Law on Enforcement and Security Interest

Instruments and subject of enforcement

By the provisions of the Law on Enforcement and Security Interest  (“Off. Herald of RS”, Nos. 106/2015, 106/2016 – authentic interpretation,113/2017 – authentic interpretation, 54/2019 and 9/2020 – authentic interpretation) were regulated terms and types instruments of enforcement and enforcement subjects, as well as issues related to the application of the principle of proportionality,multiple instruments and subjects of enforcement, amending and adding instruments and subjects of enforcement.

Instruments of Enforcement

Actions used to settle a claim of an enforcement creditor are instruments of enforcement.

The following are instruments of enforcement for collecting a monetary claim:

  • sale of the enforcement debtor’s immovable property
  • sale of the enforcement debtor’s movable assets
  • joint sale of immovable property and movable assets
  • assignment of the enforcement debtor’s monetary claim
  • transfer of the enforcement debtor’s salary
  • transfer of the monetary funds from the enforcement debtor’s bank account
  • transfer of funds from the enforcement debtor’s savings account or checking account
  • sale of the enforcement debtor’s financial instruments
  • sale of the enforcement debtor’s stake in companies, and
  • assignment of the enforcement debtor’s claim to have the movable assets or immovable property surrendered or delivered to him, or cashing of other property rights of the enforcement debtor.

The following are instruments of enforcement for collecting a non-monetary claim:

  • surrender of the enforcement debtor’s movable assets
  • vacating and surrendering of the enforcement debtor’s immovable property
  • acts, omissions or sufferance of the enforcement debtor
  • surrender of a child and enforcement of other rulings in family matters
  • reinstatement of an employee
  • the division of joint property, and
  • obtaining a statement of will.

Enforcement Subjects

Subjects of enforcement are objects and rights of the enforcement debtor against which the enforcement is carried out.

Subjects of enforcement may not be the objects that cannot be:

  • legally traded facilities, weapons and equipment intended for the security and defence of the Republic of Serbia
  • neither immovable nor movable objects used by state bodies to carry out tasks within their jurisdiction
  • pecuniary funds and financial instruments that have been determined as collateral following the law governing financial security interest, including pecuniary funds and financial instruments encumbered by a lien in accordance with that law
  • neither other rights and objects that are exempted from enforcement by Law on Enforcement and Security Interest or other law.

Principle of Proportionality

In choosing the instruments and subjects of enforcement in order to settle monetary claims, the public enforcement officer shall take care that the amount of the enforcement debtor’s liability is proportional to the instrument, and the value of the subject of enforcement.

When choosing among multiple instruments and objects of enforcement, the public enforcement officer shall ensure, ex officio, that the enforcement is carried out with that instrument or on that object which are least disadvantageous to the enforcement debtor.

The proportionality principle does not apply if the enforcement debtor has agreed in the form of a legal instrument or legally certified document that the enforcement is to be carried out with specific instrument and on a specific subject of enforcement, or if it is undoubtedly established that there is only one instrument and one subject of enforcement from which the claim of the enforcement creditor can be settled.

Multiple Instruments and Subjects of Enforcement

As a general rule, the writ of execution for the settlement of monetary claims determines the instrument and the subject of enforcement specified in the enforcement motion.

If the enforcement motion designates multiple instruments and subjects of enforcement to be carried out simultaneously, the writ of execution shall determine all of them.

If the writ of execution determines multiple instruments and subjects of enforcement, the public enforcement officer shall, ex officio or upon a motion of a party, issue a conclusion to limit the enforcement to only certain instruments and objects that are sufficient for settlement of the enforcement creditor.

If they are not sufficient for settlement of the enforcement creditor, the public enforcement officer adopts a conclusion to order the implementation of enforcement on the next instrument and the subject of enforcement.

Amending and Adding Instruments and Subjects of Enforcement

If the settlement is not possible from the instruments and subjects of enforcement which have already been determined, the public enforcement officer shall, ex officio or upon a motion of a party, adopt the conclusion to change the instrument and subject of enforcement, or to determine that the enforcement shall continue on other instruments and objects of enforcement, in addition to those already determined.

The public enforcement officer shall, ex officio or upon a motion of a party, adopt the conclusion to change the already determined instrument and subject of enforcement, if there is an obvious disproportion between the set instrument and subject of enforcement and the amount of the claim of the enforcement creditor.

Read more:
Enforcement motion and writ of execution »
Competence for conducting enforcement »
Legal remedies in enforcement proceedings »

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