Introduction and Institution of Proceedings, But at What Cost?

On June 4, 2009, amendments were made to the Code of Civil Procedure by adding six (6) new articles, namely Articles 54.1 to 54.6 C.C.P., with regards to the prevention and sanctions to the abusive use of the courts. The new articles, which do not clearly define the notion of abuse, must therefore be interpreted by the courts and they must establish the circumstances giving rise to a … [Read more...]

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Introduction and Institution of Proceedings, But at What Cost?

On June 4, 2009, amendments were made to the Code of Civil Procedure by adding six (6) new articles, namely Articles 54.1 to 54.6 C.C.P., with regards to the prevention and sanctions to the abusive use of the courts. The new articles, which do not clearly define the notion of abuse, must therefore be interpreted by the courts and they must establish the circumstances giving rise to a well‑founded recourse based on these articles.  In keeping in mind the objectives of the law which introduced these new articles, namely to favourise the respect of free expression and to prevent the abusive use of the courts, the court must examine each case before granting a well‑founded recourse based on Articles 54.1 and following of the C.C.P. In its analysis of a well‑founded recourse under Article 54.1 C.C.P., the court must carefully examine all the proceedings and exhibits filed in the court record. It is the party who is seeking to have declared an abusive proceeding to briefly establish said abuse.  It must convince the court of the abusive character of the gestures posed by the opposing party and cannot content itself solely by invoking the new dispositions of the Code of Civil Procedure.  Once this proof of abuse is made, the party who instituted the proceeding must demonstrate that its actions are not unreasonable or excessive and that they are lawfully legitimate. There exists a certain consensus in the jurisprudence to the effect that the abuse must be clear and manifest.  For example, an error in the drafting of an action in justice is insufficient for the party’s recourse to be declared abusive under Articles 54.1 and following of the C.C.P. The court’s analysis of such a recourse must therefore be done with much caution and only the excess of the exercised rights must be sanctioned. If the court concludes that the action in justice or the institution of a proceeding is abusive, it can then determine which sanction that is at its disposition must be imposed. Articles 54.3 and 54.4 C.C.P. establish the sanctions that the court can impose once the abusive character of an action in justice and the wrong behavior of a party is demonstrated. The courts can refuse an action in justice, condemn a party to pay, other than the costs, damages in repair of the prejudice suffered by another party particularly to compensate the extrajudicial fees and disbursements that it incurred or, if the circumstances permit, grant punitive damages. However, all sanctions must be proportionate to the graveness of the abuse and must take into consideration all the pertinent circumstances to each file. For additional information or for any intervention on our part to assist you in a file do not hesitate to communicate with us. + Consulter les articles de la même thématique
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Obtained a judgment, what next?

You were granted a judgment condemning another party to pay you an amount of money?  In spite of the judgment, the opposing party refuses to respect it?  Several options are available to you in order to recuperate the amount due. First of all, it is important to know that a party has a delay of 30 days to appeal a judgment.  Accordingly, during the delay of 30 days, the opposing party is not … [Read more...]

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Obtained a judgment, what next?

You were granted a judgment condemning another party to pay you an amount of money?  In spite of the judgment, the opposing party refuses to respect it?  Several options are available to you in order to recuperate the amount due. First of all, it is important to know that a party has a delay of 30 days to appeal a judgment.  Accordingly, during the delay of 30 days, the opposing party is not obliged to respect the conclusions of the judgment, save exceptions. However, following the expiration of the delay of 30 days, and if the condemned party continues to refuse to pay you, you can undertake different measures that are available to you in order to have the conclusions of the judgment respected. In the event that you know where the working place is and who the debtor’s employer is, you may seize the salary.  Then, the employer must seize and deposit at the courthouse a portion of the debtor’s salary, and this, every month.  The courthouse will ensure that you receive the seized amount.  The seizure is valid until full payment of the amount due or until the debtor ceases his/her employment. Also, a seizure can be made against the vehicle and personal property belonging to the debtor.  It is to be noted that the personal property can also be seized even if a third party has it in its possession.  Caution, certain rules apply as to the non-seizability of certain personal property and they must be examined before instituting seizure proceedings. Once the bailiff has proceeded with the seizure of the seizable property, a deed of sale is published in a local newspaper and then the bailiff will proceed with the auctioning of the property. Moreover, a seizure of the debtor’s bank accounts can also be made.  This type of seizure requires additional information about your debtor and can be difficult to obtain. Finally, once a judgment is granted, a legal hypothec can be registered against the property belonging to your debtor.  It is also to be noted that there exists particular rules with regards to non seizable property that must be examined before undertaking such a procedure. Do not forget that the judgment is valid and exercisable for 10 years following the date it was rendered. Although this article explains globally the different possible measures that can be taken for the execution of your judgment, we invite you to communicate with us for further details regarding the prescriptions and modalities of these measures, as well as the various delays that must be respected. + Consulter les articles de la même thématique
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Our articles

The following articles are currently available in french only.   Le patrimoine familial   Les conjoints de fait   Les régimes matrimoniaux … [Read more...]

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Our articles

admin The following articles are currently available in french only. PDF  Le patrimoine familial PDF  Les conjoints de fait PDF  Les régimes matrimoniaux + Consulter les articles de la même thématique
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