October 2015
Law 42/2015, of October 5, reforming the Civil Procedure Law
On October 6, it was published in the Official State Gazette (hereinafter, “BOE“) Law 42/2015, of October 5, reforming Law 1/2000, of January 7, on Civil Procedure (hereinafter, “Law 42/2015” and “LEC”, respectively).
Through Law 42/2015, relevant modifications are introduced in the LEC and in other regulatory texts, among which the one that affects the Civil Code in matters of prescription stands out.
1.- Reform of the LEC.
1.1.- Presentation of writings and documents.
The obligation is introduced for all justice professionals and judicial bodies and prosecutors’ offices to use the existing telematic systems in the Administration of Justice for the presentation of writings and documents. In any case, the following subjects will be obliged to intervene through electronic means: (i) legal entities; (ii) entities without legal personality; (iii) those who carry out a professional activity for which mandatory membership is required, for the procedures and actions they carry out with the Administration of Justice in the exercise of said professional activity; (iv) notaries and registrars; (v) those who represent an interested party who is obliged to interact electronically with the Administration of Justice; and (vi) Public Administration officials for the procedures and actions they carry out due to their position.
The possibility of submitting documents and documents by electronic means is provided for every day of the year, twenty-four hours a day.
1.2.- Acts of communication by computer means.
A global application of telematic means is made to the different procedural actions. The use of telematic means also extends to the processing of warrants, orders and letters, exhibition of documents in compliance with preliminary proceedings or presentation of expert reports.
On the other hand, in order for electronic communication to be the usual way of acting in the Administration of Justice also in relation to citizens, it is expressly established that acts of communication may be carried out at the electronic address enabled by the recipient or through another telematic system, although this will be possible from January 1, 2017 to interested parties who are not legal professionals and who are not represented by a solicitor.
1.3.- Representation.
The possibility of granting representation to the attorney by means of power of attorney is foreseen.apud actby electronic appearance at the corresponding judicial headquarters, as well as proving said power of attorney through its registration in the electronic file of powers of attorney.apud actwhich will be created for this purpose and will come into force on January 1, 2017. Until that date, the accreditation of the power of representation will continue to be carried out as before, by means of power of attorney or power of attorney.apud actgranted through personal appearance before the judicial secretary.
1.4.- Powers and obligations of attorneys.
The list of powers and obligations of attorneys with respect to carrying out acts of communication is reinforced. As a notable novelty, attorneys are granted the certification capacity to carry out all acts of communication, which will allow them to practice them with the same scope and effects as those carried out by officials of the Judicial Assistance Corps and, with this, they are exempted from the need to be assisted by witnesses.
In any document that initiates a judicial, execution, or other procedure, the applicant must express whether he or she is interested in all acts of communication being carried out by his attorney. If nothing is stated in this regard, the judicial secretary will proceed with the proceedings, carrying out such acts of communication by the officials of the Judicial Assistance Corps as until now.
1.5.- Verbal trial.
Law 42/2015 provides for relevant modifications in the regulation of verbal trials, highlighting, first of all, the introduction of the written response, which must be presented within a period of ten days (half of that established for the ordinary procedure).
Likewise, it is anticipated that the statement of claim will have the content and form of the ordinary trial. For these purposes, the rules of ordinary trial regarding preclusion of allegations and lis pendens will also be applicable. Exceptions are, however, verbal trials in which a lawyer and attorney are not involved, in which a succinct complaint may be prepared, with standardized forms available in the judicial offices that can be completed for this purpose.
In turn, it is provided that, once the claim is admitted, it will be communicated to the defendant who may respond in writing within a period of ten days in accordance with the provisions for the ordinary trial.
On the other hand, it will be the parties who decide on the appropriateness of holding a hearing, so that if none of them requests it, and the court does not consider it appropriate to hold a hearing, a ruling will be issued without further formalities. However, it will be enough for one of the parties to request a hearing for the court secretary to set the date and time for it.
Additionally, the processing of conclusions in the oral trial, the appeal regime for resolutions on evidence are regulated, and it is required that the proposal of the evidence for the interrogation of the party be announced in advance.
In any case, the modifications carried out by Law 42/2015 will not affect the verbal trial processes that were in progress prior to October 7, 2015 (date of its entry into force), and their processing will continue in accordance with the previous procedural regulation until a final resolution is issued.
1.6.- Monitoring procedure.
A procedure is introduced in the monitoring procedures that will allow the judge, prior to the judicial secretary agreeing to make the request to the debtor party, to assess ex officio the possible existence of abusive clauses in contracts concluded between a businessman or professional and a consumer or user. To this end, the abusive nature must be appreciated in clauses that constitute the basis of the request or that have determined the amount required.
Likewise, the possibility of judicial control of abusive clauses is incorporated into the execution of arbitration awards, as is already provided for non-judicial titles.
This modification will apply to monitoring processes that begin after October 7, 2015. With respect to monitoring procedures that are being processed upon the entry into force of Law 42/2015, it is provided that they will be suspended by the court secretary when the initial request is based on a contract between a businessman or professional and a consumer or user, so that the judge can appreciate the possible existence of any abusive clause.
1.7.- Exchange judgment.
The new wording of article 826 of the LEC, relating to the substantiation of exchange opposition, grants the creditor a period of ten days to challenge the debtor’s opposition letter (while in the previous wording the judicial secretary summoned him directly for the hearing).
Additionally, the parties are granted the possibility of requesting the holding of the hearing, in their respective writings of opposition and challenge thereof. As occurs in the verbal trial, if the parties do not request a hearing or if the court does not consider it appropriate to hold it, the opposition will be resolved without further formalities.
2.- Modifications to the Civil Code regarding prescription.
By virtue of the first final provision of Law 42/2015, article 1,964 of the Civil Code is modified, significantly reducing the general term for personal actions. Thus, personal actions that do not have a specific prescription period will prescribe five years from when compliance with the obligation can be required (compared to the fifteen years provided prior to the reform). In the case of continued obligations to do or not to do, the calculation of the limitation period begins each time they are breached.
This reform of article 1,964 of the Civil Code has been in force since October 7, 2015. With respect to relationships born before October 7, 2015, the fifteen-year period provided for in the previous wording of article 1,964 of the Civil Code will generally apply. However, as an exception, it is foreseen that the fifteen-year limitation period will be reduced to five years in those cases in which, as of October 7, 2015, there were more than five years left to reach the expiration of the maximum fifteen-year limitation period.
3.- Entry into force.
In general, Law 42/2015 came into force the day following its publication in the BOE (that is, on October 7, 2015).
However, the provisions relating to the obligation of all justice professionals and judicial and fiscal bodies and offices to use the telematic systems existing in the Administration of Justice for the presentation of writings and documents and the performance of acts of procedural communication, will come into force on January 1, 2016, with respect to the procedures that begin from this date.
On the other hand, the provisions relating to the electronic filing of powersapud actand the use by interested parties who are not justice professionals of the telematic systems existing in the Administration of Justice for the presentation of writings and documents and the performance of acts of procedural communication in the terms indicated above, will come into force on January 1, 2017.
The content of this Alert is for informational purposes only. Any decision or action based on its content must be subject to appropriate professional advice.
