{"id":353,"date":"2009-06-18T07:39:51","date_gmt":"2009-06-18T07:39:51","guid":{"rendered":"http:\/\/www.asociacion-eurojuris.es\/en\/?p=353"},"modified":"2020-04-11T07:20:42","modified_gmt":"2020-04-11T07:20:42","slug":"report-concerning-prejudgement-seizure-in-debt-collection-procedures","status":"publish","type":"post","link":"https:\/\/www.asociacion-eurojuris.es\/en\/report-concerning-prejudgement-seizure-in-debt-collection-procedures\/","title":{"rendered":"Report concerning prejudgement seizure in debt collection procedures"},"content":{"rendered":"

This survey shall give a very brief overview<\/strong> over different possibilities of enforcing legal demands<\/strong> in different kinds of legal procedure of debt collection<\/strong>: 1. Ordinary civil proceeding, <\/strong>2. Civil proceeding concerning exchanges or checks<\/strong>, 3. Civil proceeding concerning a summons<\/strong>.<\/p>\n

<\/p>\n

1. Ordinary civil proceeding<\/em><\/strong><\/p>\n

In order to initiate a provisionally enforcement<\/strong> or afterwards a distraint several requirements<\/strong> have to be met: before commencing the procedure of provisionally enforcement the bearer of a possible postulation has to fulfil some conditions. The permission<\/strong> to provisionally enforce has to be requested and granted by the competent court<\/strong>, taking into account both, the legitimate conditions and the circumstances of the individual debt collection claim.<\/p>\n

Time for requestion<\/em><\/strong><\/p>\n

The permission to provisionally enforcement can be requested in connection with the debt collection claim<\/strong>, which complies with the usual habits.<\/p>\n

– In urgent cases before initiating a claim.<\/p>\n

– For good reason, if a claim is already pending.<\/p>\n

Form of the request<\/em><\/strong><\/p>\n

The request must fulfil several conditions in order to be accepted as lawfully<\/p>\n

– The claimant must proof the “periculum in mora”<\/strong>, i.e. a concurrent danger of default of the respondent. However, the claimant must document an objective danger<\/strong>. It is not sufficient to argue with fears and beliefs of the claimant. It is also not sufficient, if a co-defendant is not solvent.<\/p>\n

– The claimant must proof the “fumus boni iuris”<\/strong>, i.e. the claimant must document that a decision in favour of him is very likely<\/strong>. Thus he has to hand over documents, arguments and causes, that proof, that a decision in his favour is under the given circumstances verisimilar.<\/p>\n

– If not stated otherwise the claimant has to pay a deposit<\/strong> accounting to a amount sufficient to compensate damages resulting out of a finally unjustified enforcement, i.e. if the judge decides not in favour of the claimant.<\/p>\n

Conditions for granting the permission<\/em><\/strong><\/p>\n

– The provisionally enforcement must not excess its aim<\/strong>, which is only to secure the possibility to pursue the execution of the distraint, in case the judgement responds to the expectation of it.<\/p>\n

– The provisionally enforcement can not be substituted by any other means<\/strong>, which lead to the same results, however, are less incriminating to the respondent.<\/p>\n

– The court may even grant the provisionally enforcement of an action for injunction or execution, irrespective of the eventual judgement.<\/p>\n

2. Civil proceeding concerning exchanges or checks<\/em><\/strong><\/p>\n

The claimant can initiate such proceeding<\/strong> of debt collection by requesting its implementation<\/strong> and concurrently .presenting a check or exchange or any other similar paper (in the following “exchange”).<\/p>\n

The court will impose the following means<\/strong> on the respondent, if the exchange is valid and coherent.<\/p>\n

– A payment period of ten (10) days<\/strong><\/p>\n

– The provisionally enforcement will be ordered<\/strong>. However it will only allow the enforcement into personal property to a certain amount. The enforceable amount consists of the figure stated in the exchange, default interests and expenses for the enforcement. But if the respondent refuses payment explicitly within five (5) days after having received the ruling of the court for reasons of denying the validity of the signature or the power to act as a representative, the court may cancel this regulation.<\/p>\n

Notwithstanding the court must not cancel the regulation in the following cases:<\/p>\n

– If the signature or surety occurred under notarial survey or survey of an official broker, which must be registered in the “Colegio de Comercio”, respectively with date specification.<\/p>\n

– If the respondent refuses payment for any other than the mentioned reasons<\/p>\n

– If the respondent recognised his signature in front of a court or in any other official document.<\/p>\n

3. Civil proceeding concerning a summons<\/em><\/strong><\/p>\n

The claimant can request the initiation<\/strong> of a such procedure of debt collection before the competent first instance court if<\/strong> the following conditions are met:<\/p>\n