Individual enforced execution as a part of the executive proceedings

  1. Characteristics:

Often, in civil legal relations, the contracting parties do not perform the undertaken by them obligations and their actual behavior does not correspond to the due one. The Civil Procedural Code (CPC) provides for a number of means for defense of the creditor against illegal behavior of the debtor. The executive proceedings, provided for in Part Five of the CPC aims to protect the one, to whom the money is owned, providing him with the option of enforced collection of the due amount, simultaneously penalizing the non-performing debtor. The enforced execution comprises an important state function, which is characterized by a strong intervention in the rights of citizens (ownership, search of his personal belongings and dwelling, etc.). The enforced procedures include two types of enforced execution – the universal type (in most cases, insolubility) and the individual type.


  1. Individual enforced execution:

In case of absence of voluntary performance on behalf of the debtor, the enforced procedures are executed as a replacement of the same – as a procedure for individual enforced execution. The same comprises the right of the claimant (i.e. the creditor, before the commencement of the procedure) to request from the executive officer (the authority for enforced execution) to constitute an executive case and to perform activities against the will of the debtor (performance of legal acts), which aim to revoke parts of the overall property of the debtor. During this dynamic process, the executive methods are indicated by the claimant. In exceptional cases, when the property of the debtor is not subject to sequestration (below the legal minimum), there is no possibility to perform enforced execution against the debtor, respectively, there is no way to satisfy the claimant. Enforcement against state authorities and municipalities is also not allowed.


  1. Prerequisites:

There are three prerequisites for the enforced procedures in this aspect. The first is the existence of an already proven right (unlike the claim process, where only a claimed right is sufficient), i.e. the debt has to have been established in the issued by the court executive order. The second (indirect) prerequisite is the executive basis (in most cases, a document evidencing the executive right) on the basis of which can be issued the executive order. The third prerequisite is the executive order itself – the factual prerequisite for executing the right of the enforced execution.


  1. Executive grounds:

These are a required prerequisite for the admissibility of the enforced execution. These can be documents, which prove the executable rights and on the basis of which according to the provisions of the law is issued the executive order or is commenced the procedure for enforced execution for performance of the evidenced rights. Article 404 of the CPC provides a detailed listing of the acts, subject to enforced execution, while Chapter Thirty and Seven provide for the procedures for issuing an execution order (art. 410 of the CPC and the following) and the proceedings for issuing an executive order on the basis of a document (art. 417 of the CPC and the following).


  1. Executive order:

For the issue of an executive order, it is necessary for the creditor to have filed a claim to the competent court, enclosed with which he has to submit the original document, which forms the basis of the executive basis in accordance with the provisions of art. 404 of the CPC. After a hearing in a closed session, the executive order is issued on the basis of the executive basis, reproducing its contents and detailing before the executive authorities the limits for the enforced execution. The request for the issue of an executive order also comprises an application for the issue of an executive order. The aim of the executive proceedings, as provided for in articles 410 – 425 of the CPC, is to establish the fact that the debt is indubitable and to issue an executive basis for hits indubitable debt. As an example, a monetary debt (the first prerequisite), which is evidenced by an excerpt from the accounting records of a bank (the second prerequisite) leads to the issue of an executive order (the third prerequisite). The existence of these three prerequisites leads to the possibility for initiating an enforced execution.


  1. Initiation of the enforced execution:

The enforced procedures can be initiated upon the filing of a claim by the claimant, who must submit a written claim for the initiation of an executive case before the competent executive officer and indicate in the same the methods for its execution, depending on the characteristics of the due rights. On its part, the executive authority will present an invitation for voluntary execution to the debtor, by which he will be informed of the initiated procedure. In case after a two-week term as of its receipt, he fails to perform his obligation, the executive officer shall commence the actual performance of the enforced execution, by investigating upon request of the claimant the property status of the debtor and performing the indicated methods for its performance.

Simultaneously with the invitation for voluntary execution can be applied certain executive methods, such as the imposition of restrictions and distraint on receivables of the debtor (e.g. deprivation of a part of the salary), while the debtor must be informed of the imposed restrictions and distraint simultaneously with the invitation for voluntary execution. It is possible during the course of the executive case, upon request of the claimant, for the execution authority to require statements concerning the property status of the debtor – e.g.: report from the National Revenue Agency, by which it would be able to establish what movable and immovable properties are declared in the name of the debtor; report from the Registration Agency, by which it would be able to establish whether in the name of the debtor has been recorded a property file, respectively, to check whether there are entries, remarks and cancellations on file. Notwith­standing the obligations of each and every citizen to declare his property, in practice many unscrupulous debtors hide their properties or complicate or delay conscientiously the process, when they become the subject of enforced execution. The provisions of art. 431 of the CPC comprises an attempt by the legislators to resolve the situation, by providing specific authorities to the executive officer, including the right to request the cooperation of the law enforcement authorities (the police).


  1. Executive methods:

The enforced procedures comprise a combination of various executive methods. The same are generally three types: in case of monetary debts – cashing-in of movable and immo­vable properties, etc.; in case of non-monetary debts – deprivation of movable or immovable properties, etc.; in cases of debts due to specific actions or failures to act – the respective performance or abstention from the action.


  1. Authorities:

The authority for enforced execution according to the provisions of the CPC is the executive officer – state-employed or private. The state executive officer performs enforced execution within the area of the respective district court within the territory of the country. The private executive officer is a person, to whom the state has provided a public function for enforced execution of civil rights. In their case, the area of their jurisdiction coincides with the area of the respective district court.

