Area: Pravosodje
Competent authority: MP
EZU URL: .nan
Initiative ID: 624
Initiative accepted and completed: '2015-08-26'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2015-07-23'
Initiative published: '2015-07-23'
Initiative submitted: '2015-07-08'
Response from the competent authority: Ministry of Justice's response:We are aware
  that an individual creditor may have a rather poor experience of enforcement on
  the basis of a credible document in terms of effective completion of enforcement,
  as for example the petition states that "most applications have either resulted
  in the debtor's bankruptcy or have been transferred to litigation", which in virtually
  all cases is alleged to be due primarily to the debtor prolonging or preventing
  the effective recovery of the debt by making untrue statements in the objection.
  However, court statistics show that in 2014 the Central Authentic Instruments Department
  (COVL) received 186,662 applications for enforcement, and only 10% of all cases
  were opposed to an order for enforcement on the basis of an authentic instrument,
  and even in those 10% of cases, only 55% of the cases were such that the COVL was
  obliged to refer them to a court of law for a decision. This situation with regard
  to objections to enforcement on the basis of authentic instruments has been observed
  since the start of the COVL's operation in 2008. This means that in the vast majority
  of cases, the automated enforcement procedure on the basis of authentic instruments
  allows the creditor to obtain the enforcement order and the enforcement decision
  in a relatively straightforward and rapid manner, on average within 1.8 months.
  According to Article 1 of the Law on Enforcement and Enforcement (LEE), the court
  may authorise enforcement on the basis of an enforcement order, but it may also
  authorise enforcement on the basis of a authentic instrument. Enforcement on the
  basis of a authentic instrument is a special feature, a conditionally authorised
  enforcement procedure, which is intended for the quick and easy recovery of claims,
  but only in the case of undisputed claims. In the case of enforcement on the basis
  of a authentic instrument (as opposed to enforcement on the basis of an enforcement
  order), the creditor's claim has not yet been decided. The creditor merely demonstrates
  by means of the authentic instrument a high degree of probability that the claim
  exists. The order for enforcement on the basis of the authentic instrument only
  orders the debtor to pay the claim and, at the same time, authorises enforcement
  for the payment of that claim. If the debtor objects (in time, fully, fully, reasoned
  and permissibly) to the order for enforcement, in whole or in part, to the extent
  that he has been ordered to pay the claim, the existence of that claim becomes disputed.
  In that event, the court shall set aside the enforcement order in so far as it has
  granted enforcement and proceed as in the case of an objection to a payment order
  (Article 62(2) of the CPL), which means that the existence of the creditor's claim
  shall be decided in the proceedings. A debtor's statement of reasons is a reasoned
  objection if the debtor states the facts on which it is based, which, if proved
  to be true, would lead to the rejection of the claim, and adduces evidence to establish
  those facts. The Constitutional Court of the Republic of Slovenia has taken the
  view that only an objection which does not state any legally relevant facts or which
  does not contain any arguments and/or evidence in relation to the facts or allegations
  which it does state may be unfounded. However, where the debtor objects to an order
  for enforcement based on a authentic instrument in whole or in part in so far as
  payment of the claim has been ordered, the rules on the burden of proof must also
  be taken into account when assessing whether the objection meets the criteria for
  a reasoned objection. If the debtor denies the existence of the basis on which the
  claim arose, it is not necessary for him to adduce evidence to that effect in the
  enforcement proceedings, since the burden of proof lies with the creditor and not
  with the debtor. Given that, statistically, enforcement on the basis of a authentic
  instrument is very effective, no change in the system described above should be
  contemplated. However, in order to limit the lump-sum objections that debtors raise
  only to delay the proceedings, the Law on Amendments and Additions to the Law on
  Enforcement and Security (Official Gazette of the Republic of Slovenia, No 26/11;
  ZIZ-I) amended the regulation of preliminary injunctions in such a way as to facilitate
  the conditions under which a creditor may, following a debtor's lump-sum objection
  to an enforcement order based on an authentic instrument, obtain a preliminary injunction
  and thereby secure his claim, but the Constitutional Court of the Republic of Slovenia
  has 1. The Constitution of the Republic of Slovenia guarantees the right to judicial
  protection and the right to a remedy. In the case of enforcement on the basis of
  a authentic instrument, it is necessary to guarantee this right by giving the debtor
  the possibility of bringing an action, since the claim has not yet been decided
  before a court. As regards the suggestion to consider the possibility of imposing
  and enforcing heavy penalties in such cases, which would deter debtors from similar
  commercially reprehensible acts, it should be made clear that the sanctioning of
  such conduct is a very sensitive issue, especially given that it is a question of
  the exercise of two constitutional rights, namely the right to a judicial remedy
  and the right to a legal remedy (23. The legislator is aware of the problem of unfounded
  and frivolous objections, which is why the regulation in the ZIZ has been increasingly
  changing in the direction that objections must be reasoned and that the debtor must
  attach evidence to substantiate his objection. Also, if the debtor abuses his/her
  right to a remedy in the proceedings in order to prolong the proceedings, the court
  (including the enforcement court or the court of appeal) has the right to sanction
  such conduct by the debtor in accordance with Article 11 of the Civil Procedure
  Act. This position was also taken by the Supreme Court in its decision Cp 9/2012
  of 12 July 2012, when it defined the debtor's filing of appeals as conduct leading
  to impermissible delay of the proceedings and to the consideration and clarification
  of the same procedural issues, and confirmed that the higher court had rightly defined
  his conduct as an abuse of procedural rights and sanctioned it with a fine. The
  making of false statements in the context of legal proceedings is already protected
  by criminal law in our system. Article 284 of the Criminal Code, which deals with
  the offence of perjury, provides that a witness, expert, valuer, translator or interpreter
  who perjures himself or herself before a court, in proceedings for an offence, a
  parliamentary inquiry, to establish misconduct in the performance of his or her
  duties or other breaches of professional discipline, or in other disciplinary or
  administrative proceedings, or an expert or valuer who gives a false written opinion,
  or a translator who gives a false written translation, shall be liable to a term
  of imprisonment of up to three years. The same shall apply to a party who, when
  giving evidence by way of examination of the parties in a judicial, quasi-judicial,
  enforcement or administrative proceeding, has perjured himself or herself by giving
  evidence and on the basis of that evidence the court or other competent authority
  has based its decision in that proceeding. Of course, the criminal law protection
  for misrepresentation in the context of judicial proceedings depends on the individual
  circumstances of the case.
Text file: 624.txt
Title: Enforcement on the basis of an authentic instrument
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=624
