Obustava ovrhe zbog ovrhovoditeljevog nepoduzimanja radnji u postupku

Abstract

At the end of 2020, the amended provision of Art. 72 of the Croatian Enforcement act entered into force, paragraph 3 of which now provides that enforcement shall be terminated ex officio if the party seeking enforcement did not perform a single legal action in the proceedings within one year. After the introduction which reflects on general and special reasons for termination of enforcement in general, the authors analyze the subject provision de lege lata. They point out the positive and negative effects of that provision, linking them with the original intent that the legislator had upon its enactment. In that part of the paper, the authors compare the subject provision with the provision of Art. 72 para 2 of the Enforcement act and point out its (in)existence in the legal orders of other European countries. Special attention in the analysis is given to the character i.e. to the content of the legal action that the party seeking enforcement has to undertake within a year in order to avoid termination of enforcement by application of the subject provision. The authors also point out the modalities in which domestic courts interpret the subject provision and it is also analyzed from the viewpoint of the right of access to a court. Finally, the authors warn about the problems that may appear because of egregious formalistic interpretation of the subject provision and they discuss de lege ferenda suggestions to limit its application exclusively to proceedings for enforcement of monetary claims.