1 performance fee concept and procedure for collection. An example and a sample of a resolution on the collection of a performance fee

The enforcement fee is a monetary penalty that is imposed on the debtor if he has not paid the debt. You should be aware of the specifics of collecting a performance fee.

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If you are faced with the issue of debt collection, then you should also be aware of such a concept as a performance fee, since these are additional monetary costs that may come as a surprise.

In this article, we will describe in more detail all the main aspects of this issue, as well as some of the nuances that will help save a certain amount of funds.

What it is

What is a performance fee and what should a debtor expect? This concept means a monetary penalty that is imposed on the debtor in the event that he did not comply with the court order to repay the debt.

If, after the adoption of a court decision, a citizen does not transfer the amount of debt to the creditor, then he must pay a performance fee for this.

These funds go to federal budget. This is a kind of punishment for non-compliance with a court order.

Basic concepts

An enforcement fee is a fine imposed by a court on debtors who have not voluntarily complied with a judgment within a specified period. In a situation of non-compliance with the requirements of the executive document, which is subject to execution.

There are certain terms in which the debtor is obliged to pay the debt and, if he does everything on time, then the performance fee is not charged from him.

The provided executive document will indicate the period for which the debt must be repaid.

There is such a thing as the immediate execution of a performance document, which must occur within a day after receiving the paper.

The execution fee is equal to 7% of the amount owed or of the value of the property that is collected on account of the debt.

But this cannot be an amount less than one thousand rubles from a debtor-citizen or private entrepreneur.

If the debtor is an organization, then the amount of the performance fee cannot be less than 10 thousand rubles. There is such a thing as non-fulfillment of a non-property executive document.

These are papers that indicate that the debtor is obliged to perform some actions, but they are not related to the reimbursement of money or property.

In this case, the performance fee is 5,000 rubles for a debtor-citizen and a private entrepreneur, and 50,000 rubles for a debtor organization.

Conditions for reimbursement

In what cases is a performance fee charged and how does this procedure take place:

The voluntary term for the fulfillment of obligations to the borrower is five days from the date of receipt by the debtor of the notification of the commencement of enforcement proceedings.

This period includes business days only. This rule is valid on the condition that the executive document entered the bailiff service for the first time.

The debtor is obliged to provide a document that confirms the fact that he took measures to comply with the judgment.

It could be:

The legislative framework

The above information is enshrined in the Federal Law "On Enforcement Proceedings". This topic is regulated by chapter 15 and articles that contain the following points on this issue:

Resolution on the collection of the performance fee

The decision to collect the performance fee, what does it mean? This is an executive document that must meet certain requirements for this type of document.

If the debtor has not complied with the instructions specified in the executive document, the deadline has expired or he has not provided evidence that it is impossible to fulfill the requirements, then soon he will receive a notification about the start of enforcement proceedings.

The courts conduct diligent checks regarding notices to borrowers. The bailiff should control the process of responsible and accurate informing.

Who approves

The decision to impose a fine for non-compliance with the actions specified in the executive document is taken by the bailiff. This is stated in Article 112 paragraph two of the Federal Law "On Enforcement Proceedings".

There is such a thing as a delay or installment plan for the fulfillment of the requirements specified in the judicial act.

Video: How to challenge fines and performance fees

As for this action in the arbitration court, this issue is regulated by the Arbitration Procedure Code of the Russian Federation.

If this case is considered by courts of general jurisdiction, then in article 201 of the Civil Procedure Code Russian Federation this issue is being considered.

Voluntary fulfillment of requirements

The easiest way for a debtor to repay a loan is to repay it on time. In this case, you will not have to collect money in a short time or pay a “penalty” in the form of a performance fee.

If the monetary debt is not paid, then the bailiff will begin to search for property that can be transferred to pay off it.

If the citizen still managed to collect the necessary amount and transferred it to the borrower, then he must receive a paper from him, which confirms the fact of the provision of funds. After that, the paper must be shown to the authorized body of bailiffs.

After the withdrawal of the writ of execution

There is a possibility of revocation (cancellation) of the writ of execution and this occurs in such cases:

  • at the request of the claimant;
  • if it is not possible to obtain any information about the debtor's funds or property;
  • due to the lack of property that can be collected on account of the debt;
  • if the claimant renounced the debtor's property;
  • if the borrower interferes with the execution of the executive document;
  • if the debtor is not a citizen of the Russian Federation or does not have citizenship at all and at the same time he is expelled from the Russian Federation.

