Place of Execution of Judgements
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Abstract
The article analyses legal regulation of the place of execution of judgements in the Republic of Lithuania. The author spotlights existent advantages and imperfections of the Code of Civil Procedure (CPC) and the Instruction on Execution of Judgements of the Republic of Lithuania, proposes amendments of the CPC aimed to determine place of execution more precisely.
Legal regulation of the place of execution of judgements is important for several reasons. Firstly, a bailiff, when performing its functions, is bound by the rules of territorial jurisdiction. Consequently the judgement creditor, presenting the writ of execution, and a bailiff, accepting it, should first of all identify the place of execution in order to determine whether the writ of execution was presented to the bailiff competent to execute it. Second reason why the proper determination of the place of execution is extremely important is that a control of procedural activities of a bailiff is performed by a judge of district court. Activities of district courts are delimitated by the rules of territorial jurisdiction, thus control of procedural activities of a bailiff must be performed by the district court under which jurisdiction falls the place where the executive actions were performed. Proper determination of the place of execution is also important for the judicial protection of rights and interests violated during the execution procedure. If the claim against the actions of a bailiff is logged, it should be lodged in the court of the place of performance of the disputed (wrongful) action.
Article 590 of the CPC determines the place for presentation the writ of execution. The place of execution differs subject to the legal status of a debtor. If a debtor is a natural person, the place of execution is the place of residence, workplace or the place of presence of the property of a debtor. If a debtor is a legal person, the place of execution is the place of domicile or the place of presence of the property of a debtor. If there is a possibility to choose between alternative places of execution, option is given to the judgement creditor.
Problem of determination of the place of execution arises when the recovery is targeted at the intangible property of a debtor. The place of presence of this kind of property is legally undetermined. In the opinion of the author, when directing the recovery to the immaterial stocks of the debtor, realisation should be performed by the bailif acting in the place of domicile of a person taking the record of stocks. If securities must be realised in the Stock exchange (Para 1 Article 729 of the CPC), realisation should be performed by the bailif acting in the place of domicile of exchange. In all senses securities should be seized by the bailif which has traced them.
CPC does not provide for definition of a workplace of a debtor. Item 52 of the Instruction on Execution of Judgements, providing that when forwarding the writ of execution to the person paying the income to the debtor a bailif is not bound by the teritorial limits of its activities, contradicts Para 1 Article 590 of the CPC.
Exceptions to the limits of teritorial jurisdiction of a bailif, determined by the Article 591 of the CPC and providing an opportunity to perform the executive actions in the territory served by another bailif, in the opinion of the author are legitimate and contribute to the effective execution of a judgement.
Legal regulation of the place of execution of judgements is important for several reasons. Firstly, a bailiff, when performing its functions, is bound by the rules of territorial jurisdiction. Consequently the judgement creditor, presenting the writ of execution, and a bailiff, accepting it, should first of all identify the place of execution in order to determine whether the writ of execution was presented to the bailiff competent to execute it. Second reason why the proper determination of the place of execution is extremely important is that a control of procedural activities of a bailiff is performed by a judge of district court. Activities of district courts are delimitated by the rules of territorial jurisdiction, thus control of procedural activities of a bailiff must be performed by the district court under which jurisdiction falls the place where the executive actions were performed. Proper determination of the place of execution is also important for the judicial protection of rights and interests violated during the execution procedure. If the claim against the actions of a bailiff is logged, it should be lodged in the court of the place of performance of the disputed (wrongful) action.
Article 590 of the CPC determines the place for presentation the writ of execution. The place of execution differs subject to the legal status of a debtor. If a debtor is a natural person, the place of execution is the place of residence, workplace or the place of presence of the property of a debtor. If a debtor is a legal person, the place of execution is the place of domicile or the place of presence of the property of a debtor. If there is a possibility to choose between alternative places of execution, option is given to the judgement creditor.
Problem of determination of the place of execution arises when the recovery is targeted at the intangible property of a debtor. The place of presence of this kind of property is legally undetermined. In the opinion of the author, when directing the recovery to the immaterial stocks of the debtor, realisation should be performed by the bailif acting in the place of domicile of a person taking the record of stocks. If securities must be realised in the Stock exchange (Para 1 Article 729 of the CPC), realisation should be performed by the bailif acting in the place of domicile of exchange. In all senses securities should be seized by the bailif which has traced them.
CPC does not provide for definition of a workplace of a debtor. Item 52 of the Instruction on Execution of Judgements, providing that when forwarding the writ of execution to the person paying the income to the debtor a bailif is not bound by the teritorial limits of its activities, contradicts Para 1 Article 590 of the CPC.
Exceptions to the limits of teritorial jurisdiction of a bailif, determined by the Article 591 of the CPC and providing an opportunity to perform the executive actions in the territory served by another bailif, in the opinion of the author are legitimate and contribute to the effective execution of a judgement.
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Please see Copyright and Licence Agreement for further details.
