TABLE OF CONTENTS
- 1 What does 'enforcement' mean in civil and commercial matters?
- 2 Which authority or authorities are competent for enforcement?
- 3 What are the conditions under which an enforceable title or decision may be issued?
- 4 Object and nature of enforcement measures
- 5 Is there a possibility of appeal against the decision granting such a measure?
- 6 Are there any limitations on enforcement, in particular related to debtor protection or time limits?
1 What does 'enforcement' mean in civil and commercial matters?
Enforcement is the final stage of the judicial process. It consists of the possibility for a claimant in whose favour a judgment has been delivered to demand that the competent enforcement body take all steps within its remit and prescribed by law to satisfy the claim.
The right to enforcement arises from the existence of an enforceable claim which has not been voluntarily satisfied and an instrument permitting enforcement of that claim.
Enforcement measures include:
- attachment of movable property;
- attachment of immovable property;
- inventory and valuation of real property;
- sale of immovable property by public auction;
- attachment of a debtor’s bank account;
- attachment of a vehicle;
- seizure of movable property;
- enforcement in respect of shares in a company;
- enforcement of a duty to surrender a child;
- enforcement in respect of marital property.
2 Which authority or authorities are competent for enforcement?
In Bulgaria, there are two types of enforcement officers (bailiffs):
1. State bailiffs
2. Private bailiffs.
The status of private bailiffs is governed by the Private Judicial Enforcement Act (Zakon za chastnoto sadebno izpalnenie (ZChSI)). Article 2 of the ZChSI defines a private bailiff as an officer delegated by the state to enforce private claims.
3 What are the conditions under which an enforceable title or decision may be issued?
3.1 The procedure
Under Article 404 of the Code of Civil Procedure (Grazhdanski protsesualen kodeks (GPK)), enforcement proceedings may be brought on the following grounds:
1. - res judicata judgments and orders; judgments by appeal courts; enforcement orders; judicial settlements; enforceable judgments and orders or judgments and orders declared enforceable in advance or immediately; and judgments of arbitration tribunals and settlements sanctioned by such tribunals;
2. - judgments, acts and judicial settlements delivered by courts in countries other than Bulgaria, if enforceable in Bulgaria without further proceedings;
3. - judgments, acts and judicial settlements delivered by courts in countries other than Bulgaria and the judgments and settlements delivered and sanctioned by arbitration tribunals in countries other than Bulgaria, when declared enforceable in Bulgaria.
Under Article 405 of the GPK, writs of execution are issued on the basis of a written application, with no need to serve a copy on the debtor.
Pursuant to Article 405(2) of the GPK, the following courts have jurisdiction over submitted applications:
- in the cases referred to in Article 404(1) of the GPK, the court of first instance that heard the case or issued the enforcement order and, where an act is immediately enforceable, the court that delivered the judgment or issued the enforcement order;
- in the cases envisaged in Article 404(2) and (3) of the GPK, the court competent to grant enforcement;
- with regard to the judgments delivered by domestic arbitration tribunals and the settlements sanctioned by such tribunals in arbitration proceedings, the Sofia City Court (Sofiyski Gradski Sad).
There is a two-week time-limit for appeals against orders granting or refusing an application for a writ of execution (Article 407 of the GPK).
Under Bulgarian law an application for a writ of execution may be filed by a party other than a lawyer, including the party seeking enforcement or their representative (who may be a lawyer). There are no special filing requirements to be satisfied in order to obtain a writ of execution.
Enforcement costs are set out in the Tariff of Fees and Costs envisaged in the Private Enforcement Act (State Gazette (SG) No 35/2006).
3.2 The main conditions
To set enforcement proceedings in motion, the interested party must apply in writing to a state or private bailiff, annexing a writ of execution or another enforceable instrument. The application must specify the preferred method of enforcement, which may be altered during the course of proceedings (Article 426 of the GPK).
The jurisdiction of bailiffs is governed by Article 427 of the GPK.
The bailiff must summon the debtor in writing to satisfy the claim voluntarily, which the debtor must do within two weeks of receiving the summons. The summons warns the debtor that failure to satisfy the claim will result in enforcement action. The summons must specify the attachments and seizures imposed and enclose a copy of the enforceable instrument. When summoning the debtor to satisfy the claim voluntarily, the bailiff must also specify the date on which a property inventory will be compiled and, when enforcement concerns immovable property, send a seizure notice to the property registry.
The bailiff draws up a record of any measure undertaken or performed by them.
Where the initial method of enforcement is changed, the bailiff must notify the debtor in writing of the change in accordance with Article 428 of the GPK.
Where, upon commencement of enforcement proceedings, the debtor does not have a permanent or current address on record, the district judge, acting on a motion filed by the creditor, must appoint an ad hoc representative of the debtor (Article 430 of the GPK).
4 Object and nature of enforcement measures
4.1 What types of assets can be subject to enforcement?
Enforcement action may be taken against the following property of the debtor:
- movable goods;
- income from immovable property, including rental income, etc.;
- bank accounts;
- immovable property;
- shares and bonds issued by commercial undertakings;
- items of moveable or immovable property, including marital property.