Drawing up a complaint (sample)

How to appeal the actions of an authorized person? In order for a complaint against a bailiff to be accepted, it is necessary to follow the rules for filling it out and indicate the following data:

  • the name of the organization to which the paper is submitted;
  • Full name of the applicant or the name of the company, as well as contact details (place of residence of a citizen or address of the organization);
  • Full name of the authorized employee and his position;
  • a detailed reason for challenging the actions of an authorized person;
  • requirements in relation to the culprit;
  • indicate the legislative basis for filing an application, i.e., clarify which specific norms were violated and support this with extracts from government decrees.

How to reduce the amount

The amount of the fee may be reduced by the bailiff, the executor, who issued a decision on the collection of the performance fee and in the court order.

If the debtor complied with the court decision in part before the initiation of enforcement proceedings or during the period for the voluntary fulfillment of requests specified in the executive document.

In such a situation, the following procedure applies:

statute of limitations

There is no statutory limitation period for enforcement fees. On the one hand, you can use the general term for these cases - three years, but on the other hand.

The decision of the Constitutional Court of 30.07.01 recognized that the performance fee is characterized by signs of administrative sanctions.

This means that an administrative penalty is not carried out in those situations if the document was not enforced within 2 years from the date of entry into force.

Respectful Release Cases

The performance fee may not be assigned if the debtor voluntarily complied with the requirements within a certain time frame.

This applies only to those judgments that came first to the bailiffs.

By law, the writ of execution will be returned to the creditor if the debtor does not physically have property that can be recovered.

Also, the enforcement fee is not charged in the following cases:

  • force majeure;
  • when granting a deferment.

Is it possible to receive a refund after the end of production?

Consideration in court is a generally accepted method of resolving various contentious issues, not only in commerce and business, but in life situations. The case, in which the judge's decision was made in favor of one of the parties, is transferred to the department for the execution of judgments, and bailiffs begin to deal with it. However, the loser is not always in a hurry to immediately pay off the debt or perform another decision for various reasons. Such debtors are forced to get acquainted with the concept of what a performance fee is from bailiffs, a similar measure of punishment is applied to them.

This concept refers to a penalty for non-compliance by one of the parties with the implementation of a court sentence. The department of bailiffs draws up papers on the obligation to pay the amount collected in case of failure to fulfill the responsibility assigned to it as a result of the proceedings. The losing party is assigned a set time for execution in good faith, otherwise it will have to pay a fee to the income of the enforcement proceedings department. Having received a copy of the decision, it is necessary to fulfill the order within a day.

After the completion of the period of time allotted for the implementation of the decision, the case is opened, and the defendant must be notified of it. Starting from this period, the inevitability of paying a fine becomes his duty, and all papers must be attached to the documentation.

Issuance of a decision on the recovery of the enforcement fee

Article 112 of the Federal Law No. 229 “On Enforcement Proceedings” informs that the bailiff, after establishing the event of the debtor’s non-fulfillment of the terms of the enforcement document, should voluntarily make an appropriate decision on the collection of a performance fee approved by the senior bailiff. This resolution must include the following information:

  • detailed name of the branch of bailiffs and its location;
  • the date of the resolution;
  • initials and position of the person who announced the decision with his signature;
  • title and numbering of production for execution;
  • the reason for the verdict (failure to comply with the order of the writ of execution at the appointed time);
  • the base of the adopted resolution indicating the Federal Law "On Enforcement Proceedings" and regulatory legal documents;
  • the wording of the adopted resolution itself and the accrued rate;
  • number of bank details for calculation;
  • information about the rules of appeal.

The decision is authorized by the signature of the head of the bailiff department and is confirmed by the stamp of the organization. The defendant must be personally acquainted with the content of the verdict on his obligation to pay not only the amount of the debt, but also the performance fee by order of the bailiff. He is sent a copy of the decision at the place of his stay.

Reasons for compulsion to pay enforcement fees

With regard to Article 112 of the Federal Law No. 229, there are 2 reasons for collecting an enforcement fee. They are:

  • evasion of voluntary payment of the appointed payment;
  • failure to provide information and evidence of the impossibility of implementing the decision at the appointed time due to exceptional circumstances.

