Judicial practice to Article 22 Law on Bailiffs. On the cancellation of the decision of the senior bailiff on the cancellation of the termination and resumption of enforcement actions in enforcement proceedings

The end of the trial in many cases is followed by the stage of enforcement proceedings. Within its framework, court decisions, as well as other documents, are enforced.

Meanwhile, in a number of cases, the legality of opening enforcement actions raises reasonable doubts. In this case, how to challenge the decision to initiate enforcement proceedings?

Where to file a complaint against the decision to initiate enforcement proceedings? To the senior bailiff or straight to court? Read the article, if you have any questions, write in the comments below.

How to appeal a decision to initiate enforcement proceedings

In accordance with Art. 128 of the Federal Law “On Enforcement Proceedings” , decisions of an FSSP official, his actions (inaction), can be challenged in an arbitration court or a court of general jurisdiction in the area of operation of which the branch is located.

If an enterprise or citizen considers this document unlawful, then the legislation provides for several options for subsequent actions.

First of all, you can appeal the initiation of enforcement proceedings to the higher authorities of the bailiff .

In accordance with Art. 126 of the Federal Law “On Enforcement Proceedings” , a complaint filed in the order of subordination must be considered by an official of the bailiff service authorized to consider the said complaint within ten days from the date of its receipt.

Sample complaint against the decision to initiate enforcement proceedings (to the senior bailiff, in order of subordination)

The second way to solve the problem is to file an administrative claim in court against the bailiff's order . This applies to both civil and arbitration proceedings.

The court's acceptance of an application to challenge a decision or actions (inaction) of an official of the bailiff service suspends consideration of the complaint filed in the order of subordination.

Administrative claim to invalidate the decision of the bailiff

However, it should be taken into account that the actions of the bailiff can be appealed in court precisely within the framework of the execution of the relevant judicial act. In this case, you should contact the court that issued the writ of execution.

It is also possible to file a complaint against the actions of the bailiff to the prosecutor's office. This link in the law enforcement system is also capable of initiating the process of suspending enforcement proceedings.

It is possible that a lawyer can suggest a specific option for filing a complaint based on the circumstances of the case and all the documents available to the client. This applies to the contract, payment documents and other important information.

In any case, attention should be paid to the text of the resolution. At the end, the procedure for appealing the actions of the bailiff regarding the initiation of enforcement proceedings for alimony should always be prescribed.

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If you file a complaint with the bailiffs or the court, you must adhere to a ten-day deadline. It is calculated from the moment of receipt of a copy of the resolution on the commencement of enforcement actions.

How to appeal a bailiff’s refusal to suspend enforcement proceedings

If your rights and interests are violated by a refusal to suspend enforcement proceedings, you have the right to appeal it in the order of subordination. To do this, submit a written complaint to a superior bailiff, and within 10 days he will consider it on its merits. You can appeal not only to a higher bailiff, but also to court. This is not called an appeal, but a challenge to the decision and is done in accordance with Ch. 24 Arbitration Procedure Code of the Russian Federation or Ch. 22 CAS RF. But if you go to court and to a higher-ranking bailiff at the same time, consideration of the complaint in the order of subordination will be suspended. And if the court makes a decision, the bailiff will refuse to consider it.

1. How long does it take to file a complaint with a superior bailiff? File a complaint against the decision to refuse to suspend enforcement proceedings within 10 days from the day you learned or should have known about its adoption (Article 122 of the Law on Enforcement Proceedings). If you missed the deadline, submit a petition for its reinstatement along with your complaint. If the reasons for absence are considered valid, and the deadline within which you applied is reasonable, then it will be restored. Without a petition, in any case, you will be denied consideration of the complaint on the merits (part 1 of article 18, paragraph 2 of part 1 of article 125 of the Law on Enforcement Proceedings). Please note that it is very difficult to justify the validity of a pass. But if it's minor, your chances are higher. For example, the hospitalization of the head of an organization on a business trip in another region may be recognized as a valid reason.

