On 1st March 2008 the new Civil Procedure Code entered in effect (published in State Gazette, issue 59, dated 20th July 2007) which introduced a lot of changes and added a new form of the civil proceedings. To a great extent the ambitious task of the legislator for the ensuring of a quick, efficient and foreseeable justice finds an expression in the new order proceedings.

“Order proceedings- realization of the rights of the creditor and defence of the debtor”

Chapter Thirty-Seven of the Civil Procedure Code provides for the order proceedings as an option for the creditor to protect his infringed property interests. Also the legislator ensures a preservation of the rights of the debtor. The arrangement, however, requires the citizens to be acquainted with their procedure rights and to develop their civil consciousness and activity. In order to be able timely and maximum effectively to benefit themselves from the submitted opportunities provided by the law.

In the Member States of the European Union (as well as in Bulgaria upon the effect of the Civil Judicial Proceedings Act) the order proceedings are applied, where the debtor is called. Therefore, the judicial acts pronounced within these proceedings are recognised and can be enforced within all Member States.

What are the advantages and disadvantages of the order proceedings?

The new provisions achieve more efficient protection of the rights and legal interests of the debtor through his/her calling and providing with the opportunity to object against the enforcement order ( EO) still on that preliminary stage before the enforcement becomes effective. The enforcement order is served to the debtor. It enables the debtor to familiarise himself/herself with the contents of the deed, and to undertake actions in time, in case he/she does not agree with the applicant’s claims. The shorter terms for ruling of the court decision, in turn, are in favour of the applicant. Naturally, these terms are instructive and the court practice up to present shows that a considerable part of the courts does not adhere thereto especially the ones which are more burdened.

Another positive feature of the order proceedings is its accessibility – the application for issuing of an enforcement order, as well as the objection of the debtor are filed by means of templates (pursuant to article 425 CPC), approved by Regulation No 6, dated 20th February 2008 of The Minister of Justice, for approval of templates of enforcement order, application for issuing of an enforcement order and other papers in relation to the order proceedings.

Despite this, in accordance with article 410, par. 2 CPC, the application shall contain the requisites of the statement of claim in order the basis and amount of the pretended intake to be maximum precisely defined. However, in respect of this there is a certain disadvantage in the system of the order proceedings on the whole- by its systematically place the provisions of the order proceedings are separated from the provisions of the claim proceedings but also there is not a rate which forwards to the provisions of the total claims process which to be applied by analogy if necessary. The two procedures are similar enough (“complicated” order proceedings in practice turn into claim proceedings) in order to be settled together- in the same chapter, for instance. When considering a submitted Issue application for an Enforcement order although it is only necessary to check the regularity of the application- a form, details e.g. , it is a common practice of the courts to hear the applications essentially- i.e. to establish whether the intake exists and whether it is collectable and e.g. The court decrees a refusal (which significantly slows the procedure) rather than leave the case “ without movement” . The reason for this is that there is no a provision not even an interpretative ruling according to which in cases like these the court could be able to give instructions for elimination of irregularities.

An analogical problem exists in the hypothesizes of lack of a juristic personality of the debtor or the requirements in article 411, par. 2, section 3 and 4 CPC- the enforcement order is impermissible as the Supreme Cassation Court has a permanent practice in this matter although there is no a provision concerning the point in the legal basis.

All the contradictions and inaccuracies in the normative base, however, give opportunities for an ambiguous interpretation and application of the law when the interest of the whole society is the above mentioned to be finished off in order the positive characteristics of the production to be developed.
Another important particularity of the proceedings under article 410 CPC is that no evidence shall be submitted. The appendices to the Application are a power of attorney, when the application is submitted by a proxy, and a document for paid state fees and charges, when due. Of course, this does not apply to the application for issuing of Enforcement Order on grounds of a document whereupon the relevant document under article 417 CPC shall be attached to the application. .

The applicant may request from the court the issuing of an enforcement order upon the hypotheses of article 410, par. 1 CPC and article 417 CPC. As regards the application for issuing of an enforcement order, provided for in article 417 CPC, the rules for immediate enforcement apply, where the creditor is entitled to request from the court the ordering of immediate enforcement and prompt issuing of a writ of execution.

The competent court for the order proceedings is the Regional Court which under the provision of article 104 CPC indirectly means that a capped limit for the material interest of the cases is placed- 25 000, 00 BGN.
One of the most important positive features of the order proceedings, guaranteeing the quick and efficient civil jurisdiction, is the shortened 3-day term for issuing of an enforcement order– article 410, par. 2 CPC. The short instructive term, introduced by the law, is determined by the simplified and standardized variant of the application as compared with the request for issuing of writ of execution pursuant to the former CPC (1952) and the lack of attached to it evidence which the chamber to discuss..

