Considerable omissions in the regulation of the imperative legal procedure

13/01/2011

Author: Borislava Sergieva

The Civil-procedural code in force as from March 1, 2008 regulates the imperative legal procedure as a strictly formal order for protecting the interest of the creditor and the rights of the debtor.

In accordance with the legal provisions the creditor disposes of the opportunity and possibility to request the issue of an Order for the execution and a receiving order under the simplified procedural order as provided for in Art. 410 and Art. 417 of the Civil Procedural Code, but until the issue of the court deed it is very probable that a number of matters not settled by the legislator shall be met. There exists no concrete provision regulating these matters, nor any decision for interpretation, in view of which the court practices are various and contradicting. As basic omissions may be pointed out the following matters:

Is it correct that the submitted Application for the issue of an execution order to be left „without movement”?

On the matter stated the court practices accept as correct the statement, on the one hand, that no obligation exists for the court to give instructions for the removal of irregularities relating to a submitted Application for the issue of an execution order. That is the conclusion reached when interpreting per argumentum a contrario the provision of Art. 410, paragraph 2 of the Civil Procedural Code – reference to Art. 129 of the Civil Procedural Code is missing and respectively, the procedure regulated by it should not find an application in the imperative procedure. The legislator sees for that the court is to pronounce itself at one and the same time on the regularity of the application (Art. 410, paragraph 2 in connection with Art. 127 and Art. 128 from the Civil Procedural Code) and on the good grounds for the application (Art. 411 from the Civil Procedural Code) and the only hypothesis under which written instructions are given to the applicant and in case, and in case no form has been used for the application or the form used has proved to be incorrect (Art. 425, paragraph 2 from the Civil Procedural Code). The lack of an explicit or referring norm imposes the conclusion to be made that in case of irregularity the court shall have no power to leave the application „without movement” giving the instructions for removing the violations ascertained but it has by a specific order to revoke the request for the issue of an execution order. Thus the so called „fast procedure” is additionally complicated and retarded, which inevitably would complicate and burden the situation of the parties by additional costs.

In the second concept has been treated the opposite thesis, namely it has been accepted that there exists the principle obligation for the court to monitor and control formally for duly execution of all procedural actions (arguments Art. 101 from the Civil Procedural Code), and as regards the matters from the imperative procedure not clarified following the analogy the provisions have to be applied regulating identical situations in the process of the claim. The magistrates supporting this position consider, that the giving of instructions corresponds to the law and the that the formal approach in the imperative procedure is not to be accepted as absolute or interpreted to the prejudice of the party that has sought the protection of its interests following the court order. This concept allows for the considerably more flexible application of the procedure as per Art. 410 and the following from the Civil Procedural Code and presupposes a more complete and adequate protection of the procedural rights of the parties.

In connection with the above there arises the following question – is it possible to have the order issued supplemented for its execution under the conditions of Art. 250 from the Civil Procedural Code?

As a first statement an opinion might be formed on the authority of some of the court staffs (colleges) of the Supreme Court of Cessation which accept that the norm of Art. 250 of the Civil Procedural Code, which is in Part Two of the Civil Procedural Code – General process of claims regulation and Chapter Thirty seven -The imperative procedure, included into the executive procedure of Part Five of the Civil Procedural Code, are incompatible. In accordance with these the rules of the General process of claims regulation are applied in the imperative procedure only if an explicit reference provision is at hand, does not exist in the current reading of the procedural law. As an argument for the impossibility of application of Art. 250 of the Civil Procedural Code it is pointed out that the addition specified is admissible only in the procedure for the issue of an order of execution as per Art. 406 paragraph 4 from the Civil Procedural Code and that the availability of a special regulation of a strictly formal character preconditions the derogation of the general rules.

On the other hand the court practices reveal the opinion that it is possible to supplement the order for the immediate execution whereby motives for that shall be taken from the text of the same norm – the formally the provisions of Art. 406, paragraph 4 from the Civil Procedural Code read that in the procedure for the issue of an order for execution (including on the grounds of an order for execution) are to be applied respectively Art. 247, 250 and 251 from the Civil Procedural Code.