2. How to make a complaint Fill out the complaint in writing and sign it with the head of your organization or a person authorized to do so by power of attorney. The individual entrepreneur can sign the complaint himself or entrust this to a trusted person. If it is technically possible, the complaint can be submitted in the form of an electronic document signed with an electronic signature (Part 1.1 Article 50, Part 1, 1.1 Article 124 of the Law on Enforcement Proceedings). Indicate in the complaint to whom you are filing it, and be sure to include in it (Part 2 of Article 124 of the Law on Enforcement Proceedings): 1) position and full name. the bailiff whose decision you are appealing; 2) your data: name of the organization and its location. If you are an individual entrepreneur, please indicate your full name. and place of residence or place of stay; 3) grounds for appeal. Describe what provisions of the law and other regulations the bailiff violated when he refused to suspend the enforcement proceedings. Justify why the resolution does not comply with these provisions and violates your rights and legitimate interests;

Example of wording In violation of clause 6, part 1, art. 40, part 4 art. 45 of Federal Law No. 229-FZ of October 2, 2007 “On Enforcement Proceedings,” the bailiff refused to satisfy the application to suspend enforcement proceedings, despite the fact that the arbitration court accepted for consideration the claim of Andromeda LLC to reduce the amount of the enforcement fee. Andromeda LLC reported this to the bailiff in its application for suspension of enforcement proceedings dated 02/18/2019 ref. No. 38. Attached to the application was a copy of the ruling of the Moscow Arbitration Court dated February 13, 2019 in case No. A40-987654/2019 on accepting a claim to reduce the amount of the enforcement fee for proceedings.

4)your requirements. Clearly and unambiguously formulate the demand to recognize the appealed decision as illegal (cancel it). Indicate all the details of the resolution to personalize it.

Example of wording In accordance with Part 4 of Art. 14, part 1 art. 121 of the Federal Law of 02.10.2007 N 229-FZ “On Enforcement Proceedings”, I ask you to cancel the resolution of the bailiff of the Dmitrovsky OSP of the Federal Bailiff Service of Russia in Moscow Avilov E.B. dated 02/22/2019 N 77023/19/37 on the refusal to suspend enforcement proceedings N 322245/19/77023-IP.

You can also include in the text of the complaint a request for restoration of the missed deadline for appeal, so as not to draw it up separately.

3. What to attach to the complaint Please attach to the complaint: 1) a document confirming your authority to sign the complaint. If it was signed by the manager, attach certified copies of the minutes or decision on his appointment and the charter. If signed by an authorized person, a power of attorney with the authority to appeal decisions and actions (inaction) of the bailiff. Without these documents, you will be refused consideration of the complaint on the merits (clause 3, part 3, article 57, part 1, article 124, clause 3, part 1, article 125 of the Law on Enforcement Proceedings, clauses 3.4, 3.5 of the Methodological recommendations for handling complaints); 2) documents confirming the circumstances on which the complaint is based. For example, copies of the appealed decision and the court ruling on accepting a claim to reduce the amount of the enforcement fee for proceedings. The law does not require you to attach them, but this way you can speed up the consideration of the complaint. If these documents are not available, and the superior bailiff, when considering the complaint, decides that they are still important, he will request them. And until he receives them, the consideration period will be suspended, but for no more than 10 days (Part 3 of Article 124 of the Law on Enforcement Proceedings); 3) a request to restore the deadline for filing a complaint if you missed it (part 1 of article 18, paragraph 2 of part 1 of article 125 of the Law on Enforcement Proceedings). This document must be attached provided that you did not include the petition in the text of the complaint. If you file a complaint in electronic form, submit the documents attached to it in the form of electronic documents signed with an electronic signature (clause 7 of the Rules for filing and consideration of complaints, clause 3 of the Procedure for submitting documents to the FSSP in electronic form).

