Knowledge

Archive

Law on Enforcement and Security („Official Gazette of the RS“, No. 106/2015)

06. June 2016. | Author: admin

On December 18th, 2015 the National Assembly of the Republic of Serbia on the sitting of the Second Regular Session in 2015, adopted the new Law on Enforcement and Security (“Official Gazette of the RS“ No. 106/2015, hereinafter the “Law”). The most important regulations of the Law will enter into force on July 1st, 2016 except for certain provisions which entered into force on the 8th day of its publishing in the “Official Gazette of the RS“, i.e. December 29th 2015.

According to the new Law, the court renders the decision on the motion for enforcement on the basis of an executive title or an authentic document, while on the motion for enforcement in order to settle a monetary claim arising from the communal services or similar activities, a public enforcement officer renders the decision. However, the new Law, compared to the previous Law, establishes the authority to conduct enforcement in a different way. In accordance with the new Law, enforcements shall be conducted by public enforcement officers, except for the execution of which the court shall have exclusive jurisdiction, namely: for the enforcement on joint sale of movable and immovable property; if the enforcement debtor is required to take a certain action (action), refrain from taking a certain action (inaction), or suffer another person to take a certain action, the court shall have jurisdiction to decide on the motion to enforce and to conduct the enforcement; as well as enforcement on the basis of an executive title regarding family matters and returning an employee to work. In addition, the enforcement creditor shall, in the motion for enforcement on the basis of an executive title or an authentic document, indicate a specific, territorially competent enforcement officer to carry out the enforcement.

The enforcement procedure shall be urgent according to the new Law, and the judge will be held disciplinary liable for committing a disciplinary offense if failing to render a decision by the deadline set under this Law. In doing so, the president of the court shall see to it that a failure on the part of a judge of the court of first and second instance to rule on an objection or an appeal by the deadline set under this Law, is always taken into account in the procedure for the protection of the right to trial within a reasonable time. However, regardless of the fact that the principle of urgency is prescribed both by the previous and the new Law, the new Law stipulates a possibility of postponing the enforcement at proposal of creditor, debtor, their joint proposal or on the proposal of a third party. The enforcement debtor may propose postponing only once during the proceeding, and only upon establishing the likelihood that he/she would suffer irreparable or hard to repair damage, greater than the damage the enforcement creditor would suffer due the postponing, and if the enforcement debtor proves the reasons for the postponement of enforcement by a public document or certified private document.

The provisions of the Law prescribe that legal and factual disposition of the object of enforcement and security have no legal effect from the moment the enforcement debtor receives a decision on motion for enforcement on the basis of an executive title or an authentic document, or a motion on security.

The most significant novelty introduced by the new Law, is introduction of the appeal as a regular legal remedy, in addition to the objection. The deadline for submitting an appeal is 8 days, instead of 5 working days, how it was stipulated in the previous Law on Enforcement and Security. The enforcement debtor may file an appeal against a decision on motion for enforcement only for the reasons that prevent the enforcement, and in addition to the reasons stipulated by the previous law, the new Law stipulates some additional reasons.

Completely new provisions are related to the identification data of the enforcement debtor and the creditor, the duty to provide the information and the limitation of this duty, which replaced the provisions for obtaining the declaration of assets of the execution debtor, omitted from the new Law due to ineffectiveness. Thus, according to the new decision, the state authorities, holders of public authority, other legal entities and entrepreneurs shall deliver to the court and the public enforcement officer, free of charge and upon their request, all relevant information concerning the enforcement debtor and its assets, as well as information about the debtor’s salary and other earnings, financial instrument account numbers and balances, data on immovable property on which or in relation to which the enforcement debtor has property rights, information from the records of registered motor vehicles and trailers, data on tax returns for the last three years and so on. The state authorities, holders of public authority, other legal entities and entrepreneurs shall deliver, free of charge, all the data that shall be delivered to the court and the public enforcement officer, except the data on tax returns for the last three years, to the enforcement creditor initiating enforcement procedure or securing of claims procedure on the basis of an executive title.

One of the novelties, compared to the previous Law is the fact that the rules of public auction are partially changed. The new Law prescribes that initial prices are set as 70% of the first public auction and not less than 50% on the second public auction.

The transitional and final provisions of the Law require special attention. Executive creditors in whose favor decision on the motion for enforcement on the basis of an executive title or an authentic document had been rendered before the enforcement officers started working in the Republic of Serbia (June 1st 2016) and who on May 1st 2016 were still conducting enforcement or security proceedings, need to declare between 1st May 2016 and July 1st 2016 whether they are willing to let procedure be conducted by a public enforcement officer or by the court. In case they fail to declare in time, the court will cancel the enforcement proceeding.