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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
.pdf
ELENA BELEY,
Head of Department of Adjective Law,
Moldova State University, Republic of Moldova
The change of course of legal enforcement
he concept of altering the judgment execution is an institute of civil
T
procedure which regulates the method of protection of the defendants’
basic rights in the event of cancellation of executed judgment and a new court
decision to dismiss the claim in whole or in part, or termination of proceedings or abandonment of the claim without consideration.
In Moldova this institute is provided in Chapter 13 of the Executive Code
of the Republic Moldova (hereinafter EC RM). However, the rules laid down
in the EC PM (art. 157–160) are essentially the ones of civil procedure. It is
an example of an inextricable link between the civil procedural law and enforcement proceedings.
The first conceptual question which arises in connection with altering
the judgment execution proceeds from the name of Chapter 13 of PC RM:
Overturning of compulsory execution. If execution wasn’t compulsory, but
voluntary, whether the defendant can resort to this procedural tool. This aspect wasn’t affected in the legal doctrine of the Republic of Moldova. Such
a problem is rare in jurisprudence. Probably, it happened because voluntary
execution is understood differently: execution is absolutely voluntary, without
resorting to the bailiff and the proposal of the bailiff of voluntary execution as
a result of initiation of executive proceeding (art. 60 and 62 PC RM).
Within three days on the date of obtaining the enforcement document
the bailiff passes the ruling on initiation of proceeding in execution of the
judgment and sends it to the parties of execution proceeding not later than
3 days from the date of its passing with the offer on execution by the debtor
of the executive document within 15 days, without caring out actions on the
execution out of the executive document.
We consider that for altering the execution of the decision it is insignificant, whether execution of the court order was made voluntary or forcibly.
The claimant has no legal basis to oppose to altering execution of the decision.
Being cancelled, the judgment on the basis of which execution was made
doesn’t generate any legal consequences and, therefore, the rights and duties
which arose on its basis have to be terminated.
Thus, each party has to return everything received due to the invalid legal
act (art. 219 of the Civil code of RM) – interpretation in a broad sense of
the rule restitutio in integrum. A legal procedure equally allows to formulate
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E. Beley. The change of course of legal enforcement
such conclusions: according to art. 445 part 2 Civil procedural code (further CPC RM): “The cancelled decision or definition has no legal force.
The measures for providing or execution made on the basis of such a decision
or ruling lose validity if the cassation instance didn’t take another decision.
Moreover, art. 157, part 1 PC RM doesn’t cause altering execution of the
decision by voluntary or compulsory execution”.
In case of cancellation of the executed decision and after new consideration of the case, the decision on a rejection of the claim in whole or in part,
or the ruling on cessation of court procedure or on leaving the claim without
consideration the judicial instance initiates passing the decision to return to
the respondent (debtor) the expense of the claimant (creditor) of everything
that was enforced bythe action according to the cancelled decision, and also
executive expenses.
It should be noted that altering execution of decision can happen voluntarily if the execution creditor realizes that he has no right for the property
received and agrees to return or compensate its cost.
Cases of altering judgment execution
1. The appellate court cancelled the decision passed by the court of first
instance, which was executed immediately according to art. 256 of CPC
RM and, thus, claims of the plaintiff (execution creditor) were rejected or
left without consideration. The change of the decision, passed in the first
instance by the appellate court equally can, at least partially, lead to overturning of execution. Change of the decision by the appellate court according to
point “b” art. 385 of CPC RM can lead to altering of execution depending
on the cases of immediate execution. On the basis of art. 256 CPC RM the
injunction or the judgment which the defendant promises to pay is subject
to immediate execution of:
a) alimony;
b) a salary and other payments following from the labor relations, and
also the sums provided by the status of the unemployed at a rate of one
average salary;
c) redress caused by a mutilation or other health damage or indemnifica-
tion connected with the death of the person if compensation is established in the form of periodic monetary payments;
d) the amount of one average salary for the compelled absence at work in
case of reinstatement of the worker at work.
2. If such a decision was executed immediately, and subsequently it was
changed or cancelled by the appellate court, for the execution creditor there
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II. Enforcement procedure in foreign countries
is a guarantee established by art. 160 PC RM, which provides that overturning
of execution isn’t allowed in the following cases:
a) collecting the alimony;
b) indemnification,
– caused by a mutilation or other health damage;
– and also in connection with the loss of the supporter, except cases, when
the cancelled decision was based on the false data or false documents
submitted by the claimant.
