Area: Poslovni SOS
Competent authority: MP
EZU URL: .nan
Initiative ID: 645
Initiative accepted and completed: '2016-02-17'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2015-08-27'
Initiative published: '2015-08-27'
Initiative submitted: '2015-08-27'
Response from the competent authority: 'RESPONSE FROM THE MINISTRY OF JUSTICE: The
  Ministry of Justice has informed the Supreme Court, which is the operator of the
  e-enforcement information system, of the problems encountered by users in enforcement
  proceedings. The Supreme Court is continuously improving its information systems
  and we expect that this will also improve in the future. The Ministry will, however,
  monitor the implementation of enforcement proceedings as part of its regular work,
  as it has done in the past.Further clarification from the Ministry of Justice:Parties
  enter into business (civil law) relationships freely and independently, from which
  they derive rights and obligations, and they must exercise due diligence and also
  assess the possible risks. In the event that a debtor fails to fulfil his/her obligations,
  the State (court) provides judicial protection of civil rights through legal proceedings.
  When the debtor fails to comply with what is ordered by a court decision, it must
  be enforced. Since self-help is prohibited, the creditor must seek the intervention
  of the State or its authorities. The purpose of civil enforcement proceedings is
  for the court, by means of coercive measures, to establish between the debtor and
  the creditor the external situation which the creditor is entitled to claim on the
  basis of a final judgment or other enforcement order. According to Article 1 of
  the CPL, the court may authorise enforcement on the basis of a writ of execution
  or on the basis of a authentic instrument. Enforcement on the basis of a authentic
  instrument constitutes a special feature, a conditionally authorised enforcement,
  which is intended for the rapid and easy recovery of claims, but only in the case
  of uncontested claims. In the case of enforcement on the basis of a authentic instrument
  (as opposed to enforcement on the basis of a writ of execution), the creditor''s
  claim has not yet been adjudicated upon. 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 due 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 the existence of the creditor''s claim shall be determined in the
  proceedings. In the case of enforcement on the basis of a authentic instrument,
  it is essential to guarantee the debtor''s constitutional right to a remedy, since
  the claim has not yet been decided before a court. In enforcement proceedings, the
  principle of dispositive jurisdiction applies, according to which the proceedings
  are initiated at the request of the creditor, who is also free to choose the means
  and the object of enforcement. The creditor may consider it more expedient not to
  apply for enforcement at all, may withdraw the application at any time or may reapply
  at a later date. The rule as regards the costs of the proceedings is that the costs
  of enforcement are to be borne by the creditor seeking judicial protection or enforcement
  and ultimately by the debtor (Art. 38 of the CPL). The order of creditors can only
  be established in respect of the particular means of enforcement on which the court
  authorises enforcement, i.e., the enforcer of the enforcement order (bank, employer).
  Article 141 of the ZIZ provides that the bank shall, upon request, issue a certificate
  to the creditor indicating the position of his claim. However, the ZIZ or the regulations
  issued pursuant to it do not prescribe the amount of the fee to be paid for the
  order certificate. As regards the imprisonment penalty, it should be pointed out
  that Article 33(5) of the CCL already provides that if a debtor who is a natural
  person or an entrepreneur fails to pay the penalty imposed within the time limit
  set by the court, the penalty shall be recovered ex officio or, if that is not possible,
  by imposing one day''s imprisonment for every EUR 100 of the penalty, the imprisonment
  for a natural person not exceeding 30 days and for an entrepreneur not exceeding
  100 days. The sentence of imprisonment shall be executed in accordance with the
  provisions of the law governing the enforcement of prison sentences. However, the
  constitutional principle of proportionality must be observed when imposing any sanction.
  We are aware of the inadequacy of the regime established by the CCJ with regard
  to the submission of a list of the debtor''s assets and the debtor''s non-cooperation
  in these proceedings and we intend to propose appropriate amendments to this regime
  in the context of the next amendments to the CCJ. It should be borne in mind that
  enforcement can only be successful and the creditor''s repayment possible if the
  debtor has at least some assets that can be targeted by enforcement. Since certain
  of your suggestions and proposals also relate to the area of criminal procedure,
  we provide below clarifications concerning the powers of public prosecutors. Public
  prosecutors are bound by the principle of legality, which stipulates that a public
  prosecutor is obliged to initiate a criminal prosecution if there is a reasonable
  suspicion that a criminal offence has been committed for which the perpetrator is
  being prosecuted ex officio, unless otherwise provided by law (Article 20 of the
  Criminal Procedure Act). However, public prosecutors are independent in their work
  (Article 3 of the Public Prosecution Act), which has also been confirmed by the
  Constitutional Court of the Republic of Slovenia (the Constitutional Court of the
  Republic of Slovenia) in its precedent-setting, systematic decision no. 10 of the
  Constitutional Court of the Republic of Slovenia (the Constitutional Court of the
  Republic of Slovenia). With regard to the confiscation of ill-gotten gains, the
  Criminal Code clearly provides that no one may retain a financial gain that has
  been obtained through or as a result of a criminal offence. The proceeds shall be
  forfeited by a judicial decision establishing, under the conditions laid down in
  this Code, that a criminal offence has been committed. In addition, the injured
  party shall have the possibility of bringing a claim in pecuniary law. Article 100
  of the CCP provides that, on the application of the persons entitled, a claim for
  pecuniary interest arising out of a criminal offence shall be dealt with in criminal
  proceedings, provided that this would not unduly delay the proceedings. A claim
  in property law may relate to compensation for damage, the return of property or
  the annulment of a particular transaction.'
Text file: 645.txt
Title: Amendment to the Civil Code
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=645
