Justice – a commitment to time!
The new Civil Procedure Code will come into force on 1 September and will apply to all pending proceedings.
This Code will bring major changes to our legal order and is aimed essentially at speeding up legal proceedings and reducing trial delays, making all those involved in legal proceedings responsible.
It introduces a new preliminary hearing model based on the “principle of orality and focusing discussion, with the active participation of all those involved”. In this way, the lawmakers seek to mark out the contours of what is truly vital for the understanding and settlement of the dispute.
At the preliminary hearing, the judge will have to schedule the trial hearing according to the availability of the legal counsel of the parties, taking into account the evidence to be adduced, and thereby avoiding adjournments at a later date.
The scheduling of witness examinations will be carried out in a more careful and rational manner, avoiding more than one witness being called for the same time period.
The new Code also makes significant amendments to enforcement proceedings with a view to simplifying certain procedural formalities.
These structural reforms will only become truly possible if all those involved in court proceedings take their involvement seriously, thereby achieving a commitment to justice being done in good time
One of the main changes to the current Civil Procedure Code is the amendments made in respect of enforcement actions.
“Reduction” of the number of enforceable instruments
The 1995 reform led to a situation where any private document signed by the enforcee in recognition of a pecuniary obligation was deemed an enforceable instrument.
In the new 2013 CPC, the lawmakers have dropped the enforceable instrument from indent c) of Article 46 of the current CPC and require an action for a declaration or a small claims application to be filed for debts to be collected. The goal is to limit the possibility of anyone having to pay a debt that either does not exist or does not exist in the terms claimed by the creditor.
Therefore, private documents signed by the debtor which involve the creation or recognition of pecuniary obligations, the value of which is determined or may be determined by simple arithmetical calculation according to the clauses contained therein, or of an obligation to deliver something or to perform something, will cease to be valid as enforceable instruments. In practice, a document which contains an admission of debt, an invoice signed by the debtor, or an account statement signed by the debtor, will cease to be regarded as enforceable instruments and, accordingly, such documents will no longer afford direct access to enforcement proceedings. The enforceability of private documents is therefore eliminated, whatever the obligation involved. The exception is bills of exchange, even if these are only handwritten, as long as the facts which constituted the underlying relationship are set down in the enforcement application (for instance, a cheque that was not presented within the legal time limit). This means that the documents that can be used to prove the existence of debts will be restricted to letters of credit, promissory notes and cheques.
Other amendments of particular significance to procedure in enforcement proceedings
1- Citizens will be able to resort to court bailiffs to carry out the duties of enforcement officer in two situations: enforcement proceedings for the collection of debts that do not exceed twice the monetary limit of the first instance courts, provided that they do not stem from a commercial or industrial activity, and enforcement proceedings aimed at collecting employment debts of an amount not in excess of the Appeal Court limit (up to thirty thousand euros).
2- The enforcee will now be allowed to file particulars of defence against an enforcement application on the basis that the small claims application should clearly not have been granted, in whole or in part, whether on the basis of an issue that the court should have raised of its own motion or whether there are pleas-in-law which, had they been raised in the small claims proceedings, would have prevented the enforcement decision.
3- It is now expressly stipulated that the amount that may not be seized is two-thirds of the net amount of earnings or salaries, periodic payments or payments of any nature that afford the enforcee his/her living (e.g. rents and income from intellectual property).
4- In extra-judicial instruments signed only by one spouse, the debt being enforced against the enforcee must be communicated to the other spouse, who must then request or prove that the assets are held separately, failing which the enforcement will apply to the assets they hold in common.
5- The order of priority for seizable goods will cease to exist, and the enforcement officer will have to respect the wishes of the enforcee as regards the assets that the latter wishes to have seized first, unless this is in breach of compulsory legal provisions or offends against the principle of proportionality of the seizure.
6- Also worthy of mention is the fact that the prior court order for seizure of bank accounts has been dispensed with and this will now be effected by means of electronic communication from the enforcement officer to the institutions that are legally authorised to receive deposits at which the enforcee has an open account, which will speed up enforcement proceedings.
7- The law provides for the extinction of the relevant enforcement proceedings within a period of three months if no seizable goods have been located.
Transitory regime on enforcement proceedings
In enforcement proceedings initiated prior to 15 September 2003, the acts which fall within the purview of the bailiff under the new Civil Procedure Code are incumbent on the enforcement officer. As regards enforceable instruments, the forms of enforcement proceedings, the enforcement application and the introductory phase, the provisions of the new Civil Procedure Code only apply to enforcements initiated after it comes into force. For proceedings and interim proceedings in which the claimant or applicant is seeking a declaration, it only applies to those filed after the commencement date of the new CPC.
Filipa Rúben
Cristina Viegas