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  1. 1 Studia Prawno-Ekonomiczne

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  1. 1 2013

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  1. 1 Krakowiak M.

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Przymusowe wykonanie orzeczeń o kontaktach z dzieckiem na przykładzie prawa hiszpańskiego, włoskiego i niemieckiego

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Krakowiak M.
Studia Prawno-Ekonomiczne
|
2013
|
vol. LXXXVIII (88)
97-120
XX
The purpose of this article is to discuss the legal model of enforcement of judgments regarding contacts with minor in Spanish, Italian and German Civil Procedure. Especially, the study of foreign laws in this cases is important, because by virtue of the Act on amending the Act – Code of Civil Procedure of 26 May 2011, was introduced to Polish Civil Procedure anew procedure for the mentioned matters. This type of procedure is one of the separate noncontentious procedure (Articles 59815–59821 of the Code). Firstly, in the article the presentation of Spanish law regulation is given. In the event of default judgments regarding contacts with child must be applied by analogy the regulations of enforcement of non-money orders (Articles 776, 699–711 of the Code of Civil Procedure of 7 January 2000, Ley de Enjuiciamiento Civil). Secondly, the article is focused on discussing Italian law regulation. Currently, the jurisdical doctrine emphasizes that in the mentioned matters, the new means of indirect enforcement of Article 614bis of the Code of Civil Procedure of 28 October 1940 (Codice di Procedura Civile) can be used. In accordance with Article 614bis of the Code, by the condemnation decision, except where this is manifestly unjust, upon motion by the party, the judge establishes the amount of money due by the obliged party, for any breach or next nonobservance, or for any delay in execution of the decision. Thirdly, the article contains an analysis of German law regulation. Under German law, the issue of the enforcement of judgments in custody cases is regulated by a separate Law on the Procedure in Family Matters and in Matters of Voluntary Jurisdiction of 17 December 2008 (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit, FamFG). Being forced execution of judgments in the mentioned matters are means for breach of order in the two form: pecuniary penalty (Ordnungsgeld) and subsidiary to it – penalty of arrest (Ordnungshaft). Must be understood, that enforcement of judgment for dealing with child rights holders, it is an extremely difficult issue process. This is due to the personal nature of the obligations and rights identified in the judgment and strongly accented necessary participation of stakeholders in the proper execution of the judgment.
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