Whenever the debtors are unscrupulous or attempt to impede the executive officer, he is entitled to request the aid and/or cooperation from the police authorities. The same must comply with his request immediately, in order to allow the executive officer to perform correctly his functions. The executive officer is bound by the executive force of the executive order and is not entitled to check, whether the debt exists. For each action during the course of the executive case, the executive authority must compile a protocol.


  1. Subject of the execution:

The subject of the execution is the property of the debtor. The execution may be aimed at any subject to sequestration at the time of the executive action property rights of the debtor. The non-subject to sequestration objects are specified in art. 444 of the CPC. Within this category property, which the executive officer does not have the right to restrict, distrain or sell, includes the non-subject to sequestration part of the income – the part of the monthly salary or pension, which is vital according to the law for the debtor.


  1. Methods for execution and steps for their performance:

Distraint – imposed by an order of the executive officer, according to which a specific movable property of the debtor becomes the subject for enforced repayment to the claimant, by forbidding the debtor, under penalty of penal liability, to dispose of the same. The executive authority, on the basis of the initiated executive case, directs the execution to a specific property of the debtor (e.g. a motor vehicle) and the same is handed-over to the debtor or a third party, to be kept safe up to its sale. In this way, the rights of the debtor to dispose of the movable property or to damage the same is restricted.

A listing of the movable properties – before initiating this executive action, the executive officer checks, whether the property belongs to the debtor. It is supposed that since the debtor holds the object, he is its owner and it may be listed. However, in case of circumstances, which evidence that the object belongs to another person – the executive officer must not initiate enforced execution.

Evaluation – the same is performed by the executive officer according to the market value of the object, while in case of such necessity, an expert assessment may be performed by a court-appointed assessor – expert in the respective field.

Public sale of the movable properties – the same is performed via a sales outlet or market at a price, equivalent to the evaluation. The property of the object is transferred as of the date of the imposition of the execution, and upon its coming into force, the object is handed-over. The buyer becomes the owner, notwithstanding the fact whether the object had belonged to the debtor – this is a primary method for acquisition of property.

Imposition of restriction on immovable property – similar to the distraint, the same is imposed by an order of the executive officer. The specified for enforced repayment to the claimant property is immovable, with the basic prerequisite for directing the enforced execution of the object is for the same to be subject to sequestration.

Listing of immovable property – the absolute prerequisite for initiating this executive action is for the executive officer to have convinced himself that the property was owned by the debtor as of the date of imposition of the distraint (such a check is possible by means of checks in the tax and/or notary records or, in case no such data is found there – by interrogation of neighbors and other similar means).

Evaluation of an immovable property – it is performed according to market prices, and is determined by the executive officer on the basis of assessments by court-appointed experts.

Public sale of an immovable property – the sale must be public, since for participation in the same are invited an unlimited number of persons. The executive officer must post a notice with data on the property not later than 7 days after the listing and evaluation of the same and must proclaim the same by publishing a notice and posting it in his office, the mayor’s office and on the property itself. After the bidding, the executive officer announces as the buyer the bidder who has offered the highest price.

Restraint on receivables (any and all assessable in cash rights of the debtor) – this is performed upon order of the executive officer, by which he orders a third party, from whom the debtor expects to receive certain amounts, to hand-over the due amount to the executive officer, instead of to the debtor (e.g., the executive officer imposes a distraint on the received by the debtor salary/pension/rent from a third person; or imposes a restraint on the bank accounts of the debtor).

Execution on spousal common property (SCP) – this comprises a non-divisible during the marriage common property, excluding the ideal parts. For this reason, the property of each of the spouses consists of his personal belongings and his portion of the SCP. The execution on personal belongings is performed according to the general terms. In case the non-indebted spouse indicates personal belongings of the indebted spouse, the execution is directed first to the same, and only after that for the remainder – to the SCP.

It is possible for another creditor with an executive order to join an already initiated execute case. In this way, the initiating creditor is repaid from the property, against which is directed for execution the procedure in progress. This is possible, because the restrained or restricted rights still belong to the debtor. The accession is executed by means of a written application, enclosed with which must be presented the executive order. A possibility for joining by legal right also exists, in which case the executive officer officially separates an amount for repayment to the creditor. This is a form of strengthened protection of public receivables of the state for its due taxes, etc. For this reason, the executive authority must inform the tax administration of each execution and distribution.

The execution of liabilities for replaceable actions is imposed for actions, which may be executed not only by the debtor, but by any other third party, upon which the legal interests of the creditor will be repaid.

The execution of liabilities for non-replaceable actions – in this case, the claimant will be repaid only if the debtor is forced personally to perform the due action. The means of enforcement is the imposition of consecutive fines by the executive authority upon request of the claimant.

Failure to perform an obligation not to act – this is always a non-replaceable case. The method for imposition is by fines. The executive officer establishes the failure and compiles a protocol to evidence the same.


  1. The principles of individual enforced execution:

The main leading principles in the performance of enforced execution as a means to protect the creditor are the quick and fair repayment to the claimants (the creditors), compliance with the rights of the debtor and of third parties in the performance of the enforced execution, performance of executive actions in accordance with the provisions of the law, use of flexible and rapid forms of execution for the purpose of protecting the parties from abuse of rights or tactics for delaying the execution of the case. For this purpose, it is necessary to comply with the provisions of the laws, good practices, professional ethics and morals.