Collecting accounts receivable in Belarus
- Instruction plan
- Related instructions
- Choosing the order of collection
- Mandatory pre-trial settlement
- We are preparing a statement of order proceedings or a claim
- Payment of state fees
- Submission of documents to court
- Consideration of documents in court
- Compulsory execution
Step 1. Choosing the order of collection.
Currently, there are two main ways in the Republic of Belarus for collecting receivables: notarial and judicial. Notarial is to apply to a notary with a statement for the issuance of a notarial inscription. The judicial process consists in applying to the economic court in the order of an order or a claim proceeding. It should be remembered that the two mentioned methods are mutually exclusive. So, the economic court will refuse to accept the statement of claim if there are grounds for collecting the debt in a notary manner. Therefore, first of all, it is necessary to find out whether there are such grounds for contacting a notary. To do this, it is worth referring to the Decree of the President of the Republic of Belarus No. 366 of August 11, 2011 "On some issues of notarial activity" (as amended on 07.05.2015/XNUMX/XNUMX).
Currently, debt collection in accordance with the mentioned Decree in the procedure for issuing an executive note is carried out under a wide range of business contracts, such as a contract for the supply, transportation, provision of services, lease, rental. In this case, it is necessary to carefully study the conditions for applying the appropriate procedure to a particular agreement. Thus, a writ of execution under a supply agreement can be obtained only if there is an act of reconciliation of mutual settlements. At the same time, according to the lease agreement, the reconciliation act is not needed, it is enough only for the rent to be fixed. For example, 100 rubles for 1 month of rent.
The claimant for the issuance of a writ of execution may apply to any notary with a statement, the content of which is regulated by the Resolution of the Ministry of Justice of the Republic of Belarus dated October 23.10.2006, 63 N 10.07.2015 (as amended on July 5, 10) "On approval of the Instruction on the procedure for performing notarial actions." For the issuance of a writ of execution, a notarial tariff is charged in the amount of 1000% of the amount to be collected, but not less than XNUMX% of the base amount and not more than XNUMX% of the base amount.
In case of a notary's refusal to issue a writ of execution, it should be required to issue a written refusal to issue a writ of execution. Such a refusal will be an absolute basis for the acceptance of your statement of claim or an application for the initiation of an order by an economic court.
Despite the fact that the notarial debt collection procedure is somewhat more expensive in some cases of the judicial collection procedure, it should not be neglected, not only because it is obligatory. The writ of execution has the force of a writ of execution and therefore you can not wait several months for the adoption of a judicial act, but immediately proceed to enforceable collection. Efficiency in debt collection can be critical, because several months are enough for the debtor to go completely bankrupt and go into bankruptcy.
Step 2. Mandatory pre-trial settlement.
Currently, going to court for debt collection in economic cases requires compliance with a mandatory pre-trial procedure. Compliance with this procedure is regulated by Appendix 1 to the Economic Procedure Code of the Republic of Belarus. The term for consideration of the claim is 1 month, unless otherwise provided by the contract. The claim is sent to the debtor by hand against signature or by registered mail with a written acknowledgment of receipt.
The claim must contain: the name of the claimant and the person (s) to whom the claim is presented (the recipient of the claim), their place of residence (place of stay) or location; the date of the claim; the circumstances on the basis of which the claim was made; evidence confirming these circumstances; the claimant's claim with reference to legislation; the amount of the claim and its calculation, if the claim is subject to monetary valuation; bank details of the claimant (if any); list of documents attached to the claim.
You should not be careless about the content of the claim. Despite the fact that the court is sometimes liberal, taking into account the principle of procedural economy, refers to minor errors in a claim, it is worth remembering that each such error is an opportunity for the debtor to achieve a refusal to make a decision in your favor, or even cancel an already made decision. So, bank details are often not indicated, while the claimant refers to the fact that the bank details are specified in the contract. However, the legislator included this condition not for such reasoning, and therefore the absence of bank details in the claim when the debtor takes an active position may well lead to the recognition of the pre-trial order as not being complied with.
You should also pay close attention to the content of the stated requirements. So, often recoverers file a claim only for the principal debt, and they do not present a claim for interest and interest, or they simply threaten to recover them in court in case of non-payment of the claim. If you want to collect interest and interest, you must make an accurate calculation of their amount in the claim.