Under Article 442 of the GPK, a creditor may pursue enforcement against any thing or receivable of the debtor.
Under Article 444 of the GPK, enforcement action may not be taken against the following:
- everyday items used by the debtor and their family, as specified in a list adopted by the Council of Ministers (Ministerski savet);
- the food needed to feed the debtor and their family for one month or, in the case of farmers, until the new harvest, or its equivalent in other agricultural products;
- the fuel needed for heating, cooking and lighting for three months;
- the machinery and equipment a debtor needs in order to be able to continue to practice their occupation or profession;
- part of the land owned by the debtor (up to 0.5 ha for vineyards and other croplands and up to 3 ha for general-purpose fields, along with the machinery and implements, fertilisers, plant protection products and seeds intended for sowing for a period of one year);
- for livestock farmers, the necessary working cattle, notably two head of draught cattle, a cow, five head of sheep and goats, ten beehives and domestic fowl, along with the feed necessary to feed them until the next harvest or until they are turned out to graze;
- the dwelling owned by the debtor, if the debtor and the members of their family have no other dwelling, regardless of whether the debtor resides there. If the dwelling exceeds the housing needs of the debtor and their family, as specified in a dedicated Regulation adopted by the Council of Ministers, a share thereof is sold, provided the conditions laid down in Article 39(2) of the Property Act (Zakon za sobstvenostta) have been satisfied;
- other things and receivables protected by law against enforcement.
4.2 What are the effects of enforcement measures?
When summoning the debtor to satisfy the claim voluntarily, the bailiff must also specify the date on which a property inventory will be compiled and, when enforcement concerns immovable property, send a seizure notice to the property registry.
The attachment of movable property or a claim is imposed by compiling an inventory.
Attachment and seizure have the following effect vis-à-vis the debtor:
From the moment of their imposition, a debtor may neither dispose of the receivables or property (real or moveable) nor, on pain of criminal prosecution, alter, impair or destroy the property. These effects shall apply from the date of service of the summons to settle the debt voluntarily.
The attachment or seizure shall have the following effects vis-à-vis the creditor:
Under Article 452(1) of the GPK, any disposal of the attached movable property or receivables is invalid vis-à-vis the creditor and any joint creditor, unless the transferee can invoke Article 78 of the Property Act. The latter provision stipulates that anyone lawfully acquiring moveable property or bearer securities for consideration, even if unwittingly acquiring them from someone other than the owner, acquires ownership, unless the transfer of ownership of the movable property requires a notarial deed or notarial attestation of the signatures of the parties to the transaction. The same rule applies to the acquisition of other rights in rem to moveable property.
Where enforcement action is taken against real property, the invalidity shall have effect solely in respect of disposal transactions undertaken after the date of registration of the preventive attachment (Article 452(2) of the GPK).
4.3 What is the validity of such measures?
The law sets no time-limit for the validity of these measures. They are intended to satisfy the creditor’s claim, so they are valid until enforcement proceedings end.
5 Is there a possibility of appeal against the decision granting such a measure?
The remedies available in the enforcement process are set out in Sections I and II of Chapter 39 of the GPK.
Appeals against enforcement action, including individual enforcement measures, may be lodged by the following parties:
- A creditor may appeal against a bailiff’s refusal to carry out the specified enforcement action and against the suspension and termination of enforcement.
- The debtor may appeal against an order by the bailiff imposing a fine on the debtor and seeking to enforce it against property that the debtor considers immune, and against the seizure of movable property or the debtor’s expulsion from immovable property on the grounds that the bailiff failed to give proper notice, and against orders for the payment of costs.
- Third parties (not parties in the enforcement proceedings) may appeal against a bailiff’s action only if enforcement is directed against things in their possession on the date of attachment, seizure or surrender.
- A third party may file an appeal against the repossession of immovable property only if that third party was in possession of that property prior to the date on which the claim now being enforced was brought (Article 435 of the GPK).
- Where a public auction has been held, the order awarding the property is subject to appeal by a party that paid a deposit not later than the last day of the auction, by a creditor who placed a bid in the auction without having to pay a deposit, or by the debtor, on the grounds that the auction was not conducted lawfully or that the property was not awarded to the highest bidder.
Under Article 436 of the GPK, appeals are to be filed within one week of the date of the contested action, if the party was present at the time of the action or had been summoned to attend, and in all other cases, within one week of the date of the communication. Appeals shall be lodged via the bailiff with the provincial court with jurisdiction over the place of enforcement. When an appeal is lodged, the bailiff must state the reasons for the contested action.
These appeals are examined in closed session, with the exception of those filed by third parties, which are examined in an open session to which all parties to the enforcement proceedings are summoned. Appeals are to be decided within one month.
Appeals do not suspend enforcement proceedings, but the court may decide to stay proceedings pending a ruling on the pleas in law set out in the appeal. If proceedings are stayed, the bailiff is notified without delay (Article 438 of the GPK).
6 Are there any limitations on enforcement, in particular related to debtor protection or time limits?
Article 432 of the GPK sets out the different scenarios in which a court may lawfully stay enforcement proceedings on a motion of the creditor.
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Last update: 19/05/2017