Understanding Executive Procedures: Enforcement and Legal Actions

Posted on Dec 17, 2024 in Law & Jurisprudence

Executive Procedure

The declarative procedure is one in which a plaintiff sought a right only, whereas the enforcement procedure is the process of complying with an obligation, in which there is already a recognized right in a sentence or a tool that the law has given the executive character and the debtor has not fulfilled its obligation.
The CPC establishes procedures for the enforcement of an obligation forced.

Executive Incidental Trial

Also called incidental performance award or enforcement proceedings incidental, is a treaty between the arts. 233 to 235 of CPC.
This procedure is restrictive because it only has to do with the enforcement of an obligation stated in a sentence. It applies when the debtor (convicted) does not meet the requirement and ordered the sentence is used in the same court that handed down the decision within one year after the obligation became due.

Procedures for applying

  1. Formal request for the successful party, which is not necessarily the applicant. The applicant who obtained a conviction in his favor, against the contrary at trial declarative.
    Must be made within one year after the obligation became due and ask the same court that imposed the sentence, through incidental executive demand, compliance with the ruling.
    • If after the year:
    1. Regular executive a.Se trialed before the same court that imposed the sentence.
    2. b.Deberá be special rules of competition.
  2. Resolution of the court be of the nature of an interlocutory ruling, he will say as requested, with citation (reported by ballot). Means that the court approved the request, but also should be notified.
    You can serve the sentence. If the contrary is opposed to it, it generates an incident that must be resolved before the sentence is fulfilled.
    “Within the executed subpoena may raise defenses to the execution, but only as limited to those established by law.
    He notifies the warrant executed by state and daily the performer.
    Transceiver CST must also refer to the address of the party, communicating that has been effected by ballot.
    “If compliance is requested for a third party not a party to the trial, his notice must be personal.

Attitudes can keep up with demand executed incidental executive

  1. Dar compliance as ordered by the sentence, which occurs when the slogan carried the account of the court what to pay, do or not do what the sentence says. This concludes the executive trial.
  2. Dejar pass within 3 days and do nothing. Here it goes ahead with the execution.
  3. Dentro period of 3 days, opposing exceptions of Art. 234 of CPC: 1st Payment of debt; 2nd Referral of the debt; Provision of a 3rd term for payment; Novation 4th, 5th Transaction;
    6 th loss of the thing due; 7th Failure to meet the obligation; 8 ° Lack of opportunity in the implementation
    • All these, except the 7th and 8th, must be based on the written record, all of which require them to be coated plausible basis.
    • If they oppose exceptions other than those indicated, the judge declared inadmissible the plane. However, if the judge realizes that the art is an exception. 234 and has no basis, should confer move to the performing party (is related to the burden of proof).
    In conferring transfer would generate a result, routine incident, the judge shall receive evidence to the extent there are material facts relevant and controversial.
    The probationary term is 8 days, extendable to 30 days in accordance with Art. 90 (legal term).
    Once the handling of this incident, the sentencing judge must accepting or rejecting the objections interposed. If the host terminates the executive proceedings incidental. If rejected, it continues the execution until the full compliance of the same (a requirement which appears in the sentence).
    Art. 234 paragraph 2 º: The third addition to the exemptions thereof, may oppose as an exception to not start the sentence (to be unenforceable). This will make the opposition within 10 days, which are working in accordance with Art. 66 of the CPC.

Regular Executive Trial Procedure

Executive trial procedure is that the path pursued by the compelling performance of an obligation certain and undoubted, that has a real history to which the law recognized the ability to produce the pressure and generally known by the name enforceable.