4. To whom to file a complaint Indicate in the complaint a superior bailiff as the addressee. You are appealing the decision of the bailiff, which is approved by his boss - the senior bailiff or his deputy. Therefore, the addressee will be the chief bailiff of the constituent entity of the Russian Federation (subjects of the Russian Federation), to whom they are subordinate (part 4 of article 45, part 2 of article 123 of the Law on Enforcement Proceedings). You can submit a complaint either to the addressee or to the bailiff whose decision you are appealing (Part 4 of Article 123 of the Law on Enforcement Proceedings). In the latter case, use the address of the department of the Federal Bailiff Service of Russia from the text of the appealed resolution. We recommend sending your complaint through the bailiff whose decision you are appealing - the document will get to him faster. And he himself, within three days, will forward the complaint to a higher-ranking bailiff, who has the right to consider it (Part 5 of Article 123 of the Law on Enforcement Proceedings). If you nevertheless decide to send a complaint directly to a higher-ranking bailiff and make a mistake in choosing the addressee, don’t worry. If it turns out that he is not competent to consider your complaint, he himself will forward it to someone who has the right to do so, and he will notify you about this in writing (Part 6 of Article 123 of the Law on Enforcement Proceedings).

5. How to file a complaint You can file a complaint: by mail. We recommend doing this by registered mail with a list of attachments and acknowledgment of delivery. To prove the sending and receiving of documents by the bailiff department, you can generate a shipment tracking report on the Russian Post website; with the help of a representative. Any person authorized by a legal entity or individual entrepreneur to submit documents, including a courier, can deliver a complaint. Check with the bailiff department to which you are filing the complaint whether the courier should take with him a power of attorney to submit documents and a passport. Many departments require them; personally, if you are an individual entrepreneur; through your personal account on the public services portal (part 1.1 of article 50, part 1.1 of article 124 of the Law on Enforcement Proceedings, paragraph “b”, paragraph 6 of the Rules for filing and consideration of complaints, paragraph 3 of the Procedure for submitting documents to the FSSP in electronic form ). If you file a complaint personally or through a representative, request that a copy of it be marked as received by the bailiff service to prove that it was filed.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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On what grounds is it possible to cancel a decision to initiate legal proceedings?

First of all, this is the absence of debt itself. Thus, the bailiff can begin collection even when the case is at the stage of judicial proceedings and the contents of the final wording of the decision are not yet clear.

In this situation, you can apply, if not for cancellation, then for suspension of all enforcement actions.

Where and how to send a complaint

Let's consider who, where and how to complain about bailiffs.

The procedure for expressing written complaints about the work of bailiffs is clearly described in Federal Law No. 229-FZ “On Enforcement Proceedings”.

There are a few general things you should know when filing a complaint.

The first complaint is sent directly to the bailiff. He, in turn, is obliged to transfer it to the relevant bailiff service employees within three days. The service is obliged to provide a written response to the complaint no later than 30 calendar days.
If the actions from the previous paragraph did not produce any effect, a petition should be sent to the Office of the Federal Bailiff Service of the Russian Federation. The department most often takes prompt measures to satisfy the legitimate demands of the applicant, and also determines a proportionate punishment for the performer against whom the complaint is directed.
If such a petition does not resolve the situation, the victim has every right to appeal to the district court at the place of work of the bailiff. If the applicant is a legal entity, then you must apply to the arbitration court. The deadline for filing an application in this case should not exceed 10 days from the moment the violation was committed or from the moment the applicant discovered the fact of this violation. If this period is exceeded for some reason, a request for an extension with a detailed justification of the valid reasons should be attached to the application.

In addition to these authorities, a complaint can be submitted directly through the FSSP website, where there is a special form for this.

It is not worth mentioning that all materials related to the complaint - copies of appeals, answers, replies and others - must be kept by the claimant.

If the complaint is sent by mail, it must be a registered letter, and the counterfoil from it should also be kept.

What should be in the complaint

Regardless of the type of document (complaint or application to court), it may have the following approximate structure. First, write the name of the authority where the appeal is addressed, as well as information about the debtor and the collector.

Then all the data regarding the resolution on the opening of enforcement actions is provided. In particular, the number and date of the document, its author, as well as the essence of the requirements and their amount are indicated.

This is followed by a statement of the reasons why the decision on enforcement proceedings should be cancelled. They should be supported not only by references to legislation on enforcement proceedings, but also by reference to the provisions of the CAS or the Arbitration Procedure Code of the Russian Federation.

