Interim and precautionary measures - Hungary
TABLE OF CONTENTS
- 1 What are the different types of measures?
- 2 What are the conditions under which such measures may be issued?
- 3 Object and nature of such measures?
- 4 Is there a possibility of appeal against the measure?
1 What are the different types of measures?
Act III of 1952 on the Code of Civil Procedure provides for two types of legal measures to ensure the enforcement of a contested claim: interlocutory injunction and provisional enforcement, which provide protection before a final court decision is made. In addition to the above measures, precautionary measures as provided for by Act LIII of 1994 on Enforcement are also available.
2 What are the conditions under which such measures may be issued?
2.1 The procedure
An interlocutory injunction may not be sought until an application initiating the proceedings has been submitted. The court will make a decision on the interlocutory injunction as a matter of urgency, even before the first day of the hearing is set. Before making a decision, the court hears the parties in person or grants them the option of answering the application in writing. Hearing of the parties may be omitted only on imperative grounds of urgency or if they fail to meet the deadline set for the hearing. Evidence may only be taken with respect to an application for an interlocutory injunction if it would not be possible to assess the substance of the application without such evidence. The court decides on the application for an interlocutory injunction by way of an order. No appeal may be lodged against the court order, which can be provisionally enforced. Upon application – or, if the claimant reduces the claim, of its own motion – the court may itself change the order. The order remains effective until it is repealed upon application by any of the parties – after hearing the other party – by a court order or judgment. If the decision on the interlocutory injunction is not repealed in the judgment (the order closing the case) by the court at first instance, it will lose effect when the judgment at first instance becomes final.
The court decides on provisional enforcement in its decision at first instance.
The court must decide on precautionary measures as a matter of urgency - within no more than eight days - and send the order for a precautionary measure without delay to the bailiff, who starts enforcement immediately. An appeal against a court order for a precautionary measure does not have suspensory effect.
2.2 The main conditions
In the case of an interlocutory injunction, the court may order enforcement of the actions included in the application if they are necessary to prevent an imminent threat of damage or to maintain the situation that gave rise to the legal dispute, or for the protection of the specific rights of the applicant, and if the disadvantage caused by the injunction does not exceed the advantages that can be achieved by it. The court may make the interlocutory injunction conditional on provision of a security. The facts supporting the application must be probable.
Negative judgments regarding maintenance, allowances and other periodic benefits, judgments ordering the cessation of trespassing, negative judgments regarding claims not contested by the defendant or payment claims arising from obligations assumed in a public instrument or authentic act if all the circumstances grounding the claim are proven by such documents, as well as negative judgments other than judgments regarding payment claims, are enforceable without consideration to any appeal if delayed enforcement would cause the claimant major loss or a loss difficult to quantify, and if the claimant provides sufficient evidence to that effect. The court may not grant provisional enforcement if the burden imposed on the party by enforcement would be disproportionate to the burden imposed on the other party by not granting provisional enforcement. The court may declare the judgment partially enforceable insofar as possible in the circumstances. In exceptional and duly justified cases, the court may refuse to declare the judgment provisionally enforceable with respect to the elements that had already lost relevance by the time the judgment was delivered. Provisional enforcement does not cover the costs of the proceedings.
If the document implementing a decision on the enforcement of a claim cannot be issued but the party applying for enforcement projects a risk that the claim may not be enforced later, the court may secure the funds claimed or block certain objects at the request of that party in the form of a precautionary measure. The court may put a precautionary measure in place, among others, if the claim relies on a decision on the basis of which the document providing for enforcement could be issued but the decision has not yet become final or is not provisionally enforceable, or it is final but the time limit set for its enforcement has not yet expired. Precautionary measures may also be put in place in relation to claims sought at a domestic court via an application under the legislation applicable to matrimonial property or any other applications, with the origins, value and expiry of the claim proven by public instrument or private instrument with full probative force submitted at the same time.
3 Object and nature of such measures?
3.1 What types of assets can be subject to such measures?
In the case of an interlocutory injunction, the court orders the actions sought in an application for a claim or in an application for an interlocutory injunction to be carried out. This may involve any claims or property specified in the application. Failure to comply with the order of the court on a voluntary basis entails enforcement. From this point on, property that may not be involved in enforcement on account of an exemption is identified based on the legislation on enforcement.
Provisional enforcement means enforcement of the provisions of a non-final judgment delivered by a court of first instance. Any property of the defendant may be subject to enforcement unless it is granted an exemption under the legislation on enforcement.
Within the framework of a precautionary measure, certain objects may be blocked or funds secured by order of the court. In the case of a court order for securing funds for a claim, the bailiff will hand over the order to the debtor on-site, at the same time ordering him or her to pay the relevant amount without delay directly to the bailiff. If the debtor does not comply, the bailiff may seize any asset of the debtor and freeze his or her account; however, wages and benefits to the debtor may only be frozen if he or she has no other property that may be enforced to cover the funds claimed. Orders to block certain objects may extend to any movable property or property having a value.
3.2 What are the effects of such measures?
In the case of an interlocutory injunction and provisional enforcement, the debtor must comply with the order of the court. Based on the order, enforcement proceedings against the debtor may be started.
There are two types of precautionary measures with different effects. In the case of measures to secure funds for a claim, the debtor must hand over a specific amount to the bailiff. If he or she fails to do so, the bailiff will execute the measure by seizing the property or freezing the debtor's account in a value equal to the funds claimed. Funds collected from the debtor or during the proceedings may not be made available to the party applying for enforcement. Instead, they will be kept on a deposit account by the enforcement authority. When an object is blocked, it is seized in principle, meaning that the debtor may continue to use it but is not free to dispose of it. Objects may in addition be kept under official detention. In this case, they are physically locked away by the bailiff or managed by a receiver.
3.3 What is the validity of such measures?
Court orders for an interlocutory injunction remain in effect until they are repealed or, if they are not repealed, until an order closing the case or a judgment at first instance becomes final.
Provisional enforcement means enforcement of the obligation laid down in a court judgment before it becomes final, irrespective of appeals. This measure, therefore, has no limit in time.
Precautionary measures remain in effect until an order for enforcement of the claim is issued or the court decides to terminate the precautionary measure.
4 Is there a possibility of appeal against the measure?
There is the possibility of submitting a separate appeal against the order for an interlocutory injunction. The general rules apply to submitting such appeals. The time limit for submitting an appeal is 15 days. The appeal must be lodged at the court that took the decision. If the appeal is well-founded, the court repeals its order for the interlocutory injunction. Otherwise, upon application – or, if the claimant reduces the claim, of its own motion – the court may itself change the order.
The court is obliged to order provisional enforcement in the cases specified by law. The defendant may ask for the provisional enforcement to be waived if it would impose a disproportionately severe burden on him or her. The application must be submitted at the court hearing the case.
An appeal may be submitted against the order for a precautionary measure at the court hearing the case. This, however, has no suspensory effect on its enforcement. The parties may submit an appeal within 15 days of the announcement of the order.
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Last update: 06/09/2016