Anti-executive action – defence against ventricular execution

Anti-executive action is 1 of the most crucial tools protection of the rights of the debtor during enforcement proceedings. Thanks to him, the debtor can effectively challenge the legitimacy of the execution and request its limitation or redemption. This Article explains precisely what an anti-executive action is, who can file it, where it is justified, and what are the deadlines and procedures for bringing it. Learn how defend your rights from the bailiff.

There are 2 types of anti-executive action:

• opposition – the debtor, and
• Excise action – a 3rd organization whose rights have been violated by execution.

This entry concerns opposition action.

Opposition action

Code of civilian Procedure, Article 840 provides a means of defence against ventricular executionthat the debtor may, by way of action, request non-executive feasibility in full or in part or limitations. It is the alleged substantive defence of the debtor. This Article provides the basis for a substantive and legal request for the declaration of enforceability of an implementing title.

Implementing title — definition

The implementing title is enforcement title (e.g. judgment) with a feasibility clause. The enforcement title defines the existence and scope of the creditor's claim.

Whatever. The basis of the opposition action may be to challenge the existence of an enforcement title, however, a clear discrimination must be made between enforcement titles which are judicial decisions and another execution titles (e.g. a notarial act in which the debtor has been executed).

This discrimination relates to the effects of substantive validity of judgments. Pursuant to Article 365(1) of the Law, final judicial decisions are binding not only on the parties and the court which issued them, but besides on another courts and another public authorities and public administrations, and in the cases provided for in the Law besides on another persons (so: judgement of the Court of Appeal in Katowice of 30 June 2016), V ACa 829/15).

Feasibility clause – definition

The feasibility clause states that the enforcement title entitles the execution, and where necessary, the information referred to in Article 783 §1 kpc, i.e. the mention of the enforcement title, the performance subject to execution and the scope of enforcement, and the indication of whether the judgement is enforceable as final or as immediately enforceable.
The feasibility clause shall be signed by a justice or a referee.

Objective of opposition

The nonsubjective of the opposition action is to deprivation of the enforceable title of enforceability wholly or partially or its limitation, Whereas it is not intended to mention to the relevance of the provision itself to grant a feasibility clause and to repeal the feasibility clause.

Opposition proceedings as provided for in Article 840 k.p.c. does not, however, lead to a re-examination of a case completed by a final judgment. Therefore, it is not permissible to amend a previously issued final judgement on the basis of the said provision (judgment of the Court of Appeal in Łódź of 24 March 2016, I ACa 1403/15). However, this does not prevent the plaintiff from exercising his powers in another proceedings (judgment of 20 January 1978, III CRN 310/77, L.).

Similarly, the ultimate Court stated in its judgement of 12 December 1972, Ref. Act II PR 372/72, OS 1973 of 11, item 222, recognising that the debtor may not, by way of that action, decision towards a final decision of the executing court. The debtor may, on the another hand, contradict the content of another enforcement titles that are not protected by the substantive validity (res judicata) or the suspension of the dispute (lis pendens).

The intention of the opposition action is so thwarting enforcement and the plaintiff full achieves the nonsubjective of this action if he obtains a ruling stating that the title has been devoid of enforceability.

Opposition action and creditor enforcement of the full debt

Opposition proceedings may be brought whether enforcement has already been initiated against the debtor in order to guarantee that there is inactive commitment covered by the implementing title. Then only the existence of the anticipation of implementing an implementing title, that is, the ability to be executed, allows for an action to be brought to prevent enforcement.

An anti-executive – opposition action is inadmissible erstwhile the enforceability of an implementing title has expired as a consequence of the enforcement of the full benefit. If an work by payment or another event ceased to exist, the title is no longer capable of being enforced (yes: judgement of the Bialystok Court of Appeal of 18 February 2016, I ACa 926/15).

It follows so that with respect to amounts executed by repo execution It is not permissible to apply a mechanics for depriving the executive titles of enforceability in the framework of opposition proceedings, as in this respect execution can no longer take place (yes: judgement of the Łódź Court of Appeal of 9 March 2016, And ACa 1339/15).

