On 9 October 2012, the President signed the amendment to Act No. 120/2011 Coll., on Judicial Executors and Execution Activities (Execution Code), as amended, and Act No. 99/1963 Coll., Code of Civil Procedure, as amended (hereinafter referred to as “the amendment”), which shall come into force on 1 January 2013. This amendment introduces a number of new provisions, and in this circular we shall address only selected provisions.

One of the most significant new provisions is the introduction of the obligation of the so-called pre-action notice. Under the existing regulation, the creditor has no obligation to inform the debtor that he wishes to pursue his claim through the courts. The amendment introduces this obligation from 1 January 2013. The purpose of this pre-action notice is to remind the debtor of his debt and to give him the opportunity to satisfy this debt voluntarily. The content of this notice is not specified by law, but it can be deduced that in this notice it will be necessary to clearly specify the creditor, his claim, and it must be clear that it is a notice to perform. This notice must be sent to the debtor at least 7 days before filing the action. Failure to comply with this obligation does not result in the creditor’s right not being granted, but leads to the refusal of reimbursement of the costs of the proceedings. The debtor will therefore still have to pay the amount owed together with accessories, but he will not be given the obligation to pay the costs of the proceedings. This 7-day period is set as a minimum (he may therefore be notified even a year before filing the action) and is calculated from the date of sending the notice by the creditor. The debtor therefore does not have 7 days to pay the amount, but a maximum of 6 days, and this only in the case where the consignment is delivered to him the following day. The creditor is obliged only to send this notice, but not to ascertain whether it was delivered to the debtor. It follows that it is necessary to have at his disposal only a document from which it is clear that this notice was sent in good time. The moment of delivery is not important in this case. The creditor must send this notice to the address for service, or to the last known address. There is therefore no obligation to ascertain the debtor’s current address in any way, which would be intolerable for the creditor in many cases. On the other hand, the amendment further provides that, if there are grounds worthy of special consideration, the court may exceptionally grant reimbursement of the costs of the proceedings wholly or partly to the claimant even though he did not send the pre-action notice to the debtor.

The new regulation further abolishes the dual-track enforcement of claims, by eliminating the judicial ordering of executions. Newly, it will thus be possible to order judicial enforcement of a decision only for defined types of claims, namely in particular for matters concerning minor children. This should lead to significant relief for the courts and at the same time to the acceleration of execution proceedings, which will in most cases be conducted by the executor. Related to this is a further change from which the amendment expects further relief for courts overwhelmed with executions. The court will no longer issue a decision on the ordering of execution, but will authorise the executor by means of a measure. Most executions will therefore be able to be initiated directly by the executor. This should lead to the acceleration of execution proceedings, because in practice at present one often waits for a long time for the clause of legal force of the decision on the ordering of execution, which will no longer be necessary as a result of this amendment. Also interesting is the introduction of a new method of execution, in the form of administration (letting) of immovable property, when it will be possible to draw on the profits from the letting of the immovable property.

These changes were received very controversially already in the legislative process, when among the opponents of these changes voices grew stronger which were dissatisfied with the increase in the powers of executors. In connection with this, it is necessary to point out that this amendment also introduces stricter sanctions within the framework of disciplinary proceedings for executors. The amendment also abolishes the possibility of executing executor’s records (exekutorské zápisy). By means of an executor’s record it is currently possible for the debtor to undertake by his signature to satisfy his debt. If he does not do so, the ordering of execution is proceeded to without judicial proceedings. The often lengthy judicial proceedings, during which it is necessary to prove this debt to the debtor, are eliminated here. From 1 January 2013 this method of enforcing debt will no longer be possible; however, a similar possibility of a notarial record with an enforceability clause remains preserved.

In conclusion, we state that the amendment will bring several changes after the New Year, particularly in the regulation of the enforcement of claims. In this new regulation, the protection of the debtor is strengthened, a large agenda in the area of the enforcement of claims granted within the framework of finding proceedings is transferred to judicial executors, and with this also greater regulation of the activities of executors.

Mgr. Alžbeta Hudáková

Law Office Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advice

This text was originally prepared by the Law Office Mašek, Kočí, Aujezdský in cooperation with the civic association Association for Electronic Commerce (APEK) as legal circular No. 10/2012 intended for members of this association.

This text was translated from Czech to English using an AI translator.