In conclusion, the competent authority should be asked to cancel the decision on enforcement proceedings. Applying to the court to cancel a decision does not require payment of a state fee.

Note! The state fee when filing an administrative claim to challenge a decision or actions (inaction) of a bailiff is not paid in accordance with paragraph. 3 pp. 7 clause 1 art. 333.36 of the Tax Code of the Russian Federation.

It is permissible to attach documents confirming the position of the debtor to the complaint or application. And if the legality of the bailiff’s actions is challenged by a lawyer, then the documents must also include a copy of his power of attorney.

Bailiff's Tools

The result of the bailiff's actions should be the collection of the debt by any legal means.

He is given two months for this, but in reality this period can be extended several times.

So, what actions does the claimant have the right to expect from the executor working on his case?

The bailiff has every right to make any requests regarding the debtor’s funds, his securities and property status.
If necessary, he can seize the debtor's accounts.
Finally, the bailiff can and is obliged to carry out measures to search for the debtor if his whereabouts are unknown. In order to increase the effectiveness of search activities, he has the right to involve law enforcement officers in them.

Most often, FSSP employees explain their inaction due to their high workload. In order to increase the priority of his case in the eyes of the bailiff, the claimant must directly control the process of his work.

How a complaint is processed

When it is submitted to the bailiffs, you can write in the appeal about your desire to be present during the consideration of the complaint.

If the commencement of enforcement proceedings is challenged in court, then the applicant must be summoned to court.

If there is a debt, then you can find out about the availability of enforcement measures in advance. It is enough to periodically familiarize yourself with the database of enforcement proceedings located on the FSSP website.

When the initiation of enforcement proceedings is successfully appealed, the corresponding decision is subject to cancellation. It will be important to obtain documentary confirmation from the bailiffs.

What may be the subject of a complaint?

Before filing a complaint, you must be sure that the claims will indeed not be far-fetched, and the applicant has legal grounds for this. So, what exactly can be appealed:

inaction of the bailiff;
resolution to initiate enforcement proceedings;
collection of enforcement fees;
illegal actions to assess, seize, seize and sell property;
imposition of a fine by the bailiff for failure to comply with any of his requirements;
other illegal actions that infringe on the rights of participants in enforcement proceedings.

In order to make sure that the bailiff is really not acting within the scope of his official powers, you should familiarize yourself in detail with the documents regulating the activities of the FSSP.

These are primarily the federal laws “On Enforcement Proceedings” and “On Bailiffs”.

Who has the right to challenge decisions of bailiffs

Who and when can file an application or complaint against a bailiff is stated in Article 121 of the Federal Law, which is called “On Enforcement Proceedings”. Also in the Civil Law Code there is Article 441, which states that only those who are directly involved in enforcement proceedings can challenge the order of the bailiffs, complain about inactivity or the commission of illegal actions on the part of the SSP employees. Also among those who can file an application - a complaint - are third parties if their rights were violated by the actions of the bailiff. As a result of filing a complaint, the bailiff himself becomes the defendant in the case. But not only the above-mentioned entities take part in the consideration of a complaint against the bailiff. The opposite party, which participates in enforcement proceedings, is required to be called.

Results of the complaint consideration

If the bailiff’s inaction is considered illegal, then, depending on the authority that considered the complaint, one of the following decisions will be made:

When considering a complaint by the head of the Federal Bailiff Service. The bailiff will be charged with the obligation to perform the necessary action, illegal decisions will be canceled, and the inactive bailiff himself may be subject to disciplinary action.
When considering a complaint (administrative claim) by a court. The court will recognize the bailiff's inaction as illegal and will oblige him to fulfill his duties in enforcement proceedings, up to and including directing him to perform a specific action. In case of gross violations of the law by the executor, it is possible, in parallel, for the court to issue a private ruling and forward it to the immediate supervisor of the FSSP.
When considering a complaint by the prosecutor's office. The prosecutor is also entitled to go to court with a demand to challenge the inaction of the bailiff, when this is necessary to protect the rights and interests of an indefinite number of persons, but such measures on complaints from organizations are taken extremely rarely. If signs of an administrative offense or a criminal offense are identified in the actions of the bailiff, the prosecutor's office transfers the material to the inspection according to its competence.

