TIME LIMITS OF FOREIGN EXIT FOR DEBTORS: WHAT TO DO?

One of the most effective measures to enforce court decisions is to temporarily restrict travel abroad. Given that consideration of the issue of temporary restriction of departure abroad is carried out without a call and the parties to the enforcement proceedings are informed of this, the existence of a corresponding restriction may become a real "surprise" for the debtor when attempting to cross the Ukrainian border.

  Temporary restriction on the right of departure of the debtor abroad is carried out on the basis of a court order issued on the submission of a public or private executor. The exception is the cases when the executor issues a resolution limiting the debtor's right of departure abroad in the presence of arrears of payment of alimony, the aggregate amount of which exceeds the amount of the respective payments for 4 months - before the payment of such arrears in full.

  In order to apply the restriction of departure abroad to the category of debtors who have arrears of payments of alimony for more than 4 months, the fact of arrears is sufficient. his decision. " Considering that "evasion" is an appraisal concept, this leads to the formation of different jurisprudence and creates grounds for abuses by performers who take actions aimed at applying appropriate restrictions to the debtor without sufficient grounds for doing so. There are cases where the contractor does not remove the appropriate restriction if there are legal grounds for doing so.

  The decision, issued on the results of consideration of the application for cancellation of temporary restriction of an individual in the right of departure outside Ukraine, may be appealed on appeal. Appeals are subject to court rulings of the court of first instance regarding temporary restriction on the right to travel outside Ukraine, issued by the court on the results of consideration of the executive's application for the application of the appropriate measures. At the same time, there is no cassation appeal for the relevant category of disputes, which is confirmed by the numerous practices of the courts of cassation regarding the refusal to open cassation proceedings.

  Based on the above provisions of the legislation, it can be concluded that the debtor has the right to use both an appeal against a court order imposing a restriction on leaving, and an application for the abolition of a restriction on departure. In this case, appropriate means of protection can be used in parallel with each other, and the election of one of them does not deprive the right to take advantage of the other in the future. Appeal with the application for cancellation of measures of restriction of departure, unlike the appeal against the decision on the application of such measures, is not limited by any procedural time, and also does not impose restrictions on the number of appeals with a similar requirement.

  As the case-law in similar disputes affirms, the subject-matter of disputes concerning the abolition of restrictions on traveling abroad includes proving the fact that the executor of his procedural law has an obligation to prove the fact of deliberate evasion of the debtor from execution of the decision and to refute the relevant circumstances. The Instruction on the organization of enforcement of decisions, approved by the order of the Ministry of Justice of Ukraine dated 02.04.2012 №512 / 5, provides two grounds for lifting a temporary restriction on the right to travel outside Ukraine within the framework of enforcement proceedings:

- termination of enforcement proceedings pursuant to paragraphs 1-3, 5-7, 9-12, 14, 15 h. 1 Art. 39 of the Law;

- cancellation of a temporary restriction on the right of departure of a person from Ukraine in case of payment of arrears on payment of periodic payments in full.

Removal of the relevant restriction within the limits of the enforcement proceedings shall be effected by the issuance by the executor of the relevant decision on the termination of the enforcement proceedings or on the abolition of a temporary restriction on the right of departure of a person from Ukraine.
Appeal of actions or omissions of the performer implies proving the existence of grounds for removal of the corresponding restriction provided by the Instruction on the enforcement of decisions: not taking any measures on the part of the performer to fulfill the requirements of the law for the appropriate removal of the restriction on departure or unlawful imposition of a certain restriction by adopting an appropriate resolution legitimate reasons for its imposition.

Here are some ways to protect a debtor's rights if you temporarily limit your travel abroad:

- appeal against a court order imposing a restriction on the debtor's departure abroad on appeal;
- an application for cancellation of the temporary restriction of the debtor in the right of departure abroad;
- appeal against the actions of the State Bailiff in order to pass a resolution limiting the right of departure of the debtor abroad;
- appeal against the inability of the State Bailiff to refrain from temporarily limiting the debtor's right to travel abroad if there are legal grounds for this.
The application of the method of protection depends on the circumstances of the case and the evidence available to the debtor.