Any proceeding involves the possibility of going through three instances (first instance, appeal, cassation) during the resolution of the dispute.
In commercial proceedings (as in other types of legal proceedings), the decision comes into legal force from the date of its adoption by the court of appeal (if an appeal was made).
If the court of appeal has made a decision to recover from you a certain amount of penny funds, but you do not agree with such decision and there are grounds for a cassation appeal, the issue of stopping the execution of the decision during the consideration of the case in the cassation instance becomes relevant.
What is it for? After the full text of the decision of the appellate instance has been drawn up and it will be published in the Unified State Register of Court Decisions (hereinafter referred to as the USRSR), the recoverer can apply to the court of first instance with an application for the issuance of a court order to collect pennies. The court of first instance considers such an application within five days from the date of its receipt. At the same time, the court of first instance may not wait until the case is received by it, but issue an order on the basis of the existing published resolution in the USRCD.
Immediately after the claimant receives such an order, he can immediately begin to take action to enforce the collection of penny funds, to seize accounts and property. In fact, even in 5-7 days, you can collect funds.
So that your accounts and property are not arrested, and then, with a positive decision of the cassation instance, you do not have to take forced actions to return the collected funds – you must act without delay.
How to act
1. Do not delay filing a cassation appeal.
Of course, sometimes you want to thoroughly write out and deduct a cassation appeal, and therefore this process is often stretched out for all the 20 days provided for a cassation appeal, and there you can additionally restore the deadlines from the date of delivery of the decision. But if you want to stop the execution of the court decision, such a legal delay will not be in your favor, since during all this time the decision is already subject to execution.
Therefore, immediately after the announcement of the appeal ruling and patents, it is necessary to prepare the basis for a future cassation appeal, and after the publication of the complain in the USRCD, immediately within 1-3 days, prepare and file a cassation appeal (at the same time, do not forget to indicate the grounds for cassation appeal provided for by Article 287 of the Code of Civil Procedure of Ukraine) …
2. Submit an application to suspend the execution of the judgment.
Such an application can be filed separately from the statement of claim or you can ask for the stopping of the execution of the court decision in the cassation appeal. Stopping the execution of a court decision or stopping its action must be motivated and contain reasonable grounds for suspending the execution of the court decision, which is confirmed by evidence.
The court of cassation will not stop the execution of the contested decision without proper and sufficient grounds to do so. In its jurisprudence, the Supreme Court indicates that the motives for stopping the execution of a decision or stopping its action, among other things, may be the opening of enforcement proceedings on account of the compulsory execution of court decisions, the impossibility of turning the execution of a decision in case of its cancellation or the need to take additional measures to restore violated rights …
So, in our own practice in one of the proceedings, the grounds for stopping the execution of the court decision were the substantiation of the materiality of the collection amount (almost UAH 2 million), for which enforcement proceedings were opened and the debtor’s accounts and property were seized, which led to the complication of his economic activities.
In another proceeding, such grounds for stopping the execution of the decision were the justification for open enforcement proceedings, and also that the recoverer himself has an open enforcement proceeding, in which he acts as a debtor, which has not been fulfilled within 3 months. As a result, not stopping the execution of the court decision will lead to the impossibility of turning the execution of the decision, since the recoverer does not have funds, and the recovered funds will go to repay the recoverer’s debt in another obligation.
3. Communication with performers.
This action is the most subjective, since it largely depends on the will and desire of the executor not to rush to issue a decision to suspend the execution of the court decision or refusal to transfer funds to the claimant.
If, however, the court of cassation issued a decision to suspend the execution of the court decision, such a decision must be immediately provided to the executor and demand from him to cancel the arrests.
As a result of quick and reasonable actions, it is possible to prevent the execution of the court decision and continue the usual business activities during the consideration of disputes in cassation.
The author is Lindyuk Svyatoslav, the lawyer of the corporate law practice and legal representation of Patriot.Legal.
Patriot.Legal is a company that provides legal and audit services.