Proposition 53K2386

Projet de loi modifiant l'article 2244 du Code civil pour attribuer un effet interruptif de la prescription à la lettre de mise en demeure de l'avocat, de l'huissier de justice ou de la personne pouvant ester en justice en vertu de l'article 728, § 3, du Code judiciaire.

General information ¶

Submitted by

The Senate

Submission date

Sept. 23, 2010

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

lawyer civil law civil procedure legal expenses

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

N-VA VB

Abstained from voting

Groen Ecolo

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.
• Bernard Clerfayt (MR) voted to adopt.
• Damien Thiéry (MR) voted to adopt.

Contact form ¶

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Discussion ¶

Jan. 17, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister of Justice, dear colleagues, this text comes to us from the Senate. It is a parliamentary initiative that has become a bill whose objective is to allow the de-judiciarisation of certain procedural acts following registration in the role, but whose sole objective is to obtain an interruption of the prescription without resorting to debates on the substance of the case in question. This results in a congestion of the courts without the vocation to settle a dispute in the substance. Furthermore, this situation results in expenses to be exposed for the justifiable, which are often significant, while they must be so only on a conservative basis.

The aim is therefore to allow an alternative: the legislative text allows to give the lawyer’s mail an interruptive effect of prescription.

The work of our committee has enabled the extension of what was originally intended only for the profession of lawyer to other professions or judicial intervenants, as provided for in Article 728, § 3 of the Judicial Code. It was essentially on Mrs Becq’s insistence that this extension took place for any profession that has the capacity to be in court on behalf of a justiciable.

In the course of our work, some have regretted that this possibility is not open to judicial officers; the answer to this question was that these legal professionals do not find themselves in Article 728 of the Judicial Code.

The text provides guarantees to ensure that the arrest is considered as a proof document. There are various mandatory mentions and the precise date at which the prescription is interrupted.

Compared to the text from the Senate, we have focused on the use of languages: the Senate had specified some peculiarities in this regard, but it seemed easier for us to stay with the usual practice of the use of languages in judicial matters.

This text was voted by our committee on the basis of 9 votes in favor, 4 votes against and 1 abstention.

Mr. Speaker, I will take advantage of my presence at the tribune to say that my group will support this proposal in view of the objectives pursued, i.e. a disengagement of our courts when the objective pursued is not to resolve a dispute in the substance.

Mr. Speaker, Mrs. Minister, colleagues, concerning the objective of the bill, which was initially a bill, according to the applicants and signatories, a lot of claims would be submitted merely and solely to meet the limitation, thereby taxing the labor burden of the courts. Regardless of the numerical material and whether or not this statement can be confirmed here, I can indeed imagine that this is happening and that a solution must be sought for the overload of the courts. The solution presented here is to give the infringement order the shocking effect, with, of course, specific formal requirements, and in addition that it can be drawn up only by a lawyer or by extension by the proposal of Mrs Becq.

The original objectives and the idea of giving special strength to the interruption order may enjoy our support, but that this can only be drawn up by a lawyer goes a bridge too far for us. The reason is not, as was raised in the debates of the Senate, that this text was written by a lawyer, but because we consider that the professional responsibility of the lawyer is seriously compromised by this.

If we look at the range of existing limitations, which is already so wide and extensive that even the orders who want to give an overview of all the shocking limitations or all the shocking acts, can not even manage to put an overview on their own website, then you can see how complex the whole story of limitations and shocking acts is.

And then the lawyer is again confronted with a client-creditor, who at some point comes with his debt claim to his lawyer, with the documents he has at his disposal. And then, if that client himself can no longer see the forest through the trees, the lawyer himself must also again look at what shooting act he can make within what term.

I quote what the OVB said during the hearings: “A wise lawyer will not use the means of the interruption order when the last day of the limitation period has arrived.” “But if the deadline has almost expired, he still has the possibility to prosecute or have an order brought by a court executor.”

In fact, it is all logical, because which lawyer would want to risk a complaint for professional liability if he would just be a day too late with this breakdown order? He will therefore automatically switch to the classic means he has.

Another argument that we invoke is that there are also other actors, apart from the lawyers, to draw up such an interruption order. We think of the judges. The judge is legally trained for this purpose. Why should he not belong to the group that can prepare such an interruption order?

The submitters and signatories do not respond to this, except that a particular article in our legislation does not allow this. We could also have modified or expanded that article with court enforcers, but that didn’t happen.

Now it is the case that a lawyer is needed before the Court of Cassation or through a unilateral petition. An additional means is now being applied. For such a bankruptcy order, the creditor is now obliged to go to a lawyer. We find the shock for one year a little too extensive.

The creditor who would like to draw up such an order for default under the same formal conditions cannot therefore do so. He would have the possibility of drawing up a call, but not an interruption order.

This last element is crucial for us not to support this design.

Mr. Speaker, we support the objective of this draft to ⁇ more arrangements in mind. Especially when one determines that one is just ahead of the limitation period and is still in negotiation, in the hope that the additional term is requested in order to a settlement in the mind, which is about to be reached, can actually also be reached. We support this philosophy in order to ⁇ more friendly settlements.

