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1 PROPOSAL of law No. 47/X explanatory memorandum 1. The program of the XVII constitutional Government assumed as a priority the improvement of judicial response to constitute, inter alia, for decongestion measures effective procedural and the rational management of human and material resources of the judicial system. The need to free the media, magistrates and court bailiffs for the protection of legal goods that actually deserve court custody and returning to the courts must be to your function, constitutes one of the objectives of the resolution of the Council of Ministers No. 100/2005 of 30 May 2005, which, by adopting an action plan to the Decongestion of court , predicted, among other measures, the ' introduction of the rule of territorial jurisdiction of the Court of the defendant to the action concerning the fulfilment of obligations, notwithstanding the specificities of litigation characteristic of large metropolitan areas of Lisbon and Oporto». The adoption of this measure is based on the observation that a large part of the civil litigation focuses in the main urban centres of Lisbon and of Porto, where the headquarters of the litigants, i.e. undertakings, with a view to the recovery of their claims arising from breaches of contract, resort to the courts so massive geographically concentrated. By introducing the rule of territorial jurisdiction of the Court of the respondent for this type of action, strengthens the constitutional value of consumer protection – because the citizen justice, allowing you a full exercise of their rights in court – and a better balance of territorial distribution of civil litigation. The applicant may, however, choose the Court of the place where the obligation should be fulfilled, when the defendant is a legal person or when, at the domicile of the creditor in the metropolitan area of Lisbon or Porto, the respondent is domiciled in that same area. In the first case, the exception is justified by being absent such constitutional value of consumer protection; in the second, by understanding that this operates with less intensity. Indeed, in the metropolitan areas of Lisbon and Porto 2, does not seem particularly burdensome to the defendant or continue to be singular executed defendant in any of the other counties of the metropolitan area in which he resides, or if special needs see volume redistribution of procedure today in each of the respective counties. It's also changed the system of procedures to require the fulfilment of pecuniary obligations arising from contracts with a value not exceeding the purview of the relationship, in order to be always compulsory to display, the application for injunction, the jurisdiction to distribute the record show that will take place after opposition or frustrated the required notification. 2. in the context of the implementation process, and made a preliminary assessment of the reform, it was considered essential to overcome the current lack of bailiffs in certain portions of the national territory and to promote close cooperation between the bailiff and the judgment creditor and your representative, eliminate the limitation of territorial nature that the description that was subject. The operator passes the power to choose a solicitor of any point of the country. Becomes a mere College, the duty of due diligence involving movements of the solicitor assigned to outside the area of the district and its bordering by enforcement agent from this area. Also enables the delegation of competence in another bailiff don't limit yourself to commit certain acts, and may give the delegation of competence for the whole process, provided that the consent of the operator designante. Is also devoted to processing electronics of the process in accordance with the set by order of the Minister of Justice, so if advancing on dematerialization judicial process progressive. Also in this sense about the duty now imposed, for the use of telematic means in communication between the Secretariat and the court bailiff, whenever the technical means the allow. Finally, take the opportunity, in line with the recent amendment to the law on organization and functioning of the Judicial Courts, jurisdiction of the courts of implementation, to restore the course of execution of sentence for attached, except when, in comarca with implementing that judgment has been handed down by a court with jurisdiction civil or with specific jurisdiction and when the 3 process has however gone on appeal , getting the judge safeguarded, if convenient, thinking to implement the process has ended. The necessary steps were taken to the hearing of the Supreme Judicial Council, the Board of Governors of the Administrative and fiscal Courts, the Superior Council of the Public Ministry, the Bar Association, the Chamber of bailiffs and the Council of officers of Justice: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law : article 1 amendments to the Civil Procedure Code The articles 74, 90, 94, 100 and 808.º of the code of Civil procedure, approved by Decree-Law No. 44129, of 28 December 1961, as amended by decree-laws Nos 47690, of 11 May 1967, and 323/70, of 11 of July, by ministerial order No. 439/74, of 10 July, by Decree-Law No 261/75 , may 27, 165/76, March 1, 201/76, of 19 March, 366/76, of May 5, 605/76, of 24 July, 738/76, of 16 October, 368/77, September 3, and 533/77, of 30 December, by law No. 21/78, of 3 may, by Decree-Law No 513-X/79 , Dec 27, 207/80, of 1 July, 457/80, of 10 October, 400/82, of 23 September, 242/85, of 9 July, 381-A/85, of 28 September, and 177/86, of 2 July, by law No. 31/86, of 29 August, by the decree-laws Nos 92/88 of 17 March , 321-B/90 of 15 October, 211/91, of July 14, 132/93, of April 23, 227/94, of September 8, 39/95, of 15 February, 329-A/95 of 12 December, 180/96, of 25 September, 375-A/99, of 20 September, and 183/2000, 10 of August, by law No. 30-D/2000 , of 20 December, by decree-laws No. 272/2001, of 13 October, and 323/2001, of 17 December, by Act No. 13/2002, of February 19, and by Decree-Law n.
the 38/2003, 8 March 199/2003, of 10 September 2003, 324/27 December, shall be replaced by the following: ' article 4 74 [...]
1-the action intended to require the fulfilment of obligations, compensation for non-compliance or compliance with defective and the termination of the contract due to lack of compliance is proposed in the Court of the domicile of the defendant, the creditor may choose the Court of the place where the obligation should be fulfilled, when the defendant is a legal person or when, at the domicile of the creditor in the metropolitan area of Lisbon or Porto , the defendant domiciled in the same metropolitan area. 2 – […].
