Izvorni znanstveni članak
https://doi.org/10.31141/zrpfs.2021.58.141.989
Suitability of the enforcement order for enforcement doing
Irena Merc
orcid.org/0000-0002-6667-0053
Sažetak
The suitability of an enforcement title for enforcement is a substantive prerequisite for the Slovenian court’s permission of execution. The claim to be recovered from a debtor must be in an enforcement title already sufficiently determined or at least determinable, otherwise enforcement cannot be allowed. Determinability of a debt means that all data based on which a claim can be determined must already derive from the very operative part of the court’s decision or from another enforceable title. The court in the enforcement procedure may not itself determine the meaning and the claim arising from the title. With non-monetary claims they should be clearly defined and that they leave no doubt as to what has to be done to meet the obligation. When a creditor proposes enforcement on the ground of a recognised and enforceable foreign title, the enforcement court is again bound by the principle of formal legality and can permit the enforcement only if the claim arising from the title is sufficiently defined.
The adequacy of the enforcement title is dealt with by the Slovenian enforcement courts mainly when the enforcement title has decided on a non-monetary obligation that the debtor must fulfil (for example in decisions issued in disputes due to disturbance of possession or in decisions issued in labour disputes). With monetary obligations, the Slovenian court assesses the suitability of the enforceable title, especially in relation to directly enforceable notarial deeds. The receivable must be listed in a structured manner, by individual titles: principal, contractually agreed interest, default interest, and so-called bank charges. If the debtor states his claim on individual items, namely on a certain cut-off date (the day of withdrawal from the credit agreement), the court can check the compliance of the enforcement proposal with the enforcement title and test the suitability of the enforcement title for enforcement. The debtor’s claim must be defined, regardless of the enforcement title submitted. The same applies where the debtor proposes enforcement based on a foreign enforcement title. A foreign enforceable title can originate either from an EU Member State or from a non-EU country. However, for all foreign enforcement titles, enforcement can be allowed only when the debtor’s obligation is precisely defined. Using mandatory forms provided by European regulations (according to which there is no longer an exequatur) should prevent a foreign body or a foreign court from confirming an indefinite or defective enforcement title, as the forms must contain nominal data of the claim, its maturity, principal, interest and costs.
For all foreign enforcement titles submitted in the Slovenian enforcement procedure, it is considered that substantive issues must be assessed under foreign law. These are issues of maturity of the claim, interest, statute of limitations, etc. All issues related to the claim arising from the enforcement title itself must be assessed under foreign law. The Slovenian enforcement court is bound by the principle of formal legality and therefore the law applied by a foreign court or body when issuing a foreign enforcement title must be applied. Therefore, the Slovenian enforcement court is also bound to a foreign enforcement title regarding the amount and percentage of interest. However, when the obligation in a foreign enforcement title (e.g. a Croatian judgement) is determined in a foreign currency (e.g. Croatian kuna) and the creditor wishes to repay his claim in the Republic of Slovenia, he must define the debtor’s obligation in the foreign currency in his motion for enforcement (i.e. in Croatian kuna). In accordance with the principle of formal legality, the enforcement court must remain faithful to the enforcement title and must allow enforcement of the claim as follows from the enforcement title.
Ključne riječi
enforcement procedure in the Republic of Slovenia; suitability of the enforcement title; principle of formal legality; determinability of the claim; determinable claim; foreign enforcement title
Hrčak ID:
262230
URI
Datum izdavanja:
7.9.2021.
Posjeta: 2.246 *