In contrast to the present Russian legislation (art. 443–445 of CPC of
the Russian Federation) and previous Moldavian Code, altering execution
of the decision isn’t limited in labor disputes. In other words, immediately
reinstated worker to whom one average salary was paid, has to return it in
case of final cancellation of the judgment.
Altering execution can also happen if the appellate court:
– cancelled the judgment of the first instance in whole or in part and
passed the new one (art. 385 part 1 point “c” CPC RM);
– cancelled the judgment of the first instance in full and returned the case
for a new trial in the first instance in cases provided by the law (art. 385
part 1 point “d” CPC RM);
– cancelled the judgment of the first instance in whole or in part and
terminated proceeding or left the claim without consideration of the
bases provided by art. 265 and 267 CPC RM.
1. The Supreme Court completely cancelled the ruling made on appeal
(and the decision of the trial court), which had been executed and terminated the proceedings or left the claim without consideration on the grounds
provided by law.
In accordance with art. 120 of the Constitution and art. 255 CPC RM
final decisions are enforceable. It means that after consideration of the
case on appeal, the decision may already have been done, that does not
preclude the suspension of execution of the decision (art. 435 CPC RM).
Filing a cassation appeal within 2 months from the date of notification of
resolution or ruling in general does not rule out the start of enforcement
proceedings.
This aspect requires clarifications:
– article 157 EC of the Republic of Moldova does not exhaustively list
all the powers of cassation, so we must recognize that in cases under
art. 445 Part 1 point “c1” and point “c” CPC RM the Supreme Court
should apply art. 158 EC RM. In such cases, the bailiff will be forced
to suspend the execution commenced in accordance with art. 78 part
1 point “e” EC RM.
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E. Beley. The change of course of legal enforcement
– abandonment of the application without consideration is a procedural
sanction. Despite this, after elimination of the circumstances giving
rise to the abandonment of the application without consideration, the
person concerned has the right to re-apply to the court a statement
in the general order. The chances of the plaintiff who appealed to the
court are reduced with the expiry of the limitation period. However,
in practice it occurs when the defendant requests to reverse the execution of a court decision, and the plaintiff goes to court again. For this
reason, art. 158 EC RM provides only termination of the proceedings.
2. If the Court of Cassation annulling the decision at the appellate court
and the decision of the first instance court did not settle the issue of altering
execution of a court decision, the defendant has the right to demand an additional decision on the basis of art. 250 part 1 point “v” CPC RM.
The court that took the decision, may take an additional decision at its
own initiative or at the request of participants of the process in the following
cases:
If the court resolved the legal issue in dispute did not state in the decision
the amount of the sum awarded, the property to be transferred, or actions
the defendant should take;
3. The court of the first instance or the appellate court where the issue was
referred for a new trial has to consider altering execution of the court decision upon its own initiative and resolve it in a new decision or a ruling that
terminates the proceedings. If it happened in the court of the first instance
its decision or ruling shall acquire legal force while becoming final.
4. If under the newly discovered circumstances, the court decision which
came into force was cancelled and the case was re-examined on the merits,
altering execution of a court decision is admissible.
5. If the court order has been canceled after its coming into force (art. 352
part 2 of CPC of RM) altering execution of a court decision can also take
place, even if it is not provided by art. 159 EC RM.
6. If the executive acts (art. 161–164 EC RM) were appealed, altering
execution of a court decision is unacceptable as the main condition for that
is the abolition of the court, and not the executive act.
Conditions of altering execution of a court decision
1. The cancellation of the judgment, decree or court order, on the basis
of which the execution was carried out.
2. The effective execution of a cancelled decision or order. Measures to
protect the claim (art. 175 CPC PM) or enforcement of an executive docu-
295
II. Enforcement procedure in foreign countries
ment (art. 63 EC of the Republic of Moldova) or suspension of the decision
subject to the bail by the appellant (art. 435 CPC RM) could not be referred
to these cases.
3. The defendant’s statement on altering execution of a court decision.
Although the Executive Code stipulates altering execution of a court decision at the initiative of the court in several articles (art. 157 part 1, art. 158
part 1, art. 159 part 1 RM), the legislature foresaw a procedure way out for
the defendant whom the court did not return execution.
