The injunction procedure, regulated in Art. 410 — 425 of the GPC, is perhaps the easiest and most convenient way for a creditor to obtain judicial protection of your claim. The low amount of the state fee /half of the fee that would be due when filing a claim/, the reduced requirements for the preparation of documentation /an application is completed according to an approved form/ and the speed of the proceedings compared to the claim process determine its huge application in all courts in the country. In this sense, the uniform interpretation and application of the norms governing the injunction procedure is key to its proper development. At present, there are many different opinions on how these norms should be interpreted, which is clearly evident in the recent large-scale amendments to the CAP of 2017 and 2019. One of the questions to which the courts have not given an unambiguous answer is that of the entry into force of the writ of execution under Art. 410 CPK and its consequences, such as does the entry into force of the order form the force of the decreed thing and, accordingly, does it interrupt the current limitation periods. The answers to these questions depend on the very understanding of the nature of the enforcement order that has entered into force and, accordingly, the similarities and differences with a court decision that has entered into force.
On the one hand, there is a widespread understanding that the initiation of injunctive proceedings and the entry into force of a writ of execution under the order of Art. 410 GPK, by itself does not constitute the resolution of a dispute with the force of res judicata and, accordingly, does not interrupt the limitation period. The main arguments with which this thesis is supported are the following:
First of all, the injunction proceedings are unilateral and, in this sense, the writ of execution is not an act of the court that is issued after the course of contentious and competitive proceedings, as is the case before a court decision is given 1. Another important argument in this direction is that nowhere in Art. 116 of the CPA does the initiation of injunction proceedings or the entry into force of a writ of execution be mentioned as grounds for interrupting the limitation period 2. It is important to note that the supporters of this thesis rely on the explanations given in item No. 14 of the TR No. 2 according to Interpretation No 2/2013 of the OSGTC of the CPC. The cited decision assumes that the submission of an application for the issuance of a writ of execution on a non-judicial basis under Art. 242 GPC (ed.) does not constitute an act of enforcement within the meaning of Article 116, paragraph “c”, and the reasons for the decision are partly applicable to the injunction procedure and its features 1, 2 .
The other thesis, which is advocated by some of the courts, is completely opposite, namely that the entry into force of the writ of execution under the procedure of Art. 410 GPK forms a force of judgment 3something and, accordingly, interrupts the limitation periodon the claim subject to the order, for the following reasons:
Although unilateral, the injunctive proceedings under Art. 410 GPC contains a mechanism by which the debtor can protect himself, namely — the objection under art. 414 GPK. In this sense, some of the courts consider that failure to file an objection within the time limit constitutes, albeit conclusive, recognition of the claim which, pursuant to Article 116 (a), interrupts the limitation period 4. The objection under Art. 414 The GPC may be based only on facts or circumstances that have become known to the debtor or could have become known to him until the expiration of the period for objection under Art. 414 GPC, which leads to the conclusion that the entry into force of the order has a constitutive and preclusive effect. Upon its entry into force, it is issued and writ of execution, which is also similar to condemnation decisions. An important argument in favor of this thesis is the limited procedure for reviewing the dispute after the entry into force of the enforcement order, which also exists in the case of decisions that have entered into force, such as the similarities between the regulations under Art. 303 GPC for annulment of decisions that have entered into force and art. 423-424 GPCs related to injunction proceedings are obvious 5.
Due to the wide application of the injunction procedure, there are numerous court decisions supporting both of these. At the moment, it seems that the second thesis is beginning to be imposed, but still not sufficiently unambiguous to ensure sufficient predictability in the resolution of disputes related to the described issues. The thesis that the entry into force of the enforcement order has sufficient similarities with the entry into force of a court decision and accordingly interrupts the expired limitation periods is definitely better argued. The opposite thesis is too often based on the motives in Item No. 14 of TR No. 2 pursuant to Interpretation No 2/2013 of the OASG of the CPCwhich is perfectly normal given the importance of the decision. However, despite its importance, it must be taken into account that the injunction procedure is not the subject of the examination of the judges of the Civil and Commercial Colleges of the Civil and Commercial Colleges of the CPC in the cited decision. The operative part of the judgment, which forms the binding case-law, does not contain any rules on the interpretation of the rules governing the injunction procedure, nor on the entry into force of the writ of execution and its consequences. In the motives for Decision No 214/15.05.2018 of the Supreme Court of the Republic of Poland under the City of Civil Procedure No. 1528/2018, GK, IV of the Civil Code, VCShas also supported the second argument, which, however, does not prevent the contrary view still being taken in a number of judgments.
