Theoretical Foundations of the Removal of Enforcement Immunity from the only Debtor’s Home Suitable for Living

Abstract

Under the influence of judicial practice, the legal science has formed theoretical concepts designed to justify the removal of enforcement immunity from the debtor’s only luxury home. The accumulated material allows us to combine it into a single theory and refer to it as the theory of luxury. The basic elements of this theory show how difficult, if not impossible, it is to implement it in the current legislation. The paper concludes that this difficulty is caused by significant shortcomings of the theory of luxury, the main of which include the substitution of the constitutional right to housing by the right to «square meters». In addition, its implementation in legislation will inevitably generate inequality between individuals in terms of property and social status. In fact, it is a sanction for the luxury of debtors and a preference for the wealth of their creditors, rather than a way and condition for satisfying the claims of all creditors. As an alternative theoretical justification for the possibility of foreclosure on the debtor’s only home, the author proposes to apply the theory of abuse of the right, the main idea of which is that the removal of enforcement immunity should constitute a sanction for the debtor’s unscrupulous behavior. In addition, it is proposed to supplement the circumstances, the presence of which should entail the removal of enforcement immunity for economic reasons.