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Enforcement under the Debt Enforcement Code (utsökningsbalken)
There is “enforcement” (verkställighet) where an executive authority compels compliance with an obligation that has been tested by a court of law or under some specific arrangement. The types of obligation most commonly enforced are liability for payment and the obligation to quit a dwelling. Precautionary measures (säkerhetsåtgärder) , such as seizure or sequestration (kvarstad) , are a special form of enforcement.
A liability for payment is enforced by means of distraint (utmätning). This allows the debtor’s property to be taken in satisfaction of payment.
Obligations other than liability for payment, such as an obligation to quit a dwelling, and precautionary measures, such as sequestration, are enforced by the mechanisms laid down in the Debt Enforcement Code. An obligation to quit a dwelling, for example, will be enforced by means of eviction. In general, though, the enforcing authority will order the party concerned to perform his or her obligations, or to observe a prohibition or some other requirement. The authority may also take necessary measures itself. It may impose fines.
Enforcement under the Parents and Children Code (föräldrabalken)
Enforcement may be sought for decisions on the custody of children, children’s living conditions, and contact with children. An enforcement decision may provide for a fine in the event of non-compliance, or for collection by the police.
For enforcement to take place there must be a judgment or other enforceable title that imposes a liability to perform an obligation.
The following enforceable titles may form the basis for enforcement:
Once an enforceable title exists there is no need for a further decision from a court or any other authority before enforcement can be set in motion.
Enforcement is carried out by a State authority, the Enforcement Office (kronofogdemyndigheten). It is therefore the Enforcement Office that orders distraint, for example. Overall legal responsibility for enforcement rests with a bailiff (kronofogde) , while the enforcement itself is normally carried out by enforcement officers (förrättningsmän).
An important part of the Enforcement Office’s work is gathering information on the debtor and his or her assets. Debtors must provide details of their assets, and must confirm the truth of the information they provide in a written list or at a hearing; infringement of this obligation is a criminal offence. The Enforcement Office may also require the debtor to provide such information, and failure to comply is punishable by a fine, which will be imposed by the district court (tingsrätt) on application from the Enforcement Office.
Third parties are likewise under an obligation to provide information in enforcement cases (see below under 3. 2). Compliance with an obligation to provide information may be compelled by means of fines or imprisonment (häktning).
An application for enforcement may be made by the entitled person or through a representative, and may be made verbally or in writing. In a verbal application the applicant, i.e. the person requesting enforcement, presents himself or herself to the Enforcement Office. In certain circumstances the application may be made through a computerised medium. A written application must be signed by the applicant or the applicant’s representative.
Enforcement has usually to be sought at the Enforcement Office in the region of residence of the debtor. Distraint can also be sought for example in the county in which the property is located.
There is a fee to be paid for the State’s costs in enforcement cases. If enforcement takes place, the costs are as a rule to be recovered from the person against whom enforcement is sought, if that is possible. The applicant is generally also liable to the State for the costs of enforcement. The rule that the applicant is liable does not apply in the case of claims for maintenance under the Marriage Code or the Parents and Children Code, or foreign maintenance claims being enforced in Sweden, provided the claim is no more than five years old.
The principal rule is that a basic fee is charged for each enforceable title for which enforcement is sought. In the case of a civil-law claim, the basic fee is generally SEK 1 000. In some distraint cases, however, the basic fee is SEK 500. This is so if the applicant has requested distraint only on wages or salaries. The lower basic fee also applies to distraint for payment of taxes and duties.
Other fees may be payable for preparation, sale and miscellaneous charges.
Enforcement may be sought for a judgment or decision of an ordinary court on custody, living conditions, contact or the handing over of a child. An agreement between the parents on custody, living conditions and contact is also enforceable, provided it has been approved by the social welfare board (socialnämnden).
Here enforcement takes place through the county administrative court (länsrätt). Normally an application for enforcement has to be made to the court of the county where the person who has charge of the child is living or staying. If the child is currently in another county, then the court of that county also has jurisdiction.
In some cases there may be impediments to enforcement.
This is the case if the enforceable title is so unclear that it cannot be enforced.
If the person against whom enforcement is sought asserts that the obligation – a liability for payment, for example – has been discharged since the enforceable title came into being, he or she must prove this in order to avoid enforcement.