The enforcement, in full, of a benefit under an executive title covered by an anti-executive action in the course of an investigative anti-executive procedure is so the basis for the dismiss the action. It is so not terminated (judgment of 20 January 2016),IV CSK 282/15).

Grounds for the anti-execution action (oppositional)

The basis for the anti-executive (opposition) action may be only claims indicating that after the court has closedpreceding the judgment there have been circumstances where the debtor’s work expired due to execution or for another reasons or cannot be enforced. On the another hand, they cannot be the basis of the opposition's action against the charges brought against the ruling to change its content (judgment of the Court of Appeal in Szczecin of 25 May 2017, And ACa 62/17). The enforcement body is not entitled to examine the validity and enforceability of the work covered by the implementing title (Article 804(1) kpc).

The effectiveness of an anti-executive action under Article 840 of the Code depends on the debtor’s showing 1 of the statutory conditions on which the enforceable title is deprived, in whole, part or in scope. specified conditions shall include in particular:

1. Questioning the grounds for granting a feasibility clause – the existence of an work under an enforcement title which is not a judgement of the court or the passing of an work despite the existence of a formal paper in this respect.
2. The occurrence of events following the formation of an enforcement title which consequence in the expiry of the work or its enforcement – in the case of judicial decisions, it is besides permissible to trust on circumstances which occurred after the closing of the hearing, specified as the fulfilment of the benefit or the charge, in so far as those allegations could not have been made for legal reasons.
3. Defending the debtor’s spouseto which a feasibility clause has been issued pursuant to Article 787 k.p.c. – the spouse can show that the benefit sought by the creditor is not due to him. In specified a case, he is entitled not only to allegations arising from his own legal situation but besides those which could not have been raised earlier by the second spouse.

Denial of the events on which the declaration of enforceability was based

Speech with the anti-executive action provided for in Article 840(1)(1) of the Code, which is based on denial of events, on the basis of which the declaration of enforceability is based, requires the debtor to show that there have been no occurrences on which the declaration of enforceability, including the banking enforcement title, was based. These events besides include questioning the existence or scope of the work under the implementing title. In relation to the monetary debt granted by the bank, it may besides mention to the work to reimburse the chief amount, interest, fees and commissions (judgment of 1 March 2017, IV CSK 285/16).

Since it is the debtor's business to show that there has been no occurrence which has led to a declaration of enforceability by contesting the existence of the work or its scope, he is entitled to any substantive pleas relating to the creditor's claim, specified as the existence of a claim, the existence of a claim of a lower amount, the failure to comply with the claim. The word ‘event’ utilized in this provision is besides understood as failure to meet the maturity position yet the claim covered by the implementing title, i.e. inclusion in that title early payment and so not yet contested at the time the title was created (judgment of the ultimate Court, II CSK 750/15).

In its judgement of 9 November 2016, the Council adopted Decision (CFSP) 2016/849. The Court of Appeal in Szczecin stated that from the content Article 840(1)(c) is the basis for questioning the work found execution title, not executive title. The wording ‘contrary to the events on which the declaration of enforceability is based’ should be understood as referring to the enforcement title itself, i.e. all its formal and substantive elements, including the content setting out the work on the date of issue of that title.

The feasibility clause does not change the content of the title, which is enforceable, Therefore, it cannot be considered that, as a consequence of the granting of a declaration of enforceability, a banking enforcement title affected by deficiencies in its completeness, or containing false data on those elements whose inclusion in that title is compulsory, is supplemented with respect to those deficiencies or falseness.

Termination of debt (commitments)

The regulation contained in Article 840(1)(2) of the Code aims to destruct from the basis of the application for the declaration of enforceability of an enforceable title involving a judicial decision of specified facts as have been omitted in the examination procedure as late or have not been notified at all (judgment of 12 October 2016, II CSK 489/16). A claim under that provision is intended to prevent undesirable civilian trade situations multiple payment of the same debt.

