sou · H4B381d6 · 2016-11-25 00:00:00 — This may be because the party does not want to meet the obligations but it can also be because the party considers that the party is not able to meet them. In these situations it is essential that society makes compulsory measures available. But when and how compulsory measures may be used must be carefully regulated. To be credible, the use of compulsory measures must be efficient. At the same time efficiency must be balanced against the requirement that coercion is exercised with respect for the rights of the individual so that the use of compulsory measures is humane and legally secure. In only the Swedish Enforcement Authority is allowed to use compulsory measures to claim someone’s property or pay as payment for an established debt. The Swedish Enforcement Authority also has sole authority to enforce an established security measure, an obligation to move from a particular space or an obligation to carry out or not carry out something else. Even though compulsory measures are required in a very small proportion of all the situations in which someone has to carry out or tolerate something the total number of applications to the Swedish Enforcement Authority is large. year the Swedish Enforcement Authority handles about 2.3 million applications for enforcement concerning more than 500 000 debtors. The majority of them, about 428 000 or some 85 per cent, are natural persons. A total of billion was paid through the activities of the Swedish Enforcement Authority in 2015. than half, or billion, went to the payment of public law claims while billion was for the payment of civil law claims. The activities of the Swedish Enforcement Authority are regulated in the Swedish Enforcement Code (1981:774). The Swedish Enforcement Code entered into force on 1 January 1982 replacing legislation including the Enforcement Act of 1877. The Enforcement Code was the result of long investigative work and involved a comprehensive modernisation of enforcement law. During the more than 30 years that the Enforcement Code has been in force both the Swedish Enforcement Authority and society as a whole have changed. The development of information and communication technology has led to changes in the working methods of the Enforcement Authority, and this means a greater demand for a technology-neutral regulatory framework. Globalisation results in greater movement of people, companies and property and this has, in turn, led to developments in international cooperation on enforcement law. Despite these changes no comprehensive review has been made of the Enforcement Code. Overall, the Enforcement Code is now outdated, complex and difficult to apply. This inquiry has been tasked with considering specific issues concerning enforcement titles, the investigation of debtors’ assets, collaboration between public authorities, the attachment of pay system, non-attachable property and the attachment of housing, eviction, the assistance of the Swedish Enforcement Authority in voluntary agreements and case management as well as compulsory sales and the reporting and distribution of funds. We have also been tasked with proposing other measures that may lead to a more efficient enforcement procedure. In view of the scale of our remit, the complexity of these issues and the time the inquiry has had at its disposal, we have had to limit the scope of our remit in various ways. During the work of the inquiry we have considered and made proposals concerning many different matters that can lead to a more modern, efficient and legally secure enforcement procedure. The enforcement procedure should be efficient in the sense that a person who contacts the Swedish Enforcement Authority to obtain assistance in collecting a claim should not need to wait longer than necessary. A simpler and clearer regulatory framework can make the enforcement procedure faster and more efficient. Clear and distinct rules can also lead to fewer appeals. The large number of cases at the Swedish Enforcement Authority means that the application of the law in the great majority of cases has to be simple and pre-determined. The implementation of compulsory measures has to follow a set pattern so that the sequence of events is predictable for everyone concerned. In the great majority of cases the scope for different interpretations and deviations from what applies to the bulk of these cases must be limited. At the same time, there must be safety valves for the isolated cases in which coercive implementation under the main rule would lead to an unreasonable result. It also goes without saying that the regulatory framework for enforcement and the enforcement procedure must be adapted to ensure that lives up to its international undertakings under Convention on Human Rights and the Convention on the Rights of the Child. Our vision is that enforcement cases will be handled under a regulatory framework that makes it possible to weigh opposing interests against one another in the same way as a multifaceted and well-balanced set of scales. The enforcement procedure should be characterised by efficient and predictable routines at the same time as there should be scope to identify the isolated cases that have to be treated separately to avoid unreasonable consequences. Our proposals will have a number of positive impacts. If the activities of the Swedish Enforcement Authority can be run more efficiently, processing times will be shortened. We propose a number of amendments to the legislation that will make it easier to understand and apply the regulations. We propose repealing Chapters 1–3 and 16 and replacing them with new chapters. The rules on eviction, which are in many cases the measure that is the most far-reaching for the individual, are brought together in one chapter. Simplification of the regulations leads to more uniform provisions. In the past, several issues in the enforcement procedure have been