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Файл:Ограничение прав должника. Новеллы законодательства и практика применения =The restriction of the rights of the debtor. The latest legislative changes
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V. Masnikosa. The protection principle of the enforcement debtor
officer are forced to violate the legal norms, when they issue a reprieve of
enforcement, for example in case a seriously ill person or a woman who has
recently given birth, with a baby need to be evicted from their apartment in
the middle of the winter.
In practice, in such situations the court or the enforcement officer are
often driven by the norms of morality, trying to find some formal reason
not to carry out the enforcement, even if there is no legitimate reason for a
delay, but on the other hand there is a need for such action of the court which
arises from the basic guaranteed rights and freedoms of the Constitution of
the Republic of Serbia and international acts.
Conclusion
The protection principle of the enforcement debtor exists in comparative
law of the majority of the countries, though in different periods of history it
could be defined broader or narrower. In the former socialist countries, the
protection principle of the enforcement debtor was widely used as a principle
of social action, which was broadened with the help of legal regulations of the
enforcement proceedings until it would result in inefficiency of enforcement
proceeding.
In the Republic of Serbia the protection principle of the enforcement
debtor in the last decade, i.e. since the beginning of the 2000s to the present
day was significantly limited by the legislation, which prescribes more rights
and authority to the enforcement creditor, to ensure effective enforcement
proceedings.
Providing benefits to the enforcement debtor or the enforcement creditor
in the enforcement proceedings is not justified, the legislator needs to find
the right balance by regulating the basic principles of the enforcement
proceedings and by separate legal norms.
We believe that there is a serious threat to the rights of the citizens of the
Republic of Serbia, because the current Law on enforcement and security did
not stipulate the protection principle of the enforcement debtor as a separate
principle of the judicial proceedings and did not define the lower limit below
which the debtor's property cannot be sold.
The protection principle of the enforcement debtor protects not only
the enforcement debtor, but also the society because if the property of the
enforcement debtor is sold very cheaply, this person becomes a burden to
the society.
Humanization of the society implies that the legislator and the enforcement
proceedings must prescribe measures for the protection of the enforcement
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II. Enforcement procedure in foreign countries
debtor. Business risk cannot be transferred as a lien on the enforcement
debtor; the creditor should also partially bear that risk.
In the context of the economic crisis that happened because of the bank
sector speculation, the state is obliged to protect its citizens and society as
a whole not only through macroeconomic measures, but also through the
enforcement proceedings, which enforces loan coverage for the banks. The
burden of the economic crisis should not be carried solely by the debtorcitizens of the loans.
The duty of the state is to protect the debtor in the enforcement proceedings with the help of properly established and defined principle of social
action.
We believe that the legislator should not simply prescribe the protection
principle of the enforcement debtor in the enforcement proceedings as one
of the basic principles of the enforcement proceedings, but also define it as
a principle of social action, as this principle protects not only the rights of
the debtor-citizens in the enforcement proceedings, but also the interests of
the society as a whole.
VLADIMIR PLASHIL,
Vice-President of Chamber of Judicial Officers
of the Czech Republic
The effectiveness of enforcement proceedings
by restriction of driving license
in the Czech Republic
aving received the court decision to commence enforcement proceedings
H
the court officer begins to act according to § 39 of the enforcement
statute. If the writ of execution has been composed correctly or revised and
amended in the statutory order, the court officer applies to the court to
enforce proceedings of compulsory execution within 15 days following the
delivery of the enforcement order.
If the claim contains mistakes, is not revised or has amendments to the
enforcement order, the bailiff issues a decree to dismiss the enforcement
of proceedings. The plaintiff must then be notified about this decision.
The bailiff can also issue a decree to dismiss the proceedings on the writ of
execution. This decision is possible if the proceedings do not comply with all
statutory grounds but the enforcement order was not dismissed.
If the court of the enforcement proceedings decides that the enforcement
order has been composed in accordance with statutory requirements, the
court officer will be authorized within 15 days to enforce the proceedings.
This letter of request is not a court judgment and is not sent to the participants
of the proceedings but is added to the case of the enforcement proceedings.
After the court officer is given the letter of request, the bailiff notifies the
plaintiff. Normally the debtor learns of this fact as the bailiff begins to collect
property information.
The notification is sent to the debtor within the first compulsory
execution order, defining the limits of the further actions in the scope of the
enforcement proceedings.
The enforcement process always results in its fulfillment if the bailiff has
collected the claimed debt and its components or satisfied other demands
including the compensation of the proceeding costs and plaintiff expenses.
The enforcement process can be terminated due to reasons stipulated by law.
Enforcement process enforced by means of driver’s license suspension.
This can be enforced in Czech Republic only in order to recover alimony
for under-aged children. The aim of this measure is not the direct financial
satisfaction of the plaintiff but the compulsory fulfillment of the debtor’s
obligations. It is not grounds for the monetary penalty, but it motivates
the debtor to accelerate their obligation fulfillment. The driver’s license
suspension is an extreme intervention justified by the nature of the debt.
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V. Plashil. The effectiveness of the revocation of a driving license
Alimony for under-aged children is meant to satisfy the basic needs of the
child, therefore the special attention is paid to secure the source of the child
support.
The choice of the enforcement means depends on the bailiff and is closely
related to the proportionality principle.
