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RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of September 29, 2016 No. 13

About generalization of practice of permission by administrative courts of the disputes arising in connection with accomplishment of the judgments about money recovery on which debtor is the state body or public institution, the company, the organization

Having heard the report of the judge of the Supreme administrative court of Ukraine Gonchar L. Ya. about generalization of practice of permission by administrative courts of the disputes arising in connection with accomplishment of the judgments about money recovery on which debtor is the state body or public institution, the company the organization, the Plenum of the Supreme administrative court of Ukraine decides:

1. Report of the judge of the Supreme administrative court of Ukraine Gonchar L. Ya. take into consideration.

2. Recommend to judges of administrative courts Generalization of practice of permission by administrative courts of the disputes arising in connection with accomplishment of the judgments about money recovery on which debtor is the state body or public institution, the company the organization (is applied), to consider in case of decision making for the corresponding category.

Chairman

A. N. Nechitaylo

Secretary Plenuma

M. I. Smokovich

The certificate of results of generalization of practice of permission by administrative courts of the disputes arising in connection with accomplishment of the judgments about money recovery on which debtor is the state body or public institution, the company, the organization

In pursuance of Item 1.3 of the work plan of the Supreme administrative court of Ukraine (further - WASU) on the first half of the year 2016 in WASU performs generalization of practice of permission by administrative courts of the disputes arising in connection with accomplishment of the judgments about money recovery on which debtor is the state body or public institution, the company, the organization.

Execution of judgments is powerful indicator of real and proper protection of the violated rights, freedoms and interests of person and integral component of the right to fair trial. Unfortunately, mechanisms of execution of judgments are not always effective that, in turn, leads to emergence of new disputes for which decision there is appeal to administrative courts. Showed studying and the analysis of court practice that accomplishment of decisions of the courts about money recovery on which debtor is the state body or public institution, the company, the organization is followed by the numerous problems including connected with law enforcement and different judicial line items according to the solution of such category of disputes.

Such circumstances also caused the need for generalization of practice of permission by administrative courts of the disputes arising in connection with accomplishment of the judgments about money recovery on which debtor is the state body or public institution, the company, the organization.

1. The legal basis of execution of the judgments about money recovery according to which debtor is the state body or public institution, the company, the organization

Questions of execution of the judgments of money recovery on which debtor is the state body or public institution, the company, the organization regulate such regulatory legal acts:

Constitution of Ukraine of 28.06.96;

The code of administrative legal proceedings of Ukraine of 06.07.2005 No. 2747IV (further - KAS of Ukraine);

Budget code of Ukraine of 08.07.2010 No. 2456-VI;

The law of Ukraine of 21.04.99 No. 606-XIV "About enforcement proceeding";

The law of Ukraine of 05.06.2012 No. 4901-VI "About guarantees of the state concerning accomplishment of judgments";

the resolution of the Cabinet of Ministers of Ukraine of 03.08.2011 No. 845 "About approval of the Procedure for execution of decisions on money recovery state and local budgets or debtors";

the resolution of the Cabinet of Ministers of Ukraine of 03.09.2014 No. 440 "About approval of the Procedure for debt repayment on the judgments which accomplishment is guaranteed by the state".

On the basis of the listed regulatory legal acts it is necessary to make short general characteristic of legal regulation of the legal relationship connected with accomplishment of the judgments about money recovery on which debtor is the state body or public institution, the company, the organization.

According to part two of article 3 of the Law of Ukraine "About enforcement proceeding" decisions on money recovery from state bodies, state and local budgets or budgetary institutions are carried out by the bodies performing treasurer servicing of budgetary funds. Such provision received normative continuation in part one of article 3 of the Law of Ukraine "About guarantees of the state concerning accomplishment of judgments", in particular accomplishment of the judgments about money recovery on which debtor is the state body, is performed by the central executive body realizing state policy in the field of treasurer servicing of budgetary funds within the corresponding budget settings by write-off of funds from accounts of such state body, and in case of absence at this state body of the corresponding appointments - at the expense of the means provided according to the budget program for ensuring execution of the judgments.

