PPE 2/2024
Uciążliwość egzekucji sądowej z nieruchomości jako podstawa do odmowy jej wszczęcia
dr hab. Ireneusz Wolwiak
Instytut Nauk Prawnych, Wydział Prawa i Administracji, Uniwersytet Śląski w Katowicach; ORCID: 0000-0002-6894-058X
ABSTRACT
The Oppressiveness of Judicial Enforcement Against Real Estate as a Basis for Refusing to Initiate It
dr hab. Ireneusz Wolwiak, Institute of Legal Sciences, Faculty of Law and Administration, University of Silesia in Katowice; ORCID: 0000-0002-6894-058X
The right of the creditor, introduced by the legislator, to take a procedural action aimed at obtaining the benefit specified in the enforcement title with the help of enforcement authorities, is an expression of the guarantee of the right to a court at the stage of execution of the judgment. This causes inconvenience to the debtor when the actions taken by the bailiff which constitute coercive measures are intended to achieve the purpose of enforcement. However, these actions, being within the appropriate method of carrying out enforcement, should not constitute an excessive burden on the debtor. In this case, the Act imposes on the enforcement authority the obligation to choose the method that is the least burdensome (Article 799 §1 sentence 4 of the Code of Civil Procedure). Such nuisance will usually be caused by execusion on real estate. As a result of the assessment, the bailiff should decide to refuse to carry out enforcement against the debtor’s real estate based on Art. 800(1) § 1 point 3 of the Code of Civil Procedure). Such a decision should also be made if the creditor files a request to initiate enforcement, when this action constitutes an abuse of procedural law or was made to harass the debtor.
Keywords: judicial enforcement, creditor, coercion, debtor, nuisance, refusal