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Enforcement is action to force satisfaction of a substantive claim incorporated in an enforceable title with the assistance of the public authorities. The following means are used for enforcement:
An enforceable title is a public document which certifies the claim and grants the claimant the right to demand compliance by the debtor with the content of the enforceable title. The necessary elements are the existence of the title and the validity of the claim.
Enforcement is regarded as part of adjudication rather than as a matter of administration; its aim is to provide legal protection. Applications addressed to the enforcement officers and every act of enforcement are procedural acts. The conditions which must be met for the purpose of enforcement are as follows:
It is possible to enforce both judicial and non-judicial decisions. It is not always necessary to apply for a court order authorising the enforcement. The following are enforceable titles:
Enforcement officers are divided into direct and indirect enforcement officers. Direct officers are appointed by the petitioning creditor. They are a) bailiffs, who are unsalaried public officers with the authority to take action to seize goods in the debtor's possession, seize property, ships or aircraft belonging to the debtor, effect direct enforcement, arrest debtors whose imprisonment has been ordered and prepare auctions, b) notaries, or justices of the peace substituting for them, who have the authority to conduct the voluntary or forced auction of the debtor's assets seized and to distribute the proceeds by drawing up a classification list. Indirect officers are the police, the armed forces and the bailiff's witnesses who collaborate when resistance to enforcement is offered or threatened. All these officers are responsible for any culpable breach of their obligations in the performance of their duties.
The enforcement order itself is issued by the person with the right to effect it, i.e. the claimant, or by his representive, who may but need not be a lawyer. The basic costs of enforcement are as follows:
Substantive conditions for enforcement are:
The purpose of the law of enforcement is to balance conflicting interests between creditors on the one hand and debtors or third parties on the other in the circumstances. The criteria which the courts apply in order to grant an enforcement measure are:
Enforcement measures may be aimed at the debtor's property and/or the debtor in person. Enforcement measures are material acts by officers who have been given authority for this purpose; they result directly or indirectly in the satisfaction of claims with enforcement by the state. Enforcement action may be taken against the following assets:
Enforcement action may not be taken against the following:
The debtor must comply with the decision ordering the enforcement measure, as must all third parties. If resistance is offered during enforcement, the bailiff may counter it with force and, at the same time, call the authority responsible for maintaining order. The bailiff may recruit two adult witnesses or a second bailiff. In the event non-compliance by the debtor:
None of the above cases affects the creditor's right to demand compensation provided for under substantive law for losses sustained as a result of non-compliance by the debtor. It is possible in principle for an asset to be disposed of by the debtor; if, however, it is seized, disposal is prohibited and is null and void vis-à-vis the person who had it seized and vis-à-vis the creditors who have submitted their claims.
If enforcement is directed at the debtor's bank accounts, the bank is not obliged to disclose the exact details of them to the petitioner; if, however, a document seizing monetary claims in the debtor's hands is served on a bank, disposal of the amount seized is prohibited and is null and void vis-à-vis the person who had it seized, and the bank must state within eight days of service of the deed of seizure whether the claim seized (money on deposit in bank account) exists and, if it suffices to satisfy the person who had it seized, must pay him the sum of money.
There is no provision in principle which imposes time limits on the petitioner; there are certain time restrictions, but these are deadlines before which specific acts cannot be validly effected rather than binding time limits, and they do not directly stipulate a point after which the petitioner can no longer take action. The provision whereby different individual acts must be effected within a certain period after seizure or before an auction does not change the basis of the system. In order to prevent the procedure from dragging on indefinitely, there is merely an ultimate time limit of one year after which seizure or other acts cannot be effected on the basis of the same order, and an auction cannot be held on the basis of a seizure which, by reason of the expiry of this deadline, has been reversed by judicial decision.
The only remedy against the enforcement procedure is an application to set aside judgment by default, which may be filed by the person against whom enforcement is directed or by any creditor with a legitimate interest within 15 days of the act of enforcement, if it relates to the validity of the title or the pre-trial proceedings; up to the final act of enforcement, if it relates to the validity of any of the acts of enforcement, from the first act to the last; and six months after the final act of enforcement was effected, if it relates to the validity of that act. Applications to set aside judgment by default may be also filed by a third party with a right to the object of the enforcement which has been challenged and which he is entitled to cite against the person against whom enforcement is directed without any specific deadline. The court with jurisdiction is the court in whose district the place of enforcement is located, viz. the justice of the peace if the enforcement title is a decision by the justice of the peace, and the single-judge court of first instance in all other cases. The fact that an application to set aside judgment by default has been filed does not suspend enforcement; however, suspension of the enforcement procedure may be ordered by decision of the court at the request of the applicant, with or without a guarantee. This decision is notified to the enforcement officers, who cannot effect any act of enforcement unless specifically permitted to do so in the decision.Top
Last update: 11-06-2007