The term for voluntary payment is set only upon the initial receipt of a demand for payment by the bailiff department. This fact is of great importance: in reality, there are situations of repeated requests for payment.

For example, according to Article 46 of the Federal Law, the writ of execution is re-sent to the plaintiff if the debtor does not have property that could be recovered. However, such a fact is not considered an obstacle to the further implementation of debt collection with an extension of up to 3 years (Article 21). It is possible to pay the debt voluntarily within 5 days, if the debtor was acquainted with the deadline for the execution of the collection, and this period does not include weekends and holidays. After becoming aware of the initiation of a case, the amount should be urgently deposited into the account of the FSSP.

The debtor must prove that he is taking specific steps to meet the payment requirements. Such an argument could be, for example:

  • employment in the absence of a source of income until this moment;
  • provision of payment orders for payment of financial resources to bailiffs in case they did not reach the addressee.

Voluntary execution usually begins after the debtor has been notified accordingly, which is considered a significant nuance. There are many ways to notify, and often bailiffs use all these methods at the same time. These include:

  • postal letters with a response message;
  • use of all possibilities of cell phone and telegraph;
  • personal visit to the debtor at the place of residence.

If the defendant refuses to confirm receipt of the notice, he is considered informed and a note is made about the rejection of the receipt of the document.

Payment amount

The amount of the performance fee in 2018 is 7% of the value of the debt or the price of the required items in case of property recovery. The payment must be at least 1000 rubles for a private person or individual entrepreneur and 10 thousand rubles for legal entities. In case of non-property claims, a citizen or individual entrepreneur pays 5,000 rubles, and a company or organization - 50 thousand rubles. In the case of joint obligations, the amount of the enforcement fee is 7% for each debtor: a citizen is obliged to pay at least 1 thousand rubles, and a company - from 10 thousand rubles. With periodic collection of payments, 7% is taken from each installment.

Reasons for exemption from payment

Due to their legal illiteracy, defendants are not always aware of the grounds for not paying this type of fine. Bailiffs do not report these moments for the simplest reason - unfavorable for the performance indicators of their work: the amount of enforcement fees characterizes the quality of the institution's work.

The defendant gets rid of the collection of a fine only for serious reasons and only after providing compelling arguments to the bailiff. The reasons for canceling the performance fee are:

  • obstruction of insurmountable circumstances;
  • providing the defendant with an extension of the term.

Force majeure includes natural disasters, social events. The issue of classifying the respondent's illness as an unavoidable circumstance is ambiguously resolved - it depends on the severity of the illness and the probable danger to his life. A difficult financial situation is also not classified as an insurmountable condition. However, the payment can be reduced by the court when the debtor tries to get out of the crisis.

A fairly effective measure, rarely used by the defendants, is the use of a deferment (or installment plan). To do this, the defendant needs not only to write an appeal to the court, but also to inform the bailiff about this in a timely manner, while providing the necessary arguments. The delay goes beyond coercion, this situation does not affect the voluntary fulfillment of obligations by the debtor.

The execution fee is not charged for the production of:

  • on delegation of the order of another bailiff;
  • for execution in the territory where his duties do not apply;
  • upon secondary filing of a writ of execution;
  • on the demand for forced eviction from the borders of the Russian Federation of foreigners or stateless persons;
  • according to the prescription of compulsory works;
  • on a request to search for children.

The defendant's side has the right to appeal the decision of the bailiff, while it is necessary to appeal the actions of the bailiff to his leadership. Reducing the amount of the enforcement fee in the presence of extenuating circumstances is regulated by filing an application with the court. To pay for this payment, there is its own BCC - budget classification code.

In order to improve legal literacy, participants in cases for the collection of debts, alimony, fines, taxes should understand what bailiffs' enforcement fees are. Cases related to the payment of debts are classified as difficult, it is possible to challenge them or reduce the amount of debt. However, the payment for the defendant may become larger due to the enforcement fee, which is a punishment for those who do not meet financial obligations in a timely manner.

Consider the basic rules for the collection of performance fees, their amount, depending on the person liable to pay. And also, what measures can be taken to reduce the performance fee or not pay it at all.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and IS FREE!