Parts two, the fourth article 3 of the Law of Ukraine "About guarantees of the state concerning accomplishment of judgments" provide that the claimant by a court decision about money recovery from state body addresses to the central executive body realizing state policy in the field of treasurer servicing of budgetary funds in the terms established by the Law of Ukraine "About enforcement proceeding" with the statement for judgment accomplishment; money transfer to the claimant is performed in three-months time from the date of receipt in the central executive body realizing state policy in the field of treasurer servicing of the budgetary funds necessary for this purpose of documents and data.

According to parts two, the sixth article 4 of the Law of Ukraine "About guarantees of the state concerning accomplishment of judgments" if the judgment about money recovery from the state company or the legal entity is not executed within six months from the date of pronouncement of the resolution on opening of enforcement proceeding, its accomplishment is performed at the expense of the means provided according to the budget program for ensuring execution of the judgments; money transfer is by a court decision performed by the central executive body realizing state policy in the field of treasurer servicing of budgetary funds in three-months time from the date of receipt of the documents and data necessary for this purpose, with the simultaneous direction of the notification on payment of means to the state contractor, the state company or the legal entity.

Along with it according to Item 3 of the Procedure for execution of decisions on money recovery state and local budgets or debtors of the decision on money recovery state and local budgets or debtors are carried out based on executive documents only by bodies of Treasury according to the procedure of priority of receipt of such documents (about money recovery state and local budgets - with preliminary informing the Ministry of Finance on money recovery of debtors - within the corresponding budget settings, the provided budgetary appropriations (remaining balance of means on accounts of the companies, organizations, organizations). The given Item is accepted in development of paragraph two of the subitem 1 of Item 9 of Final and transitional provisions of the Budget code of Ukraine according to which "the judgment about collection (arrest) of means of the government budget (local budgets) is carried out only by Treasury of Ukraine... Indisputable write-off of means of the government budget (local budgets) is performed by Treasury of Ukraine according to the procedure, established by the Cabinet of Ministers of Ukraine, on priority of receipt of such decisions...".

One more feature is fixed in parts one - third article 5 of the Law of Ukraine "About guarantees of the state on execution of judgments". So, if the central executive body realizing state policy in the field of treasurer servicing of budgetary funds within three months did not transfer funds by a court decision about money recovery, compensation in the amount of three annual interest rates from outstanding amount at the expense of the means provided according to the budget program for ensuring execution of the judgments is paid to the claimant. Compensation for violation of term of money transfer by a court decision about money recovery from state body is the central executive body realizing state policy in the field of treasurer servicing of budgetary funds, and from the state company or the legal entity is charged by the state contractor within five days from the date of receipt by it of the notification of the central executive body realizing state policy in the field of treasurer servicing of budgetary funds on money transfer, except for case when means are transferred into the corresponding account of body of the public executive service.

So, in spite of the fact that judgments are obligatory, the Law of Ukraine "About guarantees of the state concerning accomplishment of judgments" creates the additional mechanism of their providing. So, part one of Article 2 provides that the state guarantees accomplishment of the judgment about money recovery and obligations to make certain actions concerning property on which debtor is the state body, the state company, organization, the organization. At the same time there is opinion that this law does not solve all problems in the field of execution of judgments, and therefore cannot be considered as the final decision of problem of providing effective remedies of legal protection of the right to execution of decisions in reasonable time that causes the necessity of further enhancement of legal regulation of this question. With respect thereto affirms that the right to execution of the judgment in reasonable time can be independent object of legal protection 1.

__________

1 Yakimchuk S.A. Execution of judgments as part of legal proceedings: Autoref. yew.... edging. юрид.наук: 12.00.03 / S. A. Yakimchuk. - Kharkiv, 2015. - Page 9.

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