Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: Supreme Court, Judgement II SM 1/2020
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodba vrhovnega sodišča
    • Datum odločbe: 20/11/2020
    • Sodišče: Vrhovno sodišče Republike Slovenije
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: unfair terms, enforcement, enforcement system, entry into force, mortgage loan
  • Členi direktive
    Unfair Contract Terms Directive, Article 1
  • Uvodna opomba

    ECLI:SI:VSRS:2020:II.SM.1.2020


    The Supreme Court points out that the Bill on Amendments to the Enforcement and Security Act (ZIZ-M) was sent for interdepartmental coordination, consequently, the Supreme Court did not agree with the Court of First Instance on the proposal to issue an advisory opinion regarding this topic. It is the Supreme Court's attachment to the circumstances of a specific case that significantly separates the judiciary from the legislative function. Advisory opinions, like principled legal opinions, require the Supreme Court to resolve legal issues in an abstract manner, regardless of the circumstances of the specific case. For this reason, the legal opinion (advisory opinion) thus adopted cannot set a precedent. In the present case, when the legal regulation of the disputed issue is already in the process of adoption, the Supreme Court would unnecessarily limit its precedent role by adopting an abstract advisory opinion, as this will become unnecessary with the adoption of a new legal regulation.

  • Dejstva

    On 8 January 2019, on the basis of a notary's record of a long-term loan in CHF and the establishment of a mortgage, the creditor proposed enforcement for the recovery of EUR 87,819.32 with statutory default interest. On 14 January 2019, the Court issued a decision on enforcement with seizure of salary, cash receipts and the sale of real estate. On 25 January 2019, the debtors objected to the enforcement order and proposed that the enforcement court find that the concluded loan agreement in CHF was null and void. The debtor (consumer) also assured that he would also file a lawsuit to annul the contract. At the same time, they proposed a postponement of enforcement under point 5 of the first paragraph of Article 71 of the Enforcement and Security Act (hereinafter: ZIZ). In agreement with the creditor, enforcement was postponed.

    On 9 June 2020, the Court of First Instance proposed to the Supreme Court to issue an advisory opinion on whether the executive court, taking into account Council Directive 93/13 / EEC, the case law of the Court of Justice of the European Union (hereinafter CJEU), in particular Judgement C-407 / 18, and Articles 23 and 24 of the Consumer Protection Act, is obliged to ex officio examine a consumer contract concluded in the form of a notarial deed and representing an enforceable title, from the point of view of nullity. Furthermore, there was the question of whether the enforcement court should reject the motion for enforcement upon the annulment, or only postpone the enforcement until the decision on the annulment of the contract by the civil court. In its proposal, the Court of First Instance points out that the case law of the higher courts on this issue is different (case law is not harmonised). Finally, it points out that it is not clear from the existing caselaw exactly what the conditions are for granting postponement of enforcement and what the effect of such postponement is during the civil proceedings.

  • Pravna zadeva
    • In the light of Directive 93/13 / EEC, the case law of the CJEU (Judgements C-407/18) and Articles 23 and 24 of the Consumer Protection Act, is the enforcement court obliged to examine (from the point of view of nullity) ex officio a consumer contract concluded in the form of a notarial deed (which constitutes an enforceable title)?

    • Should the enforcement court, upon finding nullity, reject the motion for enforcement, or only postpone enforcement until the decision on the nullity of the contract by the civil court?

  • Odločba

    Firstly, the Supreme Court summarises the two existing decisions of the High Court in Ljubljana and the High Court in Maribor, from which the diametric contradiction on this issue arises. The Supreme Court agrees that there is inconsistency in case law. It also emphasises that the purpose of the Institute of Advisory Opinion is to speed up the procedure and strengthen legal certainty in cases where reasons for a permitted revision under Article 367.a of the Contentious Civil Procedure Act would be given, because the case law of higher courts is not harmonised and there is no case law of the Supreme Court. The conditions for issuing an advisory opinion are therefore met, but the status of the Supreme Court must be understood. The Constitutional Court emphasised that the Supreme Court co-creates law. The Supreme Court thus co-formulates the criteria that should be used in similar cases in the future ex ante to guide the courts and the addressees of legal norms in general. It is the Supreme Court's attachment to the circumstances of a specific case that significantly separates the judiciary from the legislative function. Therefore, advisory opinions, like principled legal opinions, require the Supreme Court to resolve legal issues in the abstract, regardless of the circumstances of the particular case. As a result, the legal opinions (advisory opinions) thus adopted cannot set a precedent.

    In the present case, the legal regulation of the disputed issue was already in the process of adoption of the legislation on this very topic. Therefore, the Supreme Court would unnecessarily limit its precedent role by adopting an abstract advisory opinion, as this would become unnecessary as soon as the adoption process of legislation on this topic is over. Regarding the question of the effect of such a postponement during the civil proceedings, for example on the execution of funds at payment organisations, the proponent has not shown the claimed inconsistency of the case law. Therefore, the Supreme Court rejected the motion entirely.

    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek

    The Court of First Instance's request for an advisory opinion is unfounded.