Abstract
Already in 1978, undoubtedly as an implant from French law, the concept of astreinte was introduced as a means of indirect coercion to enforce judgments in the (then) Yugoslav legal order. In the Yugoslav era, however, the instrument of astreinte was never widely used in practice and it was mostly overlooked in legal writing as well. After the independence of Slovenia and in the era of socio-political, legal and economic transition, the situation changed. Creditors increasingly started to use the instrument of astreinte, and only then did it become apparent that its regulation did not contain sufficient guarantees against abuse. Rarely has any other concept of Slovenian private law sparked as many controversies in legal doctrine as the concept of astreinte. Nevertheless, in recent years the regulation of astreinte has to a certain degree developed through case law. Some of the disputed issues have been settled and certain necessary safeguards established.
This contribution is the result of research supported by the Croatian Science Foundation (project no. 6988).
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Notes
- 1.
In Slovenian law, only a final court judgment (res iudicata) is enforceable; there is no provisional enforceability of first instance judgments pending appeal. Other important types of titre executoire are settlements in court, enforceable notarial records, and arbitral awards; Article 17 EJPMA.
- 2.
Zakon o izvršbi in zavarovanju, consolidated text, Official Gazette, No. 3/2007.
- 3.
The warrant of execution should be distinguished from the so-called enforcement clause (izvršilna klavzula); the latter is obtained from the (clerk of the) court that rendered the judgment and is a matter of purely formal examination; it only confirms that the judgment is final and that the time limit for voluntary fulfilment has elapsed, but it does not refer to the authorisation of particular enforcement measures (Article 42 EJPMA). The enforcement clause therefore does not substitute for a warrant of execution.
- 4.
The direct physical measure of handing over a child with the assistance of a bailiff can be applied as a subsidiary method of enforcement.
- 5.
Zakon o obligacijskih razmerjih (Official Gazette of the SFRY, No. 29/78).
- 6.
Zakon o izvršilnem postopku (Official Gazette of the SFRY, No. 20/78).
- 7.
Even if the creditor withdraws the request for execution, he or she is no longer entitled to claim astreinte. Conclusion of the General Session of the Supreme Court of Slovenia of 18 June 1986, Poročilo VSS 1/86.
- 8.
Cf. Decision of the Ljubljana Court of Appeal, I Ip 4440/2014 of 4 December 2014.
- 9.
Decision of the Constitutional Court No. Up 181/99 of 18 December 2002.
- 10.
In general on this issue, see Decision of the Constitutional Court No. U-I-344/06 of 20 November 2008.
- 11.
Ibid.
- 12.
Decision of the Constitutional Court No. U-I-339/98 of 21 January 1999.
- 13.
Decision of the Constitutional Court No. Up 181/99 of 18 December 2002.
- 14.
See also Decision of the Constitutional Court No. U-I-344/06 of 20 November 2008.
- 15.
Article 31 of the Act on the Prevention of Restriction of Competition (Official Gazette No. 36/2008).
- 16.
Article 298 of the Administrative Procedure Act (Official Gazette Nos. 80/99, etc.).
- 17.
An important question for the legal practice was whether default interest can be claimed if the debtor fails to pay the amount of astreinte due. Certain parties advocated the viewpoint that the obligation to pay the amount imposed by an astreinte order is just like any other monetary claim, and, therefore, in the event of late performance the debtor should be liable to pay default interest on the due amount of astreinte as well. However, this view was rejected in the case law, as astreinte is, per se, a penalty for a default and therefore it cannot result in a double sanction (Decision of the Ljubljana Court of Appeals No. III Cp 480/99).
- 18.
Decision of the Ljubljana Court of Appeals, No. III Cp 157/2007 of 7 February 2007.
- 19.
See also the dissenting opinion of Judge Wedam Lukić to the Decision of the Constitutional Court No. Up-181/99 of 17 January 2000.
- 20.
See Decisions of the Ljubljana Court of Appeals III Cp 157/2007 of 7 February 2007 and III Cp 2178/2004 of 4 May 2005.
- 21.
E.g. Decision of the Ljubljana Court of Appeals No. III Cp 1361/2000 of 26 October 2000.
- 22.
