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In a state governed by the rule of law, it is not sufficient for a right to be established only by a court judgment or regulated under a contract between the parties. What matters is that obligations not voluntarily fulfilled by the debtor can actually be collected through the coercive power of the state. The Enforcement and Bankruptcy Law No. 2004 is the fundamental legislation that establishes the delicate balance between the creditor’s right to rapid collection and the debtor’s rights to property and defense.
In this study, the strategic connections between the administrative mechanisms of enforcement offices, the limited judicial supervision of enforcement courts and the decisions of general courts based on substantive law are examined in light of current practical issues.
Enforcement law has a mixed structure in which administrative actions and judicial decisions are intertwined. Conducting enforcement proceedings without procedural errors is the first rule for preventing loss of rights.
Enforcement Office: The enforcement body vested with administrative powers that receives the enforcement request, sends the payment order and physically carries out attachment and sale procedures. Its actions do not examine the existence of the claim under substantive law, but only consider formal requirements.
Enforcement Court: A special court with limited jurisdiction that resolves complaints against the actions of enforcement offices and certain disputes expressly assigned to it by law, such as the removal of objection. It conducts a rapid and formal review.
General Courts / Civil Courts of First Instance, Commercial Courts and Others: These are the main judicial authorities that hear cases based on the merits of the debt, substantive law rules and detailed examination of evidence, such as annulment of objection and negative declaratory actions.
If you do not have a court judgment, you may initiate enforcement proceedings without judgment in order to collect monetary claims or security claims. These methods vary depending on the basis of the claim.
This is the most general type of enforcement proceeding, which may be initiated merely on the basis of an alleged debt without the obligation to rely on any document.
Process: A payment order is sent to the debtor. If the debtor objects to the enforcement office within 7 days from notification, the proceeding automatically stops.
Strategy: In order to continue the proceeding stopped upon the debtor’s objection, the creditor has two options depending on the strength and nature of the documents in hand: removal of objection or an action for annulment of objection.
This is a special enforcement method selected when the claim is based on qualified commercial instruments such as checks, promissory notes or bills of exchange, and it provides significant advantages to the creditor.
Process and Differences: In this proceeding, the debtor is not sent an ordinary payment order, but a payment order specific to negotiable instruments. The objection period is 5 days, while the payment period is 10 days.
Critical Point: The debtor must submit objections to the debt or signature directly to the Enforcement Court by petition, not to the enforcement office. The objection does not automatically suspend the proceeding. A separate interim measure must be requested from the court for suspension of the proceeding.
If the debtor stops the process by objecting to enforcement proceedings without judgment, the method the creditor should choose to overcome this resistance depends on the strength of the evidence available.
Criterion | Removal of Objection / Article 68 of the Enforcement and Bankruptcy Law | Action for Annulment of Objection / Article 67 of the Enforcement and Bankruptcy Law |
|---|---|---|
Competent Court | Enforcement Court | General Courts, such as Civil Courts of First Instance or Commercial Courts |
Trial Procedure | Rapid, formal and limited review | Broad and full trial procedure, including witnesses, expert examination and other evidence |
Required Evidence | Specific documents listed under Article 68, such as notarized deeds, signed receipts and bank receipts | All types of legal evidence, including commercial books, contracts, witnesses and expert reports |
Statutory Deadline | 6 months from notification of the objection | 1 year from notification of the objection |
Result | The proceeding continues by decision of the Enforcement Court. It does not constitute a final judgment on the merits. | If the court rules that the debt exists, the proceeding continues. It constitutes a final judgment. |
The main lawsuits that protect debtors exposed to unjust enforcement proceedings and third parties whose property has been wrongfully attached are as follows:
This is a lawsuit filed by a person against whom enforcement proceedings have been initiated, or are at risk of being initiated, although that person is not actually indebted.
If Filed before Enforcement Proceedings: The initiation of enforcement proceedings may be prevented through an interim injunction granted by the court upon provision of a 15% security.
If Filed after Enforcement Proceedings: Filing the lawsuit does not automatically stop the enforcement proceeding. After the money is deposited with the enforcement office, the debtor may provide 15% security and request the court to stop payment of the money to the creditor.
This is a lawsuit filed to recover money that the debtor was forced to pay under enforcement pressure, such as the threat of attachment or sale, despite not actually being indebted.
Condition: The money must have been fully paid into the enforcement office.
Time Limit: The lawsuit must be filed within 1 year from the date on which the money in the enforcement office is paid to the creditor.
This is a lawsuit filed when a property attached by the enforcement office on the assumption that it belongs to the debtor actually belongs to a third party.
Process: A claim of ownership must be asserted during the attachment or within 7 days from becoming aware of it. If the creditor objects to this claim, the file is referred to the Enforcement Court and the court grants a period for filing an action for claim of ownership.
This is a lawsuit filed by the creditor where the debtor transfers assets to third parties in order to evade creditors.
Purpose: The purpose is not to render the transfer agreement completely invalid, but to authorize only the creditor who filed the lawsuit to attach and sell the asset as if it still belonged to the debtor.
Condition: The creditor must hold a temporary or final certificate of insolvency against the debtor.
Statutory Deadline: This lawsuit must be filed within 5 years from the date of the disposal or asset transfer. In any case, the right to file the lawsuit expires once five years have passed.
A complaint is not a lawsuit, but an administrative review application filed before the Enforcement Court on the grounds that an action taken by the enforcement officer is contrary to law, procedure or fairness.
Complaint Subject to Time Limit: As a rule, the complaint period is 7 days from the date on which the unlawful action is learned. For example, attachment of property that is legally exempt from seizure.
Complaint without Time Limit: If the action is contrary to public order or arises from failure to perform a right or unjustified delay, there is no time limit. It may be raised at any stage of the proceeding. For example, carrying out attachment without sending a payment order to the debtor.
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