Summary
For all operators of the law in Cuba, specifically for the judges, the execution of final judgments and orders has always been raised as a concern approving the transaction agreed upon by the parties, with the aim of guaranteeing and materializing the right granted or recognized to whom it was restored by a competent judicial body. It is valid to point out that on many occasions, the materialization of the sentence imposed is hampered by the current legal regulations; those that are not always the happiest solution to these ends. These aspects motivated the completion of this article aimed at identifying flaws in judicial practice, making a practical - legal assessment of the Execution Process regulated in the Cuban Civil, Administrative, Labor and Economic Procedure Law (LPCALE),starting from the concrete and real problems that are evident in the courts, considering that our reflections contribute to their solution.
The execution of sentences is the procedure recognized in the Cuban Civil Procedural Law to make effective the decision agreed by the judicial body, at the request of an interested party.
For the analysis of the problems presented, an assessment was made of the rights recognized through judicial instruments to the parties to a process resolved by a final judgment or by a car approving a transaction agreed upon by the litigants, identifying the different forms of execution recognized doctrinally, among which they are, the sentences to give, sentences to do and sentences not to do.
It was also analyzed how the Cuban regulatory system is permeated with different mechanisms for the restitution of the subjective rights violated to the parties to legal relationships, the judicial bodies acting as the entities in charge of reestablishing said rights from the execution of the sentences.
The existence of certain legal precepts makes it difficult to execute the judgments regarding natural persons such as the limitation of the assets that may be seized, making it impossible for the creditor to satisfy his credit promptly and in full. In this sense, assets of a real nature are identified, in particular the permanent occupation dwelling that is not subject to embargo.
Another obstacle identified in the execution process is the impossibility for the creditor to satisfy his credit when the sentence is the delivery of an asset that he cannot recover, despite the debtor having been penalized criminally for a crime of disobedience;
In the investigation, the patrimonial damage that occurs when the plaintiff requests the adjudication in his favor of the seized or occupied goods during the processing of the judicial process, in payment of the principal, interest for delay and claimed procedural costs and these do not replace finally the total amount of the debt.
In another order, for the purposes of child support, the lack of mechanisms is denounced to be able to execute a sentence of this nature against a worker who is subject to the self-employment regime, leaving the Law in a state of defenselessness to the nutritionist due to the lack of specific execution rules.
Being all these aspects of vital importance in our system of law we present the following study.
Legal treatment in Cuba of the process of executing civil judgments.
Practical difficulties
In Cuba, as in the rest of the different nations, there are laws that regulate and recognize the rights of its citizens according to the political, social and economic foundations of the Cuban State expressed in the Constitution of the Republic, for which it is not enough that the body in charge of administering justice (Court) agrees to the granting or recognition of that subjective or material right, through the corresponding judicial resolution, but rather its actual materialization is necessary, which is made possible when the recipient of that right achieves its effective realization.
For all the operators of the law, specifically for the judges, the execution of final judgments and orders approving a transaction agreed by the parties has always been a concern, precisely in order to guarantee and materialize the right granted or recognized to the party to a certain process., which in our opinion is sometimes hampered by the current legal regulations, which do not always constitute the happiest solution for these purposes, thus motivating the completion of this article in which we intend to make a legal-practical assessment of the Execution Process regulated in the Cuban Civil, Administrative, Labor and Economic Procedure Law (LPCALE), based on the concrete and real problems that are evident in the courts,considering that our reflections contribute to its solution.
In the Third Book of the Law of Civil, Administrative, Labor and Economic Procedure, Law number 7 dated August 19, 1976 regulates the process of execution of civil judgments, which proceeds to acquire firm a sentence, always at the request of the interested party and by the court that heard the matter in the first or only instance.
It is necessary to say in this regard that the natural person benefited with the ruling may not do so without the assistance of a legal representative who must accredit that representation that empowers them with a new Agreement of Legal Services, unless the representative mandate stated in the proceedings was empowered To this, as established in the aforementioned Law of Procedures in its article 72, and if it does not do so, the acting court will grant it a prudential term to accompany it.
In this sense, Agreement 223 of April 27, 1977 of the Supreme People's Court provides that the lawyer appointed to represent the party that has obtained the favorable sentence, may not abandon the representation that he holds as long as the court itself does not dismiss it and This obliges him to urge the execution of the sentence if his client asks for it and even interest the defense ex officio, since the social interest determined by the Organization of Collective Law Firms requires that no person who needs it lacks due procedural representation.
