Negative Determination Cases Pursuant To Article 72 Of The Execution And Bankruptcy Law
PURPOSE DETERMINATION SUIT (Art. 72 of the EBL)
“Negative determination and reclamation actions:
Article 72 – (Amended: 18/2/1965-538/43 Art.)
“The debtor may file a negative determination lawsuit before or during the enforcement proceedings to prove that he is not indebted. The court hearing the negative declaration lawsuit filed before the enforcement proceeding may, upon request, issue a preliminary injunction for the suspension of the enforcement proceeding in return for a collateral not less than fifteen percent of the receivable. In the negative declaration case filed after the execution proceedings, the court cannot decide to suspend the execution proceedings by way of interim injunction. However, the debtor may request the court not to give the money in the execution cashier’s office to the creditor by way of interim injunction in order to cover the damages arising from the delay and against a guarantee not less than fifteen percent of the receivable. (Amended paragraph: 09/11/1988 – 3494/6 Art.)
If the lawsuit is concluded in favor of the creditor, the interim injunction shall be lifted. In the event that the judgment on this matter becomes final, the creditor shall receive the damages arising from the late receipt of the receivable due to the interim injunction from the collateral shown. The damage suffered by the creditor shall be assessed and decided in the same case. (Amended phrase: 6352 S.K.-02.07.2012/m.15) This damage cannot be determined less than “twenty percent”. (Amended paragraph: 09/11/1988 – 3494/6 Art.) If the lawsuit is decided in favor of the debtor, the proceedings shall immediately cease.
Upon the finalization of the judgment, the execution shall be partially or completely reinstated according to its contents and without further judgment. If it is understood that the proceeding forcing the debtor to file a negative declaration lawsuit is unfair and malicious, upon the request of the debtor, it shall be decided to collect the damages incurred by the debtor due to the lawsuit from the creditor. The damage to be assessed cannot be less than “twenty percent” of the receivable subject to the unfair proceeding (Amended phrase: 6352 S.K.-02.07.2012/m.15).”
I. In General:
– The creditor may have an interest worthy of protection in determining whether the debtor is indebted or not before the proceedings are initiated. If such an interest exists, the debtor may file a lawsuit for the determination of non-debtor status. The debtor may file a negative declaration action before or after the enforcement proceedings. However, after the debtor pays the debt to the enforcement office, he may no longer file a negative declaration lawsuit. After that, the debtor may file a lawsuit for the recovery of the money he paid even though he does not actually owe the debt, and this lawsuit is a reclamation lawsuit.
– If the creditor has filed a lawsuit for the cancellation of the objection within the proceedings and has won this lawsuit, it is no longer possible for the debtor to file a negative assessment or recovery lawsuit about the same receivable and between the same parties due to the final judgment.
– Negative Determination Action:
The negative declaration lawsuit is a lawsuit that the debtor can file to determine that he/she does not owe the debt before paying the debt. If the debtor wins this lawsuit, the proceedings will be canceled and the debtor will be freed from paying the debt. The debtor may file a negative declaration lawsuit before or after the enforcement proceedings and request a declaration of non-debtor status. The debtor may file a negative declaration action before the creditor commences an enforcement proceeding or after the enforcement proceeding. However, the consequences of both of these actions are different.
– Negative Determination Lawsuit Conditions:
The subject of our article is the “Negative Determination Action” regulated under Article 72 of the Enforcement and Bankruptcy Law. Since this lawsuit is in the nature of a declaratory action, it is also regulated under Article 106 of the CCP. It should be explained together with the provision of the Action for Determination regulated in Article 106 of the CCP. The articles of the law are as follows:
“Code of Civil Procedure No. 6100 Action for Determination”
ARTICLE 106
“(1) Through an action for declaratory judgment, the court is requested to determine the existence or non-existence of a right or legal relationship, or whether a document is forged or not.
(2) The person bringing an action for determination must have a legally protectable actual interest in bringing this action, except in exceptional circumstances specified in the law.
(3) Material facts cannot, by themselves, constitute the subject matter of a declaratory action.”
As can be understood from the text of the Article, the determination of the existence or non-existence of a right or legal relationship or the determination of whether a document is forged or not can be requested from the court through a declaratory action.
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