How to appeal a decision

The appeal procedure will depend on the method chosen. There are two standard options:

Submitting an application to a higher authority.
Transferring the complaint to court.

In accordance with Article 121 No. 229-FZ, some types of decisions cannot be appealed through a higher authority. You will definitely need to go to court. Thus, a decision to collect an enforcement fee can only be canceled by a court, as well as a decision of the chief bailiff.

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Article 122 No. 229-FZ determines the period within which the complaint must be filed. So, as a general rule, the period is calculated from the moment the decision is made and is 10 days. If the person whose right was violated did not know and could not know about the issuance of the document, then the period is calculated from the moment of his notification.

The procedure for appealing through a higher authority is determined in Article 123 No. 229-FZ:

the resolution of the executor or deputy senior bailiff is submitted to the name of the senior specialist, that is, to the immediate head of the department;
decisions of the senior bailiff are appealed through the head of the region;
The decision of the chief bailiff of the subject is appealed through the chief bailiff of the Russian Federation.

The form and content of such a complaint are determined on the basis of Article 124 No. 229-FZ. The document requirements are as follows:

the paper is drawn up in writing;
a power of attorney is attached to the document if it is signed or submitted by a representative of the person, or another document that confirms the authority of the representative;
All documents necessary for its consideration are attached to the complaint;
the document must be signed.

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The complaint must include the following information:

applicant's details;
data of the bailiff who issued the decision that is being appealed, as well as the document itself;
grounds for appealing the document;
applicant's requirements.

If, when considering a complaint, the bailiff requires additional information or documents, the specialist who is considering the complaint may request them.

Reasons

The main thing in the law is the protection of human rights and freedoms. Even if the court made a decision not in favor of the debtor, the latter still has rights that should not be violated in the process of enforcement proceedings. The provision that a person has the right to protect his rights is stated in Article 46 of the Constitution of the Russian Federation.

Bailiffs in their activities are guided by federal law number 229, adopted on October 2, 2007. This legislative act also contains a rule on how to properly appeal the actions of SSP employees. Chapter 18, Article 121 contains the following provisions that relate to issues of challenge:

Only participants in enforcement proceedings have the opportunity to file a complaint against the action or inaction of the bailiff. In this case, the application is submitted to higher management or challenged in court.
If the decision is made by the chief bailiff of the Russian Federation, then his actions can only be appealed in court.
When a bailiff's challenge is refused, only the author of the challenge can challenge this decision. If the request for the recusal of the SSP employee is positive, then complaints are not accepted and the decision does not change;
If a ruling is issued that a court fee must be collected, then a complaint can be filed against such actions.

Going to court

The claim must be sent to a court of general jurisdiction or to an arbitration court. The application is completed using the following template:

name of the government agency to which the document is sent;
FULL NAME. applicant, residential address;
details of the defendant (full name of the bailiff, position, address of the FSSP unit);
data of the interested party, for example, the debtor;
information about enforcement proceedings (when initiated, the essence of the requirement, etc.);
a description of the actions (or inaction) of the bailiff that do not suit the applicant;
indications of which rights of the interested person have been affected;
references to legislation;
reference to Article 121 of Law No. 229-FZ and Article 220 of the CAS of the Russian Federation;
the essence of the applicant's demands;
list of written evidence;
signature, surname and initials of the citizen.

Additionally, you can request a suspension of the bailiff's decision.

The court examines the claim and makes decisions taking into account the norms of the CAS RF. The time frame for consideration of an appeal is limited to 10 days based on the provisions of Article 122 of Law No. 229-FZ.

In order for an appeal against the bailiff's decision or the inaction of the said employee to be successful, you should carefully monitor the work of the official. Citizens are often afraid of bureaucratic red tape and miss deadlines for filing complaints regarding bailiffs’ failure to fulfill their duties.