Features

  1. An executive 1.Es ordinary character, which seeks to enforce an obligation not certain.
  2. 2.Es compulsive proceedings, since you are looking to pursue the fulfillment of an obligation enforced by judicial constraint to material property of the debtor (must be owned by it)

Rank Executive Trial

  1. Según the obligation whose performance is to:
    1. Juicio obligation to Executive: Consists of the regular executive trial and that like the regular one, is of general application and extra.
    2. Executive b.Juicio obligation to do: Here is pursued perform a specific job, ie no delivery or payment terms of an obligation.
    3. Executive c.Juicio obligation NOT: It is intended that a person compulsively refrain from certain conduct.
  2. Según its scope
    1. Juicios general managers: Those mentioned in the previous
    2. special executive b.Juicios: specified in the law to specific cases such as enforcement of a pledge
    3. proper executive c.Juicios performances such incidental

Executive Action

Requirements executive to try a lawsuit or, to be forced to enforce an obligation:

  1. The obligation to include in a title to which the law has given the executive:
    Enforcement is one tool which the law expressly attributed the merit of serving as background necessary to derive a lawsuit in which copper compulsively fulfilling an obligation which appears in that title, that obligation must also be liquid or realizable, currently due and not prescribed.
    The law therefore gives an executive a document that contains the requirement that you want to get. Here the title becomes a kind of privileged or full proof test, in terms that the creditor provided with this title has a security court to request the seizure of assets of the debtor sufficient and the whole burden of proof will lie with the defendant or executives, who must dispel the presumption of veracity that the title has.

What are Enforceable

Enforcement orders shall be expressly determined by law and which are principally set out in art. 434 of the CPC, this is not an exhaustive list, because as stated the last paragraph, there are special laws that have created other enforceable.

  1. Sentencias final and interlocutory, firm or final. Here the title is the court decision is final or interlocutory, but provided he is firm or final. In practice, accompanied by a copy of the sentence authorized by the respective faith minister. In addition, the certificate must accompany the minister of faith that the ruling is final and executory.
  2. Copia authorized a public deed. It can only approve the deed the notary who participated in or authorized the signing of the contract, or the person or replace staff members make. Always it is a copy because the original has a matrix is formed protocols, which in turn are books that are printed on the meet as the scriptures, therefore, the originals are always there and then the court archivist. In the latter case, who authorizes the court archivist.
  3. Last c.Acta of agreement with the competent court and authorized by a minister of faith or action by 2 witnesses. Drainage, as well as conciliation, is a judicial equivalent, ie agreement between the parties themselves or to the judge, respectively. The minutes and resolution of the judge who approved the enforcement order.
  4. private d.Instrumentos according to the law are enforceable (No. 4). They are distinguished from perfect titles (that are sufficient in themselves to initiate enforcement action) and imperfect titles (which require management to prepare the pre-school through enforcement.
  5. Confesión court. It must be a confessions made to the judge at a preparatory management of enforcing payment.
  6. Cualquier another title by which the law confers executive character. For example, pension contributions of workers to be withheld by the employer and buried him in the institution concerned, also minutes according to the inspector, an act, declared that food, etc..
  1. The obligation must be currently payable: Art 437. It means that the requirement should not be subject to term, condition or manner, ie that can be called immediately to the debtor.
  2. The obligation should not be prescribed: Titles executives generally prescribed within 3 years from the obligation became due. This does not mean that after that period the obligation is extinct, but survives as a regular duty.
    Art. 442 provides that the judge should examine the title and gives the power to act ex officio as the platform must refuse to proceed with the execution if the evidence presented is more than 3 years from the obligation became due, except keep being checked by one of the means by which art. 434
  3. The obligation should be liquid or realizable and identified:

Executive Trial as Proper

The trial is handled mainly executive in two notebooks. The first, called notebook or binder executive principal and second, the book urgently.
In the notebook main arguments are made concerning the main trial. This book starts by demand and the title, which in most cases is kept in custody. It also contains exceptions that has opposed the execution. In this trial there is no response, reply or rejoinder.

  • Demand (plus the title)
  • Exceptions to implementation (if any). The court shall transmit to the performer.
  • Resolution to get the case to trial, if there are relevant facts, substantial and controversial.
  • Test
  • Case

In contrast, in the book of urgency, they all procedural and actions towards the embargo and the realization of assets.