Although the aforementioned adjective norm as we noted above regulates the Process of Execution of civil sentences, it is possible to mean that part of its articles was modified by Instruction 186 of the Governing Council of the Supreme People's Court dated October 16, 2007, in which it is specified how to proceed in correspondence with the type of sentence
Thus, in its FIRST section, it specifies that when the fulfillment of the payment obligation falls on a liquid amount, the execution will be carried out by means of a request to the convicted person who will take preferential place in the domicile of the person, in whose act he must make the payment due. to the creditor and if this is not achieved, the assets belonging to him that the actor has indicated in the application for execution or precisely in the act of diligence will be seized, in an appropriate proportion to the payment of the claimed responsibility, with the exception of which are set forth in article 463 of the LPCALE, which will constitute an insurance measure to then process the execution by way of urging if necessary.
Pausing on this aspect, we have the first practical problem, and that is that in most cases, since these are high monetary amounts, the payment of the debt is not made effective in the act of request, aggravating the disadvantageous situation. for the creditor, because although it has the possibility of securing the credit with assets, also in daily reality is that in several cases, these assets do not belong to the debtor and although they may initially have been insured, they cannot be awarded to the same because they belong to other people, thus proven in Third Party Process on Best Domain, to this is added that although the aforementioned article 463 suffered favorably for the creditor, modifications with the promulgation of Decree-Law 289 dated November 16, 2011,There are still excessive restrictions that remain regarding the goods that can be seized, all kinds of goods and rights with the exception of:
- The assets of the state patrimony administered directly by the State and those administered by companies and state entities, with the exception of their financial resources and those that are authorized in special legislation. The property that constitutes the debtor's permanent home. of personal property of the debtor, of essential use for domestic life. Alimony. The land of the small farmer; ySocial security pensions, except for the payment of alimony paid by the competent authority
Two thirds of wages and short-term benefits will be unattachable, except when it is for the payment of alimony payments arranged by the competent authority or credits in favor of the State and state companies and banks, in which case they may reach up to half of your amount.
In our opinion, I consider that the aforementioned article constitutes a limitation to the successful fulfillment of the claim made by the creditor for the sake of recovering the money loaned or judicially established as compensation for civil liability, who upon refusal of the debtor by the mere declaration if he does not possess seizable assets, he is unable to satisfy his credit, most of the time totally, being affected in his patrimony, excusing himself or taking refuge in this article, the debtor, forgetting that once he received in good faith the monetary amount that he owes or that It was part of a legal relationship in which as the subject of the same it assumed the doing, giving or not doing in favor of another certain behavior with legal backing and that in a certain way, its non-compliance has led to its illicit enrichment,being able to partially modify section two in the sense that such prohibition is only in the event that the foreclosure of the home is left in residential distress to the debtor, even, given the recent legislative changes in real estate with the entry into force of the Decree - Law 288 dated October 28, 2011 could assess the possibility of doing legal acts with your home, such as: swap, sale and division, thus favoring the creditor in the compensation and payment of the debt without leaving the debtor homeless..Given the recent legislative changes in real estate with the entry into force of Decree-Law 288 dated October 28, 2011, the possibility of doing legal acts with your home, such as: swap, sale and division, thus favoring the creditor in the compensation and payment of the debt without leaving the debtor homeless.Given the recent legislative changes in real estate with the entry into force of Decree-Law 288 dated October 28, 2011, the possibility of doing legal acts with your home, such as: swap, sale and division, thus favoring the creditor in the compensation and payment of the debt without leaving the debtor homeless.
It often turns out that the courts apply article 89 section 1) of the Civil Code related to the liability of natural persons, which stipulates that "natural persons are obliged to repair the damages that they cause or are caused", but the court, at his prudent discretion, if the person in charge is a worker or pensioner with no known personal property to fully satisfy the amount of the loss or damage, he may adjust the amount of the compensation to twenty percent of the salary or any other periodic income he receives, without that may exceed the term of ten years. This limitation can be provided regardless of the economic content of the responsibility.
In the same way, we consider that such legal precept slows the satisfaction of the credit in favor of the creditor by setting a salary percent or other income to garnish and to set a time, which is sometimes impossible to pay attention to precisely that percent in its the entire debt.
For its part, the SECOND section of the aforementioned Instruction 186, expressly introduced changes to article 478 of the LPCALE, regulating that if the sentence refers to the delivery of a good, to do or not to do, for its execution it will be used by the court, all the necessary means to that effect, (including the assistance of the National Revolutionary Police), in the first case, the property will be immediately made available to the creditor, whether it be movable or real. In the sentences to do, the convicted person will be required to carry out the pronouncement in this regard in the sentence within the reasonable period of time considered by the court, and in those of not making the request, he will be asked to abstain from it.