What it is

The execution fee is a punishment of a sanction nature applied by employees of the executive bodies with respect to non-payers who do not comply at their own request at the appointed time with the decision of the judicial authority and all the requirements of the executive document. An exception may be a number of good reasons, about which a little later.

In addition, the performance fee is not only a sanction measure, but also a kind of incentive that pushes the debtor to immediately fulfill its obligations. After all, not every person will want to lay out his hard-earned money for his own inaction, when the issue can be settled at a lower cost.

The law provides for a fee of 7% of the amount that must be collected under the executive document. The amount of fees will depend on whether the defaulter is an individual or a legal entity.

But even in this case, the amount of the fee cannot be:

  • Less than 1,000 rubles for an individual;
  • Less than 10 thousand rubles. for a legal entity.

In case of non-fulfillment of obligations on non-property issues, the following will be written off from the debtor:

  • At least 5,000 rubles, if it is an individual;
  • At least 50,000 rubles, if it is a legal entity.

In which cases

Taking into account the legislative norms of federal law No. 229, the main conditions for collecting a performance fee are:

  1. Failure to comply with the requirements prescribed in the writ of execution within a certain time frame. The established terms mean a period of 5 working days from the date of initiation of enforcement proceedings;
  2. Failure by the defaulter to provide information to the bailiffs about the reasons for which the obligations were not fulfilled. Such information may include:
    1. Information about employment and sources of income;
    2. Payments, receipts and other documents confirming the payment of a debt to bailiffs.

But do not forget that the voluntary fulfillment of obligations directly depends on the proper notification of the debtor.

There are several ways:

  • mail notice;
  • Telegram, fax, sms;
  • Personal visit by bailiff.

When using any of the above methods, the bailiff is obliged to make a note about the reaction of the debtor. Further work with the debtor will depend on this.

Video: How to dispute

Resolution on the collection of the performance fee

The resolution on the collection of the performance fee is executive, which must meet the specific requirements for this type of document. The resolution is adopted by a senior bailiff and certified by the structural department where the issue of debt is resolved.

The main body of the document should include:

  • Date of receipt by a person of a decision on the commencement of an enforcement case or refusal to receive this document;
  • Confirmation of the expiration of the voluntary fulfillment of obligations;
  • Failure by a person to fulfill his obligations specified in the executive document;
  • The person's failure to provide exhaustive evidence that affected the failure to fulfill his obligations or the refusal of them;
  • Other circumstances of relevance.

Also, the document must record the fact that it can be appealed within 10 days from the date of receipt of the decision.

Despite this, the law does not exclude the possibility of collecting performance fees within 10 days if the bailiff does not have information about the acceptance by the court of an application or claim for consideration. Therefore, the executive bodies may collect the fee before the end of the 10-day period.

If the court accepted for consideration an application to challenge the decision, an application for deferral of collection, reduction of the amount of the fee or exemption from its collection, the process of collecting the performance tax must be suspended until the court makes its decision and an appropriate act is drawn up.

Fee reduction application

According to legal acts, the debtor has the right to apply to the court with a claim to reduce the performance tax.

The fee may be reduced in the following situations:

  1. The instructions of the writ of execution were not fully implemented before the initiation of the enforcement case;
  2. The requirements were fulfilled by half within the period provided by law.

After that, the amount of the fee will be calculated from the amount actually remaining payable after the end of the voluntary period. But the amount by which the fee is reduced cannot be less than ¼ of the amount established by law.

If the debtor submits all the necessary documents on incomplete fulfillment of obligations within the prescribed period after the bailiff makes a decision on collection, the tax amount must be recalculated and the document amended.

Reducing the performance tax through the court involves a number of extenuating circumstances.

For example, a judge can meet the debtor halfway and reduce the amount of the fee if objective evidence is provided that forced them to deviate from the deadlines for fulfilling obligations:

  • Certificate of severe illness;
  • Difficult financial situation (inability to pay the fee), etc.

The judge examines all submitted documents and announces the decision.

How not to pay

Earlier it was found out that the performance fee is assigned when the terms of the executive document were violated without good reason.

Usually, bailiffs are silent, and many citizens do not have a legal education, so few people know exactly when a person in debt may not pay a fee.

Good reasons include:

  1. force majeure or circumstance;
  2. Permission to a person by a court of installments, deferrals to fulfill the requirements of the document.

