Area: Pravosodje
Competent authority: MP
EZU URL: .nan
Initiative ID: 1083
Initiative accepted and completed: '2020-12-18'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2020-12-03'
Initiative published: '2020-12-03'
Initiative submitted: '2020-12-02'
Response from the competent authority: "Answer from the Ministry of Justice:The Law\
  \ on Enforcement and Insurance[1] (hereinafter: the \"LEE\") and the Rules on the\
  \ Performance of the Service of the Enforcement Agent[2] (hereinafter: the \"Rules\"\
  ) lay down the detailed procedure and rules on how the Enforcement Agent is to carry\
  \ out the seizure of movable property.With regard to the restriction on the registration\
  \ of a vehicle and the renewal of a traffic licence, in respect of which it is proposed\
  \ to amend the ZIZ in such a way that the debtor may register the seized motor vehicle\
  \ without the consent of the creditor, we clarify that the provision, requiring\
  \ the creditor's consent for the registration or renewal of a traffic licence, was\
  \ introduced in the ZIZ in order to increase the efficiency of the enforcement procedure\
  \ and to protect the creditor who has acquired a lien on a motor vehicle or a trailer\
  \ by means of a seizure in enforcement proceedings, following the example of the\
  \ regulation laid down in 186. Article 2 of the Tax Procedure Act[3] (ZDavP-2).\
  \ The third paragraph of the latter provides that a motor vehicle or trailer seized\
  \ may not be registered or have its circulation licence renewed without the authorisation\
  \ of the tax authority until the expiry of the seizure, and that the authorisation\
  \ shall be decided by the tax authority by means of a decision against which no\
  \ appeal shall be allowed. The same arrangement was reproduced in substance by the\
  \ amendment to the ZIZ-L[4], which provided in the new Article 81(12) of the ZIZ\
  \ that a seized motor vehicle or trailer may not be registered or renewed without\
  \ the authorisation of the creditor, on which the creditor's signature shall be\
  \ authenticated, until the expiry of the seizure. It is clear from the explanatory\
  \ memorandum to the abovementioned Article of the amendment that administrative\
  \ authentication is sufficient to meet the standard of a certified signature. The\
  \ situation of debtors is facilitated by the fact that the creditor may give his\
  \ consent or authorisation only once and such consent is valid for the future, for\
  \ each renewal of the validity of the traffic licence or for the entire duration\
  \ of the attachment, but such creditor's intention must be clearly evident from\
  \ the consent or authorisation. We consider that such a regime in the judicial enforcement\
  \ procedure, which is aligned with the regime in the tax enforcement procedure,\
  \ is appropriate and adequate, since the law governing enforcement must primarily\
  \ take into account the creditor's interest in obtaining payment of his claim. The\
  \ purpose of the enforcement procedure is, in accordance with the constitutional\
  \ requirement that the right to judicial protection be effective, to ensure the\
  \ fulfilment of an obligation which, as a general rule, arises from a final judgment.\
  \  The creditor must therefore be able to decide in each individual case whether\
  \ to allow the debtor to register the vehicle or to renew the vehicle licence in\
  \ order to use the vehicle and, for example, to pay off the debt by driving to work\
  \ or by carrying on business.As regards the suggestion that the value of the attached\
  \ items should be capped upwards, in such a way that the value up to which the bailiff\
  \ may attach items is determined according to the amount of the debt (it has been\
  \ suggested that the bailiff could attach items worth twice the amount of the debt),\
  \ We would like to clarify that the regulation limiting the amount up to which executors\
  \ may seize movable property is already in place, but not at twice the amount of\
  \ the debt, but at the amount necessary to repay the creditor's debt and the costs\
  \ of enforcement. Article 84 of the Civil Code regulates the scope of the seizure\
  \ and, in that connection, provides in the first paragraph that as much property\
  \ shall be seized as is necessary to satisfy the creditor's claim and the costs\
  \ of enforcement. The second paragraph of the same Article provides that, in particular,\
  \ things shall be attached in respect of which there are no objections to the existence\
  \ of any right which would prevent enforcement and things which are most easily\
  \ recoverable. In so doing, account shall be taken of the statements of the parties\
  \ and other persons present. The scope of the attachment is further regulated by\
  \ the Rules, which provide in Article 71 that, in order to make a proper assessment\
  \ of the extent of the attachment, the enforcement officer must calculate how many\
  \ and which items must be attached in order to be sufficient to repay the creditor.\
  \ In this calculation, the enforcement agent must, in addition to the principal\
  \ amount, take into account, in accordance with the Rules: (i) the creditor's right\
  \ to interest to be calculated up to the date specified in the enforcement order\
  \ or, if no date is specified, up to the date fixed for the recovery of the property;\