In relation to the above two questions and an eventual leaving the submitted Application without credits– entirely or partially, there appears the following questions causing disputes in relation to which there exist rich and various court practices at the district courts as well as at Supreme Court of Cessation – what should be the size of the state fee for the appeal against provisions/rulings by which the issue of an order for execution is refused?

The problem has a certain regulation since an explicit order has been for appealing has been defined for the imperative procedures – chapter Thirty seven from the Civil Procedural Code, Art. 413, paragraph 1, according to which a ruling by which an application is rejected entirely or partially, it shall be due to appeal by a private application of claim and according to Art. 19 of the Tariff the state fee for private claims under civil court cases amount to 15,00 BGN. Contradictory to this provision are the practices of the courts including of the cessation instance. These consider that the fee in question is defined as per Art. 18, paragraph 1 from the Tariff and it amounts to 50% of the state fee due at the first instance procedure, i. е. Half of the 2% of the material interest since the applicants is attacking a court deed that has been issued under hearing the procedural dispute in its essence. The conclusion states is due for discussion because in the imperative procedure the question is due to dispute as to whether the court is to be referred to with a “legal dispute” and whether the ruling by an act that is not used by the force of something ruled by the court, has to be accepted as a ruling in essence.

Another important question in the imperative procedure appears to be the eventual lack of personability of the debtor that could be established only after the initiation of the procedure?

The issue of the order for execution against a non-personable debtor makes it inadmissible and that is the position of the Supreme Court of Cessation. Notwithstanding the existence and availability of long lasting court practices still the problem specified has not been removed by the legislator, due to which the rights of the parties are not entirely protected and that kind of process is not sufficiently efficient.

When in the progress of the procedure, upon the submission of the issued Order for execution it is being established that death of the debtor has occurred, the court makes the issued court deed invalid and terminates the court case though that power of the court has not been explicitly regulated in the Civil Procedural Code. The legislator foresees for the invalidation of the issued Order only in case of non presentation of evidence for a claim made (Art. 415, paragraph 2 from the Civil Procedural Code).

When the order has been issued following the order of Art. 417 from the Civil Procedural Code, the establishment of an initial lack of personability of the party is related even with additional complications since also the initiated execution procedure has to be terminated within the framework of which the creditor has made consecutive expenses too.
The incomplete regulation of the problem stated and the constant practices for inapplicability of the only provisions foreseeing the constitution of procedural assignees of a deceased person – Art. 429, paragraph 2, Art. 227 and Art. 230, paragraph 2 from the Civil Procedural Code seriously restricts the procedural opportunities of the applicant. No opportunity has been foreseen for it before submitting the application to get duly informed and in an official order as to whether meanwhile the death of its debtor has occurred, whether the latter has heirs, whether these have accepted the legacy, under what conditions, etc. Thus not only the in due time but also the final satisfaction of the creditor’s claim has been made uncertain and placed under doubt.

Next, as a serious omission in the legislation is to be noted the incomplete regulation regarding the essence and the contents of the objections made by the debtors.

In accordance with the opportunity provided by the law the debtor may object against the order of execution, whereby it is necessary only to submit a form of objection following a sample and bearing its signature. The court has no obligation to discuss and assess the text of the objection and independent of its essence the applicant is instructed that it disposes of a period of one month for submitting a claim for establishing its receivables. In such a situation it is possible that the so called objection in its sense and contents would represent a recognition of the receivables and would not object to the material right claimed by the creditor but still due to the formality of the procedure to provoke the conducting of unnecessary claim procedures. Besides the debtor is placed in a more unfavorable position and such court practices contradict the principle of procedural economy, it considerably increases the number of the court cases and creates difficulties for the processing and the issue of rulings on these.

Thus the lack of specific and undisputable provisions and interpreting rulings on the problems placed various type of court practices are caused to appear. According to these practices in some cases it is possible to get out of the provisions settling the procedure as strictly formal and in some other cases a deviation from the imperative rules of Chapter Thirty seven of the Civil Procedural Code is inadmissible, since no expressed will of the legislator is at hand in this sense.

The imperative procedure may be fast and efficient but, not rarely, it may be complicated and clumsy. That is the consequence of a number of omissions, established in the process of application of the Civil Procedural Code, and an inexact normative regulation that has to be consecutively developed and completed depending on the needs of the social relations it serves.