Executive Trials in Civil Procedure: Key Concepts
Executive Trials: Essential Concepts
1. Concept of Executive Trial
An executive trial is a particular litigation that seeks to obtain evidence by compulsion, the performance of an obligation as agreed, or a declaration that the debtor failed to comply in due course.
2. Requirements of the Executive Trial
The basic conditions of an executive trial are:
- Executive Action Prescribed: No
- Obligation Callable Currently: Yes
- Duty Liquid: Yes
- Existence of an Executive Title: Yes
3. Classification of Executive Titles
Executive titles can be classified:
- By the nature of the obligation (procedures required to give, do, or not do).
- According to its scope: general or special.
- By the amount of the issue: larger or smaller claims.
4. Examples of Perfect Executive Titles
Examples include:
- An official copy of a deed.
- A final decision (final or interlocutory).
- An act of compromise by a competent court and authorized by a minister of faith or by two witnesses.
5. Preparatory Steps for the Executive Trial
If the debtor is present: They are advised and required to pay personally, with the limitation of not being able to require payment in a place open to public access (Article 41 of the Code of Civil Procedure).
If the debtor is not present (or it has not been possible to practice formal or personal notification): A “card hold” is applied. This notifies the claim under Article 44 of the Code of Civil Procedure, summoning the debtor to the place and time set by the minister of faith for payment. If the debtor attends, they are required to pay personally. Otherwise, they are required by default.
6. Contents of the Writ of Execution and Attachment
- Order requiring payment.
- Impoundment order.
- Designation of a depositary (designation of property).
7. Exceptions to the Executive Trial
Exceptions include:
- Inept libel.
- Litis pendens.
- Remission.
- Novation.
- Compensation.
- Debt payments.
- Incorrect title.
8. Definition of Attachment (Embargo)
Embargo is a legal declaration by which certain assets or economic value are reserved to enforce a pecuniary obligation, either already declared (executive) or expected to be declared in the future (freezing). Given the possibility that the convicted party may oppose the enforcement, judicial authorities order the seizure of their present and future property to meet payments. Non-monetary assets are typically auctioned.
9. Non-Attachable Assets (Inembargables)
These include salary, bonuses, pensions, alimony, essential commodities, and life insurance policies.
10. Effects of the Embargo
Effects are considered in conjunction with the owner of the confiscated property, in connection with the seized property, and in connection with creditors.
11. Incidents Related to Attachment
- Exclusion of Attachment: An incident where the court excludes one or more properties seized by the collector, deemed indefeasible under Article 445 of the Code of Civil Procedure.
- Expansion of the Embargo: The performer can ask the court to incorporate new assets into the embargo if those attached are insufficient or if a third party has filed a claim (Article 456 of the Code of Civil Procedure).
- Seizure Reduction: The debtor’s application to relieve certain seized goods when they are excessive to meet their obligations (Article 447 of the Code of Civil Procedure).
- Replacement of the Embargo: The court may request that certain seized assets be released and replaced by others, limited to money and not applicable when the due item is a specific seized asset.
- Cessation of Attachment: The power of execution to terminate the executive trial, nullifying the embargo, by depositing sufficient funds in the court’s account to cover the demanded amounts.