When is it possible not to file a claim? Firstly, when the mandatory complaint procedure is eliminated by written agreement of the parties. Secondly, when a claimant applies in an order to recover an amount not exceeding 100 base units, if there is evidence that the debtor has recognized the debt. So, if under the contract for the provision of services, an acceptance certificate for the services rendered is not signed, it is still worth sending a claim. Indeed, in this case, an unanswered claim will be the only evidence of recognition of the debt.
Step 3. Prepare a statement of order or a statement of claim.
First of all, the reader is probably interested in the question: when is it better to go to court in an order proceeding, and when in a claim... There is no universal answer to this question, but some general principles can be cited. The advantage of the order proceeding is the low amount of the state duty and the absence of the need to have a representative in court. However, it is also not difficult to obtain a refusal to issue a ruling on a court order in an order proceeding. It is enough only for the debtor to provide a reasoned response to your application. The degree of sufficient motivation depends to a large extent on the discretion of the court. So, in some cases it is enough for the debtor to write at least something, in some the court may reject too “unfounded” response (for example, “we have no money”, etc.). Therefore, if you are deliberately informed about the negative position of the debtor, motivated by his unwillingness to repay the debt, it is better not to spare funds to pay the state fee and immediately file a statement of claim. After all, an appeal by order can delay the consideration of the case, in this case, based on practice, we can talk about the delay of up to 2 months.
The content of the application for the initiation of order proceedings and the statement of claim for debt collection are quite identical. Both the one and the other document must contain the requisites of the claimant and the debtor (in the claim proceeding - the plaintiff and the defendant), the justification for the presence of debt, evidence, information on compliance with the mandatory pre-trial order, the calculation of interest for the use of other people's funds and penalties, a description of the attached documents. The requirements for the statement of claim are contained in Art. 159 of the Code of Civil Procedure of the Republic of Belarus, the requirements for a statement on the initiation of order proceedings are contained in Art. 221 COD of the Republic of Belarus.
When calculating the penalty, it should be remembered that, according to the legislation of the Republic of Belarus, an agreement on a penalty (penalty) can only be expressed in writing. The formula for calculating the penalty: (Amount of debt under the contract) * (Interest rate established in the contract) * (number of days of delay).
The calculation of interest for the use of funds is made regardless of whether it is fixed in the agreement, however, in the agreement, the amount of interest may be increased. Interest calculation formula: (Amount of debt) * ____% (NBRB refinancing rate) / (number of days in a year) * (number of days for which interest is calculated).
The calculated amount of the penalty can be reduced by the court if it considers it disproportionate to the violated obligations, usually it does this at the request of the debtor or if the penalty is obviously overstated. The amount of interest can be reduced only if it exceeds the amount established by law. As a rule, the amount of interest collected cannot be more than half of the principal amount and can never be more than the total amount of the principal debt. This is an unspoken rule. It will be especially useful to remember about it in case of going to court in the course of action proceedings, because the state duty paid due to the high penalty interest will not be imposed on the debtor in case of refusal to satisfy the claims in terms of the overstated penalty.
Step 4. Payment of the state fee.
For consideration of claims for collection of receivables, the minimum state duty will be 520 Belarusian rubles, which corresponds to 25 basic values;
When the amount of recovery from 100 to 1000 base values, the amount of state duty will be 5 percent of the value of the claim, but not less than 520 Belarusian rubles;
When the amount of recovery from 1000 to 10 000 base values, the amount of state duty will be 5 percent of the 1000 base values plus 3 percent of the amount exceeding the 1000 base values;
When the amount of recovery from 10 000 base values and above, the amount of state duty will be 1 percentage of the price of the claim, but not less than the amount set in the paragraph above.
When considering an application for the initiation of an order proceeding, the state duty rate for the amount of collection up to 100 basic units will be 2 basic units;
When the amount of recovery from 100 to 300 base values, the amount of state duty will be 5 base values;
When the amount of recovery from 300 base values and more, the amount of state duty will be 7 base values.
When paying the state duty, it is important to correctly indicate the purpose of the payment, which should contain not only the name of the procedure (for example, for filing a statement of claim for the collection of the principal debt, penalty interest and interest), but also the name of the debtor (defendant, recoverer). The details of the state fee can be found on the court's website: http://court.gov.by/.
