Zastavení exekuce skončené vymožením
| Title in English | Stopping an execution after recovery of the claim |
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| Authors | |
| Year of publication | 2023 |
| Type | Article in Proceedings |
| Conference | COFOLA 2023: Exekuční a insolvenční právo v kontextu současné doby |
| MU Faculty or unit | |
| Citation | |
| Web | Open access sborníku |
| Keywords | stopping an execution; finished execution; substantive review; enforcement order; res judicata |
| Description | The article focuses on the issue of stopping the execution by the bailiff or the court after full recovery of the performance under the enforcement order and the costs of the execution, i.e. stopping the finished execution. The article is a response to the current case law of the Supreme Court and the Constitutional Court, in which the possibility of stopping a finished execution is admitted in certain circumstances. The author criticizes this case law, as well as the reasons that led to its adoption and continue to justify it. The article draws attention to the absence of a decision terminating the execution after the fulfilment of its purpose. Author also deals with the problems related to it, such as the lack of jurisdiction of the bailiff (incor-rectly assumed by the Supreme Court to be subject matter jurisdiction) or the repeated stopping of the same finished execution for different reasons. An emphasis is placed on the consequence that arises from a series of procedurally incorrect reasonings and methods. That consequence is the examination of the substantive correctness of the enforcement title in the name of protecting the debtor. From author's point of view the conclusions of the case law in question must be rejected as incorrect, since it results from a blatant disregard for the different purposes of the search/discovery and enforcement proceedings as well as of their respective governing principles. Moreover, by permitting a review of the substantive correctness of the enforcement order within an almost unlimited period of time, the res judicata of the decision is inadmissibly undermined, with the undesirable consequence of weakening the principle of legal certainty. |
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