The process of occurring, existence and lapse of the civil law relations between the subjects, quite often results in their unlawful development. The latter is subject to the functions of the civil process in the modern society. There exist three phases of unlawful development of the civil law relations, giving rise to three main specific conditions of the violated civil right, namely: disputable, unsatisfied and threatened right. Namely the criminal law protection of the latter constitutes the subject matter of this study.
In the process of development of the civil law relations, there may occur conditions, where one of the parties under the legal relation may unconscientiously undertake actions (legal or factual), aiming at the preventing of the opportunity for actual exercise and satisfaction of the rights of the other party. In such a case, the subject with a violated right is entitled to make use of one of the main methods of the civil procedure of imposing protection or sanction, namely the security proceedings. At the request of the party, whose right is violated, the court imposes a security measure, preventing the unconscientious disposition with rights, which may prevent the realization of the threatened right. The security measures are two types: distraint and injunction, imposed respectively against disposition with rights over real estates or movables. The imposing of these measures guarantees the realization of the threatened right, upon its transformation into an undisputable, claimable and unsatisfied right.
The legal guarantee, described hereinabove, is secured by a statutory sanction for the persons, who, disregarding it, dispose with rights, placed under distraint or injunction. It turns out that the existing legal framework does not provide an opportunity for the practical realization of this sanction and thus transforms the imposed security measure from protection of a threatened right into a court confirmation, without the effect of something adjudicated, of a disputable right.
Pursuant to article 395, par. 3 CPC (Civil Procedure Code) (in effect as of 1st March 2008), the court admits a security measure, enacting a ruling, on grounds of which the security measure is issued, whereby the distraint or the injunction is imposed. Article 451 CPC (in effect as of 1st March 2008) provides for the realization of criminal liability for the holder of the right, placed under distraint or injunction, upon the disposition with it. The Civil Procedure Code does not contain a specific provision, providing for the bearing of criminal liability. Therefore, the latter shall be deduced through analysis of the violation, committed by the holder of the right, placed under distraint or injunction.
The security measure is imposed by a deed of the court, therefore, the disposition with a secured receivable constitutes an act against the effect of this deed, issued by the court, and hence it may be qualified as a crime against justice.
Pursuant to article 296, par. 2 of the Criminal Code: “Anyone, who, with a view to impede or prevent the execution of a court decision, destroys, damages, conceals or expropriates a thing that this decision refers to, shall be punished by imprisonment up to three years or a fine of one thousand to ten thousand BGN”. This provision leaves the impression that the threatened right is guaranteed by the sanction of the Criminal Code. The constant court practice, however, expresses a different opinion. The security measure is imposed by a ruling, which is a different court deed from the court decision and does not have the effect of something adjudicated. The object of the offence under article 296, par. 2 may be only enforced court decisions, because the criminal law may not be interpreted broadly. On the other hand, the Criminal Code provides for criminal liability only for the persons, disposing with another person’s thing, left for safe-keeping, whereon a security measure is imposed – distraint (i.e. article 217, par. 3 and article 277, par. 2 CC), but not for the owners of these things.
The above demonstrates that a substantial gap in the legal framework exists, enabling the holders of rights, whereon security measures are imposed, to dispose with them without any criminal liability for them, regardless of the protection – sanction function of the security process. The criminal liability, provided for therein, may be realized only when the disputable right of the person with secured receivable is confirmed with the effect of something adjudicated, through a court decision pursuant to article 296, par. 2 CC. This in practice makes the imposing of security measures pointless, because each person, whose rights are limited by the imposed security, may unconscientiously dispose with them without any criminal liability for his/her actions.