Volume 5 (1997) / Issue 3
Wendy Kennett, Andreas Konecny, Claudia Soher, Isabel Albrecht, Karen Broeckx, Elina Moustaira, Jean-Claude Wiwinius, Bert Van Schaick, Maria José Capelo, 'Enforcement of judgments' (1997) 5 European Review of Private Law, Issue 3, pp. 321–428
The present Chronique examines the law on enforcement of judgments in ten European jurisdictions. (The term 'enforcement' rather than 'execution' is used because of the relatively narrow meaning of execution of a judgment within English law.) In the last seven years a number of the jurisdictions under consideration have made more or less extensive revisions of their laws on enforcement of judgments. Most notable is the complete overhaul of the law in France contained in L. 91-650 and D. 92-755. Less complete, but still substantial, revisions have been made in Portugal (Decree law 329-A/95 of 12 December 1995 as modified by Decree law 180/96 of 25 December 1996) and Austria (Exekutionsordnungs Novellen 1991 and 1995). Changes have also been introduced in all of the other laws under consideration. Areas which have attracted reform in several jurisdictions include in particular the specification of the property of the debtor which remains immune from execution, and the obtaining of information from the debtor as to his assets.
Clearly the Chronique cannot hope to provide an exhaustive comparison, but it attempts to highlight key similarities and differences in approach that are adopted within Europe. Before looking at the methods of execution themselves, the Chronique deals with a number of preliminary issues. An introductory section sets out the various kinds of obligation that may be recognised in a judgment and provides a brief overview of the different methods of execution that may be employed for each type of obligation. The Chronique then goes on to consider the formal requirements that may need to be satisfied before enforcement of a judgment can take place. It is noted at this point that a judgment is just one form of enforceable title. Other titles are also enforceable under the laws of all states considered, although considerable variations exist as to the types of title that are recognised. The varying approaches of the legal systems under consideration as to provisional enforcement are also considered in this section. If an enforceable title exists, further formal requirements that may have to be satisfied before execution of the judgment can take place include proof of enforceability and service of the judgment.
A further preliminary issue is the variety of personnel that may be involved in the enforcement process. Considerable differences between systems exist both as to the allocation of tasks between courts, lawyers and bailiffs, and as to the regulation and training of bailiffs. An important section is devoted to the question of effectiveness of the creditor's title. This involves consideration of the mechanisms available to assist the creditor to find out information about the debtor's assets; the extent to which evasive action on the part of the debtor, by effecting dispositions of property, may be counteracted; the immunities and exemptions recognised by the law of each jurisdiction; and the extent to which measures exist to deal with debtors who have acquired an unmanageable burden of debt. On each issue considerable diversity of approach can be identified, although in relation to assets immune from seizure there is a strong core of shared values.
The Chronique then moves on to look at the methods of execution themselves. This part of the Chronique is divided into three sections. It looks first at enforcement of money obligations, through the seizure of movable property, garnishment and seizure of immovable property. It then deals with obligations to perform a certain act or abstain from certain conduct, which are dealt with by mechanisms such as substitute performance, fines, sequestration and imprisonment. The final section concerns obligations to deliver property, which are mainly enforced via seizure of the property and fines. Particular attention is drawn to the differences between legal systems as to the circumstances under which enforcement agents may gain access to the premises of the debtor, the degree of intrusion that may be imposed on third parties, the legal effects of
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