First of all, the enforcement of the debt collection has to be based on the
claim which can be garnished from salary, property management, driver’s
license suspension or introducing property lien, as these means can help
collect the debt with the least imposition on their legal rights.
In light of the above, the driver’s license suspension can be initiated in
case of the failure of aforementioned of enforcement.
If the bailiff enforces the order through suspension of the driver’s license,
he should first of all address the driver registry. This is a database of the
public administration, governed by the local municipality with expanded
powers. The details of the writ of execution carried out by means of driver’s
license suspension will be included in this register and received by the driver
register’s executive manager. The bailiff is notified by the driver registry
administration about the range of the debtor’s driver’s license. The writ
should specify which groups of the debtor’s rights are limited. It is possible
that having a driver’s license for multiple groups, the debtor will only be
limited in particular ones.
The delivery address of this execution list is the plaintiff, the debtor and
the municipality governing the driver registry. First, the court officer hands
the writ to the plaintiff and the debtor. The latter is given the document
in person. As soon as the writ is given to the debtor, his driving rights are
suspended. After that, the writ is sent to the municipality governing the
driver registry.
The debtor has to hand-in his driver’s license within 5 working days after
the writ comes into force. If the debtor fails to do this and continues driving,
he can be arrested for driving without a proper driver’s license. This violation
can result in a fine of 25 000 to 50 000 Czech korunas and the police are
authorized to take away the debtor’s license as during a regular stop of the
traffic inspector. The refusal to hand-over the driver’s license and violation of
driving limitations can be regarded as a criminal act impeding the fulfillment
of a court order or other public authority.
The bailiff can revoke the driver’s license suspension writ at any moment
if the enforcement order does not require this document; for example, due
to the agreement and compliance of the debtor to make regular payments.
According to the provisions of § 71, § 4 of the Enforcement statute, the
bailiff dismisses the license suspension with evidence that the debtor needs
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II. Enforcement procedure in foreign countries
the license to satisfy their basic needs as well as the needs of people whom
he/she has to provide alimony. Additionally, it is difficult not to agree with
the statement expressed in specialized literature that the debtor may need
his driving license if he is a professional driver or if he needs to drive long
distances to his work place or works in shifts. Furthermore, the writ can be
discarded in cases when the debtor fully pays the amount of their alimony
debt. In the event the debt has been collected and the bailiff has recovered
the enforcement costs, the execution writ must be annulled.
The driver’s license can be given back to the debtor only after the
annulment of the order or in case of the enforcement proceeding termination.
The bailiff’s responsibility is to notify the driver registry municipality about
this fact. The latter must provide the drivers license immediately after
receiving the annulment of the order or notification of termination of its
enforcement.
TODOR LUKOV,
Deputy Chairperson of the Committee on Professional Ethics
of the Chamber of Private Bailiffs of the Republic of Bulgaria
Limitations on the rights
of the debtor in Bulgaria:
the stipulations of the legislation
and practical implications
General principles
Bulgarian legislation envisages a detailed legal system of judicial debt
recovery by enforcement carried out by an enforcement service which is
authorized by the state and reports to the court and the Ministry of Justice.
The system includes both substantive rules and rules of adjective law described
in a number of legislative, the main of which are the Civil Procedure Code,
the Taxation and Social Security Code, the law on private executors, the law
on trade, the law on special guaranty and so on.
Since 2005 the general principle of legislation development in the sphere
of enforcement in respect of the debtor’s rights can be defined in terms of
three main tendencies: 1) enhancing procedural discipline as per determining
preclusion deadlines and limitations of declarative claims; 2) introduction of
procedural optimization mechanisms: judicial payment order (in which the
burden of going forward with evidence of settling the debt is with the debtor/
litigant); 3) the facility of concise(hastened) process and so on.
The main principle of Bulgarian court enforcement proceedings is
that debt recovery can cover only the debtor property (including earnings,
receivables and intangibles). The freedom of movement or the choice of the
place of abode of the debtor cannot be restricted due to outstanding debts.
As soon as the court issues a judicial document for debt recovery the debtor
is obliged to comply with the enforcement proceeding without obligation to
cooperate. Explicit obstruction of the debt recovery is considered a criminal
offence.
Laws and regulations
The Civil Procedure Code (CPC). The CPC provides for the main
principles of interference with the debtor’s property rights based on legitimate
tools of debt recovery. The Code also envisages the bailiff’s prerogative power
to freeze and sell the assets at auction, to obtain necessary information about
the debtor, to get access to premises belonging to the debtor etc.
The Code also regulates the right of the debtor to appeal certain actions
against his property.
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T. Lukov.Limitations of the debtor's rights in Bulgaria
The Law on Private Court Executors (LPCE). The LPCE defines the
status and professional powers of a private court executor. The given Law
also describes disciplinary regulations and responsibility of a PCE in case of
wrongful acts.
Other fundamental laws
The Taxation and Social Security Code, the Law on Trade, the Law on
Special Guaranty, the Municipal Law on Taxation and so on. All of the
above-mentioned are special legislation documents dealing with the issues of
settling debts and resolving commercial disputes between legal entities, debt
payments on state and municipal taxes and charges and prerogative powers
related to them which concern the debtor’s rights.
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