The debtor can also assert that he or she has a counterclaim against the applicant to set off against the claim being enforced. This is an impediment to enforcement if the Enforcement Office can establish that the counterclaim is likewise the subject of an enforceable title or that there is written proof for it.
If an enforceable title is rescinded, enforcement must be halted immediately. In certain cases a court may order that a claim is not to be enforced.
There are impediments to enforcement in some cases.
If the child has reached 12 years of age, enforcement may not take place against the child’s will, except where the county administrative court is satisfied that it would be in the child’s best interests. The same applies if the child has not yet reached the age of 12 but has reached such maturity that similar account ought to be taken of his or her wishes.
The county administrative court may also refuse enforcement if it is clear that the circumstances have changed since the ordinary court took its decision, or since the social welfare board approved the agreement between the parents, and an application is made for fresh consideration of the matter in the child’s best interests.
The county administrative court may also refuse enforcement in other cases if there is an appreciable risk that the child’s physical or mental health may be damaged.
In order for property to be distrained, certain conditions must be met. The property must
In principle, any kind of property may be distrained. This applies to both movable and immovable property.
Movable property includes not just assets such as cars, boats or machines but also receivables, such as bank balances, and entitlements of different kinds, such as a right to enjoy the use of a property or a share in the estate of a deceased person.
Wages, salaries, pensions and the like can also be distrained.
Certain classes of property may not be distrained. This is the case of necessaries such as the following:
Some classes of property may also be protected against distraint by specific rules. This is the case with damages received, for example. If the debtor receives damages for personal injury, unlawful detention, malicious prosecution, defamation or the like, the funds may not be distrained until they have been paid. Once the funds have been paid, they may not be distrained if they are held separate and are intended to satisfy a need for support that continues to exist. Damages intended to compensate for other kinds of injury, such as pain and suffering, may not be distrained until two years have passed since the date of payment.
Only part of any wage or salary can be distrained, namely the part in excess of what the debtor needs for the upkeep of himself or herself and his or her family.
When wages and salaries are to be distrained priority has to be given to claims under the Marriage Code and Parents and Children Code.
Once property has been distrained, the debtor does not have the same control over the property as before. The debtor must not deal with the property to the detriment of the applicant, by transferring it or otherwise, without the approval of the Enforcement Office, which may be given for special reasons and after hearing the applicant.
A person who deals with property unlawfully is liable to a penalty.
Decisions on distraint confer a preferential right over the property.
In enforcement cases third parties are under an obligation to provide information regarding any claims the debtor may have against them, and any other dealings that may be relevant to the question whether the debtor has distrainable property. Third parties are also subject to a disclosure requirement if they are in possession of property belonging to the debtor, for example where they are holding property in pledge or on deposit. Thus a bank must provide information on bank balances and safe deposit boxes belonging to the debtor, and property of the debtor’s that the bank has in safe custody. Close relations of the debtor also have a duty of disclosure.
Information from a third party may be requested verbally or in writing, and, if necessary, a third party may be called to a hearing. Fines and imprisonment may be imposed in order to compel compliance.
There is no maximum time limit for the duration of distraint. The legislation takes the approach, however, that distrained property should be sold without delay.
The rule for eviction is that wherever possible eviction should take place within four weeks of reception of the necessary documents by the Enforcement Office.
As a rule the decisions of the Enforcement Office are open to appeal. Appeals have to be lodged in writing at a district court within the Enforcement Office’s area, subject to rules laid down by the Government. A copy of the document has to be sent to the Enforcement Office.
An appeal against an Enforcement Office decision may be lodged by a person adversely affected. There is no time-limit for appealing against decisions on the distraint of wages; decisions on other forms of distraint must be appealed within three weeks of notification of the decision. A third party, however, may appeal against such a distraining decision at any time.
The district court may suspend an enforcement measure until further notice, and if there are special grounds for doing so it may order that a measure already taken be reversed.
The county administrative court’s decision on enforcement may be appealed to the administrative court of appeal (kamarrätten). Appeals must be lodged in writing. A copy of the document must be sent to the county administrative court. The appeal must be received within three weeks of notification of the contested decision.
Last update: 02-05-2005