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PROPOSED LAW NO. 47 /X

Exhibition of Motives

1. The XVII Constitutional Government Programme has taken on as a priority the improvement of the

judicial response, to substantiate, specifically, by measures of decongestion

effective procedural and the rational management of human resources and system materials

judicial.

The need to release the judicial means, magistrates and bail-out officers for the

protection of legal goods that actually deserve the judicial tutelage and returning the

courts to that which must be their function, constitutes one of the objectives of the Resolution of the

Council of Ministers No. 100/2005 of May 30, 2005, which, approving a Plan of

Action for the Decongestion of the Courts, he predicted, among other measures, the

" introduction of the rule of territorial competence of the court of the defendant's comarch to the

actions relating to the performance of obligations, without prejudice to the specificities of the

litigation characteristic of the large metropolitan areas of Lisbon and Porto " .

The adoption of this measure rests on the finding that much of the cable litigation is

concentrates on the main urban centres of Lisbon and Porto, where the headquarters are located

mass litigants, that is, of the companies that, with a view to the recovery of their credits

coming from situations of contractual default, use the courts of form

massively and geographically concentrated.

By introducing the rule of territorial competence of the court of the defendant's comarch to

this type of actions, strengthens the constitutional value of consumer protection-pore

approaches the justice of the citizen, allowing him a full exercise of his rights in

doomsday-and a greater balance of the territorial distribution of cable litigation is obtained.

The plaintiff may, however, opt for the court of the place in which the obligation should

be complied with, when the respondent is a legal person or when, by situating the

domicile of the creditor in the metropolitan area of Lisbon or Porto, the respondent has

Household in that same area. In the first case, the exception is justified by being absent the

referred to a constitutional value of consumer protection; in the second, by understanding that

this intervenes with lower intensity. In effect, in the metropolitan areas of Lisbon and

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Port, it does not appear especially onerous that the defendant or singular executed continues to

be able to be in demand on any of the other metropolitan area's comarks in which

lies, nor does it discorder special needs for redistribution of procedural volume

today verified in each of the respective comarches.

It is also changed the regime of procedures designed to require compliance with

emerging pecuniary obligations of contracts of value not exceeding the remit of the Relation,

in the sense of being always mandatory the indication, in the application for injunction, of the

competent court for the distribution of the autos that comes to take place after deducted

opposition or thwarted the notification of the respondent.

2. Within the framework of the implementation process, and made a preliminary assessment of the reform,

considered itself fundamental, to overcome the current deficiency of enforcement solicitors in

certain plots of the national territory and to foster close collaboration between

the application solicitor and the enforceer and his / her representative, eliminate the limitation of

territorial nature to which the designation of that was subject. The exequent passes, for, the

be able to choose an execution solicitor from any point in the country.

It is still transforms into a mere college, the duty to carry out representations that

imply displacements of the designated solicitor out of the area of the running comarch

and its borrops by enforcement agent of that area.

It also allows for the delegation of competence in another application solicitor

does not limit the practice of certain acts, and the delegation of competence may be given

for the whole process, as long as there is the consent of the designating exequent.

Stay, outrossim, consecrated the electronic tramping of the process in terms of defining by

would pore from the Minister of Justice, thus moving forward in the progressive dematerialization of the

judicial process.

Also in this sense goes the duty, now instituted, of use of the telematic means in the

communication between the judicial secretary and the enforcement solicitor, whenever the means

technicians allow it.

Finally, the ensejo is still taken advantage of, in line with the recent amendment to the Law of

Organization and Functioning of Judicial Tribunals, in matters of competence of the

execution judgements, to restore the stepping stone of the sentence execution by apenso,

except when, in comarch with execution judgment, that one has been handed down by

court with specific jurisdiction skeptical or with generic competence and when the

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process has meanwhile risen in appeal, staying safeguarded the possibility of the

judge, if you understand convenient, apse to the execution the already finite process.

