- Petar Topurov, lawyer, assistant at the State and Law Institute at the BAS,
Content
I. Introduction
The following question is of interest for this publication - if the enforcement proceedings are terminated on any of the grounds under Art. 433, para. 1 of the Civil Code in respect of the original claimant, may the acceding State to support the loftiness of the final or executive proceedings or it should be discontinued and regarding her?
II. The different opinions
There are two main opinions regarding the question:
1. According to the first executive proceeding may be left hanging in relation to the state - in its capacity as a joined claimant[1].
A main argument in support of this position is the possibility that the claimant joined by right to be used from the enforcement actions carried out before the accession (Art. 457, para. 2 of the Code of Civil Procedure), such as when the case is terminated in relation to the "main" claimant, those joined by right could continue the performance[2]. It is also held that in the hypothesis of multiple claimants the original claimant no may at its own request neither to suspend the execution, nor to terminate it, nor even to postpone it, without the consent of an attached claimant[3], as otherwise would senseless the institution of the joining of claimants in enforcement proceedings. The State should also make a request for the termination of the proceedings to be terminated against it as well[4]. Termination of the enforcement proceedings also in relation to the legally acceded state in the presence of its unsatisfied public claims, would also lead to bypassing the imperative provisions of art. 191 of the Code of Criminal Procedure and Art. 458 of the Civil Code[5].
2. According to the second opinion upon termination of the enforcement proceedings in relation to the principal claimant, it also terminates with respect to the state- in her capacity of joined rightfully so[6].
Such a position is argued by the fact that for the state it exists independent and extremely simplified from a procedural point of view and nature of the order for the collection of public receivables - the one under DOPC. Supporters of the second opinion assume that the joining of the state in the enforcement process under the Civil Code no does it independent claimant. In the case of continued enforcement by the legally acceding country, there would be no executive title, which would justify carrying out independent execution in her favor according to the Code of Civil Procedure. Hence, it is assumed that when the execution is terminated, the procedural order for realizing its public claims remains for the state according to the order of DOPC, therefore for her no it is necessary to give consent to the termination of the execution in accordance with the Code of Civil Procedure. It is accepted that in the enforcement process under the Civil Code the state is latent claimant insofar as he joins in an already instituted enforcement process and benefited solely from the activity of the original claimant[7]. Other court decisions define the state as "passive" claimant[8].
In some decisions, a specific thesis about the legal position of the original and joined claimants is also advanced. The initial is defined as "executive master", whose procedural rights are different from the point of view of being able to request the performance of enforcement actions, suspension, termination or termination of enforcement (defined generally as enforcement actions). Proponents of this thesis accept that when the original claimant wishes to exercise his right to order enforcement, the bailiff is obliged to comply, "regardless of what the joined creditor's opinion is and regardless of whether the claim of the other joined claimants by right or by application has been discharged by payment or otherwise."[9].
III. Answer to the questions asked
In this part of the text, an answer will be given to the question which of the two opinions corresponds to the existing legal framework and whether the latter could be improved.
1.1. First of all, it should be pointed out that Art. 457 of the Civil Code expressly provides that the joined claimants have the same rights in the enforcement proceedings as the original no exceptions to this rule, including the "disposition" of the fate of the proceedings by terminating them based on the unilateral will of the original claimant. This conclusion is supported by the fact that Art. 433, para. 1, item 2 of the Civil Code and Art. 432, para. 1, item 2 of the Civil Code do not provide that only the original claimant can request the suspension/termination of enforcement proceedings, but speak generally about a claimant, accordingly the general rule of law is that stopping/prevocation of the executive proceedings under Art. 432, para. 1, item 2 of the Civil Code/Art. 433, para. 1, item 2 of the Code of Civil Procedure in relation to all claimants can only have a will to do so on the part of each of them[10].
1.2.1. Apart from the need for consent for the termination of the proceedings, based on the principle rule of Art. 457 of the Civil Code should be recognized and the right of the legally acceding country to request that new enforcement actions be taken by the bailiff. The existing one imbalance between the procedural possibilities for the collection of public state receivables by the state and the other creditors of the debtor no can justify limitation of procedural rights of the state in its capacity as a rightfully joined creditor in the enforcement proceedings instituted under the Civil Procedure Code.
1.2.2. However, it leads to a conclusion about the need to rethink the legal framework and achieve equality in procedural opportunities between creditors with public and those with private claims. This could be achieved by arranging Fra new rule in the CPC to allow creditors with private claims to join enforcement actions taken by the state[11]. The joining by law of the state in the enforcement proceedings under the Code of Civil Procedure and the joining of creditors with private claims in the enforcement proceedings under the Code of Criminal Procedure it would also be in the interest of the debtors, insofar as accession would limit the initiation of new proceedings in which identical costs would be charged, for which the debtor would be liable, such as those for the initiation of proceedings, the re-imposition of protective measures, the carrying out of inquiries already made, etc.
