Vollstreckungsverfahren: Durch die Gleichsetzung der Begriffe ‚Zustellung‘ und ‚Lieferung‘ arbeiten die Gerichte gegen die Gläubiger

The Enforcement Act stipulates that a public notary is obliged to send a notice to the debtor about the existence of a debt and that he possesses proof of dispatch for this. However, some first-instance courts believe that the public notary must prove that the debtor has also received the notice of the debt. And this is where things start to get complicated…

With the amendments to the Enforcement Act in 2020, aimed, of course, at protecting the debtor rather than the creditor, the Parliament passed a provision (Article 281 of the Enforcement Act) which obliges the public notary, before issuing a decision on enforcement, to send the debtor a proposal for enforcement and invite him to fulfill his obligation to the creditor within fifteen days. If the debtor does not settle the debt, the public notary is obliged to issue a decision on enforcement ordering the debtor to settle the debt to the creditor, against which decision the debtor can file an objection within eight days.

If the debtor files an objection, the public notary sends the entire file to the competent court for further proceedings, which in most cases means that civil proceedings begin. Does such a procedure even make sense? It should also be emphasized that the prior invitation of the debtor by the creditor to settle the debt or proof that the debtor has already been sent an invoice, so the amount of the debt and the name of the creditor could not remain unknown, has no impact on the legally mandatory procedure described above.

Let it be even longer

It is clear that this procedure complicates the position of the creditor as it significantly prolongs the process of collecting his claims. But as if that were not enough, the courts have further complicated the position of the creditor with their arbitrary interpretation of clear legal provisions. Namely, Article 281, paragraph 3 of the Enforcement Act stipulates that the public notary will send the notice from paragraph 1 of this article to the address from Article 8 of this Act. Thus, for a legal entity, to the address of the registered office entered in the court register, or electronically, and for a natural person, to the residence address listed in the records of the Ministry of the Interior. The emphasis here is on the word ’send‘. Sending does not mean ‚delivery‘, which applies in cases when the public notary sends the debtor a decision on enforcement. This would mean that the law stipulates that it is sufficient for the public notary to send the debtor a notice of the existence of the debt and that he possesses proof of dispatch for this (sufficient proof of dispatch would be a registered mail shipment).

Misinterpretation

However, some first-instance courts believe that the public notary is obliged to prove that the debtor has received that notice. Thus, if the notice were delivered to the debtor, and he intentionally did not pick it up, the public notary would receive a document back marked ’not picked up by the notified‘. Given that, according to judicial practice, such delivery would not be considered proper, the public notary would be obliged to attempt once more to deliver the notice to the debtor, within a period that cannot be shorter than thirty days or longer than sixty.

If that repeated delivery also fails, delivery will be made by posting the document that was to be delivered on the e-bulletin board of the courts. It will be considered that delivery has been made upon the expiration of the eighth day from the date of posting the document on the e-bulletin board of the courts. Only such delivery would be considered a proper ’sending‘. All because first-instance courts equated the term ’sending‘ with the term ‚delivery‘, which is why they annul decisions on enforcement made based on the sent notice to the debtor. This means that the entire procedure must start over.

To the detriment of creditors

The second-instance court, however, considers such positions of the first-instance court unfounded, which is why it annuls such decisions of the first-instance court. The second-instance court emphasizes that the purpose of the provision of Article 281 of the Enforcement Act is to expedite the procedure, and that sending the notice is only of informative significance. Although in the practical example this decision was made by the second-instance court back in June 2023, to this day the first-instance court has not taken any action according to the instructions of the second-instance court, which is why the creditor still cannot collect his claim.

Such cases are not rare, do not contribute to legal certainty, and leave numerous opportunities for debtors to avoid settling their debts. Although legal changes should contribute to the protection of property and rights, the violation of that protection and rights is often tolerated, which, unfortunately, frequent legal changes fail to correct. Because the courts always find ways to protect the debtor. For this reason, there is still quite low confidence in the judicial system. At least among creditors.