Pursuant to Article 840(1)(2) of the Code, the basis for the opposition action may be specified events as After the formation of the execution title and have put an end to the debtor's work or its inability to enforce it. Events within the meaning of that provision shall find only substantive legislation. There is no catalogue of events leading to the expiry of the obligation, but there is no uncertainty that such events include:

• performance of the undertaking,
• waiver by the creditor,
• the deduction,
• provision in place of filling,
• renewal,
• the transportation of a judgement which has been given in favour of 1 of the joint debtors, if it takes into account allegations which are common to all joint and respective debtors,
• compliance with the dissolution condition,
• renewal of the undertaking,
• voluntary the debtor's release from debt or settlement resolution.
• the transfer of the creditor,
• a change in relations where the work or work is extinguished or restricted,
• the transfer of the creditor,
• performance of the benefit by the debtor after the commencement of the execution,

Inability to enforce debt by the bailiff

Effect in the form of Inability to enforce an undertaking have in peculiar physical events specified as:

• the duration of the word of the benefit,
• distribution of the benefit into instalments,
• limitation of the claim

(yes: judgement of the Krakow Court of Appeal of 23 March 2016, And ACa 1758/15).

Supreme Court in Resolution of 30 July 1974, III CZP 44/74stated that the debtor’s message o deduction his claims of a claim covered by a judicial decision (Article 499 k.c.), lodged after the court has closedis the event at which may be based on an anti-executive action provided for in Article 840(1), point (2) of the first subparagraph.

Charges of the debtor’s spouse

The debtor's spouse becomes a spouse at the time of the award of a feasibility clause against him the debtor executed. He so benefits from defence by means of the measures provided for specified a debtor in the enforcement rules.

In particular, the debtor's spouse has the anticipation to bring an opposition action (Article 840 kp.c.). It cannot prevent driving execution from a circumstantial object in breach of its law as it has ceased to be a 3rd organization within the meaning of Article 841 k.p.c., saying that the alleged intervention be entitled only to a 3rd organization who, by way of action, requires the object seized to be released from execution if the execution of the object is directed to it violates her rights (yes: ultimate Court order of 13 June 2001, II CKN 498/00).

The exception is that execution was directed to the debtor's spouse's individual assetsand the title provides for limitation of the spouse's liability to common assets . If the debtor's spouse does not fight against an enforceable title, but simply demands the dismissal of the object taken from the execution, then he is considered a 3rd organization within the meaning of Article 841 and he is entitled to an excident action (yes: Jakubecki Andrzej (ed.), Code of civilian Procedure. Comment updated. Volume II. Articles 730-1217).

The opposition proceedings of the debtor’s spouse pursuant to Article 840(1)(c) may besides be based on allegations concerning events occurring before the formation of the enforcement title – however, after the amendment only on condition that the debtor could not rise those charges earlier. Taking specified action into account does not alter the content of the implementing title, and restricts only the ellipse of entities for which enforcement can be conductede (yes: judgement of the ultimate Court of 25 February 1998, II CKN 603/97, and judgement of the Court of Appeal of Gdańsk of 30 October 2015, V ACa 384/96).

Prosecution of limitation of a claim in an enforcement action (opposition)

As implemented, theas of 4 July 2019 Article 804(2) kpc, where it is clear from the content of the implementing title presented to the bailiff that the claim under enforcement has expired, and the creditor has not joined a paper confirming the interruption or suspension of the limitation period referred to in Article 797(1) of the Code; The bailiff shall refuse to initiate execution. This refusal shall take place ex officio without prior announcement from the creditor to remedy the formal deficiencies of the application.

This constitutes a separate legal mechanism, which also, as in the case of an action anti-executivemay lead to blocking of bail execution. Refusal to initiate execution by the bailiff due to limitation of the claim is preventive and follows before the start of execution.

Meanwhile, the action anti-executive is the mediate the defence of the debtor in the course of an ongoing execution. It may be applicable where The bailiff did not see the grounds for refusing to executeand, and the debtor considers that debt is statute of limitations. The correct application of the limitation of the claim has the effect of not being able to enforce the undertaking.

