Статьи Глобального кодекса принудительного исполнения» [англ.]

Русс. Англ.

ARTICLES OF THE GLOBAL CODE OF ENFORCEMENT

Part 1. FUNDAMENTAL PRINCIPLES

Article 1

Fundamental right to enforcement

 

Every creditor who is the holder of an enforceable title, whether judicial or extra-judicial, has the right to effective access to its enforcement in respect of his defaulting debtor subject to the conditions provided for by the law and without prejudice to the reserve of those immunities from enforcement provided for in national and international law.

This right is granted without discrimination and regardless of the amount of the claim.

 

Article 2

The debtor is answerable for his debts on all his goods

 

The debtor is answerable for his debts on all his goods wherever these are to be found.

National laws can require the debtor to declare the extent of his estate. They must provide for the applicable sanctions.

The debtor who deliberately organizes his insolvency makes himself liable.

 

Article 3

Enforceable titles

 

Are enforceable titles, all court decisions with power of enforceability as well as those documents to which the law grants the power of enforceability in particular authentic instruments, arbitral decisions, and judicial transactions.

 

Article 4

The immediately enforceable nature

 

The beneficiary of an enforceable judgment shall not be required to have recourse to other legal procedures to obtain enforcement.

 

Article 5

Costs of enforcement

 

The costs of enforcement are payable by the debtor, but the creditor must pay them in advance, except in those cases provided for by the law (in particular for the payment of maintenance).

In the event of the insolvency of the debtor, the costs are borne by the creditor.

Should the judge decide that the creditor has abused his power to seek enforcement, he may direct the creditor to pay the costs of enforcement and to compensate the loss sustained by the debtor.

States must ensure that these enforcement costs are fixed, predictable, transparent and reasonable.

They must make certain that these enforcement costs are fixed, predictable, transparent and reasonable.

 

Article 6

Speed of enforcement

 

States must ensure that all creditors have equal access to enforcement measures by providing judicial assistance.

 

Article 7

Legal hours

 

Enforcement may not take place outside the legal hours determined in accordance with the national law of the State of enforcement.

 

Article 8

Service of the enforceable title and acts of enforcement

 

Every measure of enforcement must on pain of nullity be preceded by the service or notification of the enforceable title on the debtor in accordance with the procedures provided for by national law. Every act of enforcement must be brought to the attention of the debtor.

 

Article 9

Access to information

 

States must make provision that all relevant bodies, both public and private, shall disclose as quickly as possible to the professionals instructed with enforcement all information that they hold about the domicile, registered office or principal place of business of the debtor, as well as about the elements constituting its assets. These bodies may not withhold information by invoking professional confidentiality.

 

Article 10

Alternative or participatory enforcement

 

States must ensure that the professional instructed with the enforcement has the option of adopting a consensual enforcement procedure at the request of the debtor.

In order to adapt the enforcement to the situation of the creditor and the debtor states must allow the active participation of the parties to the enforcement.

 

Article 11

Reestablishment of the debtor

 

When it is necessary for the reestablishment of the debtor the states shall introduce procedures that make it possible to settle the liabilities of the debtor.

 

Article 12

Use of new technologies

 

Acts of enforcement may be carried out using all forms of support, including non-material ones, subject to the precautions provided for by the national law of the state where the enforcement is made.

 

Article 13

Assistance of the forces of public order

 

The State must upon its responsibility guarantee the assistance within a reasonable period of time the assistance of the forces of public order to the professional persons instructed with the enforcement of enforceable titles who request same.

States must ensure that judicial officers and enforcement agents are able in the context of the implementation of an enforcement measure to enter the premises belonging to the debtor or occupied by same even without his consent or in his absence.

When the goods of debtor are to be found with a third party, the authorization of a court to enter the premises is required.

 

Article 14

Transparency

 

States must ensure that the public is informed about the measures of enforcement.

States must use the new technologies to allow cooperation between enforcement professionals both internally and internationally.

The creditor must be able to keep himself informed of the enforcement measure by using the new technologies where applicable.

 

Article 15

Extraterritoriality

 

Any measure that has effects of an extraterritorial nature may only be implemented by a judicial officer or enforcement agent of the State of the place of enforcement.

 

Part 2. JUDICIAL OFFICERS AND ENFORCEMENT AGENTS

Article 16

Specialization of judicial officers and enforcement agents

 

Only a judicial officer or an enforcement agent authorized by the State may conduct an enforcement procedure in accordance with national law.

 

Article 17

Obligations

 

The authorized agent or judicial officer is required to proceed with the required enforcement measures on every occasion this is lawfully required of him, except in the event of those impediments as provided for by law or for any other cause justified by those reason which are left to the discretion of the enforcement professional and in accordance with the rules of professional ethics.

He is bound by professional secrecy.

 

Article 18

Professional status of enforcement agents

 

The persons instructed with enforcement must be made subject to regulations governing their professional status which guarantee the quality of the enforcement by demanding a high level of legal qualification.

Enforcement agents and judicial officers must be required to comply with obligations regarding initial training and lifelong training.

 

Article 19

Professional ethics

 

States must take measures to define the rules of the professional ethics of enforcement agents and judicial officers.

 

Article 20

Professional discipline

 

A disciplinary procedure that complies with the rules of fair process before an independent organ that decides in adversarial proceedings must be installed.

The disciplinary sanctions must be defined and be proportional to the gravity of the errors committed.

The disciplinary decision may be appealed.

 

Article 21

Secondary activities

 

The professional status must allow judicial officers and enforcement agents to pursue secondary activities that are compatible with their position.

