A court decision may be enforced even before the review is complete: money will be debited from the debtor's account, the property will be transferred to the collector, or the executor will transfer the amount collected. If the appellate or cassation court later overturns this decision and dismisses the claim, the overturning itself is not enough to automatically return what was received.
There is a separate procedural procedure for restoring the previous property status - reversal of execution of a court decision. In civil cases, it is regulated by Articles 444-446 of the Civil Procedure Code of Ukraine. In order to actually return funds or property, it is necessary to submit a proper application in a timely manner, confirm the execution of the canceled decision, and correctly formulate the requirements.
What does a decision turnaround mean?
Reversal of enforcement is applied when the legal basis for an already carried out enforcement disappears due to the annulment or modification of a court decision. Its purpose is to return the parties to the property situation that existed before the enforcement of the annulled decision.
For example, the defendant was charged 300,000 hryvnias based on a first instance decision. The executor transferred the money to the plaintiff, but the appeals court later overturned the decision and completely dismissed the claim. In such a situation, the defendant may demand the return of the funds actually received by the plaintiff in the order of return of execution.
This mechanism should not be confused with cancellation of the absentia decision. The annulment or revision of a decision eliminates or changes the legal basis for the recovery, and the reversal of execution resolves the following practical issue: how to return what has already been transferred under this decision.
When can the court allow a reversal of execution?
The issue of reversal of enforcement must be resolved by the court of appeal or cassation if it annuls the decision and:
- closes the proceedings in the case;
- leaves the claim without consideration;
- dismisses the claim in its entirety;
- satisfies the claims in a smaller amount.
If, after the annulment, the case is remanded for a new trial, the issue depends on the outcome of that trial. Reversal of enforcement is possible when, during the new trial, the court closes the proceedings, leaves the claim without consideration, rejects the claim or satisfies it in a smaller amount.
In practice, the appellate or cassation court does not always resolve this issue in its ruling. This does not deprive the person of the right to return. If the higher court does not allow the return of execution, the application is considered by the court of first instance that considered the case.
What can be returned?
The subject of the return of execution is precisely what the collector actually received under the canceled decision. Most often, this is about money debited from a bank account or collected by the executor. The claim may also concern the return of transferred property, and when it is impossible to return it in kind - the issue of reimbursement of its value requires a separate legal analysis.
The amount of the claim must correspond to the actual execution. If the decision is partially executed, the return also concerns only the part actually transferred. If the new decision left part of the recovery in force, the difference between the actually received and the finally awarded amount is subject to return.
Therefore, it is not enough to refer only to the text of the annulled decision. It is necessary to show the movement of money or the transfer of property and accurately calculate the amount that the other party received without a valid legal basis.
What evidence to add to the application
The Code of Civil Procedure of Ukraine explicitly requires that a document be attached to the application confirming the bank's write-off of the awarded funds or the seizure of property by a state or private enforcement agent. Depending on the circumstances, evidence may include a bank statement, payment instruction, enforcement agent's resolution, act of transfer of property, documents on the distribution and transfer of the recovered amounts.
It is also advisable to attach to the application copies of court decisions on the basis of which enforcement took place and which subsequently changed the outcome of the dispute, as well as a clear calculation of the amount to be returned. If part of the funds was withheld by the enforcer as a fee, expenses or remuneration, these amounts must be separated from the money actually received by the collector.
Before preparing an application, it is worth obtaining the materials of the enforcement proceedings and checking to whom, when and in what amount the funds were transferred. In complex cases, comprehensive support in practice is useful enforcement proceedings, since the debtor's bank statement does not always show the further distribution of the amount collected.
Which court to apply to and within what time limit?
If the issue is not resolved by the court of appeal or cassation, the application for reversal of enforcement is filed with the court of first instance that heard the case. This is a special rule of jurisdiction, so it is usually not necessary to file a separate lawsuit at the location of the debt collector.
The deadline for submitting an application is one year from the date of adoption of the relevant decision by the court of appeal or cassation instance or from the date of adoption of the decision during the review due to newly discovered or exceptional circumstances. Missing this deadline creates a serious risk of losing the procedural mechanism, so it is not worth waiting for the completion of lengthy correspondence with the debt collector.
