parties. 
Important point
Separately, a new approach should be considered, which is used in relation to obligations for the transfer of things determined by generic characteristics. Until recently, the authorities proceeded from the fact that a person who is obliged to transfer such material values, for example, under a supply agreement, can refuse to fulfill it, then the acquirer also gets the opportunity to exit the transaction, buy the necessary goods from a third party, and then apply to the first counterparty for damages. The following is currently common case law. Today, the debtor’s lack of the necessary number of things for transfer to the creditor does not exempt him from fulfillment of the obligation, if it is possible by acquiring them from third parties. This means that the implementation of the requirements can be done with astrant. Judicial practice for forfeit also testifies that the amount may be charged to the debtor even in the case when the creditor requests the coercion of the defendant to abstain from taking certain actions. Astrent can also be used in the case of a negative claim.
Calculation of judicial penalty
As stated in Article 308.1, the amount is determined on the basis of the principles of proportionality, fairness, and the inadmissibility of deriving benefits from unfair / illegal behavior. The court determines the amount of the penalty on its own. In this case, a fixed amount to be paid for a specific period of non-compliance with the decision is indicated. It can be a day, a month or a week. The court also has the right to indicate a different procedure for determining the amount. In any case, the amount of the penalty should put the defendant in a position in which failure to comply with the decision would be extremely disadvantageous for him. This will be a factor stimulating the early repayment of the obligation. 
Nuances
Amount imputed for delay (judicial penalty) is not taken into account when establishing the amount of losses incurred as a result of default in kind. These losses must be compensated in excess of it. If there are circumstances that create obstacles to the execution of the decision on the repayment of the obligation in kind within the prescribed period, the debtor may ask for installments / deferrals. In such a situation, it is necessary to determine the period within which the penalty will not be charged.If the creditor unreasonably (illegally) does not accept proper execution from the debtor, the latter is not obligated to pay the imputed amount. This rule is valid from the moment the plaintiff refuses.
Overdue charge options
Judicial penalty charged to the defendant at the request of the plaintiff. He can offer a fixed amount or determine a different accrual procedure acceptable to him. Consider, for example, collection of forfeit from the developer. Trial instance can do as follows. For the first 30 days (calendar) of non-execution of the decision on the repayment of the obligation in kind (transfer of the apartment) 2 thousand rubles / day are assigned. Calculation is carried out after a month from the date of entry into force of the act. Over the next 30 days, the defendant is charged with 4 thousand rubles / day, and for all subsequent days - 8 thousand rubles / day. A slightly different procedure may be provided for according to which penalty with the developer. Arbitrage practice, for example, offers the following scheme:
- for the first week - 10,000 p .;
- for the second - 20 thousand p .;
- for the third - 40 thousand p .;
- for the fourth - 80 thousand rubles;
- from the fifth week - 160 thousand p. for the full 7 days of delay.
Thus it is envisaged to increase the amount depending on the date of execution of the decision by the defendant. Judicial practice to reduce the penalty not properly distributed. This is due to the following. Increasing the amount is extremely beneficial for the plaintiff. The progressive value is a great incentive for the debtor to pay off the obligation as soon as possible. The opposite effect is reduced penalty. Judicial practice proceeds from the fact that in this case, the use of astrant loses all meaning. Meanwhile, in some cases, the amount may be revised. Do not forget that when appointing judicial penalty court should be guided by the principle of reasonableness and analyze the solvency of the defendant. The amount imputed to him must be affordable and adequate. If the financial condition of the debtor does not allow the payment of the penalty, he has the right to petition for its reduction.
Changes in the agro-industrial complex
In 2016, the institution of a court order was introduced into the arbitration process. This has given rise to a number of problems. First of all, by court order forfeit cannot be withheld from the defendant. The fact is that the demand for her imputation is not certain. Based on 333 articles of the Civil Code, the penalty can be reduced.
Restrictions on the use of astrant
As mentioned above, a judicial penalty cannot be imputed to a debtor who does not fulfill monetary obligations. Meanwhile, there are other situations in which astrant is not applicable. When deciding on the imposition of a penalty for forcing the defendant to repay the obligation in kind, it is necessary to take into account first of all whether the use of a coercive measure is permitted by the law or the terms of the contract. There are many debts, the claim for which cannot be presented in the framework of the lawsuit. For example, if the subject refuses to perform his songs at the event, the organizer cannot send a statement to the court to force the person to do so. If he makes such a claim, his satisfaction will be denied. Accordingly, the rule on judicial forfeit is not applicable. In situations where the creditor cannot demand repayment of the obligation in kind within the framework of production, you need to apply for compensation for losses. 