With the last factor, everything is clear. The court made its decision, and the bailiffs are obliged to obey it. And what is an irresistible force that can release the debtor from payment?

This thesis comes fromArticle 401 of the Civil Code of the Russian Federationand implies:

  • Natural disasters: earthquakes, floods, hurricanes, etc.;
  • Any factors that affect public life: strikes, hostilities.

The question arises - is the debtor's illness considered force majeure? In most cases, no. And when considering the case in court, this will be attributed to such a thesis as a “case” and the judge’s decision will be based more on the disease itself, on how it affected the debtor’s health, and whether there was a threat to the person’s life.

Also, the difficult financial situation of a citizen does not belong to force majeure. Although, if the debtor fussed in time, the court may reduce the amount of the fee.

In addition, according to part 5 of Art. 112 of the federal law, there are times when the performance fee is not collected at all.

This happens if:

  • The case went to work on the executive act, which was received in the manner prescribed by Part 6 of Article 33 of the Federal Law;
  • A document was repeatedly presented, according to which a decision on the collection of a performance fee had already been issued;
  • A case was initiated on the decision of the bailiff to recover the costs of enforcement actions and collection, imposed by the bailiff in the process of fulfilling obligations;
  • Enforcement proceedings initiated on acts of interim measures;
  • The case concerns documents containing demands for the expulsion of foreign persons from the Russian Federation;
  • The documents contain a requirement for a citizen to serve compulsory work;
  • A request was made to the central authority to search for the child.

statute of limitations

There is no statute of limitations for enforcement fees. On the one hand, it would be possible to apply the general term for such cases - 3 years, but on the other hand,

The decision of the Constitutional Court of July 30, 2001 recognized that the performance fee has signs of administrative penalties. And this means that an administrative penalty is not enforceable in cases where the document has not been enforced within 2 years from the date of entry into force.

Appeal

Hello.

The Federal Law "On Enforcement Proceedings" does not establish a period after which the bailiff is not entitled to initiate enforcement proceedings on the basis of a decision to collect a performance fee. However, the courts, as a rule, extend the same limitation period to the order for the collection of a performance fee, as they do to orders in cases of administrative offenses, since 2011 - two years from the day when the main enforcement proceedings were completed. The same approach is reflected in methodological recommendations on the procedure for collecting the performance fee N 01-8, approved by Order of the Federal Bailiff Service on December 23, 2010

3.2. The procedure for the execution of the decision on recovery
performance fee and deadlines for its presentation
to enforcement
The decision to collect the enforcement fee is sent (delivered) to the debtor or his representative in the manner similar to the procedure for sending (delivering) the decision to initiate enforcement proceedings.
After the bailiff-performer issues a decision to collect the performance fee, it acquires the status of an independent executive document and is subject to enforcement.
As part of the main enforcement proceedings, such a decision is executed in accordance with the general procedure provided for by the Law.
If the enforcement fee is not collected as part of the main enforcement proceedings, after its completion, the bailiff or the head of the compulsory enforcement group initiates enforcement proceedings on an unfulfilled or partially unfulfilled decision to recover the enforcement fee from the debtor in the following cases:
The term for presenting a resolution not executed within the framework of the main enforcement proceedings on the collection of a performance fee is calculated from the moment the main enforcement proceedings are completed, if such a resolution has not previously been presented for enforcement as an independent executive document.
Thus, the period during which enforcement proceedings may be initiated for the purpose of executing the decision of the bailiff on the collection of the performance fee should not exceed two years from the date when the main enforcement proceedings for monetary recovery were completed or from the date of the decision to collect the performance fee. fee for non-fulfillment of non-monetary claims of a property nature and claims of a non-property nature.
RESOLUTION
dated November 17, 2015 N 50
ABOUT APPLICATION
THE COURTS OF THE LEGISLATION WHILE REVIEWING CERTAIN
ISSUES ARISING DURING THE ENFORCEMENT PROCEEDINGS
78. Within the meaning of Article 112 § 1 of the Law on Enforcement Proceedings, the enforcement fee has the properties of an administrative penalty sanction, in the application of which the debtor is obliged to make a certain additional payment as a measure of his public liability arising from an offense committed by him in the enforcement proceedings. production.

Considering that the decision to collect the performance fee from you has already been issued, it is executed within two years.