When paying the state fee through the client-bank system, Internet bank, it is necessary to certify the payment order submitted to the court with the original seal of the bank.
Step 5. Submission of documents to the court.
The statement of claim is filed with the court in duplicate with copies of documents certified by the head of the claimant or a representative by proxy, usually a lawyer or full-time legal adviser. The court will independently send a copy of the statement of claim to the defendant. The submission of an application for initiation of an order proceeding differs in that the claimant independently sends a copy of the application to the debtor and sends a postal receipt for such a direction to the court.
Documents can be submitted to the economic court by courier with delivery to the office or by mail (registered mail). It is recommended to indicate your mobile phone number in the documents. This will allow the court to send notifications via SMS messages, which will allow you to promptly respond to relevant information.
If you are not at the legal address, you must indicate the postal address indicating the person responsible for receiving the correspondence.
Step 6. Consideration of documents in court - obtaining a writ of execution.
In the order proceeding, the court within 5 working days sends to the claimant the ruling on the acceptance of the application for the order proceeding. The application is considered within a period not exceeding 20 working days from the date of its receipt by the court. If the application and the documents attached to it comply with the legislation, there is no reasoned withdrawal of the debtor, the court adopts a ruling on the court order, which enters into force immediately, but the debtor will have the right to appeal this ruling, which has entered into force, within 10 days. Therefore, here experienced lawyers advise not to rush to use the right to issue a payment request to the debtor's account within 10 days. Often, debtors simply do not know that an order is being conducted against them, having not been at the legal address for a long time, which is their problem, and not the problem of the claimant or the court. However, seeing the withdrawal of money from the account, they promptly take measures to cancel the determination. After 10 days, they will hardly be able to do anything. Thus, consideration of an application for initiation of an order proceeding may take up to 1 calendar month. Although sometimes, taking into account the workload of the courts and the transfer of documents by mail, this period can take up to 1,5 months.
In a claim proceeding, the consideration of a claim takes longer, the term here depends on the complexity of the case. So, a case on recovery under a supply contract, in which the defendant does not take an active position, misses meetings or does not object to the claim, can be considered within 1,5-2 months. A dispute over damages from a Russian company located in Vladivostok, if the agreement establishes the jurisdiction of the case to the Economic Court of the city of Minsk, can take up to one year. The preparatory session is held by the court within 15 days from the date of receipt of the statement of claim to the court.
In a claim proceeding, the economic court makes a decision, which comes into force if the defendant does not file an appeal within 15 days from the date of issue. In this case, the economic court issues a court order to the recoverer, which, like the ruling on the court order, will be an executive document.
Consideration of a case in the order of an order proceeding is carried out without a court hearing, in the case of a claim proceeding, a representative is required. The representative can be the head of the enterprise, its full-time employee, as well as a lawyer. Simple cases, in which the court does not need to receive oral explanations of the parties, can be considered without the participation of representatives if there is a corresponding petition from the plaintiff.
Step 7. Compulsory execution.
First of all, it is necessary to issue a payment request with a writ of execution to the known account of the debtor. Therefore, it is so important that all business contracts indicate the current account. Usually the accounting department of the enterprise is in charge of setting the demand. It is important here not to "overexpose" such a requirement. It is often forgotten until the bank itself returns it along with the documents due to the impossibility of execution. If there is no withdrawal of funds on a payment request, it is worth recalling it after 2 weeks. In case of partial write-off, it is possible to keep the claim with the bank for 1 month. These are just recommendations based on the experience of a collection lawyer.
In the absence of a write-off of funds on a payment request or their partial write-off, the recoverer submits an application for initiation of enforcement proceedings to the department of compulsory execution at the location of the debtor. The contractor, having received an application for the initiation of enforcement proceedings with an attached writ of execution and a payment request returned from the bank, shall issue a resolution on the initiation of enforcement proceedings within 3 days. It should be remembered that the term for presenting a writ of execution for collection is 6 months and in case of a pass it is not easy to restore the term.
In the course of compulsory execution, the debtor is given 7 days to voluntarily execute the judgment. In the absence of this, the executor seizes all accounts and property of the debtor, in the absence of property, the executor summons the debtor to give explanations. Debtors who are individual entrepreneurs may be subject to restrictions in the form of a ban to leave the territory of the Republic of Belarus, deprivation of the right to drive a vehicle.
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