Refuting debtor’s legal acts (actio Pauliana)

The rule is that the obligatory relations between the debtor and third parties for the creditor are res inter alios acta. An exception to this rule is the possibility for a creditor to, under certain conditions, refute legal actions taken by his debtor with a third party.

The creditor refutes such actions by filing a lawsuit (actio Pauliana) against a third party i.e. by pointing out an objection against the third party’s claim against the creditor’s debtor or his legal successors, to whom the debtor has transferred certain rights.

Terms of Refuting debtor’s legal acts

The basic general premise for refutation is

  • that there is a creditor’s claim against the debtor due for collection (regardless of when it arose) and
  • that the debtor is insolvent (which the creditor is obliged to prove).

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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.

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Enforcement motion and writ of execution

Enforcement proceedings and security interest proceedings are initiated by a judgment creditor filing a motion for the enforcement based on enforceable or credible document or a motion for a security interest or ex officio only when provided by the law.

A court decides on the motion for enforcement based on enforceable or credible document and a security interest motion.

A public enforcement officer decides on the motion for enforcement based on the enforceable or credible document for settling monetary claims arising from utility services and related activities.

A public enforcement officer decides on the motion for enforcement for settlement of a pecuniary claim against the enforcement debtors such as the Republic of Serbia, autonomous province or a unit of the local government, an indirect beneficiary of the budget funds which has been indicated in the motion for enforcement as the enforcement debtor, against whom the enforcement collection is carried out in terms of the regulations governing the execution of the budget in the same manner as against the direct beneficiaries of the budget funds and indirect beneficiary of the budget funds.

The enforcement proceedings are conducted upon adoption of the writ on enforcement or on security interest.

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