Settlement agreements are usually drawn up while the case is pending in court, until a decision is made on the claim. There, the parties can describe the conditions for paying off the debt or fulfilling other demands of the plaintiff, and the rules for mutual settlements of obligations.
After submitting documents to the FSSP, it is also possible to draw up a settlement agreement, including on partial forgiveness of debt at the stage of enforcement proceedings, on deferments and installment plans for payments. The parties will determine the terms of the document independently, without the participation of a bailiff. For the agreement to take effect, it must be approved by the court.
What is a settlement agreement in enforcement proceedings?
For the claimant, the initiation of enforcement proceedings makes it possible to obtain money from the debtor. The sooner this happens, the better for the claimant. The bailiff has no right to change the content of a judicial act that has been submitted for execution. But the parties themselves can influence the collection process. One of the options may be to conclude and approve a settlement agreement at the stage of enforcement proceedings. This is allowed under Article 50 of Law No. 229-FZ.
The conclusion of a settlement agreement means that the parties have reached mutual agreements on the implementation of a court decision or order. In most cases, this is unprofitable for the collector, since he does not intend to give the debtor any advantages or benefits.
Here are a few cases where a settlement agreement will be beneficial to both parties:
- if the debtor gives the claimant certain guarantees of full payment of debts (for example, issues a mortgage on the property);
- if the parties have mutual obligations under judicial acts, i.e. they can be set off under a settlement agreement (for example, if the claimant is a debtor in another court case);
- if the return of money under a settlement agreement will be faster than within the framework of enforcement proceedings (for example, if, in order to execute a settlement agreement, the debtor re-registers the rights to real estate or transport directly to the claimant, without waiting for the auction).
In each case, the creditor will evaluate the prospects and timing of the return of money through the bailiffs. If the financial and property situation of the debtor allows for quick collection of the entire amount, concluding a settlement agreement does not make sense.
The bailiff is not involved in reconciling the parties. Therefore, he cannot offer the claimant and the debtor to draw up a settlement agreement. The initiator of this may be the parties to the enforcement proceedings themselves. Moreover, the bailiff will not be a party to the agreement, since he has no mutual obligations with the collector and the debtor.
What does the settlement agreement affect?
A settlement agreement can only be drawn up by a voluntary decision of the claimant and the debtor. It is impossible to force them to sign a document and submit it for court approval. If the parties were able to agree on an agreement, this may affect:
- for the amount of the principal debt, penalties, penalties, penalties;
- on the terms and conditions of debt repayment, on the provision of installment plans and deferments in payments;
- on the progress of enforcement proceedings, since the bailiff will be obliged to complete it after the agreement is approved by the court.
The debtor and the collector cannot influence the obligations arising to third parties, as well as to the budget. For this reason, it is impossible to obtain forgiveness or reduction of the amount of state duty collected by the court. Also, the agreement cannot apply to the conditions for collecting the enforcement fee if it has already been appointed by the bailiff.
If the court approves the settlement agreement, it will be impossible to simply change its terms. Unilateral refusal to execute a document is not allowed. For example, if the debtor does not comply with the agreement on the timing and procedure for payments, the claimant will be able to go to court and receive a writ of execution. After this, the document can be handed over to the bailiffs for execution.
Everything about criminal cases
Formal awardUrl Additional information:
Hard Rule
the norms of
Part 3 62 of the Criminal Code
are softened with a pre-trial agreement
- outwardly everything seems simple, the reward is provided by the norm of Part 2 62 of the Criminal Code
, which limits the punishment in a special order to a maximum of 1/2 of the term.
Url Additional information:
— clause 6, part 1, 299 Code of Criminal Procedure
indication in the sentence of mitigating circumstances
- Part 3 307 Code of Criminal Procedure
indication of mitigating factors in the reasoning part of the sentence
- the court is obliged to indicate this mitigating circumstance in the verdict ( clause 6, part 1, 299 of the Code of Criminal Procedure
and
part 3 307 of the Code of Criminal Procedure
).
Url Additional information:
— Part 2 62 of the Criminal Code
in case of pre-trial agreement - maximum 1/2 of the term
- paragraph 24
Plenum No. 16 with agreement - the term is not 2/3 (
part 1 62
) - but 1/2 (
part 2 62
)
- the court is obliged to take this circumstance into account when assigning punishment ( Part 2 62 of the Criminal Code
and
paragraph 24
of Plenum No. 16).
Actual reward
- it is assumed that under a special procedure, a certain general benevolent attitude will be shown towards the defendant - in exchange for the fact that the court did not have to carry out a full-fledged evidentiary
, and also because the judge does not have to fear the verdict will be overturned (this probability is very small due to the narrow
scope of appeal
).
- it is this abstract benevolence that is the actual reward. It cannot be measured, and it is impossible to understand exactly how it influenced the size of the punishment (and whether it influenced it at all).
- nevertheless - it is real, usually, when considering a case in a special order, the punishment is milder than in general (under comparable circumstances).
Very strong mitigating circumstance
- it should be noted that with all of the above, it is the conclusion of a pre-trial agreement that is the only opportunity to remain free when convicted of crimes of special gravity
.
- this is exactly what has happened in current judicial practice, that if a defendant is charged with this category of crimes, then there is no real chance of a conditional sentence
he does not, with the exception of the institution of pre-trial agreement.
ILLUSTRATION from judicial practice
Cassation ruling of the Supreme Court dated 04/06/2011 N 16-011-20.
