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Enforcement Types and Modes
Two notions are distinguished in the learning: enforcement types and modes. The C.C.P. knows three types of enforcement from the point of view of their purpose: enforcement of pecuniary allowances (art. 844-1040), enforcement of non-pecuniary allowances (art. 1041-1059) and enforcement to cancel the co-ownership of real estate assets by public sale (art. 1066-1071). The purpose of a pecuniary allowance enforcement is to satisfy the creditor's dues by the payment of a corresponding sum of money thereto. This amount of money shall be sought in the debtor's property, picked up and transferred to the creditor. If it is not possible to achieve the enforcement goal in this simplest manner, it is necessary to separate from the debtor's property a kind of assets (things or the right to assets) and transform them into the corresponding amount of money. Depending on which component of the debtor's assets the enforcement of pecuniary allowances is addressed to, the following modes can be distinguished: a) against movables, b) attachment of earnings c) against bank accounts d) against other claims and rights in assets e) against real estate assets f) against perpetual usufruct g) against a fractional part of a real estate asset h) against sea-going ships. The purpose of non-pecuniary allowances is to satisfy the creditor by obtaining denominated things from the debtor (movables, real estate assets, ships, premises - dare) or a defined behaviour. The duty of a defined behaviour may consist in the performance of a given act (facere), whereby it may refer both to an act which another person may perform for the debtor, as well as to an act which cannot be performed by any other person but the debtor and whose performance depends exclusively on the latter's volition. The behaviour discussed may also consist in the omission of a deed (non facere) or abstention from disturbing the creditor's deed (pati). Enforcement of non-pecuniary allowances has the following forms, as to the manner of its conducting: a) picking up of the object of allowance from the debtor and handing it over to the creditor, b) performing the allowance by the creditor at the debtor's cost, and c) the application of means of coercion against the debtor in the form of a fine which could be replaced by the latter's detention. Depending upon whether the enforceable document grants the creditor a pecuniary or non-pecuniary allowance - this determines the type of enforcement which serves the forced performance thereof. However, it is the creditor who decides upon the mode of enforcement as he should indicate it in his motion requesting enforcement be initiated (art. 797 of the C.C.P.). The purpose of the third of the above mentioned types of enforcement is indicated in its legal definition and it means the cancellation of co-property of real estate assets (which has been ordered by a court decision) by way of a public sale (auction) and the allocation of the sum of money obtained therefrom, to the co-owners. Such proceedings are composed of two stages: a) the examination in the mode of non-litigious proceedings of an application for the issuance of an order to sell things (art. 625 of the C.C.P.) and b) the carrying out of this decision in the above described type of enforcement which is applied when the right of each of co-owners to request the co-ownership be cancelled cannot be exercised by way of a physical partition of the joint thing, but by granting it to one of the co-owners with the duty to repay the others. Janusz Jankowski
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Exchange rates of 2010-07-29
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Enforcement Types and Modes
Copyright by Currenda & WMKiW, Sopot 2006 |
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