resolved by case law. In various decisions the Swedish Enforcement Authority has stated opinions in various legal matters. Codifying this part of the application of the law makes the regulatory framework clearer. These proposals will make the enforcement procedure more efficient, transparent, legally secure and predictable, which will, in turn, probably lead to lower costs for the public institutions. We also propose linguistic revisions that make it easier to understand the regulatory framework and make the text of the law genderand technologyneutral. The Swedish term for an enforcement title, “exekutionstitel”, is changed to “utsökningstitel”. A number of proposed amendments are positive for debtors as a collective. Amendments to the calculations of normal and reserve amounts for a person subject to attachment of pay guarantee debtors and their families a reasonable living standard, which can, in turn, increase the incentives for open, i.e. registered, work. Children of persons who are parties in enforcement cases will also be affected by some of our proposals. One example is the statutory principle of the best interests of the child which will make clear that the children’s rights perspective must be taken into account in the whole of the enforcement procedure. The right of children to access with their parents will be satisfied to a greater extent since we propose legislating that access costs, including reasonable costs for and accommodation on account of the access, should be taken into account in the attachment of pay procedure. Some of our proposals are expected to lead to better debt collection results leading to better cost recovery for public activities and a better outcome for the entire creditor collective. Other proposals may result in lower annual revenue for central government and other creditors. Some proposals are expected to lead to lower social costs for economic exclusion, which will be of benefit to both the public institutions and the private creditor collective. In our impact statement we report both financial and other impacts of our proposals. We have chosen to highlight some impacts in this summary. The proposal regarding how to calculate normal and reserve amounts in the attachment of pay procedure is expected to lead to lower debt collection through attachment of pay. However, we consider that it is essential to ensure that individuals have a reasonable living standard if the attachment of pay procedure is to be sustainable and therefore efficient over time. Our assessment is that in the long term the better collection results and lower social costs that certain proposals will lead to will exceed and offset the lower revenue for central government that some of our proposals may result in. We make the assessment that our proposals are cost-neutral with respect to the estimated cost increases per year compared with the estimated cost reductions per year. We present a selection of our proposals below. There is a summary in Swedish in volume 1. efficient collection of public law claims The present enforcement procedure distinguishes between public and private cases. Claims under public law are enforced under the regulatory framework for public cases while other claims are processed as private cases. The regulatory framework governing this division is hard to understand. In some cases a review must be made of provisions in the Enforcement Code, the Enforcement Ordinance and special legislation as well as of preparatory works to legislation in order to determine whether a case is public or private. In public cases the Swedish Enforcement Authority has a kind of a double role since the Authority has some creditor tasks. Public cases are also given positive special treatment; one example is that the Enforcement Authority does not charge the central government for the collection of its claims. But the differences in the processing of cases are not big enough to justify a division into different case types, especially since it is sometimes difficult to determine whether the collection of a claim should follow one or the other of these regulatory frameworks. We therefore propose removing the terms public and private cases. Most of the public cases are cases that the legislator has decided shall be processed under the Act (1993:891) on the Collection of Debts to the State etc. (the Debt Collection Act). The separate regulation still needed of these cases is clarified and set out in the form of explicit exceptions for cases processed under the Debt Collection Act. At present it is often not clear what applies when an administrative authority makes a decision that entails a payment obligation for a private person or a legal entity (jointly called “person” below). The decision may mean that a person has to pay a charge, either as payment for something or as a sanction. It can also be about a person being required to repay something that the person has wrongfully received. In many instances the legislator has decided that this obligation to pay can be put into effect under the Debt Collection Act. This is a clear-cut decision that means that enforcement follows pre-determined rules. In other cases the legislator has stated in the Enforcement Ordinance or in special legislation that the decision may be enforced under the provisions of the Enforcement Code on public cases and this gives rise to different interpretations. What is of even greater importance is the question of whether a decision of an authority is directly enforceable or whether the authority must apply for an order to pay or apply for a summons on the person in a general court in order to obtain a ruling or judgment that can be enforced. On many occasions it is also difficult to answer this question. According to a new judgement from the Supreme Court the position now, unlike in the past, is also that a review in an administrative court of an authority decision that is not directly