Instruments that correspond to the executed debtor in enforcement proceedings

Abstract

The aim of the study developed below is to analyse the defence instruments under the Spanish legal system that correspond to the executed- debtor in enforcement proceedings(which reduce the opposition causes in order to give an agile and fast legal response to those who are authorized with a judicial or extrajudicial enforceable title), without the prejudice to offer a sub- sequent declaratory procedure so that can be defended those issues that could not be argued in the previous enforcement proceedings. In this scenario, several questions, which are considered below, arise about (i) the opposition causes in the enforcement proceeding, (ii) the situation of procedural abuse that may be developed by the performer staking advantage of executed-debtor’s limitation to exercise objections in the enforcement proceed- ings, (iii) whether the executed party can plead or the judge apply article 247 of Civil Procedure Law and article 11 of Judiciary Organic Law in the previous execution, (iv) the determination of the content of the estoppel and res judicata regarding the matters that have been claimed in the enforcement proceeding and that may be claimed in the subsequent declaratory procedure set put in article 564of Civil Procedure Law; (v) the nullity action of the previous execu- tion and, ultimately, (vi) whether the mechanism of the reserve of allegations for the subsequent declaratory procedure complies with the principle of due process of law set out in article 24 of Spanish Constitution.