2. At the same time, the thesis that the original claimant is the only "master of the executive process" and the others are completely dependent on his activity, has no stable basis in the existing legal framework.
Quite the opposite - Art. 457 of the Civil Code provides equal rights of the original and joined claimants. A similar thesis could be adopted conditionally in relation to the creditors under Art. 459 of the Civil Code, but with the clarification that the Code of Civil Procedure provides additional guarantees for their forced satisfaction regardless of the will of the original claimant, expressed in the rule that the amount due to the secured/mortgagor/pledging creditor should be kept in the bailiff's account and handed over to him after presenting a writ of execution. Hence it must be assumed that even in this case the original claimant there is no the quality of "absolute master of the executive process".
3. We cannot share the opinion that the Civil Code regulates the legal position of the state in the enforcement process as a "latent" or "passive" claimant. However, often in practice the state, acting through the NRA, perceives the actual one role of a passive and latent claimant who is only interested in the legality of the distribution of the amount collected in the enforcement case carried out in the enforcement process under the Code of Criminal Procedure.
It is necessary to support the opinion that the passivity of the debtor's creditors within the framework of the enforcement process instituted against him could unduly affect its financial stability, insofar as there is pending enforcement proceedings against him, on which no actions have been taken for a relatively long period of time, but significant fees have been charged for those already taken for enforcement actions already carried out, which did not lead to the full satisfaction of his creditors. One of the legislative measures against such negative consequences for the debtor is the rule of art. 433, para. 1, item 8 of the Civil Code. It should also be applied to the remaining as the sole claimant in the enforcement proceedings according to the Code of Criminal Procedure of the State - insofar as it has not been requested to perform enforcement actions for two years, the enforcement proceedings withcan hardly be considered discontinued ex lege under the cited provision[12]. However, it could be considered to reduce the term under Art. 433, para. 1, item 8 of the Civil Code up to one year. In this way, the claimants would be more motivated to actively maintain the pendency of the enforcement proceedings, and on the other hand, proceedings in which no enforcement actions were requested for a long period of time, but which continue to have a negative effect on the financial situation, would also be reduced. stability of debtors.
4. The above conclusions are also supported by the purpose of the regulation of Art. 458 of the CPC viz the creation of proper procedural guarantees for the implementation of the provisions in art. 136 of the ZZD privileges[13]. Joining creates equal opportunity for satisfaction from the property of the debtor, secured by equal procedural opportunities[14]. Accepting otherwise could lead to eo possibility of abuse of rights to the detriment of other claimants.
4.1. Such an abuse would have, for example, in a scenario where the original claimant files a request for non-execution withdirect property from which the joined claimants (including the state) would be satisfied and who would not have this opportunity in other proceedings, for which there is no previously registered security measure or loss of non-sequestrability[15].
4.2. It is also possible a third party obligee has paid the debtor after being served with a garnishment notice. According to Art. 452, para. 3 of the Code of Civil Procedure of the joined creditors may request payment from that third party obligee notwithstanding the payment it has made to the debtor, the persons of the governing bodies of this third party liable jointly and severally with him. If we assume that the enforcement proceedings should be terminated not only in relation to the original claimant, but also in relation to the legally annexed state, the possibility expressly provided by law to request payment from the "bad payer" third party obligee, would be meaningless and the public claims of the state could remain unsatisfied.
4.3. The original claimant could also negotiate with the debtor extrajudicial debt settlement, a in the meantime, an undistributed amount has been received (or will be received) in the execution case. The filing of an application for the termination of the proceedings by the original claimant and the non-distribution of the amount in favor of the state could frustrate her subsequent gratification, to the extent that the amounts are returned to the debtor, and she does not promptly initiate proceedings under the procedure of the Criminal Procedure Code[16].
5. It should also be taken into account the fact that the legal framework of the Code of Criminal Procedure adopts the approach of "statement" of the public claims of the state instead of certifying them with a writ of execution or a direct enforceable basis[17]. Hence, the absence of a writ of execution issued in favor of the state does not in any way lead to the conclusion of a statutory limitation of its procedural rights in the enforcement proceedings according to the Code of Civil Procedure, insofar as Art. 458 of the Civil Code provides "statement" of the public receivables of the state, and Art. 191, para. 4 of the DOPC the presentation of certificate before the bailiff, which contains information about the amount of the same. This stems from the various enforcement grounds, which condition the initiation of enforcement under the procedure of the Code of Criminal Procedure (Article 209).