enforceable does not lead to an enforceable decision. Even if the person appeals the decision and an administrative court issues a decision to the effect that the decision is approved, the administrative authority must still apply for an order to pay or apply for a summons in a general court in order to be able to collect its debt. So the same claim can be examined in both an administrative court and a general court and these courts can, of course, arrive at conflicting rulings. This system is neither legally secure nor efficient. Authority decisions may be enforced when they have gained legal force We propose a new system in which it is always possible to enforce the decisions of administrative authorities when they have gained legal force, provided the decision is an exercise of public authority and relates to a payment obligation. Administrative authorities and local authorities will no longer need to obtain an enforcement title through the summary process or by applying for a summons in a general court. Instead, it is sufficient that the person with the obligation has had a real possibility to appeal the decision and that the decision has gained legal force. If the decision is appealed, the judgment of the administrative court will be an enforceable enforcement title. This will make the procedure cheaper and more efficient without neglecting legal certainty. The saving can be put at between and 2.9 million per year. efficient collection of public law debts will also enable central government to improve cost recovery for chargefinanced activities. According to our proposal it will be possible, just as it is today, to enforce certain authority decisions directly, generally under the rules of the Debt Collection Act but under special rules in some cases. For it to be possible to enforce a decision before it gains legal force the legislator must state clearly that it is a claim under public law that is directly enforceable and does not have to enter into force. A decision that does not involve any exercise of public authority, for example a decision to issue an invoice, does not gain legal force and cannot be subject to review by a court. An authority that wants to collect such a claim on the basis of civil law will have to apply for an order to pay or bring an action in a general court, just as it has to today. The Swedish Enforcement Authority should be able to help the parties to reach an agreement and enter into an enforcement contract Parties who have a dispute with one another generally have a lot to gain by solving their dispute voluntarily. Compared with court proceedings or arbitration proceedings, this can save both time and money. The parties may also feel satisfied that they themselves had an influence on the resolution of their dispute, and it is often easier for them to accept such a solution. When the parties reach a voluntary agreement, they are also in a better position to possibly continue their cooperation or business relationship after the conclusion of the dispute. Society also has a lot to gain by encouraging parties to try to find a voluntary solution to their dispute. For instance, courts and other authorities can put more of their resources into cases where a settlement is not permitted or where there are no of the parties coming to an agreement. Nowadays it is therefore a matter of course for general courts and rent and leasehold tribunals to try to help the parties to reach voluntary agreements. It is not as obvious that the Swedish Enforcement Authority, in its capacity as the enforcing authority, should assist the parties to come to an agreement. In court the creditor is taking legal action in order to obtain an enforceable judgment. In this phase the outcome of the case is not clear. Court proceedings can take a long time and result in high costs. This means that there are often clear and distinct incentives for both parties to enter into a settlement. During enforcement proceedings the applicant already has an enforcement title conferring a right to enforcement through the Swedish Enforcement Authority. Therefore the applicant may often be less interested in discussing a settlement during the enforcement phase than during court proceedings. On the other hand, the defendant may be more interested in discussing a settlement when enforcement is imminent. And voluntary solutions are often best for both parties, even at a later stage of the proceedings. We therefore propose that, when appropriate, the Swedish Enforcement Authority should work for an agreement between the parties. For this to be suitable the parties must agree to participate in such discussions. The Swedish Enforcement Authority should be able to hold meetings to give the parties the possibility of reaching an agreement. The Swedish Enforcement Authority should also be able to help the parties draw up an enforcement contract regulating what they have agreed. In our assessment, the possibility for the parties to get help from the Swedish Enforcement Authority to reach an agreement will be of particular value when individuals risk losing their home, i.e. in connection with an application for eviction or in the case of a compulsory sale of a home. An agreement in this phase can reduce the individual’s suffering and make things easier for both the debtor and his or her family in a difficult situation. The social benefits of an agreement in the enforcement phase are also considerable. In our assessment this proposal will, in the long term at any rate, lead to lower annual staff costs for the Swedish Enforcement Authority. In addition to enabling the Swedish Enforcement Authority to release resources for other cases where agreements cannot be achieved, this proposal can reduce municipal costs for emergency accommodation and other alternative accommodation if fewer people lose their homes and therefore need help finding a new home. Increased collection results through closer collaboration