Enforcement of Judgments: Legal Procedures and Types
Item 26 and 28: Enforcement of Judgments
Execution is a judicial power, under Article 117 of the EC, which speaks of “the power to prosecute and to execute judgments.” The content of the judicial power does not end with the sentence, with the final decision process, declaring the law in the case. The trial court, favorable or not so intended by the actor, can sometimes be insufficient to give full satisfaction to the fundamental right to effective judicial protection, recognized in Article 24.1 of the EC.
So, when we talk about “enforcing the court,” it refers to the implementation procedures, whereas when one speaks of “judge”, it results in a sentence (declarative process). The sentence can be:
- Declarative (declares or denies any rights).
- Condemnatory (sentences to do / not do / give).
- Constitutive (creates, modifies, or extinguishes a legal relationship).
The power of the enforcement procedure is to conduct a coercive activity to comply with the provisions of the sentence or other enforceable title.
But now, not every decision will result in enforcement proceedings, and judgments are not the only title by which you can open an executive process.
When carrying out the execution, it is coercive because the subject has not complied.
The claims also do not require a declarative or constitutive process of an execution. There must be a judgment of conviction (e.g., to pay 200€: pay or not pay (performance).
You can start an executed process without a declarative process before (above), since we have a title that is punishable by execution.
Types of Enforcement
- Monetary or Non-Monetary Executions:
- Non-monetary: when it comes to obligations to give, do, or not do.
- Monetary: when forced to pay a certain amount of money.
- Proper and Improper Execution:
- Proper Execution: results from a conviction.
- Improper Execution: these are not coercive statements; they do not imply an activity but determine coercive actions aimed at serving the sentence (e.g., register with). No enforcement proceeding is opened, but actions are taken to ensure the enforceability of the decision.
- Singular or Universal Executions:
- Singular: on certain goods.
- Universal: when all the assets of the debtor are included in the enforcement proceedings.
Requirements for Enforcement
The procedural requirements refer to the party and the court:
- Court: refers to the competence and jurisdiction.
- Parties: Refers to the capacity, legitimacy (creditor/debtor to appear in the title deed), and application (attorney and solicitor).
There is a possibility that third parties can intervene, giving a situation of “third party with,” allowing third parties not belonging to the process to be involved in it:
- Third party of a better title: when there is ongoing implementation and the third party has a preferential right to collect that amount, it is regulated in Articles 611 and following of the LEC.
- Third party domain: a third party that appears in the implementation process rather than defending the lien will be because it is theirs. As such, we will seize it has not served a sentence in foreclosure, and the third party says that the computer you have is yours.
As for the materials budget, it requires the existence of a title that carries with it running. These are titles listed in Article 517 of the LEC:
- Trial Titles (of conviction).
- Extrajudicial Titles (credit policies, deeds, etc.).
Provisional Enforcement
These are judgments of conviction, but it is not a final decision yet because it is an appeal pending.
The purpose of the provisional execution is to avoid resources that are merely delaying tactics (which continues in time). It also seeks to strengthen justice in the first degree, as there is a judge who has been given the right or wrong.
Are all sentences provisionally enforceable? No, in fact, Article 525 of the LEC refers to those statements that cannot be run temporarily.
How soon can you ask for enforcement? From the notification of the institution of proceedings until a ruling on the appeal.
Article 524 of the LEC allows for a provisional execution order “without having to offer or provide any security,” i.e., guarantees any costs that are incurred (e.g., persons convicted to pay 100€, give them to someone else, then the appeal of the ruling dismissing the appeal, and the other person and they have been spent, so you cannot do anything).
Opposition to Provisional Enforcement
It is the only mechanism available to run against the run potential for conflict. There are two types of competitions:
- Opposition to the provisional execution.
- Opposition to specific executive activities.
Example:
- Running in kind: opposition to the provisional execution. Situation in which it is impossible or very difficult to restore the previous legal situation.
- Running cash: do not allow opposition to the provisional execution, but only to oppose the implementation of activities specific to the executive.
Confirmation or Revocation of Provisional Sentence
If no confirmation, if the execution is completed, will continue as a final implementation.
The revocation is regulated in Article 533 of the LEC, and an obligation to repay the amounts (cash) and return the situation to post-implementation time and undo what was done (no cash).
The enforceability of the sentence is most important.
In a declarative process, it starts with a suit and ends with a sentence. If we are in an executive process, there is also an executive demand and will end when these coercive acts have been made in full compliance with the obligation.
The documents that must accompany the demand are not the same as an ordinary lawsuit. When it comes to running a ruling that has been issued by the same body (court), this demand can be limited to a letter in which enforcement is sought.
Office of Execution
The judge examines whether the requirements are met and if the office will run. For the office of execution, it is required to be given without a prior hearing to the person against whom the demand is directed executive.
The car’s office is running through which gives the office of enforcement, without giving a hearing to the debtor. Not given a hearing but can be opposed.
The opposition cannot be the same in the case of executing a sentence or a title run. The opposition can be done by:
- Procedural grounds: the judge dismisses the execution of an instrument is not entitled, etc.
- Material motives: differs as judicial or extrajudicial title (Articles 556 and 557).
Seizure of property and execution of money: it gives the seizure and auction of goods if they introduced other means of realization of assets, realization, and execution of the sale by a specialized person or entity and the possibility of a public auction.