Decision of the Constitutional Court No. Up 181/99 of 17 January 2000. See also Decision of the Ljubljana Court of Appeals No. VSL sklep II Ip 2201/2015 of 15 July 2015.
- 23.
Zakon o pravdnem postopku, Official Gazette RS, Nos. 26/99, etc.
- 24.
E.g.: if an attachment and the sale of real estate is requested as a method of enforcing a monetary claim based on astreinte, jurisdiction shall be vested with the court of the place where the land is situated; Article 166 EJPMA.
- 25.
Conclusion of the meeting of the Yugoslav Federal Court from 10 June 1981, published in the Bulletin of the Serbian Supreme Court, 1982, Nos. 7–8, p. 14.
- 26.
See, e.g., Decision of the Koper Court of Appeals No. II Cp 9/2005 of 15 March 2005.
- 27.
Decision of the Constitutional Court No. Up 10/99 of 25 May 1999.
- 28.
Ibid.
- 29.
When determining the extended time limit by which a debtor may still perform the original obligation without astreinte starting to build up, the courts should take into account the nature of the obligation and the estimated time needed for the debtor’s compliance with the original obligation, as well as the importance of the matter for the creditor. See, e.g., Decisions of the Ljubljana Court of Appeals No. II Cpg 281/97, II Cpg 86/2000, III Cp 480/96, and III Cp 369/97.
- 30.
On the other hand, if an astreinte order has been filed within the aforementioned time limit in a labour dispute and the dispute concerns the disturbance of possession, it does not lose effect when the time limit expires; Decision of the Constitutional Court No. Up 181/99 of 17 January 2000.
- 31.
Decision of the Ljubljana Court of Appeals No. III Cp 802/2003 of 7 January 2004.
- 32.
E.g. articles in “Nedeljski dnevnik”, dated 2 (all of page 8), 8, 13 and 29 (page 11) February 2004.
- 33.
See the dissenting opinion of Judge Wedam Lukić to the Decision of the Constitutional Court No. 181/99 of 17 January 2000.
- 34.
Ibid.
- 35.
Decision of the Constitutional Court No. Up 181/99 of 18 December 2002. See also the dissenting opinion of Judge Wedam Lukić regarding the aforementioned decision.
References
Berden A (2004) Sodni penali [Court penalties]. Pravna praksa 11:15–18
Berden A, Kleindienst I (2005) Sodni penali—2 [Court penalties—2]. Pravna praksa 9:20–22
Bizjak A (2004) Sodni penali [Court penalties]. Pravna praksa 11:14–16
Cigoj S (1981) Sodni penali [Court penalties]. Združeno delo 3:496–502
Cigoj S (1984) Komentar obligacijskih razmerij [Commentary on legal relations out of obligations]. ČZ Uradni list, Ljubljana
Dika M (2003) Sudski penali [Court penalties]. In: Buljan V et al (eds) Ovrha i stečaj—aktualnosti zakonodavstva i sudske prakse. Inženjerski biro, Zagreb, pp 22–28
Juhart M, Grilc P, Ilešič M et al (1995) Zavarovanje in utrditev obveznosti [Securing and Consolidating Claims]. GV Založba, Ljubljana
Keresteš T (2008) Kazni in sodni penali v izvršilnem postopku [Fines and court penalties in enforcement proceedings]. Podjetje in delo 6–7:1027–1036
Poznić B (1987) Gradjansko procesno pravo [Civil procedure]. Savremena administracija, Beograd
Rijavec V (2003) Civilno izvršilno pravo [Law on the enforcement of judgments in civil matters]. GV Založba, Ljubljana
Strohsack B (1990) Odškodninsko pravo in druge neposlovne obveznosti [Law of torts and other non-contractual obligations]. ČZ Uradni list, Ljubljana
Wedam Lukić D (1992) Civilno izvršilno pravo [Law on the enforcement of judgments in civil matters]. ČZ Uradni list, Ljubljana
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Galič, A. (2018). Enforcement by Means of Periodic Penalties (Astreinte) in Slovenia: A Transplant Gone Wild. In: Uzelac, A., van Rhee, C. (eds) Transformation of Civil Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 70. Springer, Cham. https://doi.org/10.1007/978-3-319-97358-6_2
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