The same Law regulates as a real possibility of execution, the one whose judicial condemnation is the delivery of a good if it could have been, which in our opinion could be successful if the plaintiff interested the preparatory act before filing the claim to guarantee that the either it was not alienated or lost, provided that the claim is also filed within the legal term established so that said preparatory act retains its full value until the completion of the process, since in this act the person who has it is warned or warned (generally the defendant) who must keep it in its current state and its breach may give rise to the corresponding criminal liability or when before filing the claim,at the time of doing so or in any subsequent state and before issuing the judgment, a precautionary measure may have been requested, which could be the seizure of property itself or any of those regulated in article 803 of the LPCALE, modified by Decree-Law 241 dated 26 September 2006. If the precautionary measure is requested and adopted before filing the claim, it must be filed within the next thirty days, otherwise it no longer has the insurance effect.otherwise it ceases to have the insurance effect.otherwise it ceases to have the insurance effect.
Judicial practice has shown that in most cases when the property has not been insured, at the time of its execution it is not traceable, and in this sense, unfortunately, there is no legal way to compel the debtor to just place it in the possession of the creditor, becoming the best of cases in an indemnity execution for the monetary value of the property, as regulated in section 4 of article 478, the creditor suffering material affectation since ultimately the claimed property was not made available, regardless of its usefulness and even its non-recovery can lead to sentimental harm to him.
In this regard, we must mention the legal treatment of the typification or not of the crime of disobedience analyzed in Opinions 204 of October 25, 1984, 164 of July 20, 1983 and 368 of March 28, 1996, all of the Governing Council of the Supreme People's Court.
Opinion 164 of July 20, 1983: the execution of the final decision in a civil process is governed by the provisions of the LPCALE, article 473 and following. Said precepts regulate the corresponding actions that must be carried out when the execution is forced, that is, when the person who is obliged to deliver a liquid amount of money, to pay food or other periodic benefits, to deliver any good or do or not to do, refuses to comply. A criminal action may only arise when the person obliged to serve a civil sentence executes acts foreseen as a crime to prevent the execution. Refusal to comply does not integrate the crime of disobedience.
Opinion 204 of October 25, 1984: in Opinion 164 of July 19, 1983, it is declared that the mere refusal of the defendant to comply with the sentence handed down in a civil process does not constitute a crime, because in the sphere of law the procedure for the forced execution of the sentence; and the actor is obliged to use that route in order to execute the judicial declaration, consequently only if the executed commits any of the crimes provided for in the Penal Code, is the criminal action to prosecute the actor for that fact, determining whether whether or not the typical elements of a crime are met.
Opinion 368 of March 28, 1996 defines that in the face of a reckless situation of concealment or intentional disappearance of a certain asset by the obligor to evade a judicial order that requires him to deliver it, such specific conduct differs from that manifested in the assumption that the refusal to comply does not integrate the crime of disobedience contained in Opinion number 164 of 1983, since in the presence of the latter, the Criminal Law effectively enables means to achieve its effective occupation; and consequently, the fact of concealment or intentional disappearance should be understood as an element other than the simple refusal to comply with the judicial mandate, to conclude that its commissioner incurs in full disobedience as provided for in article 147 of the Penal Code,or in the event that the asset or property possessed by prior diligence of exhibition and deposit by court order could constitute a different crime.
Another one of the problems occurs in the sentences to do where, as previously stated, what is foreseen is to require the convicted person to carry out, within the reasonable period of time indicated by the court, what the executory has ordered, a problem that takes place because it is generally trying to undertake constructive actions (Example of demolition and construction of wall, wall, plumbing, closing and opening of windows, among others), in many cases the debtor denounces not having materials or money for its acquisition, which is public knowledge that is acquired in the retail trade network or freely convertible currency, which implies a disbursement that the convicted person cannot always supply,so that sometimes it becomes an unenforceable sentence or in the best case it is the beneficiary of the ruling himself who looks for the way of execution, being cumbersome to do it as the Law also makes possible, when he refers: if he has to do it for third, the court will determine who should comply with it. Otherwise, what is necessary to verify it will be agreed, being possible on behalf of the defendant.
Instruction 186, introduces novel aspects regarding the judgments that condemn the payment of alimony, by stipulating that in the case of payment of alimony or other periodic benefits, the seizure will proceed directly in the proportion that the Law authorizes, of the assets or other benefits of any kind that the convicted person receives, in a way that covers those due up to three months prior to his claim and those that henceforth expire, well understood that this affectation cannot exceed one third of what is accrued for such concept, except in the case of maintenance or credits in favor of the State, in which it can be extended to half, which will be carried out by communication to the corresponding center or office in charge of its payment. In the case of not having the executed with inputs of the targeted nature,the interested execution will be adjusted to the provision of the FIRST indication of this Instruction.
