2011-10-22 02:45:19 Fonte

Comparison between the Spanish and European monitory procedures

First of all before entering this important issue we must have few fundamental knowledges of the matter. The money debt collections are quick proceedings which creditors can use if their claim is based on written evidence. The proceedings end with the court issuing a payment order, which allows the creditor to foreclose the debtor's assets (subject to certain court formalities). Generally, the court issues a payment order but if the debtor objects to the payment order, these proceedings automatically turn into ordinary proceedings.

In the Spanish Law, is acquiring remarkable importance the tool of the protection of the credit, which its guardianship foresees through an institute within an injunction character, notable innovation for the Spanish juridical structure characterized by a series of special procedures. We can define it an important turn in the management of the administration of justice that came into life thanks to the Law n. 1 of 2000, the so-called Ley de Enjuiciamiento Civil (hereinafter referred to as LEC), that has regulated in general the whole discipline of the civil ordinary trial and giving a clean modernization to that Debt collection proceedings. With his birth, the Spanish legislator has preferred to set aside a whole sequence of special procedures that risked weakening the judicial system and from the other side has aimed to consolidate the protection of the credit. First of all to start a money debt collections it is necessary that the debt has certain sum, is due and that the figure doesn't overcome the 250.000 Euros (art. 812.1 LEC), and that all of this results from a documentation signed by the debtor. The documents that can be useful to demonstrate the title of the credit are the invoices, fax, certificate of delivery and similar, the main point is that they confirm the existence of a lasting commercial relationship and if these documents, necessary as substantial requisite to start the procedure of credits recovery, are not signed by the debtor, the important matter is that they can attest the existence of credits between creditor and debtor. As it is burden of the creditor to prove with a document the existence of the credit that he want to protect, it is equally in his burden identify the debtor identity, his domicile or residence and to qualify the origin and the value of the debt (art. 814.1 LEC). Such action has the name of peticiˇn. The facility of access at the institute and his quickness have made it one of the more exploited and appreciated within the Spanish Law, so much that a third of the controversies having to object the collection of a credit make reference to the monitory trial that start with the peticiˇn. This has also been due to the fact that the small or middle enterprise can approach, without any juridical knowledge, to a quick and effective procedure with the purpose to recover his credit avoiding, in such way, the costs and the slowness of the civil ordinary trial. The opposition of the debtor must be presented in a term of twenty days from the notification and must be in written form with the relative motivations for which he doesn't have the duty to make the payment (art. 815.1 LEC).. When the sum exceeds 2000 Euros, the opposition must be filed by an attorney. However, in recent years major changes have taken place to improve the credit protection, subject to the necessary adjustments while maintaining the main structure which has proved extreme functionality. Let us first point out that a major step forward has been determined by the EC Regulation 1896/2006, which entered the EU regulatory system in the European monitory procedure, directly to get, through a common injunctions procedure, the payment of monetary credits transnational both in civil and commercial branch, always trying to reach the purpose through the application of economic tools of guardianship. It should be underline how the European procedure doesn't represent a unique way for the protection of the credit, because this new procedure does not replace the injunctive procedures in each Member State is, instead, just an additional and optional mean to claims the monetary credits that were not-contested in the fists national Debt collection proceeding. In the specific, regarding to Spain, this faculty-guardianship given by the European Community is extended to the labor field because this branch is not included both in the civil and in the commercial field. In the European monitory process, unlike the Spanish system, there is no limit to the value of access to the procedure and it is not necessary to base the title on documentary evidence. So the above-mentioned EC Regulation 1896/2006 and the following R. 861/2007 have contributed to evolve the principles of the new European procedure, stimulating also the elaboration of the Law 13/2009, of November 3rd, that reformed and introduced a new judicial office in the LEC. This discipline has encourage the right of access to this procedure, decided to increase the maximum amount you can claim from 30,000 to 250,000 Euros The same law also provides to update the maximum amount needed for entering the so-called juicio verbal (oral trial) to twice the initial amount that was provided by previous legislation, the current going from the original 3,000 to 6,000 euros. In the oral trial the modifications brought by the Law 13/2009 are remarkable, considering that in the past the intervention of a Lawyer and Procurador was not needed if the in demand quantity didn't reach the 900 Euros, today the limit has grown until the 2.000 Euros Finally, always in the optics of a uniformity of guardianship and certainty of the rights, a characteristic to be underlined is that the judge can propose an inferior amount of the one claimed in the peticiˇn, effecting so in the respect of what it emerges in the lines traced by the community legislator.

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