  \ (ii) the costs specified in the enforcement order; and (iii) the costs of enforcement\
  \ already ascertainable from the enforcement order, the estimated costs and remuneration\
  \ for the work of the enforcement agent and any other costs which, in the judgment\
  \ of the enforcement agent, will be incurred by the creditor in the performance\
  \ of any enforcement action in the case. In addition, the enforcement officer shall,\
  \ if possible, take into account in the extent of the attachment the value of claims\
  \ of other persons which, in the course of the enforcement proceedings, are to be\
  \ satisfied out of the value of the thing attached before the claim of the creditor\
  \ who has applied for enforcement. It must also take into account the possibility\
  \ that the enforcement of the attachment may be rendered inadmissible by the exercise\
  \ of the rights of other persons. However, if the enforcement officer is in doubt\
  \ as to the extent of the seizure, he shall seize more, not less, of the property\
  \ than he considers necessary.Furthermore, the ZIZ also regulates valuation and\
  \ provides in Article 89 that, in this respect, the seizure of the property shall\
  \ be accompanied by a valuation of the property, unless, because of the special\
  \ value of the property seized, it is not possible to carry out a valuation at the\
  \ same time as the seizure[5]. If the party does not agree with the valuation, the\
  \ third paragraph gives the option of having the valuation carried out by a judicial\
  \ valuer chosen by the party at the request and expense of the party. Where several\
  \ valuations are carried out by judicial valuers in respect of the same object and\
  \ the parties are unable to agree on its value, the average of the two values chosen\
  \ by the parties shall be taken as the value for sale, unless the court orders otherwise.\
  \ Valuation is also governed by Article 79 of the Rules, which provide that, in\
  \ order to avoid excessive seizures, the executor must indicate in the record of\
  \ seizure, for each item, the estimated proceeds to be obtained from the sale of\
  \ the thing seized (the executor's valuation). Unilateral statements by the debtor\
  \ as to the value of the thing must be evaluated by the executor with particular\
  \ care in order to avoid prejudice to the creditor. If, because of the particular\
  \ value of the thing, the executor is unable to carry out the valuation in such\
  \ a way as to estimate the expected proceeds to be obtained from the sale of the\
  \ thing attached, he must endeavour to obtain the agreement of the creditor and\
  \ the debtor, if present, as to the approximate value of the thing. If no such agreement\
  \ is reached, or cannot be reached because both parties are not present, the executor\
  \ shall record in the minutes any statement by the creditor or debtor present as\
  \ to the value of the thing foreclosed. In such a case, the executor shall, after\
  \ the execution of the garnishee order, make the necessary enquiries to ascertain\
  \ the value of the garnisheed property and shall, within three days at the latest,\
  \ record in the minutes his estimate of the value of the property and the date on\
  \ which the valuation was carried out. In this respect, the valuation referred to\
  \ in the preceding paragraphs shall be disregarded if the party, within eight days\
  \ of receipt of the garnishee's report, serves on or sends by registered mail to\
  \ the garnishee a notice of disagreement with the valuation and, within fifteen\
  \ days of the expiry of the time limit for service of the notice, serves on or sends\
  \ by registered mail to the garnishee the valuation of a valuation by a forensic\
  \ valuer chosen by the party at its own expense. In that case, the value of the\
  \ property as ascertained by the valuer shall be taken into account for the purposes\
  \ of the sale. If the sale of the attached property may, in accordance with the\
  \ law, take place before the expiry of 15 days from the date of attachment, the\
  \ valuation referred to in the preceding paragraph must be sent or served on the\
  \ executor not later than the date of the sale. If several valuations of the same\
  \ thing by the court valuer have been served or sent to the enforcement agent in\
  \ due time, the enforcement agent shall invite the parties to agree on the value.\
  \ If the parties do not agree on the value of the property, the executor shall invite\
  \ the parties to select one valuation each from among the several valuations and\
  \ to take the average of the two valuations as the value of the property, unless\
  \ the court otherwise provides. Article 90 of the ZIZ provides that a record shall\
  \ be made of the garnishment and the valuation, in which, inter alia, the individual\
  \ items to be garnished shall be specifically identified with their estimated value\
  \ and the statements of the parties and participants in the proceedings shall be\
  \ recorded, as well as the statements of third parties as to the existence of rights\
  \ preventing enforcement, and who shall take possession of the items to be garnished,\
  \ when they are to be taken possession of and where they are to be kept. More detailed\
  \ rules on the preparation of the record are laid down in Article 82 of the Rules,\