According to Moldovan legislation altering execution of a court decision
can occur in three ways:
– If a higher court overturned the decision, rejected the claim in whole or
in part or stopped the proceedings or left the application without consideration, the execution must change the decision on its own initiative.
The same procedural obligations imposed on the court or the court of
appeal to which the case was referred for a new trial. The possibility of
obtaining additional solutions in these situations is retained.
– If the court dealing with the matter again did not solve the issue of al-
tering execution of the cancelled court decision, the defendant has the
right, within the statute of limitations, to apply to this court a statement
of altering execution of a court decision in the writ proceedings, without
a preliminary procedure (art.158 part 2 EC RM). In this meaning, the
Supreme Court of Justice of Moldova made recommendations № 104.
Despite the fact that the exhaustive list provided for in art. 345 CPC
RM does not contain this justification, the right of the defendant who
became the collector must be protected.
– If the courts did not resolve the issue of changing execution of a can-
celled court decision, the defendant has the right within the statute
of limitations to apply to this court a statement of changing execution
of a court decision in enforcement proceedings, without preliminary
procedure.
The procedural order of altering execution of a court decision
In order to enforce changing execution of a court decision the defendant
must:
– comply with the limitation period. The writ of execution may be brought
to execution within three years after obtaining a court decision on the
basis of which it was issued, the final character, unless the law provides
otherwise (art. 16 part 1 EC RM). In this situation, the limitation period
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E. Beley. The change of course of legal enforcement
begins from the date when the decision to reject the claim became final
(art. 158 part 3 EC RM).
– apply directly to the court without a preliminary procedure and without
registration fee.
– if the Higher court sent the case to reconsideration and it did not settle
the question of altering execution of a court decision, and the former
defendant resorts to the writ proceedings, the jurisdiction rules are set
in art. 158 EC RM – the court which tried this case again.
– if the Higher court did not send the case to reconsideration and did
not settle the question of altering execution of a court decision, and
the former defendant resorts to the writ or enforcement proceedings,
he must comply with general rules of jurisdiction (art. 331, art 38–40
CPC RM).
VESNA KRANJC,
Professor, Doctor of Laws, Faculty of Law,
University of Maribor, The Republic of Slovenia
JERNEJA PROSTOR,
Assistant, Master of Laws, Faculty of Law,
University of Maribor, The Republic of Slovenia
Provisional court measures
in case of unfair calling
under independent guarantee
1. Independent nature of a bank guarantee
and a stronger possibility for unfair calling
An independent bank guarantee (also non-accessory guarantee, first
demand, simple demand or unconditional bank guarantee) is an instrument
for securing claims that emphasises the protection of the creditor. Since it is
an instrument for securing claims, it is issued in connection with a specific
contract, for example a contract of sale, a building or service contract. Mentioned contracts are considered as underlying contracts. The rights from an
independent bank guarantee should only be enforced in cases of breaching
the underlying contract, for instance, if the builder does not finish the work
in time, does not eliminate mistakes or the buyer does not pay the agreed
purchase price. Even though the breach of the underlying contract should be
a precondition for invoking rights arising out of independent bank guarantees,
it is the bank guarantor who determines the requirements that need to be met
for the pay out of the guaranteed amount when issuing an independent bank
guarantee. Therefore the bank guarantor does not guarantee to pay out the
agreed amount in case of a breach of contract, but under its own requirements. These requirements do not always include a breach of the underlying
contract. For example, the issuer of an independent bank guarantee pays
the guaranteed amount on first demand when the requirement of a written
demand from the beneficiary to the bank guarantor is met.
The requirement of a written demand from the beneficiary is always determined among the requirements for cashing in an independent bank guarantee.
Other requirements can also be determined alongside, e.g. a statement from
the beneficiary that the underlying contract has been breached or a statement
of a controlling engineer that works have not been finished in the determined
time frame. The requirement for receiving payment from the guarantor is a
written statement and not an actual breach of the underlying contract.
The bank guarantor issues an independent bank guarantee when the applicant, who is also a party of the underlying contract or at least obliged to
perform under the underlying contract (for example to perform the building
works, pay the purchase price, eliminate defects), applies for a guarantee. The
obligation of the applicant to do so originates from the agreement with the other
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