Article 90 [...]
1 – […]. 2 – […]. 3-the execution is attached, except when, in region with specific executive powers, the sentence has been handed down by a court with jurisdiction civil or with specific jurisdiction and when the process has however gone up on appeal, cases in which flows in the transfer, without prejudice to the possibility of the judge of the running power, if convenient, thinking to implement the process has ended.
Article 94 [...]
1-Saved the special cases provided for in other provisions, is competent for execution the Court of the domicile of the debtor, creditor may choose the Court of the place where the obligation is to be fulfilled, when the run is legal person or when, at the domicile of the creditor in the metropolitan area of Lisbon and of Porto, executed in the same metropolitan area is domiciled. 2 – […]. 3 – […]. 5 4 – […].
Article 100 [...]
1-the rules of jurisdiction on account of the matter, in the hierarchy of value and form of process cannot be removed by will of the parties, being allowed to depart, by express Convention, the application of the rules on jurisdiction by reason of the territory, except in the cases referred to in article 110 and, when one of them is individual, paragraph 1 of the article 74 and paragraph 1 of article 94. 2 – […]. 3 – […]. 4 – […].
Article 808.º [...]
1 – […]. 2-enforcement agent functions are performed by a bailiff appointed by the judgment creditor, among those registered in any judicial district; in the absence of designation by the judgment creditor, are these functions performed by bailiff appointed by the Secretariat, pursuant to article 811.º-from among the registered district and in the counties bordering, or, in your absence, among those registered in another district of the same circle; There is no bailiff inscribed in circle or occurring cause of impossibility, are the duties of enforcement agent, with the exception of those specifically assigned to the bailiff, performed by bailiff, determined in accordance with the rules of distribution. 3 – […]. 4 – […]. 5-the steps involving relocation out of the area of the district and its adjoining, or the metropolitan area of Lisbon or Porto in the case of her district, can be carried out, the request of the designated enforcement agent and, being 6 this solicitor, under your responsibility, by implementing agent of the area; the bailiff's request is addressed to the registry of the Court of the judicial district of the stage area, through telematics or, it is not possible, by telephone or fax communication. 6 – […]. 7 – […].»
Article 2 Amendment to the Civil procedure code is added to the code of Civil procedure, Rule 138-A, is replaced by the following: ' article 138-electronic proceedings proceedings of the processes is carried out electronically in accordance with the set by order of the Minister of Justice and the procedural rules relating to actions of the magistrates and the judicial departments be subject of practical adjustments are necessary.»
Article 3 amendment to the Statute of the Chamber of bailiffs article 128 of the Statute of the Chamber of bailiffs, approved by Decree-Law No. 88/2003, of 10 September, is replaced by the following:% quot% article 128 [...]
1-the bailiff may delegate another bailiff the competence to practice all or certain acts in the process, communicating promptly that the part that designated and the Court. 7 2 – When the appointment has been made by the judgment creditor and accepted by the bailiff, the delegation of competence to practice all acts in a process lacks judgment creditor's consent, which may indicate the bailiff who wants to see delegated the competence. 3-If the delegation is only for certain acts in a process, the solicitor delegator remains liable under outreach. 4 – becomes holder of the process the bailiff who accepted the delegation of competence to practice all acts in this process, delegating responsibility ceases when carrying the delegation of competence. 5-the delegation provided for in this article still applies the Regulation process delegation approved by the Council General of the Chamber of bailiffs.»
Article 4 amendments to the annex to Decree-Law No. 269/98, of 1 September The articles 10 and 11 of the scheme annexed to Decree-Law No. 269/98, of 1 September, as amended by Corrigendum n° 16-A/98, of 30 September, and amended by decree-laws No. 383/99, of the 23 September, 183/2000 , August 10, 2001/323, of 17 December, 32/2003, of 17 February, 38/2003, 8 March, 324/2003, of December 27, as amended by Corrigendum No. 26/2004, of February 24, 2005, 107/July 1, as amended by Statement of Rectification No 63/2005 of 19 August , shall be replaced by the following: ' article 10 [...]
1 – […]. 2-in the application, should the applicant: a) [...]; b) […]; c) […]; d) […]; 8 e) [...]; f) […]; g) […]; h) […]; i) […]; j) […]; l) Indicate the competent court for consideration of the record if it is submitted to the distribution; m) [previous (l))]; n) [previous subparagraph m)]. 3 – […]. 4-[previous No. 5]. 5-[previous paragraph 6]. 6-[previous paragraph 7].
Article 11 [...]
1-[...]:) is not addressed to the competent judicial or does not comply with the provisions of 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 10 September 9 Article 2 of Decree-Law No. 202/2003, of 10 September, is replaced by the following: ' article 2 [...]
1 – where the technical means so permit, in the transmission of any documents, information, notifications or other messages directed to the bailiff, must the Court Secretariat using telematic means to guarantee the security of communications, namely its confidentiality and reliability, as well as the unequivocal identification of the transmitter and the receiver. 2-in the transmission of any documents, information or other messages addressed to the Secretariat, the bailiff must use the same telematic means referred to in paragraph 1, whenever the technical means so permit. 3 – […]. 4 – […].»
Article 6 Application in time this law applies only to actions and order requirements established or submitted after your entry into force.
Seen and approved by the Council of Ministers of 24 November 2005.
The Prime Minister, the Minister of Parliamentary Affairs Minister Presidency
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