We fear that the letter will not only be sent through a lawyer, but also because otherwise one would face an expired limit.

We also submitted amendments, although not all were eligible. For this we can give understanding. In the Senate, an amendment was submitted aiming to make it actually a letter with an invitation to make a friendly arrangement.

This is not prevented in the final text, among other things because this is not necessary in a summons and one can still have the deadline to run back through a summons.

We welcome the amendment that was adopted to create a slightly wider framework and to give those who can act according to Article 728, § 3 of the Judicial Code also the possibility to write an ageing letter.

We also welcome the legal certainty reinforced here by the amendments and the discussion on the fact that there must be clarity that the letter is actually delivered to the debtor concerned.

Mr. Speaker, Mrs. Minister, colleagues, the practice teaches us, as colleague Becq has just explained, that indeed there are often matters initiated with the sole purpose of stopping the limitation. This implies a greater burden on the seating roles, which is unnecessary and moreover expensive, because a litigation initiation does not only involve costs for rolling but also often for summons for the applicant, while those costs afterwards prove entirely useless when one still reaches a friendly settlement.

We will therefore support the present draft law in order to give a prescription effect only under certain conditions to the injunction by the lawyer and by those who can act in court. These conditions have been thoroughly considered and amended in the committee to serve the legal certainty.

In short, the bill supports the logic of process economy and we will ⁇ support it.

Last week the Flemish members of the Committee for Justice were invited to the Order of Flemish Balies, for an interview that will appear in the magazine Ad Rem, an edition of the OVB.

We were there treated on a number of questions and concerns from the lawyer’s profession. I have consistently adhered to the principle “give to the emperor what belongs to the emperor”, for example a decent remuneration for second-line legal assistance. I support the OVB’s request to come to a reform, but ⁇ not a restriction.

I have pledged as an absolute supporter of the exclusivity of the lawyer’s advocacy monopoly, against the fragmentation. I have also advocated that the Balais would be free to play themselves on the ongoing re-registration of the judicial landscape, so that they do not allow themselves by the legislator or the executive power to strike the throat of the compulsory unitary worship. I understand very well the weight, value, necessity and support of a well-functioning legal profession in a civilized society and a democratic rule of law.

Mr. Speaker, colleagues, as I am passionate about preserving what the lawyer’s profession stands for and must stand for, for decades, for centuries, so sharp and critical I stand against what the lawyer’s profession will accumulate here, namely something that traditionally does not belong to the duties and functions of the lawyer’s profession, because the lawyer sweets here of something that belongs to the court enforcement officers, the notaries and the public officials.

The lawyer is in principle not neutral. He is not impartial. That is not his job. He must be partial. He does not have to be neutral. In some cases, it may not be neutral. I therefore consider it a dangerous evolution that a lawyer can unilaterally provide his or her client with a right or title through a simple letter, sometimes to an unconscious party. I am afraid of abuse. I don’t want to shave everyone in the lawyer’s profession on the same shave. I do not do this anywhere in society, for any group or professional group. So I fear disadvantages, especially for the socially weaker.

The fears of CD&V colleague Becq are, in my opinion, right. I do not think, colleague Becq, that it will lead to more friendly settlements. It may cause friendly settlements to be framed by the throat of those involved, but then for me it is no longer a friendly settlement.

What appears here can ultimately be used against the advocacy monopoly for the lawyer, against the exclusivity. It can only bring about further extraction. After all, what will certain professional groups, actors of the court, say to the lawyers: you sweat of us; we will now also sweat of the powers of the legal profession.

I am therefore not in favour of what is presented here today, because the artistic confusion between the professional groups in society and between the actors of the court is still increasing.

I consider this bill a gift of the parties of the majority to each other. They have been distributed in the past and will follow.

I will return at the appropriate time. I think the draft law once again proved that the 2014 elections are in place because, ladies and gentlemen, liberals and Christian Democrats, I do not understand that you approve that text.

Mr. Speaker, colleagues, the bill, which is an initiative of the Senate and which was transmitted to the House and is put here for voting today, is important, because it can provide a solution.

There are a number of disadvantages to the current state. The draft legislation proposes an alternative that meets the legal certainty that a creditor rightly seeks, but without the disadvantages of current practice. A creditor can, in fact, call on a lawyer to send a bankruptcy order to the debtor by registered letter with receipt.

The notice of default by a lawyer will therefore not be able to suspend the limitation indefinitely, but, in so far as it occurs within the original limitation period, will be able to start a new limitation period.

The draft law also specifies the formal requirements and the provisions to be contained in a notice of failure, taking into account the safeguards justifiably requested by the Council of State.

I think a very good bill is being put to the vote here today.

May 2, 2013 | Plenary session (Chamber of representatives)

Full source

This bill, which we have already discussed, has been amended by the Senate. The purpose is to allow the lawyer’s letter of notice to have an interruptive effect. The Chamber Committee had extended this to persons entitled to represent prosecutors before courts. The Senate removed this extension. Our committee reintroduced it in the text and was sensitive to the demand of the profession of judicial officers who are, too, now covered by the text and who will also be authorized to give this interruptive effect to a letter of notice.

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