RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of July 12, 2007 N10-P

On the case of check of constitutionality of provision of the paragraph of third of part one of article 446 of the Civil Procedure Code of the Russian Federation in connection with claims of citizens V. V. Bezmenov and N. V. Kalabun

On behalf of the Russian Federation

Constitutional court of the Russian Federation as a part of the chairman V. G. Yaroslavtsev, judges N. S. Bondar, G. A. Gadzhiyev, A. L. Kononov, L. O. Krasavchikova, S. P. Mavrin, Yu. D. Rudkin, A.YA. Plums, V. G. Strekozova, B. S. Ebzeev,

with participation of the representative citizen V. V. Bezmenov - the lawyer O. M. Shteynbok, the representative citizen N. V. Kalabun - the lawyer D. A. Kutepov, the representative of the Federation Council - the doctor of jurisprudence E. V. Vinogradova, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Item 3 parts two of Article 22, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered in open session case on check of constitutionality of provision of the paragraph of third of part one of Article 446 GPK of the Russian Federation.

Reason for consideration of the case were claims of citizens V. V. Bezmenov and N. V. Kalabun. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the legislative provision disputed by applicants.

Considering that both claims concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", connected cases on these claims in one production.

Having heard the message of the judge-speaker L. O. Krasavchikova, explanation of agents of the parties, the expert opinion - doctors of jurisprudence N. A. Syrodoyev, performance the representatives invited in meeting: from the Ministry of Justice of the Russian Federation - K. P. Pirogova, from Federal Bailiff Service - I. Yu. Mikhaleva, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation established:

1. To third Article part one 446 GPK of the Russian Federation are provided by the paragraph that collection according to executive documents cannot be turned, in particular, on the parcels of land belonging to the citizen debtor on the property right which use is not connected with implementation by the citizen debtor of business activity.

1.1. The Kirov district court of the city of Tomsk in the claim of the citizen V. V. Bezmenov passed on January 13, 2005 the decision on collection from the citizen A. G. Uzhachenko of loan amount and percent on the relevant agreement in the amount of the 456th 438, 25 rub, however during enforcement proceeding it became clear that for satisfaction of requirements of the claimant of property of the debtor it is not enough in this connection V. V. Bezmenov sent to the same court the claim for apportionment of share of A. G. Uzhachenko in common property of spouses, namely the parcels of land, and about the address of collection on it. The decision of May 10, 2006 the Kirov district court of the city of Tomsk refused the claim on the ground that possibility of the address of collection on the parcel of land, in Article sense 446 GPK of the Russian Federation, are predetermined by commercial purpose of its use, at the same time the number of the parcels of land which are in property of the citizen debtor does not matter; as for the disputable parcels of land located on lands of agricultural purpose, they are used by Uzhachenko's spouses for conducting gardening, but not for implementation of business activity.

Disputing constitutionality of provision of the paragraph of third of part one of Article 446 GPK of the Russian Federation, V. V. Bezmenov claims that, prohibiting to turn collection according to executive documents on the parcels of land which are not used by the citizen debtor for business activity, this provision disproportionately and disproportionately limits the creditor's rights and by that breaks balance of interests of the creditor and debtor at enforcement proceeding stage, is unfair, inadequate and inadmissible restriction of constitutional rights, and asks to recognize it to the contradicting Articles 8 (part 2), 35 (parts 1 and 2), 45, 46 (parts 1 and 2) and 55 Constitutions of the Russian Federation.

1.2. Actions the judicial police officer-contractor on transfer to the citizen N. V. Kalabuna to property of the parcel of land in pursuance of the judgment on collection in its advantage of damage on the amount of 102 048 rub from the citizen V. A. Shevtsov who possessed this parcel of land were acknowledged as the decision of October district court of the city of Saratov of October 31, 2005 left without change of cassation instance by court illegal, and the act of its transfer to invalid. The court specified that the disputable parcel of land of 904 sq.m is allocated under individual housing construction and its use by V. A. Shevtsov who is not individual entrepreneur, it is impossible to recognize connected with implementation of business activity by it.

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