An exception
The court cannot refuse to satisfy the claim for repayment of the obligation in kind if the defense of the plaintiff’s violated right is possible only by means of coercion of the defendant. In other words, if the imputation of compensation for damages does not ensure the achievement of the goal of justice.This rule, for example, applies in a situation where it is a question of an obligation to provide information, to produce documents that are within the competence of only the defendant.
Restrictive circumstances
Among the factors that impede the use of astrant are the following:
- Inability to provide an individually defined object in connection with its death. In this case, the interested party can only receive compensation for losses. Another state of affairs is the obligation to provide things that are determined by gender. If they die, the defendant can transfer them if he acquires similar values from a third party. The provision of an individually defined object for gratuitous use, rental, storage does not create obstacles to meeting the requirements stated by the creditor-acquirer to the debtor alienating him about the fulfillment of the obligation to transfer the property. In such cases, the parties to the dispute are those who retain the value legally. If circumstances arise that create obstacles to the performance of obligations in kind after a court decision is made, the creditor and debtor should consider that from the moment they arise, a penalty cannot be charged.
- The issuance by the structure of territorial or state power of an act that is contrary to the repayment of arrears in kind.
Additionally
Judicial forfeit cannot be established for disputes considered under the rules of administrative court proceedings, as well as ch. 24 AIC arising from family, pension, labor, personal relations of relatives, as well as related to social security. The parties to the agreement must take into account that they cannot exclude the application of Art. 308.3 of the Civil Code. A creditor's refusal to impose a forfeit will be deemed invalid if, by the direction of the law or by virtue of an agreement, he is not deprived of the right to present a demand for repayment of obligations in kind. However, the norms allow the possibility to exclude the application of this article at the stage of execution of the decision. In other words, the parties to the dispute may conclude an agreement to terminate the obligation to pay the penalty by forgiving the debt, novation or compensation. By universal succession, the right to demand payment of a sum of money for late performance does not cease. The obligation to pay passes to the successor in full. 
Special cases
In practice, the question often arises - can an interested person who has a resolution that has come into effect but not executed by the defendant, demand the recovery of the penalty not from the date the decision on its imputation entered into force, but from the moment the debtor was obliged to fulfill the initial prescriptions, i.e. retrospectively? It is worth saying that the opinions of the authorities on this issue were divided. In some decisions, a position is traced according to which the recovery of the penalty is thus allowed. So, for example, one plaintiff who won the dispute sent a request for imputation to the defendant of a sum of money for pending execution of the decision. The court, however, indicated that the law did not provide for the recovery of a penalty for failure to execute an act in the past. It is also necessary to take into account that instances often do not satisfy the requirements of the plaintiffs, if after their presentation the obligation in kind was nevertheless repaid. At the same time, in practice there are opposite results of the consideration of cases. Some instances consider it quite acceptable to impose a monetary amount during the delay until the decision on its accrual is made. In this case, as the courts indicate, the penalty has a compensatory nature.
Conclusion
Judicial practice has shown that judicial penalty is a very effective and very important tool.It can be used in a wide range of cases. Such a large coverage significantly increases the plaintiffs' chances for a favorable and prompt resolution of the conflict. Meanwhile, it must be remembered that not in all cases this institution works as the interested subject would like. It should be borne in mind that the effectiveness of such incentives will depend directly on the financial condition of the defendant. If the debtor is financially secure, then the use of astrant is justified. In this case, the judicial penalty will bring the results that the plaintiff expects from it. The situation is different with entities that do not have significant assets. In such situations, the use of astrant will only plunge the obligated person into an even deeper debt hole. That is why the rules established that when determining the amount of the forfeit, the courts should be guided by the principles of proportionality, fairness and inadmissibility of making profit from unlawful or unfair behavior. In this case, the property status of the defendant must be examined. It is necessary to develop such a mechanism that will ensure the execution of the resolution, avoiding the infringement of the rights and interests of any party. Legislation provides various opportunities for the defendant. He may, inter alia, apply for an installment plan or a deferral of execution of a decision. However, at the same time, he must give good reasons why he is not able to repay the obligation on time. Their respect will be assessed by the court.