Regarding the Chracteristics of the Deadline for Submission of an Action in an Admitted Injunction Cover Image

За характера на срока за предявяване на иска при допуснато обезпечение
Regarding the Chracteristics of the Deadline for Submission of an Action in an Admitted Injunction

Author(s): Tanya Gradinarova
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Нов български университет
Keywords: Injunction for Future Action; Crucial Deadline; Characteristics of the Deadline for Submission of a Future Action
Summary/Abstract: In the period since the entry into force of the current Civil Procedure Code (CPC) an extensive case law has accumulated on its application, including with respect to provisions that have introduced new institutes in the proceedings covered by the CPC. Unfortunately, in many cases this case law is controversial and necessitates the Supreme Court of Cassation (SCC) to align it through its interpretative powers under Art. 124, para. 1 of the Judicial System Act. Regarding the injunctions for a future action, the Bulgarian legislator through the provisions of Art. 390, para. 3 of the CPC has introduced two new rules for the court of the injunction: a maximum legal duration of the period for submission of the future claim of one month and the obligation of the court to revoke the granted injunction with own motion in the absence of evidence that the action was submitted within the deadline determined by the court within the one-month period. The application of these new rules has entailed different opinions in the case law, including on the level of the Supreme Court of Cassation. In many orders, held under the cassation proceedings for appellate orders under Art. 274, para. 3 CPC, the separate configurations of the SCC have held controversially on the issue: “Is it possible to extend the deadline under the conditions of Art. 63, para 1 CPC determined in the scenario under Art. 390, para. 3 regarding the submission of a future action.” The finding of different resolutions regarding the same procedural and legal issue within the current case law to the extent of court orders under Art. 274, para 3 CPC, held by different Chambers of the SCC is within the scope of the regulations under Art.292 CPC and reasons an initiation of proceedings for the upholding of an interpretive decision. In order to unify the controversial case law by the different Chambers of the SCC under the upheld procedural issue the Chairman of the SCC has held with a regulation from the 08th December 2015 an interpretive case No 4/2015 to be initiated by the General Assembly of the Civil and Commercial Division of the SCC, which is still to be held upon. The issue under discussion within this report is the critical analysis of the regulations under Art. 390, para 3 CPC as well as the existing two statements in the procedural theory and case law regarding the nature of the deadline for submission of an action in an admitted injunction. The author reasons her own statement in relation to the answer which the interpretive issue before the General Assembly of the Civil and Commercial Division of the SCC is supposed to resolve. As per the author, the deadline for submission of future action in an admitted injunction is crucial in its nature and cannot be extended beyond the determined by the CPC one-month period.