  • Instruments procedural
  • Measures aimed at realization of assets seizure and

There may also be more notebook, which is related to a third party with.

Notebook Home

It begins with the executive demand, unless management has begun preparations for the executive track.

Executive demand.

Procedural legal act of the actor or performer for which this court for consideration of prevention that forced an obligation is met, as reflected in an enforcement order.
The actor says he has a right, because it is recognized that the enforcement order.
The application must meet the requirements of each application, the CPC sets no article which does not specify their requirements (art. 254), or we refer to the rules of ordinary trial.

In the Home: Demand executive trial
1 Furthermore: accompanying documents (Enforcement)
2 ° Furthermore: Patronage and power
Faced with this demand, the court determines the background and if it finds that the requirements for all executive action, issues a decision (Order) giving effect to the demand. In this case no transfer because the title gives unquestionable evidence of an obligation, therefore, it is presumed the existence of this obligation.

Filed by executive demand. Despáchese writ of execution and seizure
The writ of execution and seizure begins the book of constraint (record 1) and the judicial receiver must notify not only the demand and relapse providence in it, but also must notify the command of execution and attachment, which is an order that the executive pay.
Additionally, this act, the receiver requires payment or appointment to the Executive to require payment in their office, in this case, when not found at home.

Notifíquese personally.
The notice shall comply with the general rules, that is, if no school management before and this is the first court action, to be served personally, notwithstanding that, fulfilling the assumptions of the art. 44 (positive searches) can be reported by that article.
In this act the receiver must also stop the summons to attend his office and be required to pay. If the debtor is notified and required to pay in the territory for which it serves as the seat of court, will the term of 4 days to oppose the execution. This term is extended to 4 days if the request is made within the jurisdictional territory, but outside their district court seat.
The term is different and depends on the place where payment is required.
If the debtor is required within the jurisdiction of another court (for warrant and requesting notification of the application and order for payment) opposition may be filed with the court which ordered the warrant to comply before it at trial or before latter.
If the payment order is outside the territory of the court, the term will be 8 days site table.
If the order is made outside the territory of the Republic, the deadline for defenses will be the appropriate location according to the table for those cases.
Article 462 first paragraph. The deadline for defenses begins to run from the payment order, not from the notification of the application. If this is done within the territory of the Republic, the Minister shall inform the debtor faith in the very act the term that the law provides for opposition and will deduct the testimony of this notice in the proceedings. If you omit the latter, the minister of faith will be responsible for damages caused to the debtor, but the measure is valid, also stamped on the record.

Opposition to the Execution

Within the executive may raise defenses to enforcement. The exceptions are listed exhaustively can object in art. 464 of the CPC, are more restrictive than ordinary trial:

Section 464 CPC …
Consequently, Art. 464 contains exceptions both dilatory and peremptory as the law requires in Art. The 465 executed within the period for defenses, all the objects in the same writing, so can work preclusion.

In the statement of exceptions should be expressed clearly and precisely the facts that make up each of the objects and exceptions that must also indicate the evidence which it intends to establish such exceptions. In such a way that does not meet with this, the court may declare such exceptions as unacceptable.
And must verify that background and then fulfilled, the judge shall grant and transfer to these exceptions.
Art. 473 establishes a right that is executed together with objecting to the execution, you can say he does not have or has evidence to establish the foundations of these and can therefore reserve the right to ask for an ordinary trial later and ask well that is not paid to the creditor or performer while it does not guarantee the result.
In this case the court, when sentencing you to the reservation within 15 days, the term within which the Executive must notify the application file and noted in ordinary ordinary trial because if not, the bond to lapse.