The question raised, as well as many other questions relating to the injunction procedure, should be answered unequivocally, taking into account the practical problems that are too often encountered. It is important to note that the busiest courts in the country fail to cope with the processing of applications for the issuance of a writ of execution under Art. 410 GPC within a reasonable time, and in some places it takes about a year to issue and serve a writ of execution, which in turn deprives the injunction procedure of one of its main characteristics — its speed. On the other hand, the amendments to Art. 415, para. 1, item. 2 GPC in accordance with Art. 47, para. 5 of the GPC in practice guaranteed to debtorsthat they will have the opportunity to personally familiarize themselves with the enforcement order issued against them and to participate in the process, whether by filing an objection or not, and if they cannot be opened, that a claim process will be conducted with the participation of a special representative before the creditor can obtain a writ of execution and begin forced execution.And while the question of the speed of the proceedings is rather technical and is mainly related to the administration in the courts, the question of the nature of the enforcement order that has entered into force and, above all, whether it interrupts the expired limitation periods is purely legal and must be permitted in the interests of both parties, and their equality in the process, while respecting one of the fundamental principles of law, that of justice.
Sources:
1. DECISION NO. 4325 OF 29.06.2018 AFTER C. GR. E. № 1271/2018 SOFIA CITY COURT
2. DECISION NO. 2378 OF 17.04.2018 AFTER C. GR. E. № 12828/2017 SOFIA CITY COURT
3. Decision No 214/15.05.2018 of the Supreme Administrative Court of the Republic of Poland under the city of 1528/2018, GK, IV d. o.
4. DECISION NO. 5674 OF 27.08.2018 AFTER C. GR. E. № 479/2018 SOFIA CITY COURT
5. DECISION NO. 30 OF 09.07.2018 AFTER T. E. № 90/2017 DISTRICT COURT — PERNIK
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Een injunction procedure, regulert in Art. 410 — 425 van het Code of Civil Procedure, is perhaps the easiest and most convenient way for a creditor to obtainjudicial protection of his claim. A//, a /. In this sense, a uniform interpretation and application of the norms governing the injunction procedure is key to its proper development. Actualmente, there are many different opinions on how these norms should be interpreted, which is clearly evident in the recent large-scale amendments to the Code of Civil Procedure from 2017 and 2019. Een van de vragen dat de courts niet een zelal beschikbaar is dat van het onderneming van het onderneming van het onderneming van het beheerordnung under Art. 410 van het Code of Civil Procedure en de verzamelingen, zoals whether the entry into force of the order constitutes a res judicata and, accordingly, whether it interrupts the runninglimitation period. A.
On the one hand, it is widely understood that the initiation of enforcement proceedings and the entry into force of an enforcement order under Art. 410 of the Code of Civil Procedurene. The main arguments supporting this thesis are the following:
Prima di tutti, il processo di forzionamento unilaterale e in questo senso non è un attato del corte, che è stato pubblicato dopo il corso di contentious e adversarial, che sono conducte prima di una decisione di corte1. Elsewhere in Art.116 of the Civil Procedure Act, an initiation of enforcement proceedings or an entry into force of an enforcement order is mentioned as grounds for interrupting the limitation period2. It is important to note that those supporting this thesis rely on the explanations given in item No. 14 or TR No. 2 as interpreted by the Court of Justice. No. 2/2013 of the Supreme Court of Cassation and Justice. Cited decision supposes that the submission of an application for the issuance of a writ of execution on a non-judicial basis under Art. 242 of the Code of Civil Procedure (repealed) does not constitute undertaking an act of compulsory execution within the meaning of Art. 116, b. “c”, and the reasons for the decision are partly applicable to the warrant proceedings and their specific features1, 2 .
