Izterjava obveznosti na podlagi pomanjkljivo določenega izvršilnega naslova : doktorska disertacija

slovenian

doktorska dela

2020

Univerza v Mariboru, Pravna fakulteta

The dissertation addresses the issue of undetermined enforcement titles and analyses enforcement proceedings in which the creditor proposes enforcement based on an insufficiently determined enforcement title. The issue of insufficiently determined enforcement titles arises to a greater extent with enforcement titles issued in labour disputes, as well as with the enforcement of non-pecuniary claims, whereas the problem can also arise in those enforcement proceedings in the Republic of Slovenia that include a foreign enforcement title in which the debtor's obligation is determined in a foreign currency, or where the interest is specified by referring to foreign legislation. The enforcement proceedings are characterised by a basic principle under which the court of enforcement is bound by the enforcement title, the so-called principle of formal legality, due to which the court of enforcement is not authorised to assess whether a particular claim in enforcement title is correctly determined, but must instead permit the enforcement as stated in the enforcement title. It is difficult to implement an insufficiently determined claim under the enforcement title; therefore, the doctoral dissertation examined, in particular, the possibilities to remedy these shortcomings. We found that the assessment of the suitability of enforcement title for enforcement needs to be carried out at the stage of permitting enforcement, whereby the assessment of suitability includes the part of the claim containing interest. We also found that the court of enforcement may not itself determine the contents of obligations arising from the enforcement title, nor may it appoint experts to clarify the substance of the claim. If the enforcement title is undetermined, it is considered unsuitable for enforcement, and the court must thus reject the creditor's application for enforcement. We concluded that the rejection of the creditor's application on the grounds of enforcement title being unsuitable does not constitute a breach of the right to judicial protection. In exceptional cases, the enforcement judge may specify a defective operative part of enforcement title if the elements for determining the obligation are provided objectively (e.g., enforcement judge specifies the amount of interest rate if the operative part of a foreign enforcement title refers to foreign law). Furthermore, we examined Austrian and Croatian regulation and found that the parts of Austrian and Croatian enforcement titles containing interest are much more specific than Slovenian enforcement titles, which contain only a phrase "statutory default interest". In connection with the enforcement of foreign enforcement titles, we found that the use of mandatory forms set out in the European regulations reduces the possibility of a foreign authority confirming an insufficient enforcement title; however, the issues occur in particular when enforcing the part of the claim containing interest where it is insufficiently determined in the form. Therefore, it would be prudent to adopt common positions regarding the phrasing of the interest rate. Based on the comparative legal analysis of the regulation of action for supplementing the enforcement title, we concluded that an insufficiently determined claim in the enforcement title could be supplemented with the so-called "supplementary enforcement title". The action for supplementing the enforcement title should be introduced into Slovenian legal order by legislative intervention following the example of Austrian regulation.

08.08.2023