The procedure, conditions and circumstances of the transfer of summary executive proceedings to another body of the State Executive Service.
On July 21, 2021, the Supreme Court, as part of the panel of judges of the Cassation Administrative Court, within the framework of case No. 580/591/20 , administrative proceeding No. К/9901/27397/20 (YEDRSRU No. 98463293), examined the issue of transferring the consolidated executive proceedings to another body of the Internal Revenue Service . In accordance with Article 1 of Law No. 1404-VIII, executive proceedings as the final stage of court proceedings and enforcement of court decisions and decisions of other bodies (officials) (hereinafter – decisions) are a set of actions of bodies and persons specified in this law aimed at enforcement of decisions , and are carried out on the grounds, within the limits of authority and in the manner determined by the Constitution of Ukraine, this law, other laws and normative legal acts adopted in accordance with this law, as well as decisions that are subject to enforcement in accordance with this law.
The mechanism of unification and joining of enforcement proceedings in consolidated enforcement proceedings is regulated by Article 30 of Law No. 1404-VIII and provides that the execution of several decisions on the collection of funds from one debtor is carried out by the state bailiff who opened the first enforcement proceedings against such a debtor, within the framework of consolidated enforcement proceedings proceedings In turn, the grounds for the transfer of executive proceedings from one body of the state executive service to another are defined in the third part of Article 25 of Law No. 1404-VIII, according to which in the case of impeachment (self-impeachment) of all state executives of the state executive service body, the formation of an executive group, if the executive proceedings against the same debtor are opened in different bodies of the state executive service, if there are other circumstances complicating the execution of the decision, the enforcement proceedings may be transferred from one body of the state executive service to another.
In accordance with the fourth part of Article 25 of Law No. 1404-VIII, the transfer of executive proceedings from one state executive to another, from one state executive service body to another or to an executive group is carried out in the manner determined by the Ministry of Justice of Ukraine. In order to comply with the specified norms of the law, in point 14 of section III of the Instructions, it is stipulated that if several executive proceedings for the collection of funds from the same debtor are opened in the body of the state executive service, they are combined into consolidated executive proceedings and are carried out by the state executive who opened the first Enforcement. The state executor issues a resolution on the consolidation of executive proceedings into a consolidated one. In the case of the opening of enforcement proceedings against the debtor, in respect of whom the consolidated enforcement proceedings are being carried out, it is joined to the consolidated enforcement proceedings, and the state bailiff issues a resolution on this.
In the event that enforcement proceedings on the collection of funds from one debtor are opened in several bodies of the state executive service, in particular, if the debtor and his property are located on the territory of different administrative-territorial units, when the enforcement proceedings are combined into a summary set out in Section IV of these Instructions executive groups may be formed. The presence or absence of other enforcement proceedings or consolidated enforcement proceedings against the same debtor is checked by the state bailiff based on the data of the automated enforcement proceedings system when the enforcement proceedings are opened. In the event that enforcement proceedings against the same debtor are found in another body of the state executive service, such enforcement proceedings are transferred for execution to the body of the state executive service, whose state bailiff opened the first enforcement proceedings, or in the manner determined by section V of these Instructions. In the event that enforcement proceedings against one and the same debtor are being executed in the department of enforcement of decisions of the department of enforcement of decisions or the department of enforcement of decisions of the Department of the State Executive Service of the Ministry of Justice of Ukraine, the enforcement proceedings are transferred to these departments for execution.
According to Clause 6 of Section V of the Instructions, which establishes the procedure for the transfer of executive documents and executive proceedings (as amended at the time of the emergence of disputed legal relations), executive proceedings are transferred from one body of the state executive service to another in the event of:
- if the place of residence, stay, work of the debtor or the location of his property is located in the territory covered by the competence of another body of the state executive service;
- removal (self-removal) of all state executives of the state executive service body;
- formation of an executive group at several bodies of the state executive service;
- if executive proceedings against the same debtor are opened in different bodies of the state executive service;
- the presence of other circumstances that complicate the implementation of the decision.
Pursuant to clause 7 of Chapter V of the Instructions, the transfer of enforcement proceedings may be carried out:
- in the case provided for by the second paragraph of Clause 6 of this section — by the decision of the state bailiff in whose execution the enforcement proceedings are pending;
- to the Department of Enforcement of Decisions of the Department of the State Executive Service of the Ministry of Justice of Ukraine, other bodies of the State Executive Service and executive groups formed under these bodies, — by the decision of the Director of the Department of the State Executive Service of the Ministry of Justice of Ukraine regarding any enforcement proceedings pending in the bodies of the State Executive Service executive service;
- to the department of enforcement of decisions of the department of enforcement of decisions, departments of the state executive service and executive groups formed under these bodies,
- by the decision of the head of the department for enforcement of decisions regarding executive proceedings pending in the departments of the state executive service.
In the cases provided for by the third and fourth paragraphs of Clause 7 of this section, the person who made the decision to transfer the materials of the executive proceedings shall issue a reasoned resolution, which must state the circumstances that led to the transfer of the executive proceedings and the terms of the transfer of the materials of the executive proceedings, which are not may exceed five working days (item 8 of Section V of the Instructions).
Importantly. The content of the above provisions of Law No. 1404-VIII and the Instructions provide grounds for the conclusion that the unification/joining of enforcement proceedings in consolidated enforcement proceedings and the transfer of enforcement proceedings are different (independent) procedures that are related to the movement of enforcement proceedings within one or between different bodies of the state executive service. At the same time, within the limits of one body of the state executive service, there is a rule of existence of one (consolidated) executive proceeding regarding the execution of several decisions on the collection of funds from one debtor, which is carried out by the state executive who opened the first executive proceeding against such a debtor.
At the same time, in the cases provided for by the third part of Article 25 of Law No. 1404-VIII and Clause 6 of Chapter V of the Instructions, in particular, if enforcement proceedings against the same debtor are opened in different bodies of the state executive service, the transfer of enforcement proceedings from one body of the state executive service is allowed to another for the purpose of their further unification in consolidated executive proceedings, which, based on the wording "may be transferred" used in the law, is a discretionary authority of the state executive or the head of the relevant body of the state executive service.
The procedure for transferring executive proceedings from one body of the state executive service to another pursuant to the fourth part of Article 25 of Law No. 1404-VIII is regulated by the Instruction, the content of the provisions of the last paragraph of paragraph 14 of which indicates the existence of three rules for such transfer: transfer of executive proceedings for implementation to that body of the state executive service, the state executive of which opened the first executive proceedings; transfer of executive proceedings in accordance with the procedure specified in section V of these Instructions; transfer of executive proceedings for implementation to the department of enforcement of decisions of the department of enforcement of decisions or the department of enforcement of decisions of the Department of the State Executive Service of the Ministry of Justice of Ukraine – in the event that at least one of the enforcement proceedings against the same debtor is being implemented in these departments.
Conclusion
Therefore, the opening of executive proceedings against the same debtor in different bodies of the state executive service is directly named in the law as a circumstance that complicates the execution of the decision, and is the basis for the transfer of executive proceedings, which belongs to the discretionary powers of the state executive or the head of the corresponding body of the state executive service .