“Enforcement of a settlement agreement” — Zhanna Pychina for the Legal Information Agency

LIA — How is a settlement agreement approved by an arbitration court enforced? Including one that provides for an obligation in kind, recovery of a penalty for its violation, etc.

Zhanna Pychina, lawyer at Prime Advice Law Offices:

A settlement agreement approved by the court is equivalent in its legal force to a court decision that has entered into legal force.

In case of violation of obligations by the defendant, the claimant must send him a notice, setting a deadline for performance. A period of seven days is considered reasonable. The opponent has the right to submit his objections, including confirmation of his fulfillment of the terms of the settlement agreement.

After that, the claimant may file an application for the issuance of a writ of execution, attaching correspondence with the defendant and other evidence of violation of the settlement agreement. The issue is considered by the court without a hearing based solely on the documents submitted by the applicant.

The bailiff who receives the writ of execution must send a corresponding demand to the defendant (debtor). If the defendant provides confirmation of execution of the decision, the bailiff may terminate the enforcement proceedings. To assess the circumstances, the bailiff has the right to involve experts, collect materials, interview participants in the dispute, and perform other actions. If the fact of execution is not confirmed, the bailiff refuses to terminate the proceedings.

A party disagreeing with the decision made by the bailiff has the right to appeal it in court. The administrative defendant in such a case is the bailiff, while the claimant or debtor (claimant or defendant in the main case) are summoned as interested parties. When considering this administrative dispute, the court, in an adversarial process, establishes all circumstances of the fulfillment of the terms of the settlement agreement.

The issue of recovering judicial penalties (astreinte) is resolved in a similar manner. In the writ of execution, the court must indicate the procedure for calculating it. The calculation of the amount to be recovered as of a specific date is made by the bailiff. His actions can also be challenged in administrative proceedings. In addition, the defendant (debtor) has the right to apply to the court for a deferment or installment plan of execution of the judicial act. This issue is considered in an oral court hearing. The state fee for filing such an application is 3 thousand rubles in a court of general jurisdiction and 10 thousand in an arbitration court.

If, from the debtor's point of view, an unjustified recovery nevertheless took place, he has the right to bring a claim against the opponent for unjust enrichment.