IV. Conclusion
In view of the above, it should be assumed that the legal regulation provides that in cases where the enforcement proceedings are terminated with respect to the original claimant, the same shall not be terminated with respect to the joined under Art. 458 of the CPC state, the latter having the same rights in enforcement proceedings as the original claimant had.
Despite the conclusions drawn, there is a need to overcome the existing imbalance in procedural options between creditors with public claims and those with private claims. A step in this direction would be the settlement of an opportunity in principle to join creditors with private claims in the enforcement proceedings under the DOPC. There is also a need to limit the too long impact on the legal sphere of debtors as a result of pending enforcement proceedings for a long period of time, regardless of the passivity of his creditors. One of the measures to overcome such an imbalance between the pursued legitimate goal and the means used could be the reduction of the term under Art. 433, para. 1, item 8 of the Civil Code.
Petar TOPUROV, attorney-at-law, assistant professor at the State and Law Institute at the BAS
[1] Decision No. 798 of 23.06.2020 of the OS - Varna pursuant to City Decree No. 1322/2020; Decision of 03.01.2018 of OS-Sliven according to city of residence No. 585/2017; Decision of 07.04.2016 of RS-city. Sliven under city ordinance No. 108/2016; Decision of 09.07.2018 of OS-Varna according to city ordinance No. 1512/2018; Decision of 21.09.2017 of OS-c. Sliven according to City Decree No. 389/2017; Decision of 18.12.2018 of OS-c. Burgas according to city ordinance No. 966/2018 For the different opinions on the pendency of the proceedings in relation to all kinds joined claimants and in the hypothesis of art. 433, para. 1, Item 3 from the Code of Civil Procedure, see Ivanov, D. Consequences of the termination of the enforcement proceedings in the hypothesis of Art. 433, paragraph 1, item 3 of the Civil Code, regarding the joined claimants, published on the gramada.org website on 06.07.2017, last accessed 09.24.2020. The author supports the thesis that “is there an attached creditor, whether with or without enforceable title, upon invalidation of the writ of execution in the case, the execution is terminated against that creditor only, while relative to the joined case left hanging as depending on the accession, the creditors with other titles (execution sheets or certificates) can continue execution, while compared to those joined under Art. 458 and 459 CPC creditors proceedings remains hanging, until an executory title is granted".
[2] The publicly available opinion of the executive director of the National Narcotics Agency Krasimir Stefanov (appointed to the position in February 2009) on the questions asked was the following: "The consequences from the accession to each creditor, including the state are that the joined claimant has the same rights in enforcement proceedings, as there are the original one claimant / art. 457, paragraph 1 of the Civil Code and Art. 351, paragraph 1 of the Civil Procedure Code /repealed/ Among the rights of the claimant is the right to ask the bailiff to perform a certain action…". The opinion is available at the following address: https://bganaliz.com/
[3] The same opinion is supported by Gradinarova, T. Civil enforcement proceedings. A course of lectures. First part. Publishing Center at Ruse University "A. Kanchev". 2015., p. 314, referring to Decision No. 1544 of 09/07/1967 under City Decree No. 1073/1967, I year o. of the Air Force
[4] Decision of 06.12.2019 of OS-c. Varna according to City Decree No. 2200/2019; Decision No. 5457 of 23.07.2015 on appeal Municipal Decree No. 4411/2015 of the SGS, referring to Decision No. 1544 of 09/07/1967 under Municipal Decree No. 1073/1967, I year o. of the Air Force, in which the following is accepted: "as soon as Ex. E. No. 23/1966 was joined with E. E. No. 31/1965, all sums received in the first case are considered to have taken place under the second as well. And if the sums are considered to have been received under the second as well, with them no can be disposed of only the claimant in the first case.” Decision of 01.04.2014 of OS-c. Sliven under City Decree 188/2014; Decision of 20.10.2015 of OS-c. Sliven according to city ordinance No. 451/2015; Decision of 13.05.2016 under City Decree No. 187/2016
[5] Decision No. 205 of 22.05.2019 of OS-c. Smolyan under city ordinance No. 172/2019
