Bar Council ROME
Terms of formal proceedings in opposition to injunctions after the new orientation of the Supreme Court: the Council's position.
- The Chairman and the Secretary, in light of the decision of SS.UU. No 19246 of 9 September last in terms of time allowed for the establishment of the opposing opinions in opposition to the injunction, after having discussed the issue in light of the debate emerged in the Council Commission of Law and Civil Procedure, asking that the Council adopt a resolution in which it takes its position with reference to the possible negative consequences that the new system involves the ongoing reviews. Briefly illustrate the issue on all Councillors who had not yet been informed of the decision mentioned above.
THE COUNCIL NOTED
That the United Chamber of the Supreme Court, in its ruling of September 9, 2010, No 19246, considered that in the judgments of opposition to injunction, "the need for consistency systematic as well as practical, justify the claim that not only the terms setting up the opponent and the opposite is automatically reduced to half in the opposite case of an actual assignment of a term to appear less than the legal one, but that this effect is due to the automatic just because the opposition has been proposed, because Article 645 CPC provides that in any case Opposition to the terms to appear to be reduced to half. "
Che," Guidance for consolidated by this Court in the trial of opposition, the constitution should be treated in the later failure to establish and involves the admissibility of the opposition. "
that the application of legal principles first set out and referred will have significant impact on the opinions of opposition injunction in a course and that you will be expected to establish that:
to the term-constitution that the opponent is required to comply is 5 days of notification of the opposition, even when the opponent has granted 'to appear opposite the free terms provided by art. 163 bis, paragraph 1, Code of Civil Procedure;
b-term violation of the unspeakable, as a cause of admissibility of the opposition will lead to the further consequence of the declaration of enforceability of the decree which will take the opposite force of res judicata.
NOTES
As for the ongoing reviews, it appears that the United Sections have provided an interpretation of Article. 645 CCP, which has not, however, given the delays with which the judicial officers return the original notification of the summons in opposition, with the result that the opponent, to avoid disqualification, he is forced to enter a role with the cause production only an uncertified copy of that document.
Therefore, compared to a stated need to ensure a systematic coherence, you are going to further encourage a practice not possible under the non-formal and procedural practice which also requires the defense of the opponent to file with the Registrar, after all 'registration but before the hearing to appear, the original of opposition with the record of service, the latter activity not covered by the procedural system, much less is shown between the voices of the lawyers' fees.
regard to ongoing reviews, it appears that the joint sections have provided an interpretation of Article 645, paragraph 2, which amended the Code of Civil Procedure and fifty years of continuous ultra address the same Supreme Court and courts of substance, according to the delayed formation of the opponent were reduced to half, only when the opponent had exercised the option granted to him from reporting paragraph 2 of art. 645 cpc, so when they were granted contrary to the normal time of appearance, remained in dispute that the opponent's constitution could be made within 10 days of notification of the opposition.
E 'known address indicated that the case law has been followed in many reviews as opposed to injunctive relief because, as stated in law and recognized by the United Sections, the action of combining the terms provided for in paragraph 2 ° art. 645 cpc ended by pressing burden of compliance only to the opposing party and did not cover a real acceleration of the opposition.
It is therefore in the presence of a procedural situation in relation to which the application of the principle enunciated by the United Sections and consequent declaration of admissibility of the opposition, would unjustly penalize the opponents to the sole and exclusive benefit of opposites (most often economically strong parts of the legal source of rights in dispute) it also demeans the role of the judge who, in relation to numerous reviews started, will be called only to verify and confirm the revocation of the case of the opposing party (defendant) and the existence of the rights and merits of the claim that the opposite party (plaintiff) has indicated in the application for injunction.
those circumstances, the Council of the Bar of Rome
DENIES VIBRATAMENTE
That the United Sections of the Supreme Court have provided an interpretation of the wording of Article. 645 cpc, that beyond the stated "need for systematic coherence", has in fact indicated a principle of law to achieve the 'practical need for "drastic reduction of the litigation is ongoing source of opposition to the injunction, this objective that, if undertaken without the court has ruled on the parties' claims will result in a further weak point of the citizen's right to judicial protection.
EXPECTED
increasingly that the National Bar Council with a clear press release asked, with firm, a law that prevents emergency declarations in opposition to the mass of the injunction in which the opponent has not made up within 5 days.
THE Bar Council ROME ASKS
1) In charge of the courts of the District Court of Appeal of Rome to adopt at the outset all the more effective measures to ensure more prompt restitution of the acts of opposition to the injunction, even by setting up offices in the notifications of the Courts greater territorial extension fast-tracked for the notification and return of the indicators, so as to allow enrollment in the role with the filing of the original of the summons.
2) The Parliament and the Government under an emergency order as indicated by the National Bar Council in order to avoid this devastating "admissibility of mass."
Meanwhile inform their members / colleagues that the appeal to the court concerning the request for relief provided for in paragraph 2 of art. CCP 153 can identify a specific remedy to overcome opposition in the judgments of a court order under the negative consequences of an application to its place within the normal time limits.
This is because: a.
with the news article. 153 Code of Civil Procedure, made Law June 18, 2009, n, 69, remission has become an institution in terms of general order applicable to the case with reference to any type of term
b. the use of normal time limits for storage in the assessments made on the basis of constant addresses more than a decade of the jurisdiction of legitimacy and respect, is a serious cause of decline is not attributable to the party.
on the possibility to go to court to achieve remission in terms, it is reported that the single judge of the Court of Nola, Civil Section II, Dr. Catherine Costello, in the process 8011/09, by order of 28 / 9 / 2010, has undergone its own motion the parties the question of the admissibility of the opposition, in order to evaluate an application for referral terms.
The Council shall act immediately enforceable and the publication on the site.
Rome, October 11, 2010
The Board Secretary The President
Murra Rodolfo Antonio Conte
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