Each beneficiary has the right to choose the person of the executor, or enforcement office, which will enforce the decision in the event that the obligee did not comply voluntarily. The choice of the executor is purely up to the authorized person, and the choice does not need to be justified in any way.
The length of execution proceedings varies and can never be precisely determined. Some enforcement proceedings last only a few months, others many years. Especially in the case of longer-lasting execution proceedings, a situation may arise when it is necessary to change the executor who is authorized by the court to conduct the given execution. The reason for changing the executor can be both the will of the beneficiary and a situation that the beneficiary cannot influence. Such a case is the termination of the performance of the enforcement office, the conditions of which are defined in § 120 of Act No. 2001/15 Coll.
The performance of the executor's office ceases upon the death of the executor, the declaration of the executor as dead, the loss of citizenship of the Czech Republic, the limitation of the executor's autonomy, the legal force of a decision to impose a disciplinary measure, an appeal from the executor's office, and the legal force of a court decision to impose a penalty of banning the executor's activities, or the legal force of a court decision on imposition of an unconditional prison sentence. The executor can also be dismissed directly by the minister for reasons given by law. According to § 15 paragraph 1 letter h) the executor himself may also request the termination of the execution of the executor's office. The performance of the executor's office then expires 6 calendar months following the month in which the executor's request to terminate the performance of the executor's office was delivered to the Ministry.
Of course, the Enforcement Code provides for the possibility that the performance of the enforcement office may cease during the enforcement proceedings. As a rule, a new executor is appointed to the executor's office, whose performance has ceased. In the event that the executor's office ceases to exist and the enforcement proceedings have not yet been completed, according to § 15 paragraph 5 of the enforcement order, this new executor is obliged to take over all the files of the original executor's office and seamlessly follow up on the execution and other activities of the original executor. However, since this new executor is not the one the beneficiary chose when submitting the application for the execution order and who was originally authorized by the enforcement court to lead the execution, the law gives the beneficiary the option to change this new executor, if necessary. The new executor has a legal obligation to inform the participants in the enforcement proceedings (i.e. the beneficiary and the obligee, possibly also the spouse of the obligee, if he is a participant) about the change and at the same time he must inform the beneficiary that he can request a change of executor. The decision is up to the beneficiary whether he decides to change or stay with this new executor.
The executor can be formally changed in two ways specified in § 44b of the Enforcement Code. The first of the methods is a proposal by the person authorized to change the executor, to which both the original executor (or the executor who took over the executor office) and the newly elected executor agree. This assumption of execution does not have the nature of a decision.
If the executor is not changed in the manner mentioned above, i.e. in the event that the affected executor/executors do not agree to the change, the enforcement court decides on the change of the executor during the enforcement proceedings at the request of the beneficiary. The problem arises when both options are combined into one, which the law does not foresee.
The Supreme Court of the Czech Republic also dealt with the above situation. On 27.6.2017, his decision was issued under sp. stamp 20 Cdo 179/2017. In this case, the appellant - the entitled party demanded a change of executor in connection with the termination of the execution of the executor's office in Přerov. The new executor agreed to the change, but still required formal confirmation by the enforcement court. The beneficiary therefore filed a proposal to change the executor in accordance with § 44b paragraph 2 of the enforcement order to the enforcement court. The execution court rejected this proposal. The regional court confirmed the decision of the district court. He justified his decision by the fact that there is no need for a court decision in this matter and it is possible to proceed according to paragraph 1, since both executors agree to the change. A substantive decision was therefore issued in the proceedings. Subsequently, she filed a justified appeal, as the regional court's decision was based on an incorrect legal assessment of the case, because the court decided on something it should not have decided on, which it itself admitted in its decision. The Supreme Court ruled in favor of the claimant and justified its decision with the following:
"In the event of termination of the performance of the executor's office for the reason specified in § 15 paragraph 1 letter h) ex. of the Code, the executor appointed to the executor's office, whose performance has expired, takes over the files of this executor's office and instructs the authorized person that he can request a change of executor. In such a case, a reason for changing the executor is given by law; The court does not examine the reasons of the head of the authorized person for the requested change. The court must (with the only caveat that the person named in the proposal is not authorized to perform enforcement activities) always comply with such a proposal. The court will do so in the form of a simple authorization (compare the similar procedure regulated in § 43a, paragraph 4 of the ex. order), by which it relieves the newly appointed executor of the vacated office and at the same time authorizes the authorized proposed executor to carry out the execution. The consent of the executors concerned does not presuppose such a procedure. It is an expression of the fact that the law does not allow the authorized to influence the election of a new executor in any way. The authorization is not a decision, it is not delivered to the participants, but only to the affected executors, when a similar procedure applies here as well according to the provisions of § 43a paragraph 4 ex. order."
The Court of Appeal therefore changed the challenged resolution of the regional court so that the resolution of the district court is annulled and the proceedings are stopped. In conclusion, he stated that the district, or The regional court should not have decided on the merits of the matter at all, since the conditions of the proceedings were not met and after the submission of the petition, the proceedings should have been stopped according to § 104, paragraph 1 of Act No. 99/1963 Coll., Code of Civil Procedure, and the court should have given consent in the form of a simple authorization to lead execution.
Summarizing the above, in the event that there is a change of executor due to the termination of the executor's office and the appointment of a new executor ("temporary"), who automatically takes over all enforcement proceedings after his predecessor, he is not entitled to another immediate change of executor by will it is necessary to require the consent of the executor "temporarily" leading the execution with the authorization to lead the execution by another enforcement office, nor the consent of the newly elected executor, and the court should not decide on this matter in the form of a decision. The court will only entrust the newly elected executor with the further management of the given execution (see § 43a, paragraph 5 of the Execution Rules).
Source: epravo