[6] Decision No. 447 of 27.10.2016 of OS-Pazardzhik in accordance with city ordinance No. 694/2016; Decision of 23.01.2009 of the OS - Sliven under city ordinance No. 28/2009, GO; Decision No. 124 of 17.07.2017 of the OS-c. Shumen according to city ordinance No. 83/2017; Decision of 22.04.2016 of OS-c. Razgrad according to city ordinance No. 95/2016 Such was the opinion given by TD of the NRA-c. Burgas on enforcement case No. 1/2016 of the Judicial Enforcement Office at the District Court-c. Sliven, visible from Decision of 21.09.2017 of OS-c. Sliven according to City Decree No. 389/2017: "As far as the TD of the NRA-Burgas is concerned, this claimant joined by right filed notice..., that the enforcement proceedings for collection of the public debts of the state will continue in accordance with the DOPC in case No. 576/2015, formed with the public contractor before established in case No. 1/2016 of the SIS at the SRS". So also in Decision No. 9 of 16.01.2020 of the OS - Lovech according to the city of d. No. 654/2019. it is indicated that the opinion of TD of NRA-Lovech was similar
[7] Decision No. 110 of 23.10.2019 of the Supreme Administrative Court of Ukraine under Administrative Law No. 490/2019; Decision No. 377 of 29.08.2019 of RS - Lovech under city ordinance No. 10/2019; Decision No. 294 of 03/07/2019 of RS - Pernik according to city decree No. 7019/2018; Decision No. 248 of 19.01.2018 of the RS - Plovdiv under City Decree No. 8698/2017; Decision No. 494 of 24.11.2016 of the OS - Pazardzhik according to city ordinance No. 762/2016; Decision No. 453 of 28.10.2016 of the OS - Pazardzhik according to the municipal decree No. 693/2016; Decision No. 1179 of 5.12.2012 of OS - Razgrad according to city ordinance No. 379/2012; Decision No. 209 of 3.10.2012 of the OS - Yambol according to city decree No. 357/2012; Decision of 23.01.2009 of the OS - Sliven under city ordinance No. 28/2009, GO
[8] Special opinion of judge M. Sandulov on the Decision of 01.04.2014 of the General Court-c. Sliven under City Decree No. 188/2014, which contrasts this role of the state with its role as an "active" claimant in enforcement under the DPC. The additional argument of Judge Sandulov is also of interest - that the obvious passivity of the state as a joint claimant could put “the debtor at an extreme disadvantage which may to jeopardize its financial stability", Based on Decision in the case OAO Neftyanaya Kompaniya Yukos v. Russia (no. 14902/04/ of the European Court of Human Rights
[9] Decision No. 19 of 25.01.2019 of OS-c. Pazardzhik according to city ordinance No. 48/2019. In the specific case, this thesis is also justified by s the existence of a pending enforcement case initiated by a joint creditor, according to which the latter in turn had the capacity of master of the execution of the other proceeding. Also of interest is the fact that less than a year earlier, the same judicial panel seemed to advocate the opposite position in its Decision No. 117/26.03.2018 of OS-c. Pazardzhik according to city ordinance No. 141/2018
[10] Punev, B.V. Gachev. G. Khorozov. D. Miteva. D. Tanev. E. Krashkova. E. Balevska. K. Topalov. K. Vlakhov. M. Zlatareva. M. Obretenova. M. Bobatinov. S. Kyurkchiev. c-Civil Procedure Code. Comment attached. Law enforcement issues. Analysis of judicial practice, p. 1085.
[11] In Art. 217, para. 1 of the Civil Procedure Code provides for the possibility of joining the enforcement proceedings under the Civil Procedure Code of "creditors, whose claim is secured by mortgage, pledge or special lien, as well as those who are exercised a right of retention."
[12] In judicial practice, the opinion can be found that the proceedings can be terminated due to the occurrence of a preemption and in relation to the state. (Decision of 07.04.2016 of RS-City of Sliven under City Law No. 108/2016) The opposite view is also found in legal theory - that the state cannot by its actions interrupt the two-year period (D. Ivanov, Cit. co.).
[13] Stalev, Zh. A. Mingova, O. Stamboliev, V. Popova. R. Ivanova. Bulgarian civil procedural law. Tenth revised and enlarged edition. Sofia. Seela. 2020, pp. 1228-1229
[14] Punev, B.V. Gachev. G. Khorozov. D. Miteva. D. Tanev. E. Krashkova. E. Balevska. K. Topalov. K. Vlakhov. M. Zlatareva. M. Obretenova. M. Bobatinov. S. Kyurkchiev. c-Civil Procedure Code. Comment attached. Law enforcement issues. Analysis of judicial practice, p. 1085.
[15] Ibid., p. 1093
[16] Decision No. 696 of 10.06.2019 of the Administrative Court - Varna pursuant to City Decree No. 2331/2018.
[17] Punev, B.V. Gachev. G. Khorozov. D. Miteva. D. Tanev. E. Krashkova. E. Balevska. K. Topalov. K. Vlakhov. M. Zlatareva. M. Obretenova. M. Bobatinov. S. Kyurkchiev. Quote ibid., p. 1085.