In particular, they must be capable of being authorized to proceed to the amicable collection of debts.

 

Part 3. JUDICIAL AUTHORITIES

Article 22

Role of judges

 

Only a judge can rule on disputes arising from the enforcement and order the measures necessary for its implementation at the request of one of the parties or of the enforcement agent or judicial officer.

The judge to whom application is made by the debtor an interested third party, the enforcement agent or judicial officer or may suspend or cancel an enforcement measure should a sound reason justify such.

 

Article 23

Timeframe for enforcement

 

The judge may amend the enforcement and grant a stay of enforcement.

 

Article 24

Supervision of the activities of the enforcement agent and the judicial officer

 

Except if they are agents of the State, enforcement agents and judicial officers perform their activities under the supervision of the Public Prosecutor, who may, where applicable, send them an order to lend their assistance.

The Public Prosecutor records all complaints formulated upon the occasion of an enforcement measure.

 

Part 4. PROVISIONS COMMON TO ENFORCEMENT MEASURES

Article 25

Goods that cannot be seized

 

All goods can be seized subject to the exclusion of those goods considered immune from seizure by national law. In the event of a seizure of bank assets, a sum must be left at the disposal of the debtor sufficient to ensure his and his family’s subsistence, the amount whereof is determined by law.

 

Article 26

Immunity

 

Cases of immunity must be clearly specified in national law, particularly in respect of the state and public entities, as well as in respect of diplomatic personnel.

 

Article 27

Proportionality of the enforcement measure

 

The enforcement measure must be proportional to the amount of the claim. In the event of abuse, the creditor may be directed to make reparations.

 

Article 28

Autonomy of the judicial officer and the enforcement agent

 

The judicial officer or the enforcement agent autonomously implements the measure most appropriate to the rights of the creditor and the basic rights of the debtor.

 

Article 29

Flexibility of the enforcement measures

 

States must organize their enforcement systems by adapting them to the interests of the creditor and the economic and social situation of the debtor. For this reason, they must diversify the enforcement measures so that the judicial officer or enforcement agent may choose among them in keeping with the circumstances.

 

Article 30

Flexibility having regard for the nature of the goods

 

States shall adapt the measures of execution to the legal status of the seized assets.

 

Article 31

Enforcement in kind

 

When a judge directs to the performance or non-performance of an obligation, he must be able to accompany his judgment with a constraint measure.

 

Article 32

Enforcement on the person of the debtor or his family

 

States shall ensure that enforcement on the person complies with international Conventions, Charters and Declarations.

Imprisonment for civil debt is prohibited.

Enforcement on the members of the family of the debtor must be prohibited and the primacy of the interests of the child must be respected.

 

Part 5. PROVISIONS COMMON TO PROVISIONAL MEASURES

Article 33

Right to a provisional or conservatory measure

 

Every creditor who shows relevant circumstances may obtain authorization from the judge for the application of a provisional or conservatory measure to ensure the protection of his rights.

The creditor who is the holder of an enforceable title may implement the provisional or conservatory measure without the authorization of a judge.

 

Article 34

Procedure

 

A swift procedure must be established so that preservative or provisional measures may be authorized by a judge. The measures must be limited in time.

The procedure does not have to be adversarial. The person in whose respect the measure is ordered must be able to dispute it without delay and by a simplified means of applying to the judge.

If the judge considers that the measure did not have merit, the party which applied for and obtained the measure must indemnify the other party in full.

 

GLOSSARY

Enforcement agent

Any person, whatever his professional status may be, public agent or otherwise, authorized by the State to carry out an enforcement procedure.

Cost of enforcement

Entirety of disbursements, made up of the expenses incurred by the enforcement and the fees paid to the enforcement agent.

Enforcement time

Duration of time between the start and the completion of the enforcement procedure.

Professional ethics

Entirety of the obligations attached to a professional activity and required of the enforcement agent.

Discipline

Entirety of the rules defining, according to the principles of fair trial, the errors sanctioned, the procedure, the disciplinary body, and the sanctions applicable to enforcement agents.

Basic right

Right recognized at the highest level of hierarchical standards (by the Constitution or International Conventions).

Enforcement

To give effect, in accordance with the law, to an enforceable title that requires a person to do, or abstain from doing, or to pay that which has been decided.

«Participatory» or «amicable» enforcement

Enforcement procedure that allows parties to reach an agreement on enforcement terms and conditions under the authority of the enforcement agent and the supervision of a judge.

Enforcement expenses

Disbursements incurred by the enforcement, that is to say the sum of the cost of each action undertaken by the enforcement agent (not including the fees of the enforcement agent).

Judicial officer

Enforcement agent with a private and independent professional status that is regulated by the law and who is authorized to implement enforcement.

Preservative (conservatory) and provisional (interim) orders

Measure that has as its objective the safeguarding of the rights whereof recognition has indeed been requested before the judge ruling on the merits, while still maintaining the status quo, both in fact and in law (for example, measure rendering the goods of the debtor inalienable, preservation order, or the sequestration of goods).

Speed

Totality of the time necessary to perform all the actions performed by the enforcement agent must be consistent with a reasonable delay.

Service or notification

Secure procedure that makes it possible to bring an instrument to the attention of the addressee and which is generally performed by a specialized agent.

Enforceable title

Title defined by national law that allows the forced recovery of the debt by implementing legal measures of enforcement.

Transparency

Information about the enforcement measures, the agents with competence and the expenses must be accurate and easily accessible.

Русс. Англ.

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