Et autre thesis, qui par des advocats des courts, est completamente opposité, que l'entrée en force de l'ordre d'enforcer sous Art. 410 du Code de Procedura Civileforma la force de res judicata3and accordingly interrupts the limitation periodper la richiesta, il subjetto del ordine, per i seguenti razzioni:
A, -the objection under Art. 414 of the Code of Civil Procedure. In this sense, some of the courts consider that a failure to file an objection within the deadline constitutes, albeit conclusive, recognition of the claim, which, according to Art. 116, b. “a”, interrupts the limitation period4. The objection under Art. 414 of the Code of Civil Procedure may be based only on facts or circumstances that became known to the debtor or could have become known to him before the expiry of the objection period under Art. 414 CPC, which leads to the conclusion that the entry into force of the order has an ascertaining and precluding effect. With its entry into force,an enforcement orderis also issued, which is similar to the conviction decisions. A major argument in favour of this thesis is the limited procedure for reviewing the dispute after the entry into force of the enforcement order, which also exists with the decisions that have entered into force, as the similarities between the regulation under Art. 303 CPC for the annulment of decisions that have entered into force and Art. 423-424 CPC, related to the order proceedings, are obvious5.
Due to the widespread application of the writ of execution procedure, there are numerous court decisions supporting both theses. Nel momento, la seconda teza a ser começando a prevails, pero no es suficiente para garantire la predictabilità sufficiente en solução de disputos relacionados con los problemas describes. The thesis that the entry into force of the enforcement order has sufficient similarities with the entry into force of a court decision and accordingly interrupts the running limitation periods is definitely better argued. A thesis opposing is often based on the reasoning initem No. 14 of TR No. 2 under the interpretation of the Supreme Court of Cassation No. 2/2013, which is completely normal in view of the importance of the decision. However, in spite of its importance, it must be taken into account that the writ of execution procedure is not the subject of a study of the judges of the Civil and Commercial Chambers of the Supreme Court of Cassation in the cited decision. La parte operativa de la decisione, que forma la droit de caso de binding, no tiene una regola de interpretación de los normes que la prosedura de la warrantía, no és la entrada en la base de la orden executiva y sus sequencias. In the reasons forResoluzione No. 214/15.05.2018 of the Supreme Court of Cassation on case No. 1528/2018, Civil Code, IVth edition, the Supreme Court of Cassationa,, ne, ne a.
A la question, comme beaucoup d'autres questions relacionados à la écrit des proceedings d'executional, doit être un resposta unambigué que es consistent avec les problemas praticas que se. It is important to note that the busiest courts in the country fail to cope with the processing of applications for the issuance of an enforcement order under Art. 410 of the Code of Civil Procedure within a reasonable time, and in some places it takes about a year to issue and serve an enforcement order, which in turn deprives the writ of execution proceedings of one of its main characteristics - its speed. On the other hand, changes to Art. 415, para. 1, item 2 of the Code of Civil Procedure in conjunction with Art. 47, para. 5 of the Code of Civil Procedure practicallydebtors garanteras,forced execution.Aatheir equality in the process, while observing one of the basic principles of law — that of justice.
Fuentes:
1. DECISION No. 4325 OF 29.06.2018 ON COURT CASE No. 1271/2018 OF THE SOFIA CITY COURT
2. DECISION No. 2378 OF 17.04.2018 IN CASE NO. 12828/2017 OF THE SOFIA CITY COURT
3. Resoluzione No. 214/15.05.2018 of the Supreme Court of Appeals pursuant to Administrative Order No. 1528/2018, GK, IV year ago.
4. DECISION No. 5674 OF 27.08.2018 ON COURT CASE No. 479/2018 OF THE SOFIA CITY COURT
5. DECISION No. 30 OF 09.07.2018 IN CASE No. 90/2017 OF THE DISTRICT COURT — PERNIK
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