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Act III of 1952 on the Code of Civil Procedure provides for two types of legal measure to ensure that an opposed claim can be satisfied: interim injunction and provisional enforcement, which provide protection before the legally-binding ruling has been made. This is supplemented by the precautionary measure provided by Act LIII of 1994 on Enforcement.
Article 156 of the Code of Civil Procedure regulates the interim injunction, the objective of which is to ensure immediate legal protection to prevent the impairment of rights that, due to the lapse of time, cannot be remedied ex post. By ordering an interim injunction the court obliges the adversary of the applicant to comply at a time when it has not yet come to a decision on the substance of the legal dispute between the parties. Contrary to the general rules, the court adjudicates on the application in advance and the ruling ordering the interim injunction may be executed in advance irrespective of the appeals procedure.
As a general rule, an interim injunction may be granted upon application; the court may grant it of its own motion only if there is a special authorisation by law: in an affiliation action - if the trial proceedings were suspended - about the alimony the child is entitled to [Section 153(3) of the Act on the Code of Civil Procedure] and in matrimonial proceedings about the placement and support of the child, expanding or limiting parental supervisory rights and visiting rights (Section 287 of the Act on the Code of Civil Procedure).
The request may be put forward only in a court action, the earliest date being the time when the application is submitted.
As regards the content of the application, it must be shown that the circumstances presented in it are probable and that they refer to one of the specified situations requiring immediate legal protection (risk of damage, need for legal protection on account of the change of status of the legal dispute, or a legal protection situation requiring special recognition) and the measure applied for must, of course, be such as to prevent the impairment of rights. The applicant under law does not have to prove that the information presented is true beyond doubt, but only that it is probable. There is only a limited possibility for verification while the measure is in operation; it may only be allowed if the application cannot be decided without it. The reason for the restriction is the objective of the interim injunction and the fact that the party only has to show that the situation is possible, without verifying that the conditions for the applications are definitely met.
The trial court, when arriving at a decision, has to consider whether the party has shown that the legal conditions justifying the ordering of an interim injunction are probably met. The court is also free to decide what degree of probability it requires the party to show. If the application meets these conditions, the court must assess the disadvantages caused by the interim injunction and compare them with the advantages that can be achieved. Although the Act uses the expression 'disadvantage caused' it actually means not the disadvantage already caused but the disadvantage that may be caused by the injunction and its implementation. If the assessment reveals that the disadvantages exceed the advantages, the application has to be rejected. The court also decides at the time of the assessment whether it requires a security to be lodged for the interim injunction.
The court decides by way of order on the application for interim injunction. In exceptional cases the court rescinds the interim injunction in its judgment.
The court may decide on the application either during the actual trial or separately.
The order remains in effect until it is rescinded or, if this does not take place, until final judgment is given in the case or when the judgment of the court of first instance becomes legally binding.
Either of the parties may apply to have the order rescinded.
Section 231 of the Act on the Code of Civil Procedure regulates the possibilities of provisional enforcement. Under the provisions – in some cases – the legally binding decision can have effects and the decision can be enforced before it actually becomes final. In the cases listed in Article 231 of the Act on the Code of Civil Procedure, if the conditions mentioned there are fulfilled, the court of first instance must declare its judgment provisionally enforceable of its own motion. If the appeal hearing is deferred, the court of second instance may also decide on provisional enforcement on application by the person concerned, having regard to the facts of the case.
The Code of Civil Procedure contains here an exhaustive list, which may not be given a broad interpretation. Provisional enforcement may therefore not be ordered for any other reason.
On the basis of this the following must be declared enforceable, whether or not an appeal is lodged:
If the court of first instance declares the ruling provisionally enforceable despite Articles 231 and 232 of the Act on the Code of Civil Procedure, the president of the chamber acting at second instance may order proceedings to be suspended before the hearing is held, but it will take place at the request of the interested party even if the appeals trial is deferred, together with the examination of all the facts of the case.
The court may decline to order provisional enforcement if ordering it would put a disproportionately heavier burden on the defendant than declining to do so would put on the claimant. The defendant, however, must present an application to the court in every case; the court may not decide to decline to order provisional enforcement in the listed cases of its own motion.
Under Hungarian law, enforcement may be ordered only if the court has issued an enforcement order. The enforcement order may be issued if the final decision contains an obligation (order to do something), it is legally binding or can be provisionally enforced and the deadline for compliance has expired. If these three conditions are not all met simultaneously, the issuing of the enforcement order is not possible and therefore enforcement may not be started. For the protection of the rights of the entitled person there is, however, a possibility to order a precautionary measure.
Therefore if the enforcement order to fulfil the claim cannot yet be issued but the party asking for enforcement has shown that the later fulfilment of the claim is probably threatened, upon the application of the party requesting enforcement, the court orders by way of precautionary measure:
A precautionary measure may be ordered only in cases that are specified by law. For example, if the claim is based on a ruling under which an enforcement writ could be issued but this cannot be done because the judgment is not yet legally binding or the judgment is legally binding but the deadline for fulfilment has not yet expired; or matrimonial or other proceedings were instituted on a claim in the family courts and the validity of the claim, its amount and its dueness have all been certified with an authentic instrument or a private document representing conclusive evidence.
