Review article
Notaries Public and Distraint Proceedings
Jadranka Borčić
; Rijeka, Croatia
Abstract
Article 102 of the law on amendments to the Execution Act (Narodne novine /Official Gazette/88/05), regulates the participation of notaries public in the distraint proceedings on the basis of a valid certificate, which gives notaries public, apart from competence to participate in probate procedures, additional important competence, whose primary objective is to relieve the burden on courts and increase the cost effectiveness of these procedures. This work considers the position and role of notaries public in the distraint proceedings on the basis of a reliable certificate, especially the relationship between the notary public and the court. Furthermore, it provides a practical overview of the distraint proceedings and covers the territorial jurisdictions of notaries public, the content of distraint proposals and the ruling on enforcement made on the basis of a reliable certificate, the parties in the proceedure (with particular reference to a foreign branch office and a legal entity in bankrupcy), jurisdiction ratione materiae and territorial court jurisdiction, reliable certificates (with special reference to the bill of exchange as a reliable document), claims, costs of proceedings, cases and the enforcement instruments, the determining of legal validity and the issue of a certificate of legal validity and dismissal of a case. Special attention is devoted to the omnipresent problem not only of notaries public but also of courts, the problem of delivering documents and a comparison of the provisions on delivery contained in the Execution Act and the Law on Contentious Proceedings commenting the possible «stages of delivery» by presenting problems in specific cases. In addition to most of the above topics, some of the existing examples of case law were presented, problems are set out and solutions proposed for some of them. I hope that as the new Execution Act is being enacted some of the problems that have remained unsolved after the 2008 Amendments will be identified and that during this process notaries public will be provided with additional competences which will help relieve the burden of courts, i.e. give them the possibility of taking decisions on the subsequent costs of proceedings, the possibility to decide on the dismissal of a case at the suggestion of the distrainor, etc.
Keywords
notaries public; enforcement on the basis of a reliable document; document delivery
Hrčak ID:
45428
URI
Publication date:
21.12.2009.
Visits: 7.708 *