Regarding this method of payment for maintenance, it is worth making clear that Instruction 216 of the Governing Council of the Supreme People's Court dated May 17, 2012, which regulates the procedure in family matters, obliges the courts to upon learning of this type of claim, they order a provisional pension, which is immediately notified to the defendant's work center to proceed in the amount ordered to seize his salary in favor of the alimony, keeping it that way throughout the process, without it being necessary that once the judgment is signed, it be carried out at the request of the interested party, but is done ex officio, that is,the court sends the obligor's work center a new communication in the event that the amount is maintained or a new seizure document in the event that it is definitively varied by the court.
In the cases of sentences for this kind of obligation, its execution is difficult when it comes to people who work as self-employed workers because they lack a legal mechanism that allows the embargo in the way we discussed earlier.
It is important to highlight that the action to request the execution of sentence is subject to term, that is, it prescribes one year as regulated by article 116 subsection b) of the Civil Code. Another of the novel issues regulated by Instruction 186 is the assumption that in those cases in which the sentence provides for the granting of a notarial deed, when the convicted defendant refuses to attend a notary public or is unable to do so, the President of the court that issued the resolution is in charge of completing that enforcement.
The sentence execution process, as the aforementioned article 475 refers, obliges us in the event that the sentence is the payment of a liquid amount not complied with, to make it effective by way of enforcement, regulated in the law of marras from the Article 499 and following where the way of proceeding is established, this is:
If the seized is money or securities that represent it, it will be delivered to the creditor. If it is other assets, they will be appraised if they are no longer, by experts appointed in the manner and terms established for the expert opinion. Once the appraisal has been carried out and approved by the court, the State will be offered to acquire the property for the price set so that it can exercise the right of first refusal within the term of ten days. If the State does not make use of the right of first refusal, the creditor after the expiration of the stated term, may request within ten days following the adjudication in his favor of the seized or occupied goods in payment of the principal, default interest and costs that have been object of claim. The creditor may not use the acquisition right,therefore, persons interested in acquiring the assets must present to the court. In the event that the creditor does not make said request, when no offers have been submitted, the embargoes and other precautionary measures adopted will be canceled, with reservation in favor of the plaintiff to continue the execution against other assets of the debtor, as long as it does not prescribe the action to claim credit (one year, as established in article 116 paragraph b) of the Civil Code.as established in article 116, paragraph b) of the Civil Code.as established in article 116, paragraph b) of the Civil Code.
Although the legislation provides for the pressure to finally pay off the debt in some way, the truth is that its processing is designed for a reality that currently differs from the Cuban social environment, since in the case of debts of a considerable amount, in Most of the assumptions, the debtor lacks assets whose value weighs the payment in full, partially covering the debt, constituting a current limitation of the way of drafting article 504 when it states that if the actor requests the award in his favor the seized or occupied goods, it is in payment of the principal, default interest and procedural costs, however in the daily routine not all of them are covered with them.
The aforementioned evaluations allow us to specify that:
- In the Cuban law system there are mechanisms for the restitution of the rights violated to the subjects parties to the legal relationships of different nature, the judicial bodies acting as the entities in charge of reestablishing said rights from the execution of the sentences. of judgments is the procedure recognized in the Cuban Civil Procedural Law to make effective the decision agreed by the judicial body, at the request of an interested party. The existence of certain legal precepts hinder the execution of judgments regarding natural persons such as the limiting the assets that can be seized, making it impossible for the creditor to satisfy his credit promptly and in full;likewise, the creditor considers his credit unsatisfied when the sentence is the delivery of an asset that he cannot recover despite having been penalized by the debtor for a crime of disobedience; Similar patrimonial damage occurs when the plaintiff requests the adjudication in his favor of the seized or occupied assets, in payment of the principal, default interest and claimed procedural costs and these do not finally supply the total amount of the debt.
Bibliography
- Amat, Vicente (1903) Civil Procedure Law, volume II. SOPENA Publishing House. Barcelona. Civil, Administrative, Labor and Economic Procedure Law number 7 of August 19, 1977. Official publication of the Ministry of Justice. Havana 1979. Civil Code, Law number 59 of July 16, 1987, in force since April 12, 1988. Title edited by the disclosure body of the Ministry of Justice. Havana January 1988. Penal Code Law number 62 of December 29, 1987. Official publication of the Ministry of Justice, Supreme People's Court, Attorney General's Office and the National Organization of Collective Law Firms. Havana January 2004 Decree-Law 241 dated September 26, 2006 Decree-Law 289 dated November 16, 2011. Decree-Law 288 dated October 28, 2011.