  \ which provides that the record of the attachment and valuation shall be drawn\
  \ up by the enforcement officer by completing Form IZV No 7 - Record of attachment\
  \ and valuation. The Article further specifies what the enforcement agent must enter\
  \ in the record. The seventh paragraph of the same Article provides that, not later\
  \ than three days after the execution of the garnishee order, the garnishee shall\
  \ serve on the creditor and on the debtor, in the manner provided for in Article\
  \ 50(1) of these Rules[6], a copy of the garnishee's and the debtor's valuation\
  \ record, whether or not it contains all the particulars of the creditor and the\
  \ debtor. Such procedure also gives the possibility to supervise the work of the\
  \ enforcement agent to all those to whom the record must be sent in accordance with\
  \ the above-mentioned provision of the Regulation.Should a case arise where the\
  \ enforcement agent fails to carry out his work or does not carry it out properly\
  \ (i.e. in accordance with the ZIZ, the Regulation and other by-laws), he may be\
  \ subject to supervision of his work and, in the event of suspicion that the enforcement\
  \ agent has committed one of the serious disciplinary offences provided for in Article\
  \ 298c of the ZIZ in the course of carrying out his work, to disciplinary proceedings\
  \ as well. The supervision of the legality of the service of the executor is exercised\
  \ by the minister responsible for justice (Art. 297 of the LIA), while in assigned\
  \ cases, the supervision of the legality of the service of the executor in relation\
  \ to the matters assigned to the executor by the court by decision is exercised\
  \ by the president of the court which appointed the executor (Art. 297 of the LIA).In\
  \ view of all the above, we consider that the field of garnishment and valuation\
  \ is adequately regulated and, moreover, that the limit up to which items are subject\
  \ to garnishment (i.e. up to the amount of the creditor's debt and the enforcement\
  \ costs) is appropriate and also more appropriate than the proposed limit of two\
  \ times the amount of the debtor's debt.  \r\n[1] Official Journal of the RS, No\
  \ 3/07 - Official Consolidated Text, 93/07, 37/08 - ZST-1, 45/08 - ZArbit, 28/09,\
  \ 51/10, 26/11, 17/13 - Decree of the US, 45/14 - Decree of the US, 53/14, 58/14\
  \ - Decree of the US, 54/15, 76/15 - Decree of the US, 11/18, 53/19 - Decree of\
  \ the US, 66/19 - ZDavP-2M, and 23/20 - SPZ-B.[2] Official Journal of the RS, No\
  \ 18/03, 83/06, 59/11, 35/16 and 34/19.[3] Official Journal of the RS, No 13/11\
  \ - Official Consolidated Text, 32/12, 94/12, 101/13 - ZDavNepr, 111/13, 22/14 -\
  \ Decree of the US, 25/14 - FFU, 40/14 - ZIN-B, 90/14, 91/15, 63/16, 69/17, 13/18\
  \ - ZJF-H, 36/19, 66/19 and 145/20 - Decree-Law No. 3 of the RS. [4] Official Journal\
  \ of the RS, No 11/18 [5] In the area of valuation, the draft amendment to the ZIZ-M,\
  \ which was submitted to the Government of the Republic of Slovenia for adoption\
  \ on 7 December 2020, provides for an amendment to Article 89, so that the new first\
  \ paragraph 89. After the amendment (if adopted in the proposed wording), the first\
  \ paragraph of Article 89 would provide that the seizure of the property shall be\
  \ accompanied by its valuation, unless the valuation cannot be carried out at the\
  \ same time as the seizure due to the special value of the seized property or if\
  \ the seizure is of movable property to be entered in the register of non-possessory\
  \ pledges and seized movable property. The amendment is provided for because the\
  \ current provision remained somewhat inconsistent with the provision of Article\
  \ 81(3) of the ZIZ, according to which, in the case of movable property entered\
  \ in the Register of Liens and Forfeited Movable Property (the Register), the seizure\
  \ is effected by entry in that Register, with the result that the appraisal cannot\
  \ be effected at the same time as the seizure, but must be effected subsequently.\
  \ The amendment is intended to avoid a misunderstanding of the provision, where,\
  \ for example, an enforcement officer in a specific case might consider that he\
  \ can value a motor vehicle by simply consulting the Eurotax system without actually\
  \ valuing the vehicle, and the vehicle might later turn out at auction to have been,\
  \ for example, even destroyed. Therefore, the proposed amendment makes it clear\
  \ that, in the case of seizure of movable property entered in the register, the\
  \ valuation is not to be carried out at the same time as the seizure, but is to\
  \ be carried out afterwards.6 First paragraph 50. Article 50 of the Rules provides\
  \ that, in cases where the enforcement officer is obliged to notify the creditor,\
  \ the debtor or any third party before carrying out particular enforcement actions,\
  \ he must, unless otherwise provided, send such notification to the creditor, the\
  \ debtor or any third party by registered post or serve it directly on the debtor\
  \ or third party himself in accordance with the provisions of the Civil Procedure\
  \ Act on ordinary service of process, using IVRO Form No 1 and IVRO Form No 2."
Text file: 1083.txt
Title: Withdrawal of creditor consent
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=1083