A new provision, aiming at the protection of the debtor, and the basic argument for the introduction of the order proceedings as part of the enforcement process, is the handing of a copy of the enforcement order to the persons against whom enforcement basis requires issuing. On one hand, this may considerably compromise the interests of the creditor – if the debtor goes into hiding, if he/ she has changed his/her address or has stated incorrect one intentionally, the order can not be delivered and can not come into force which seriously prevents the normal production flow. On the other hand, the circumstance that the debtor is notified of the claims of the applicant, represents peculiar projection of the principles of the competitive beginning and the equality of the parties in the civil process. Receiving a transcription of the enforcement order, the debtor desposes of a number of new options, whereby he/she may protect himself/herself:

First, the debtor may perform his/her obligation within two weeks as of handing of the order by the court (pursuant to article 412, item 7 CPC). as he pays, and that way he/she avoids the initiation of the enforcement against him/her. If the debtor does not agree that he/she owes the indicated one in the enforcement order, he/she may file an objection within the two-week term, established by the law (pursuant to article 412, item 8 CPC). This opportunity expressly (in capital letters) highlighted also in the order in the column “Important Debtor’s Information. Also a sample for the objection form is provided, approved by Order № 6 of the Minister of Justice. The legislator has considered that a foundation of the objection is not required as the idea of the whole proceeding is to go unarguably. The bare claim of the debtor that he/she does not owe anything represents an indication that there is a legal case between the parties which shall be resolved by the way of the common claim process. This opportunity is provided by the legislator and aims to avoid the abuse with processual rights by the creditor and to give a guarantee for a better protection of the debtor

An objection, filed in due time in the form and prescribed by the law, entitles the applicant to file a claim in respect of its receivable within one-month term, by paying in full the due state fee. Otherwise the court shall invalidate the enforcement order, either partially or wholly, as well as the writ of execution, issued under article 418 CPC (pursuant to article 415 CPC). In this way the satisfaction of the creditor’s claim is delayed considerably and it is associated with additional expenses – those for the state fee. The occasions when the debtor states that he/she does not object to owe something but at the moment he/she does not have a financial opportunity to pay should not be accepted by the court for duly applied rejections and respectedly should not be pointed out to the declarant to apply a claim for an establishment of his/her debt under condition that the debtor does not dispute it. Otherwise, it turns out that unnecessary claim proceedings are conducted and these proceedings just put the debtor in an unpleasant condition because of increasing costs and undoubtedly dalays in time.

Much more reasonable and pragmatic would be the approach of sifting out the allowed irregularities together with the indicated, by the debtor, reasons for applying of an objection. It is not necessary to anyone a pointless conduction of claim proceedings which not only harden the condition of the parties in the case, but also put the judicial system in pressure.

In contrast to the former CPC (1952), the opportunity for appealing against the enforcement order is limited for the debtor; however, there is no need, since heonly needs to object to it. It may be appealed only in the part of the expenses. The order, cancelling in whole or partially the application, may be appealed by the applicant by means of a private appeal a copy of which is not served to the debtor.

Besides the general hypothesis of article 410 CPC, the law provides for the opportunity for issuing of an enforcement order on grounds of a document in the expressly specified hypotheses of article 417 CPC. What differentiates substantially the two varieties of the order proceeding is the fact that written proofs are attached when an application is made under article 417 CPC, (the document under article 417 CPC) and the issued order subjects to immediate execution and this requires an issuing of a writ of execution. In hypothesis under article 417 CPC, the court checks up only the prima facie authenticity of the presented in original document and verifies the receivable from the debtor, subject to enforcement. By the way of this verification, it can be admitted according to articles 417 and 418- when in the documents are shown the owing costs together with the interests, the same should be indicated and described very detailed in the Application so as to be an identity between the pretended and certified with the documents claims. Otherwise, the court denies the issuing of the Order.

Another significant feature of the procedure under article 410 CPC is that to the debtor is provided an extra opportunity for defence- to appeal the dispotion with which an immediate execution of the order is allowed.

Besides the filing of an objection within the statutory two-week term under article 414 CPC, the debtor may protect his/her rights and legal interests in the hypotheses of article 423 and article 424 CPC. The debtor may request cancellation of the enforcement order, when he/she has been deprived of the opportunity to object to the receivable in the presence of the prerequisites, specified in article 423, par. 1 CPC.

Article 424 CPC provides for the hypotheses, where the debtor may object the receivable by means of a claim, when there are newly-occurring or newly-found circumstances or new written evidence of material effect for the case, which could not be known thereto before the expiry of the term for submission of the objection or which he/she could not obtain within this term.

“Proceedings of issuing an European payment order- a protection of the rights of the debtor and of the creditor under undoubted executive reasons with a transborder element”