Anti-execution action – defence by illegal bail execution. lawyer of Kraków

Executive execution and deterioration of debtor (material or life)

Unfavourable change in the material or life situation of the debtor, which occurred after the title of execution arose, is not an event where the work has expired or cannot be enforced. Provisions on the inability of a benefit with which the provisions combine the expiry of the benefit (e.g. Article 475 k.c.) concern the situation nonsubjective inability that is, a situation in which not only the debtor but all another individual is incapable to behave in accordance with the terms of the undertaking (yes: judgement of the Court of Appeal in Katowice of 19 April 2016, I ACa 1161/15).

Defendant creditor in opposition action

The enforcement action provided for in Article 840(1) of the Code shall be brought against the creditor., and in the case of a multitude of creditors who share the powers of enforcement, they should be brought together against all those creditors. There's an accident. the essential participation on the suspect (judgment of 26 July 1972, III CRN 157/72).

A clause of abuse of subject rights as a basis for opposition action.

The standard of Article 5 k.c., stating that it is not possible to make usage of its right of use, which would be contrary to the social and economical intent of that right or to the principles of social coexistence, since specified action or omission of the rightholder is not considered to be an exercise of the right and does not enjoy the protection of, cannot be the basis for the investigation of requests, including anti-executive actions (yes: judgement of the Bialystok Court of Appeal of 8 September 2016, And ACa 1050/15)

Effects of successful opposition (anti-executive)

If, by taking account of the enforcement action, the implementing title was a final judgement of the court without enforceability either the decision on which the enforceability clause is based has been repealed or has been repealed The bailiff will surrender execution in full or parts on request.

Time to which an anti-executive (opposition) action may be brought

It is pointed out in the caselaw that an anti-executive action may be brought effectively as long as there is simply a possible anticipation for the performance of an implementing title in full or in a circumstantial part of it. After all, the bailiff is not entitled to examine the validity and enforceability of the work covered by the implementing title (cf. 804 §1 k.c.).

The debtor loses the chance to bring opposition action only as shortly as enforcement of the Implementing Title in full or in part. That action is so inadmissible in part only erstwhile the enforceability of the implementing title has expired as a consequence of its execution, and in the course of the enforcement proceedings (yes: order of the ultimate Court of 30 May 2014, II CSK 679/13, LEX No 1475081).

Claims for non-executive enforceability

The application for a declaration of enforceability shall comply with the conditions of formal procedural papers (Article 126 of the Code) and comply with the requirements of Article 187 of the Code. The exact determination of the request (Article 187(1)(c)) depends on which of the 3 grounds the claimant bases his action.

Court competent to handle an anti-executive action

Pursuant to Article 843 § 1 kpc, an anti-executive action shall be brought before the court in whose territory the execution takes place. The place of execution shall be determined on the basis of the provisions of the Code of civilian Procedure governing the local competence of the enforcement authority besides erstwhile a bailiff has been elected to carry out the execution outside the general property.
The local jurisdiction of the court determined in accordance with Article 843(1) and (2) shall be exclusive.

The jurisdiction of the court shall be governed by Articles 16 and 17 kpc. In cases of anti-execution proceedings, it is so appropriate, depending on the value of the dispute and the nature of the parties, to the territory court or territory court.

Place of execution

The Industrial territory Court in its judgement of 1 April 2014, Ref. Act I Jun 67/14 stated that by ‘court of execution“ must be understood as the court in which the territory is situated executing authority. The place of execution, on the another hand, does not designate the location of the property to which the execution was directed. In this case, the place of the debtor's assets remains irrelevant. If the legislator wanted to make the jurisdiction of the court dependent on the location of the things, he would do so in a clear manner, stating that the court in whose territory the subject is located, whose exclusion from execution is requested by a 3rd party.

Furthermore, it should besides be stressed that individual enforcement actions can be carried out in the jurisdiction of the different courts, so that the place where enforcement proceedings are concentrated is the seat of the competent authority to conduct enforcement proceedings and coordinate all the activities involved.