Processing opposing exceptions

Once opposing exceptions for the run, they are forwarded to the performer in order to enable him to make claims and promise to give copy of the written exceptions. This transfer is notified by the state daily and has a period of 4 days to answer them. Therefore follows that the executive must make a copy of the notice of exceptions (Clerk of Court)

Attitudes of the performer

  1. Requesting exceptions 1.Contestar rejection of the same
  2. Dejar the period of time without saying anything
  3. Desistirse within that term demand, and reserves for ordinary proceedings subsequent to an action on the same points that have been the subject of executive demand.

The latter attitude may be taken by the performer when you notice that the objections interposed by the executed is unsubstantiated and therefore could be accepted by the court, it could qualify for an exception of an peremptory putting an end to the trial and sentence being authoritative of res judicata.
In this case the applicant will be lost executive action, but keep the common stock so that in this new trial will ordinarily discuss the existence or not of law.
In this case, if the player chooses this exit, ipso facto forfeit the right to deduct a new executive demand and void the trial proceedings executive, having incurred any loss except as may be decided at the trial later regular .

After this period of 4 days, provided that the performer has not withdrawn the suit, the court decides on the admissibility of the objections interposed in accordance with the statement in art. 466 second and third clauses.

If the court finds that the exemptions comply with legal requirements, should receive the case to trial or render a final decision, depending if there are no material facts relevant and contradictory regarding exceptions.
If deemed necessary the receipt of the case to trial, an evidentiary open 10 days. (The normal is 20 days and 8 days incidental), which can be extended by 10 days at the request of the player, before the expiry of the term and subject to prior evidence that the parties agreed to grant special terms.

As proof, in the event we received the test result must be received and held in the same way as in ordinary proceedings. The resolution that receives the test result must indicate the relevant test points. Notifies the execution because it is he who opposed the exceptions, however regular trial is the plaintiff.

Probationary period expires, the file will be at the secretary for the following 6 days the parties, as in the ordinary trial, can make the appropriate comments, evidence based on written submissions. Once the term of appointment 6 days to hear the judge sentence.
The sentence, according to art. 470, shall be given within 10 days from the summons to hear sentence. If the sentence rejects the objections, order to proceed with the execution and costs correspond to executed. If the sentence hosts 1, 2 or more exceptions, the costs will be divided proportionately between the parties, unless the court finds reasonable grounds to impose them on the run.

If this trial executive in the main book and executed once the payment was required, this does not preclude exceptions in time, is not necessary the enactment of any sentence because a legal fiction, an order of execution and attachment sufficient to proceed with execution.

If the final decision and order payment is to deliver the species seized or the amount appropriated, such delivery can not be made pending the appeal that has been deducted against that sentence, unless the performer has underwritten the result of the trial .
Against this final decision must:

  1. Recurso appeal, granted at the sole effect returnable.
  2. Recurso for clarification, correction or amendment, in order to correct errors or omissions.
  3. Recurso of appeal in form.

Constraint Notebook

The main notebook or executive notebook contains everything you say regarding the trial begins with a claim executive or management school.
The notebook of constraint however, is related to everything that is to enforce the obligation. It begins with the execution and seizure warrant.

The execution and seizure warrant must meet the following requirements:

  1. Order requiring payment to the debtor: The recipient must point to the respondent court has been deducted in their suit against executive and must specify the amount charged or the species that is owing. Also in this performance, the receiver requires payment, because it is authorized to receive payment.
  2. Order to seize sufficient goods of the debtor: In a manner that might cover the amount of debt, interest and costs, this where the debtor required to pay, not pay.
    It is necessary that the receiver enough to seize assets, ie more or less the amount of debt, and the receiver must also seize private property of the debtor. This is because if seizes property from third parties, they can bring a third party domain or possession.
    For purposes of the embargo, the performer must apply in the application requesting the goods are seized. If the creditor has not reported assets for attachment, the attachment is made with the debtor’s proposal. If anything says the creditor or the debtor, the attachment is performed by the receiver in his opinion, however, Art. 449 sets the order of those assets to be seized, as follows:
    Money
    Other tangible property
    Real Estate
    Failing all these, wages and pensions (such inclusion food)
  3. Designation of a person to serve as temporary depository of the seizures: But not to remove the media delivery to the person who deposit the performer has mentioned or suggested as a temporary repository, which is usually the debtor. This is because the depositary is required to pay money for this work and this is avoided when the depositary is the debtor or executed.
    If the performer has not identified the name of the depositary, the receiver will be delivered to the person designated by the court, which must be of known repute and creditworthiness.
  4. Description of property to lock the ban: If the performance falls on a species or a body or if the player has stated in its application to seize property, the warrant must state that the lock of the embargo to be made on them.
    Otherwise, you will note that this will lock on assets belonging to the debtor.
  5. Help law enforcement: If the concept of court-founded fear exists that the order is disobeyed, because such is not allowed to enter the receiver to seize the debtor’s domicile may also be granted this time the aid of forces.
    If goods are sold before attachment, nothing happens, but if it does then it is an offense known as depositary sum.

Embargo

Procedural act by which a minister of faith to be real or symbolic delivery of goods belonging to a debtor who is designated the depositary, in order that such property is paid to the creditor, whether the species themselves or with yielding the auction of the same.

Persons who may appoint property to lock

  1. Ejecutante
  2. Deudor
  3. Judicial 3.Receptor

How the arrest is effected

According to Art. 450, is made by the actual or symbolic delivery of goods to the depositary, that though the species are held by the debtor, who will serve as interim repository, while designating the final repository.
This diligence is performed by the court receiver, leaving a written record of diligence in the process, therefore, the receiver must set the date and time of the arrest was made.
In addition, individual expression and detailed of the seizures also indicating whether it was necessary to use public force, identifying the name of the officer who intervened in the proceedings.
In the case of movable property, the minutes should indicate:

  • Species
  • Quality
  • Condition
  • Any other history for singling

For real estate, you must identify its location and the necessary data according to the respective domain registration. Since the embargo is part of the property can not alienate it, because if that happens there illicit purpose.
This act makes the judicial receiver must be added to the file, signed by the judicial receiver and this action is added to the binder of constraint, in addition, the recipient must record the amount of their fees.
The receiver and the seizure, you must send the executed letter communicating the fact of the embargo within 2 days followed by practicing it. He did not send the letter does not invalidate the management, but the receiver shall be liable for damages caused its failure, as well as any breach in the timeliness of the embargo. Subject may be disciplined by the supervisor, who is the CA concerned.

Effects of Embargo

  1. De according to art. 1464 No. 3 of the Civil Code, there is illegal object in the sale: No. 4: of things seized by court order unless authorized by the judge or the creditor consents.
  2. Salvo where the debtor is designated depositary of property seized, as in the generality of cases, it loses the administration of property seized, remaining in charge of the depositary (Art. 479 CPC)

During the aftermath of the process may occur related incidents, however, are:

  1. Extension of the embargo: The creditor may request extension of the embargo in any stage of the process, provided there is just cause to prove that the goods seized are not enough to cover the debt, interest and costs.
    The fact of having borne the seizure of property difficult to perform, it will be just cause for enlargement also has been deducted third party in respect of property seized, ie a third party claiming rights to such property.
    In the request for extension of the embargo, it generates an incident is handled according to general rules of incidents.
  2. Reduction of the ban: It may happen that goods have been seized on too much debt, interest and costs owed by the debtor in this case, the debtor applies the same reduction.
  3. Replacement of the embargo: At the request of the debtor, at any stage of the process, you can ask for replacement goods seized by a sum of money to pay for the care and costs. But unless the body rests in kind or true, that when the object of the obligation to be kind or body is true.
  4. Rising or cessation of the embargo: Before the auction takes place, the debtor can stop paying the lien debt and costs. Once the auction is done, you can not because the property is owned by a third party under the domain transfer operated.