In the first case the court entitled to issue an enforcement writ and in the second case the court where the proceedings were instituted has the right to proceed.
The court must decide on the precautionary measure as a matter of urgency and within no more than eight days and send the order for a precautionary measure without delay to the bailiff.
The appeal against the order for a precautionary measure does not have suspensory effect.
After receiving the order for a precautionary measure, the bailiff without delay summons the party asking for enforcement to pay the advance payment necessary for enforcement within a short time limit, and after the advance payment has arrived he starts the enforcement of the precautionary measure without delay.
The criteria to be applied by courts principally reflect the need to ensure the subsequent enforcement of the claim. In the case of an interim injunction the basic criterion is that enforcement must be necessary for preventing an imminent threat of damage or maintaining the situation that caused the legal dispute or for the protection of the specific rights of the applicant, and that the disadvantage caused by the measure does not exceed the advantages that can be achieved by it. Where provisional enforcement is ordered the court must order enforcement. There is a discretion to be exercised only where there is a request from the defendant that provisional enforcement should not be ordered. Where a precautionary measure is to be ordered, there must be evidence of a threat to the subsequent fulfilment of the claim. Therefore the claim must have been opposed in all three cases and in the case of an interim injunction and a precautionary measure it must be under threat; in the case of provisional enforcement the criterion is the protection of the interests of the eligible person.
In the case of an interim injunction the court orders the fulfilment of what has been laid down in the claim or in the application for an interim injunction upon the request by the court. This may extend to any claim put forward in the application.
Provisional enforcement means the enforcement of what has been ordered in a ruling of the court of first instance that does not yet have legally binding effect; this can also impose several obligations or services.
In a precautionary measure the court may order the blockage of a specified object or demand security for a financial claim. If the court orders security to be given for a financial claim, then the bailiff will hand over the order containing it to the debtor onsite, at the same time ordering him/her to pay the relevant amount without delay to the bailiff's hands. If the debtor does not comply, the bailiff may seize any asset of the debtor. In order to seize real property, the bailiff contacts the land registry office without delay to register enforcement rights to secure the financial claim in the land registry.
When an amount is to be secured, the bailiff summons the financial institution handling the amount the debtor is entitled to with an order that, after receiving the letter of summons, it shall not pay the amount secured and the amount covering the costs of the proceedings either to the debtor or to anybody else and, if the balance of the account does not attain the amount to be secured, it should act identically with regard to future payments.
A blockage ordered for a specified object may extend to any movable property having a value.
In the case of an interim injunction and provisional enforcement, the debtor has to comply with the court's judgment. Based on the order an enforcement proceeding may be started.
There are two types of precautionary measure with different effects. Where the measure is to secure a claim, the debtor must hand over a specified amount of money to the bailiff. If a financial institution manages the amount of money the debtor is entitled to, then the bailiff summons the financial institution managing the amount the debtor is entitled to with an order that, after receiving the letter of summons, it shall not pay the amount secured and the amount covering the costs of the proceedings either to the debtor or to anybody else and, if the balance of the account does not attain the amount to be secured it should act identically with regard to future payments. The financial institution informs the bailiff within eight days of receiving the letter of summons what amount it was able to apply the measure for, and after this the debtor's assets may be confiscated only up to the amount of the remaining claim. If the debtor does not have the specified amount of money, another asset will be confiscated.
Where a specified object is to be blocked, the debtor may continue to use if it does not have to be physically locked but is not free to dispose of it. If the bailiff physically locks the object, it is an offence to open the room storing it, remove the seal indicating the blockage or dispose of or use the blocked object and the offender will be prosecuted (violation of seals).
The court decides by way of order on the application for an interim injunction. The order remains in effect until it is rescinded or, if it is not rescinded, until an order is made closing the case or when it takes legal effect at first instance.
A precautionary measure remains in effect until the order for enforcement of the claim is made or until the court decides to terminate the precautionary measure.
Provisional enforcement means the enforcement of the obligation laid down in the ruling before it acquires legally binding effect, whether or not there is an appeal. This has therefore no limit in time.
There is a possibility for a separate appeal against the order for an interim injunction. The general rules govern the submission of this appeal. The limit is 15 days. The appeal must be lodged at the court that made the ruling. If the appeal is substantiated, the court rescinds its interim injunction. Otherwise, upon an application– or if the claimant abandons the claims – the court may change the order itself.
The court is obliged to order provisional enforcement in the cases listed in the Act. The defendant may, however, ask for provisional enforcement to be waived if it would mean a disproportionately severe burden for him/her. The application must be presented at the court hearing the case.
An appeal may be submitted against the order for a precautionary measure at the court hearing the case. This, however has no suspensory effect on enforcement. The parties may submit an appeal within 15 days of the announcement of the order.Top
Last update: 16-01-2007