Anti-executive action before a court of arbitration.

It is not possible to bring an anti-executive action before a court of arbitration, since only a common court is entitled to give judgement to the arbitration panel a constitutive clauseand only the general court may deprive specified a judgement of that clause (judgment of the Court of Appeal in Warsaw of 9 October 2015, And ACa 2048/14).

Opposition action against a bank enforcement title

Bank debtor may to bring against the bank the anti-executive action provided for in Article 840 k.p.c. In specified a case, the debtor of the bank may rise any substantive allegations concerning the bank's claims, covered by the bank's enforcement title, with a judicial enforceability clause.

It's all about charges. prior to and after the issuance of the execution title. For example, charges may be active non-existence of a bank claim or the existence of a claim in lower height than included in the title, non-residency of the claim (although otherwise stated in the bank's execution title). Nor can a plea of infringement be ruled out (Article 5 k.c.). However, this does not mean that the provision of Article 5 k.c. could become a stand-alone basis for an anti-executive (opposition) action under Article 840 k.c.

Another situation would arise if there were grounds for believing that there was a breach of law as a consequence of the exercise by the bank of an adequate rating resulting from the credit agreement (e.g. termination of the credit agreement). The exercise of specified powers by the bank could be assessed from the point of view of Article 5 k.c. and consequently lead to the conclusion that the termination of the credit agreement by the bank (due to certain circumstances) could not be considered effective against the borrower (order of the ultimate Court of 27 November 2003, III CZP 78/03).

Limitation of liability of debtor before debtor

The right of the suspect to trust in the course of enforcement proceedings on limitation of liability in the event that the suspect is liable for certain property items or up to their value (Article 319 k.p.c.) cannot form the basis of an opposition action under Article 840(1)(2) k.c.

On the another hand, the debtor may trust in enforcement proceedings on existing restrictions leading to the termination of proceedings (Article 837 k.p.c.) (judgment of 15 November 1996, II CKN 7/96).

Anti-execution action and Paulian complaint

A suspect in a Paulian complaint is not a debtor liable to provide, so he is not a debtor within the meaning of Article 840 k.p.c. Its work resulting from a judgement taking into account the Paulian action is limited to abolishing that the creditor will be satisfied with the property, who, as a consequence of an act deemed unsuccessful, entered her property. individual does not have an active card in an anti-executive process.

One defence specified a individual is making a charge in the Paulian process to show that the creditor to the debtor of the claim is no longer injured (total payment) or is little injured than he claims. In specified a situation, it is essential for the court examining the grounds for the application of the Paulian plea of non-existence or partial non-existence of the creditor’s claim (judgment of the Court of Appeal in Krakow of 25 January 2016, And ACa 1373/15).

Anti-executive action and administrative executive title

The methods of defence before the administrative executive title are laid down in rule in the Act on Enforcement Procedures in the Administration, but in relation to those, which are subject to a judicial enforceability clause In accordance with Article 777(1)(3) of the Code, an opposition action may be brought.

It is widely accepted that specified an action may be based on all 3 grounds referred to in Article 840 kpc, but due to the inadmissibility of the judicial procedure in any of these cases the court may not examine the merits of the enforcement claimthat only the administrative authority is entitled to do so (yes: judgement of the ultimate Court of 4 February 2004, And CK 6/03, OS 2004, z. 12, item 158, OSNC 2005, no. 2, item 41).

In turn this body is not entitled to examine the judicial content of the implementing title. Therefore, as is considered in writing, the plaintiff should first get and present to the court a decision of the administrative authority stating that the undertaking has expired or cannot be enforced, the task of the court is limited to deciding whether the decision has been given by the competent authority.

Anti-executive action – the function of a lawyer

Anti-executive action is effective the instrument of defence of the debtor against unjustified pecuniary execution. If you think the bailiff is acting illegally, consult lawyer in Krakówthat will aid you prepare a suit and defend your interests. In matters relating to the performance of an obligation, deduction or limitation of a claim, professional legal assistance may find the success of the procedure.

About the complaint about the actions of the bailiff – read here