«Considering the high social significance
the institution of a pre-trial agreement on cooperation, its role in solving and investigating crimes, ensuring the responsibility of guilty persons, the legislator not only provided for the mandatory mitigation of punishment for convicted persons who fulfilled their obligations under such an agreement (Part 2 and Part 4 of 62 of the Criminal Code), but also
specifically
indicated in Part 5 317.7 of the Code of Criminal Procedure the authority of the court to decide in such cases the issue of punishment in accordance with the provisions of Articles 64 of the Criminal Code, 73 of the Criminal Code and 80.1 of the Criminal Code.
Under such circumstances, given specific assistance
provided to the convicted person.
justice... the court considers it possible to apply the provisions of Article 73 of the Criminal Code in relation to her and assign her a suspended sentence .”
In this case, two types of situations should be distinguished
— first
: when the assistance provided to the investigation is insignificant, it comes down rather to saving the time and effort of the investigation. That is, in this case, the investigator’s consent to conclude a pre-trial agreement is a kind gesture, a small reward for the accused. In this option, the impact of the fact of concluding a pre-trial agreement on the final punishment is actually visible (the difference can be from 1 to 4 years in the sentence), but does not lead to a suspended sentence.
— second
: A much rarer type of situation where the accused was able to provide such serious assistance to the investigation that without it the whole case could have fallen apart. It is in such situations that there is the possibility of a suspended sentence.
Non-legal aspect
- the question of the impact of a pre-trial agreement on punishment will not be fully disclosed if one does not mention one aspect that is not mentioned in any legal norm.
- we are talking about this: if assistance to the investigation was expressed in the fact that the accused gave incriminating evidence against other accomplices, then this cannot but affect his life in prison. Accomplices usually don’t really understand (and don’t want to understand) how much this incriminating testimony actually influenced the verdict. For them, in any case, this accused will become the reason for their conviction, the person who “drowned” them.
- even if they do not meet in prison, the accomplices will do everything to poison the life of this accused. They will make every effort to convey the fact of “betrayal” to all the neighbors with whom he is serving his sentence. Forgiveness and mercy never happen in such relationships.
- how much they can poison his years of serving freedom depends on his acquaintances, sometimes on the financial status of relatives, and on his personal luck.
Additional trial and deferment for a woman with a child
A separate aspect that is important for a lawyer to take into account is that a pre-trial agreement can be perfectly combined with the deferment of punishment provided by Article 82 of the Criminal Code
.
Why should this be taken into account? Because if there are several accomplices in the case, then surprises are possible from this side. We talk about this here: “Weak link”
- a woman, along with a pre-trial agreement, can be promised a deferment.
Consequences for enforcement proceedings
When the bailiff receives a ruling on approval of the agreement, he is obliged to terminate the proceedings. This is explicitly stated in Art. 43 of Law No. 229-FZ. Upon termination of the case, a resolution is issued and sent to the parties. Cessation of production will have the following consequences:
- all arrests, prohibitions and restrictions regarding the defaulter, property, accounts will be lifted;
- deductions from wages and other income will cease;
- the bailiff will not be able to carry out on-site enforcement actions;
- the search for property will be completed if it was previously entered by the FSSP.
The bailiff is obliged to issue a resolution to terminate the case within 3 days after receiving the court ruling.
Information about previously initiated proceedings will be deleted from the FSSP website within 7-14 days.
Nuances
Since 2021, the pre-trial procedure for resolving most civil disputes has become mandatory in the arbitration process. Failure to comply with this procedure is grounds for returning the statement of claim or leaving it without consideration (if the statement of claim has already been accepted for proceedings).
Cases when the parties to a conflict must try to resolve their dispute before court are established in law or provided for in an agreement.
According to the explanation of the Supreme Court, pre-trial procedure must be observed in situations relating to the conclusion, modification and termination of a contract; termination of the lease agreement; termination of the contract for the carriage of goods or passengers and others.
The overarching goal of the pre-trial settlement procedure is to reconcile the parties and develop agreements between them. It is desirable that the parties to the conflict sort things out among themselves, restore relations, or at least get out of them without additional costs.
The positive result of pre-trial settlement is the resolution of the conflict. Negative - the parties could not agree and still sue.
Conditions for terminating a criminal case upon reconciliation between the accused and the victim
The main criterion is maximum compensation and full compensation for the harm caused. However, in practice, this does not mean that the victim actually forgives the offender - what is important is his willingness to waive further criminal proceedings and accept financial compensation.
The most common option is for the accused to pay an amount for moral damage caused and fully provide treatment for the victim in case of harm to health.
Important: this procedure is not possible in relation to repeat offenders, persons who face a sentence of more than 6 years in prison. The victim is required to express his will in writing, otherwise the case is considered in the general manner.
When considering an appeal, the court examines the circumstances that must be clarified. It is taken into account whether the statement was made or by the victim. If he cannot submit the document, the right is transferred to his legal representative (lawyer, close relative). It is being determined whether the appeal was completely voluntary and not signed under the influence of force or threat. It takes into account how the damage was compensated. Before making a decision, the parties are explained the consequences of completing the procedure.
When is it possible to make peace?
If the crime is not associated with too severe consequences for the victim, there is a chance to resolve the matter peacefully. We are talking about fraud for a small amount, petty theft, causing minor harm to health.
The current Criminal Code of the Russian Federation provides for the conditions under which the reconciliation procedure is possible:
- The damage is considered to be of minor severity. The criterion is the duration of the imposed punishment. It cannot exceed 6 years of imprisonment; if the code provides for more, reconciliation will not be achieved.
- A person commits an illegal act for the first time.
- The criminal compensated for the damage to the victim and sincerely repented of his crime.
- The victim writes a statement of readiness to stop criminal prosecution.
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