By the way of joining of Bulgaria in the European Union together with the synchronization of the Bulgarian legislation with the European one, the Bulgarian citizens have access to an integrated procedure of issuing of an European payment order which operates in the Union. The proceedings of issuing a European payment order are arranged in regulations and have a direct executive effect. The regulations № 1896/ 2006 of the European Parliament and of the Council from 12th December 2006 for creating a procedure of an European payment order ( the Regulations) gives an opportunity to the creditors to receive their undoubted civil and commercial claims according to an integrated procedure that operates on the grounds of standard blanks.
The Regulations aim not to hold any exequatur procedure and the European Green Party to represent an executive reason in every country- member.
The Regulations are applied in every country- member of the European Union wit an exception of Denmark.
The Regulations № 1896/ 2006 aim to simplify, accelerate and decrease the expenses for lawsuits on transborder cases connected to undoubted financial claims by creating of an European payment order and to allow the free appeal of the European payment orders in the country- members by determining a minimum standards as their observing eliminates the necessity of an intermediate procedure in the country- member of execution before the recognition and the execution.
A feature of the regulations is that they can be applied to civil and commercial cases about transborder disputes connected with customs, earnings, administrative questions; with the right of property coming from family relations, testaments or succession; with the insolvency; with the social insurance and the claims evolving from noncontractual relations.
The Regulations can be apllied to financial claims, irrespective of their size. A subject matter of the regulations are only the claims on a contractual basis, the claims for an unallowed demage are expelled from their applied field.
The Regulations 1896 initiate a demand for transborderness – an availability of an international element in the European Union.
It is necessary to be explained the conception of the transborderness. Under article 3 of the Regulations, a transborder case is the one in which at least one of the parties has a residence or a common stay in a country- member different from the country- member of the approached court. The residence is determined under articles 59 and 60 of the Regulations № 44/ 2001.
The competence of the law is defined by the principles of Regulations (EO) № 44/ 2001 of the Council from 22th December 2000 about the competence, recognition and execution of legal decisions on civil and commercial cases. Therefore, here are observed the principles of the common, special and peculiar competence arranged in Regulations № 44.
It is important to be pointed out that the concept of “ citizenship” is irrelevant to the application of the Regulations. The right an issuing of a European payment order to be demanded is placed according to the residence and not to the citizenship of the plaintiff. The second condition is the plaintiff and the defendant to have a residence or a common stay in different country- members.
The request for issuing an European payment order is prepared under a special form and contains information about the names and the addresses of the parties; the value of the claim , the interest rate and the term for which the interest of the claim is demanded; a reason for the claim, a description of the evidences in defense of the claim, a reason for the competency and the transborder character of the case.
The approached court checks whether the claim answers to the given requirement. Article 9 of the Regulations permits an opportunity for an addition and a correction of the claim in case that the necessary requirements are not observed ( in contrast to the practice of SCC under CPC) .

The court rejects the claim in the following cases:

• If the requirements are not fulfilled.
• If the claim is obviously groundless.
• If the plaintiff does not send in time his/ her answer in case when the court has wanted him/ her to add or correct the claim.
• If the plaintiff does not send him/ her answer in time or rejects the proposal of the court when only a part of the claim meets the necessary requirements and the plaintiff is urged to accept or to reject a request for an European payment order not amount shown by the court.

The rejection of the claim is not appealable but the rejection does not hinder the claimant to present the claim by a new request for issuing an European payment order or in other way provided by the legislation of the country- member.
There is a serious possibility as regards to proceedings of issuing of the EGP courts to apply the practice of SCC under the Bulgarian order proceedings without- not to leave the proceedings without a movement and directly to reject the claim although article 9 of the Regulations allows the court to explain in contrast to the practice of SCC under CPC.

The European payment order is issued in a 30- days term from the issuing of the claim together with a copy from it. With the European payment order the defendant is informed that he/ she has an opportunity to pay or to reply in a 30- days term from its delivery. The delivery of the European payment order should be in conformity with the national legislation of the country where the delivery happens together with the foreseen standards under article 13 ( with advice of delivery by the defendant) and article 14 ( without advice of delivery by the defendant).

The objection is applied as the respective form is used in a 30- days term from the delivery of the European payment order in the court by origin. Similar to the order proceedings- the term is cut- off and it is not necessary the objection to be motivated.
The relevant form is not a condition for a validity of the objection. The court is obliged to send the case officially to the competent court. The consequences of the applying of the objection are distrained in article 17 of the Regulations- the proceedings continues in the competent courts of the country- member by origin in conformity with the rules of the regular civil proceedings. The claimant has a right to demand an unambiguous suspension of the proceedings. If the debtor litigates the claim, the proceedings under the EGP transform into a claim process.

In case that there is no an applied objection, the order comes into force and is liable to an execution. The court sends the executive European payment order to the claimant. The procedures of the enforcement are regulated by the law of the country- member of the enforcement under the same conditions as a feasible decision, issued in the country- member of the enforcement. For an enforcement in another country- member the necessary documents of the claimant are: a copy of the European payment order, its translation in the official language of the country- member of enforcement and a certificate that the order is declared as enforceable.
The Regulations give an opportunity the competent court in the country- member to reject an enforcement of the payment order because of a claim of the defendant. The court can enact a rejection under condition that the European payment order contradicts to an earlier decision or a law of the country- member or a third country which appeals to the same matter between the same countries, the earlier decision/ order answers to the necessary conditions for its recognition in the country- member of enforcement and the antimony could not have been raised as an objection in the legal proceedings in the country- member by origin.
The foreclosure proceedings implements due to the legislation of the country of the enforcement.

With the direct action of the Regulations in the Bulgarian law and with the given order in Chapter 58 of CPC, a defense of the debtor and of the creditor is guaranteed in the hypothesis when there is a “transborder element” within the European Union.