Opposition to the precept, or appeal against enforcement ?

The peculiarity of the judgment 17 October 2019, n. 26285 the third of the Supreme Court civil section resides in the fact that, declared the appeal inadmissible, the judges set out to examine the procedural issues involved in the dispute. Well, issues addressed in point of law can be summarized schematically in the relationship existing between the opposition c.d. 'Pre-executive’ (ex art. 615, comma 1, c.p.c.) and that the execution (ex art. 615, comma 2, c.p.c.). According to the traditional approach of the Supreme Court – substantially confirmed even after numerous reforms introduced between the 2005 and the 2016 – the relationship between the two forms of opposition is of 'lis pendens'. Subject to the specifications on the following. The Supreme Court says, beyond the deceptive appearances, the requested Opposition pre-execution and execution coincide, as also conducive to a finding of non-existence, in whole or in part, the proceeding creditor law executivis. The only difference between the two is that the opposition before this right was only announced, while in the second it has already been implemented. And if the victorious outcome, for the opposing party to the precept, It resolves itself in the recognition of the right of the creditor to act mere absence executive, this assessment of illegality can not relate, more so, enforcement started pending the definition of that judgment. The identity of the cause of action is not, by S.C., to be ascertained from time to time, in view of the reasons adduced by the opponent. Certainly you can not configure lis pendens when the opposition is executive sull'impignorabilità funds of assets, for the simple reason that the debtor meets the obligations taken on all its present and future assets (art. 2740 c.c.), but only after the execution began identifying the goods under bond pledgee. For the rest, the reasons underlying the two types of oppositions are potentially coincident. For this reason, the case law favorable landing the operating framework of the relationship in terms of lis pendens is deemed to be confirmed. It must however be stated that the assumptions of lis pendens are still rather limited: when the causes are pending in two different courts, while for identical or connected pending before the same office are quite follow Arts. 273 e 274 c.p.c., that allow and prescribe the meeting. There are also specific instances where procedural reasons prevent the meeting, when a case is ruling over the other or have already received a judgment, which fall within the scope of the suspension of the institutions in accordance with Articles. 295 e 337 c.p.c. So the cases of pre-execution pending challenge before the judicial office other than the one where the opposition is hinged execution, They are not so numerous. In particular, They occur when: a) the creditor declares his residence or elect domicile in a district where there are assets of the debtor different from those that will then actually seized; b) The injunction does not contain the statement of residence, or the address for service and is served on the debtor in a place other than that in which the enforcement action will be taken; c) the lender make a choice of domicile 'abnormal’ and the debtor, in the appeal against, adhere to that statement nor the judge, clerical, detects the lack of jurisdiction. In such cases the pre-establishment will have executive opposition before a court other than territorial jurisdiction to the opposition to the execution and enforcement court, to the extent that the reasons for the oppositions are identical, He must declare the lis pendens between the two cases. Another hypothesis is given when the opposition to rule belongs to the responsibility for the value of the justice of the peace. At this point it dictated the first of a long series of legal principles: "There is lis pendens between the opposition and the opposition to rule execution subsequently brought against the same enforceable, when the two actions are based on identical facts constituting, concerning the non-existence of the right to proceed to enforcement, and provided that the causes hang before different courts. Instead assumption - most likely - where the two opposition, summed up the second in about, prove pending before the same court office, the same it must have the meeting, pursuant to Article. 273 c.p.c.; or, if this is not possible for procedural impediments, must suspend prejudicially the second leading cause, pursuant to Article. 295 c.p.c.”. and further: “Opposition to the precept and the opposition to the execution subsequently brought against the same enforceable, based on identical facts constituting and pendants, the merits, before the same judicial office, They are united office, pursuant to Article. 273 c.p.c., subject to the forfeitures, vested in the case brought first".Successivamente the survey delves more and more in provisions and focuses on the relationship between interim measures taken in opposition to the precept and those issued in opposition to the execution; the first I intended to produce an 'external suspension', the seconds to generate an 'internal suspension'. first, in art. 615 comma 1 c.p.c., It is analogous to what protection to that, before the reform of 2005, was offered to the debtor an enjoined by Article. 700 c.p.c.; similar in the sense and to the extent that with it the debtor's assets is protected by application of conservative and expropriation constraints that may lead to enforcement, since the effectiveness of the enforcement order, just, suspended. The second (internal suspension) instead operates pursuant to Article. 624 c.p.c. and does not affect the title executive but on the single expropriation process within which it is pronounced ('Internal', therefore, the specific executive action taken by the creditor). Here the individual process stalls, but the lender can take other enforcement actions on the basis of Title. Consequently, in case of external suspension, the debtor does not have to institute proceedings pursuant to Article. 615, comma 2 c.p.c. proseguibilità action to challenge the executive and the judge, after declaring the former suspension Article. 623 c.p.c., should not set a deadline for the introduction of the former judgment about art. 616 c.p.c., because in such a case it continues the judgment within which was placed the enforceability of suspension of the title. Rather, as expressed in the penultimate principle of law enunciated by the Court, “the only judgment that the parties are required to cultivate is, already introduced, precept of opposition, with respect to which a new cause would arise in relation to lis pendens”. Therefore, the start of executive action does not prevent the court first seised in opposition pre-execution to provide the instance of the suspension that has already been addressed under Article. 615, comma 1, c.p.c. In addition to the principles already set out, it is stated that "the appellate court in the precept which has been requested to order the suspension of enforceability of title pursuant to Article. 615, comma 1, c.p.c,, It does not lose the power to provide for instance due to the implementation of the execution or, anyway, for the initiation of executive, so that the order of suspension by these pronounced subsequently determine the external ab ex suspension Articles. 623 e 624 c.p.c. of all the enforcement procedures in the meantime established”. E “the attachment executed after the opposition to judge precept has ordered the suspension of execution of the title is radically null and such invalidity should be recognized, even ex officio, the enforcement courts“. The Supreme Court also determines the further principle that, when they are simultaneously pending the opposition to the precept and the opposition to the execution already started on the basis of that same precept, "The two judges have a mutually exclusive competence as regards the adoption of the suspensive measures of their respective competence, in the sense that, although the opponent can in theory turn to one or another judge, Once you filed the petition before the one with the power 'greater’ – (the appellate court to rule) –, he completely consumes his power and procedural, therefore, will no longer refer to the same end, the judge, even if the other has not yet pronounced”.