between authorities We propose closer collaboration through electronic exchange of information between the Swedish Enforcement Authority and other authorities. A systematic exchange of electronic information between the Swedish Enforcement Authority and authorities that pay attachable benefits and allowances will lead to better control of central government money, a more efficient enforcement procedure and a better financial outcome for the creditor collective. We therefore propose the of increased electronic exchange of information between the Swedish Enforcement Authority and selected authorities that pay or release attachable property. Before moveable property can be attached, it must be available to the Swedish Enforcement Authority. Normally the Swedish Enforcement Authority detains the property either from the debtor personally or from someone else. The Swedish Enforcement Authority can also secure property by sealing or marking it or by issuing a prohibition notice which means that an attached claim or right can only be satisfied to the Swedish Enforcement Authority or the party designated by the Swedish Enforcement Authority. If the Swedish Enforcement Authority is not at the location and able to detain the property, the property must be in the possession of another party for it to be possible for the Swedish Enforcement Authority to secure and attach the property through what is called “distance attachment”. When the property is being held by an authority, the possession requirement means that the property must have been taken in charge pursuant to that authority’s regulatory framework. Our proposal of closer collaboration between authorities will lead to the Swedish Enforcement Authority being able to attach money and other pro- perty being held by other authorities to a greater extent than at present. So the Swedish Enforcement Authority already has good possibilities of distance attachment of property in the possession of other authorities. If the possession requirement was removed, this could result in individuals, when faced with the risk that their property may be attached if they contact an authority, feeling uncomfortable and unwilling regarding contacts with authorities and therefore avoiding any dealings that they are not compelled to have. We also consider that ultimately a confusion of the remit and roles of different authorities can harm public trust in central government authorities. is it an efficient use of resources when authorities on finding property that they are not tasked with taking in charge then have to check whether the property can be linked to a debtor in a case with the Swedish Enforcement Authority. We are therefore not proposing any change in the possession requirement that is currently applicable. Sharper asset investigations with clear limits At present the Swedish Enforcement Authority already has many tools for conducting an asset investigation. We propose amendments to make these tools sharper and fitter for the purpose of finding assets. The Swedish Enforcement Authority can already summon the applicant, the defendant and other persons with knowledge of the defendants’ circumstances for questioning during the asset investigation. A person who does not attend may be obliged to pay a financial penalty. We propose increasing the size of these penalties to adapt them to the present value of money. We also propose making it possible to bring not only the defendant but also other persons to questioning and that the obligation to provide information should be expanded and clarified. These proposals can lead to fewer cancellations of meetings and to the Swedish Enforcement Authority gaining access to more adequate information, even about assets abroad. Taken together, these proposals will make it easier for the Swedish Enforcement Authority to find assets and this will lead to better collections results. The Swedish Enforcement Authority can only look for assets if there is an enforcement case. The Swedish Enforcement Authority must not engage in “fishing expeditions”, which means searching in an unplanned way for assets and then examining whether a particular asset belongs to a debtor in an ongoing enforcement case. There is no obstacle to the Swedish Enforcement Authority making checks in public registers or collaborating with and receiving information from other authorities in order to look for assets. is there any obstacle to other authorities collaborating with the Swedish Enforcement Authority before property is released or money paid. We propose a new provision in the Enforcement Code making it clear that the Swedish Enforcement Authority may take the investigative and search measures that are warranted in order to investigate the debtor’s assets. We also propose new provisions that give explicit support in law enabling the Swedish Enforcement Authority to carry out register checks and exchange information with other authorities. Better possibilities for the applicant to influence the asset investigation Out of the approximately 500 000 debtors handled by the Swedish Enforcement Authority some 100 000 are first-time debtors, i.e. debtors who have to pay a debt through debt collection by the Swedish Enforcement Authority for the first time. So the Swedish Enforcement Authority has to handle and investigate many debtors and many of them are not previously known to the Authority. In the initial phase of the attachment process the Swedish Enforcement Authority has to carry out a full review of the debtor’s income and assets. It is essential that the Swedish Enforcement Authority uses standardised working methods so that its activities are efficient. At the same time, the Authority must have some scope to be creative and use less common methods when required by the circumstances. It must therefore be up to the Swedish Enforcement Authority to decide what investigative measures are most appropriate in a particular case.