25. Oct 2017
On 12 October 2017, Lyceum Iuris organized a Round table on the subject “One year of the new Law on Enforcement and Security Interest“ which was attended by the representatives of Joint Law office Marjanović. The panelists of this event were Aleksandra Trešnjev, public enforcement officer and the president of the Public Enforcement Officers’ Chamber of the Republic of Serbia, Mladen Nikolić, the judge of the Commercial Appellate Court in Belgrade and Mihajlo Živković, manager in the department for the collection of receivables from legal entities in Societe Generale bank. The event was attended by many public enforcement officers, attorneys at law and lawyers from the entire country.
The main topic of the Round table was the application of the new Law on Enforcement and Security Interest (hereinafter: LES) and its effects identified during the period of one year of its application, as well as the discussion about its positive and negative solutions and practical effects of its application.
During the discussion, the following solutions were identified as positive outcomes of the LES, which improved the enforcement procedure:
- the procedure of the enforcement implementation is significantly accelerated – by establishing authorities of the public enforcement officers for the procedure of enforcement implementation, the efficiency of the procedure itself significantly improved, given the fact that in the past the court quickly decided upon the motion for the enforcement, but the procedure of the enforcement implementation was rather slow;
- the unification of the court practice in the procedures by legal remedies – the aim is at harmonization of practice in legal remedy procedures, in appeal particularly, which in many ways contributes to the legal security;
- the obligation of providing the information of the judgement debtor – this considerably upgraded the efficiency of the enforcement procedure by replacing the earlier procedure of obtaining a statement on the judgement debtor’s property, which often led to a “vicious circle” without realizing its purpose;
- precisely defined procedure for the settlement of financial claims which arise from utility services and related activites – a significant innovation compared to the previous law is the suspensive effect of the objection to the writ of execution;
On the other hand, the discussion at the Round table included certain downsides of the LES which should be reconsidered:
- ineffectiveness of the legal remedy in the enforcement procedure arising from the provision of the Article 26 of the LES: When deciding on the objection or appeal, the court cannot abolish the first instance decision and refer the case to the retrial – this provision represents a problem in practice, due to the highly ambitious intention of the legislator to accelerate the procedure and make it more effective which actually made the legal remedy ineffective;
- the joint sale of immovables and movables – the LES does not precisely define the conditions for the joint sale, therefore such loophole creates a legal insecurity and complicates the application of such solution;
- inadequacy of application of the provisions of the Civil Procedure Act, which regulate small claims disputes in the procedures arising from the lawsuits for the unauthorization of the enforcement, in connection with the provisions of the Article 81 of the LES – when a decision on the rejection of the appeal was made, and such decision is based on disputable facts between the parties and refer only to the claim of the plaintiff, there is a possibility of filing a lawsuit for the initiation of a litigation procedure which is led by the rules for the conduction of small claims procedures in accordance with the provisions of the Civil Procedure Act, which is inappropriate because it mostly refers to the claims which are often much higher than the values of small claims disputes, while the revision as an extraordinary remedy is not allowed;
- overregulation and the lack of quality redaction of LES – leads to a legal insecurity in the interpretation of the provisions of LES. The adoption of a specific law on public enforcement officers would contribute to the elimination of the overregulation of the LES;
- discrepancies between the law and bylaw referring to the Public enforcement officers’ tariff and the costs of the enforcement procedure.
As a positive conclusion we may highlight that the efficiency in the enforcement procedure has been somewhat increased considering the implementation of the LES thus far. On the other hand, the achievements regarding the harmonization of court practice, as well as the reduction of the number of old cases in courts are still rather modest and insufficient.