The necessary representations were made to the hearing of the Higher Council of the

Judgeship, of the Superior Council of Administrative and Fiscal Tribunals, of the Council

Superior of the Public Prosecutor's Office, of the Order of Lawyers, of the House of Solicitors and

of the Council of Officers of Justice

Thus:

Under the terms of the paragraph d ) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

Amendments to the Code of Civil Procedure

Articles 74, 90, 94, and 808 and 808 of the Code of Civil Procedure, approved by the

Decree-Law No. 44129 of December 28, 1961, amended by the Decrees-Leis n. the

47690, of May 11, 1967, and 323/70, of July 11, by the Portaria No. 439/74, 10 of

July, by the Decrees-Leis n. the

261/75, of May 27, 165/76, of March 1, 201/76, of

March 19, 366/76, of May 5, 605/76, July 24, 738/76, October 16,

368/77, of September 3, and 533/77, of December 30, by Law No. 21/78 of May 3,

by the Decrees-Leis n. the

513-X/79, of December 27, 207/80, of July 1, 457/80, of

October 10, 400/82, September 23, 242/85, July 9, 381-A/85, from 28 of

September, and 177/86, of July 2, by Law No. 31/86, of August 29, by the Decrees-Leis

n. os

92/88, of March 17, 321-B/90, of October 15, 211/91, of July 14, 132/93, of

April 23, 227/94, September 8, 39/95, February 15, 329-A/95, from 12 of

December, 180/96, of September 25, 375-A/99, of September 20, and 183/2000, of 10 of

August, by Law No. 30-D/2000, of December 20, by the Decrees-Laws n. the

272/2001, of

October 13, and 323/2001, of December 17, by Law No. 13/2002 of February 19, and

by the Decrees-Leis n. the

38/2003, of March 8, 199/2003, of September 10, and 324/2003,

of December 27, they are replaced by the following:

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" Article 74.

[...]

1-A action intended to require the fulfilment of obligations, the compensation for the non-

compliance or defective compliance and the resolution of the contract for lack of

compliance is proposed in the court of the home of the defendant, and the creditor may opt for the

court of the place in which the obligation should be complied with, when the respondent is a person

collective or when, by situating the domicile of the creditor in the metropolitan area of Lisbon or

of the Port, the respondent has domicile in the same metropolitan area.

2-[...].

Article 90.

[...]

1-[...].

2-[...].

3-A The execution runs by apenso, except when, in comarch with executive competence

specific, the sentence there is handed down by court with specific jurisdiction cable or

with generic competence and when the process has meanwhile risen in appeal, cases

where it runs on the backside, without prejudice to the possibility of the judge of the execution power, if

understand convenient, aping to the execution the already finite process.

Article 94.

[...]

1-Saved in the special cases provided for in other provisions, it is competent for the implementation of the

court of the domicile of the executed, and may the enforceable opt for the court of the place in

that the obligation must be complied with, when the executed is a legal person or when,

situating the domicile of the exequent in the metropolitan area of Lisbon or Porto, the

performed to have domicile in the same metropolitan area.

2-[...].

3-[...].

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4-[...].

Article 100.

[...]

1-The rules of competence on the grounds of matter, hierarchy, value and the manner of

process cannot be sidelated by the will of the parties, by allowing them to ward off, by

express convention, the application of the rules of competence on the grounds of the territory, save

in the cases referred to in Article 110 and, when one of them is a natural person, the para. 1

of Article 74 and Article 94 (1).

2-[...].

3-[...].

4-[...].

Article 808.

[...]

1-[...].

2-Execution agent roles are performed by execution solicitor

designated by the exequent, from among those enrolled in any comarch; in the absence of

assignment by the exequent, are these functions performed by execution solicitor

designated by the registry, pursuant to Art. 811, of among those enrolled in the comarch and

in the comarches boreal, or, in their absence, from among those inscribed in another comarch of the same

judicial circle; there is no application solicitor entered in the circle or occurring another

cause of impossibility, are the functions of executing agent, with the exception of

specifically assigned to the application solicitor, performed by officer of

justice, determined under the rules of distribution.

3-[...].

4-[...].