The court considers the application in a court session with notification of the collector and the debtor. Their failure to appear does not prevent the consideration. According to the Code of Civil Procedure, the issue must be considered within twenty days from the date of receipt of the application, although the actual period may depend on the workload of the court and proper notification of the participants.
Why the overturned decision is not enough
A common mistake is to expect that after winning the appeal, the executor will return the written-off money himself. The executor acts on the basis of the executive document and cannot independently resolve the procedural issue of returning the execution. For forced return, an appropriate court decision and an executive document are required.
The other party may also refuse to voluntarily return the received, citing the already completed enforcement proceedings or lack of funds. Such objections do not replace the court's assessment of the grounds for return, but after receiving the ruling, a new enforcement may be required.
If the problem is not related to the return of the collected amount, but to the illegal actions or inaction of the executor, another method of protection should be evaluated. The practical procedure for such an appeal is discussed in the material on Appealing the decision of the executor.
When the execution turn is limited
The law protects recipients of certain socially sensitive payments. In cases of recovery of alimony, wages and other payments arising from employment relationships, reversal of enforcement is generally not allowed. An exception is possible if the annulled decision was based on false information reported by the plaintiff or on forged documents submitted by him.
Certain restrictions also apply when reviewing decisions based on newly discovered or exceptional circumstances in cases concerning pensions, benefits, compensation for damage caused by disability, other damage to health or death, as well as other payments determined by law. Before submitting an application, it is necessary to check not only the final outcome of the case, but also the category of the dispute and the grounds for the cancellation of the decision.
Typical applicant mistakes
The first mistake is to file an application without evidence of actual enforcement. The writ of execution or the resolution to initiate proceedings itself does not confirm that the collector actually received the money or property.
The second mistake is to demand the return of the entire amount written off from the debtor without separating the funds transferred to the collector from the enforcement fee, expenses and remuneration of the private enforcement agent. The court must see the exact subject of the return of enforcement.
The third mistake is to miss the one-year deadline due to negotiations or waiting for voluntary return. Even when a party promises to pay, it is advisable to monitor the procedural deadline and go to court in a timely manner.
The fourth mistake is to choose a regular claim instead of a special application or to file it in the wrong court. The appropriate procedural route depends on the content of the final decision and whether the higher court has decided the issue of reversal of enforcement.
How a lawyer can help
In disputes about the return of executed property, it is important to combine the analysis of the court case with the verification of the actual movement of funds or property. The lawyer determines the appropriate court, monitors the one-year period, receives the materials of the enforcement proceedings, prepares the calculation and formulates the claim in such a way that the decision can actually be executed.
Your Lawyer accompanies litigation and enforcement proceedings from document analysis to actual return of property. If the canceled decision has already been enforced, it is worth assessing the possibility of reversal immediately after receiving the ruling of the appellate or cassation court.
FAQ
Will the money be refunded automatically after the decision is canceled?
No. If the money has already been transferred to the debt collector, it is usually necessary for the court to decide on the issue of the return of execution. In the absence of voluntary return, the court order is further enforced.
Who files an application for reversal of execution?
It is filed by the party from whom money was actually collected or property was seized under a decision that was later revoked or modified. The applicant must confirm the extent of the enforcement and the grounds for return.
Do I need to file a separate lawsuit?
As a general rule, no. The reversal of enforcement is decided within the relevant case by the court of appeal or cassation or, if they have not done so, by the court of first instance upon the application of the party.
What is the deadline for submitting an application?
The application can be filed within one year from the date of the relevant decision by the appellate or cassation court or the decision based on the results of the review based on newly discovered or exceptional circumstances.
Can alimony be returned after the decision is overturned?
As a general rule, reversal of enforcement in cases of child support collection is not permitted. An exception is possible if the decision was based on false information from the plaintiff or forged documents.
What if the appeals court did not decide the issue of reversal?
An application must be filed with the court of first instance that heard the case. It must include evidence of actual enforcement and specify the amount or property to be returned.
Visnovok
Reversal of the execution of a court decision allows you to return money or property transferred under a decision that has subsequently lost its validity. To do this, you must confirm the actual execution, correctly determine the amount of the return, apply to the appropriate court, and not miss the one-year deadline.
If the canceled decision has already been enforced, contact Your Lawyer. We will check the court documents and enforcement proceedings materials, prepare an application, and support the actual return of funds or property.