5-The representations that entail displacement outside the area of the running comarch and

your boreons, or from the metropolitan area of Lisbon or Porto in the case of comarch in it

integrated, can be carried out, the request of the designated execution agent and, being

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this solicitor, under his or her responsibility, by enforcement agent of that area; the solicitation

of the bail-out officer is addressed to the clerk of the court of the comarch of the area of the diligence area, by

medium telematics or, not being possible, by telephone communication or by fax.

6-[...].

7-[...]. "

Article 2.

Addition to the Code of Civil Procedure

The following is added to the Code of Civil Procedure, Article 138, with the following wording:

" Article 138.

Electronic tramping

The tramway of the processes is carried out electronically in terms to be defined by Portaria

of the Minister of Justice, and the procedural provisions relating to acts of the

magistrates and judicial secretaries to be the subject of the practical adaptations that prove to be

necessary. "

Article 3.

Amendment to the Statute of the House of Solicitors

Article 128 of the Statute of the House of Solicitors, approved by the Decree-Law n.

88/2003, of September 10, shall be replaced by the following:

" Article 128.

[...]

1-Execution solicitor may delegate another application request to the competence

for the practice of all or certain acts in a process, communicating promptly

such a fact to the party that has appointed him and to the court.

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2-When the designation has been made by the exequent and accepted by the solicitor of

implementation, the delegation of competence for the practice of all acts in a caremaking process

of consent of the exequent, which may indicate the enforceable solicitor to whom

intends to see delegated the competence.

3-If the delegation is only for the practice of certain acts in a proceeding, the

solicitor delegator remains responsible for sympathetic title.

4-Passes to be the holder of the process the application solicitor who accepts the delegation of

competence for the practice of all acts in that process, ceasing responsibility

of the delegator at the time when the delegation of competence is carried out.

5-The delegation provided for in this Article shall apply still the Delegate Regulation of

Processes approved by the General Council of the House of Solicitors. "

Article 4.

Amendments to the Scheme Annexed to Decree-Law No 269/98 of September 1

Articles 10 and 11 of the arrangements annexed to the Decree-Law No. 269/98 of September 1 with the

wording given by the Declaration of Rectification No 16-A/98 of September 30, and amended

by the Decrees-Leis n. the

383/99, of September 23, 183/2000, of August 10, 323/2001,

of December 17, 32/2003, of February 17, 38/2003, of March 8, 324/2003, 27

of December, with the wording given by the Declaration of Rectification No. 26/2004, of 24 of

February, 107/2005, of July 1, with the wording given by the Declaration of Rectification

n ° 63/2005 of August 19, shall be replaced by the following:

" Article 10.

[...]

1-[...].

2-In the application, you must the applicant:

a) [...];

b) [...];

c) [...];

d) [...];

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e) [...];

f) [...];

g) [...];

h) [...];

i) [...];

j) [...];

l) Nominate the competent court for the assessment of the autos if they are submitted to the

distribution;

m) [ Previous point l) ];

n) [ Previous point (m) ].

3-[...].

4-[ Previous Article No 5 ].

5-[ Previous Article No 6 ].

6-[ Previous Article No 7 ].

Article 11.

[...]

1-[...]:

a) It is not addressed to the competent judicial office or not to comply with the provisions

in the paragraph l ) of paragraph 2 of the preceding Article;

b) [...];

c) [...];

d) [...];

e) [...];

f) [...];

g) [...];

h) [...].

2-[...]. "

Article 5.

Amendment to Decree-Law No 202/2003 of September 10

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Article 2 of the Decree-Law No. 202/2003 of September 10 is to have the following

wording:

" Article 2.

[...]

1-Whenever the technical means so permit, in the transmission of any

documents, information, notifications or other messages addressed to the solicitor of

implementation, should the judicial office use telematic means that guarantee security

of the communications, specifically the respective confidentiality and reliability, well

as the unequivocal identification of the transmitter and the recipient.

2-In the transmission of any documents, information or other messages addressed to the

judicial office, must the application solicitor use the same telematic means

referred to in the preceding paragraph, where the technical means so permit.

3-[...].

4-[...]. "

Article 6.

Application in time

This Law applies only to actions and applications for injunction instituted or

presented after their entry into force.

Seen and approved in Council of Ministers of November 24, 2005.

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs