The designation of a legality and enforceability clause is a reality of almost every court decision. However, the notorious procedure for marking validity clauses may not be as simple as it seems at first glance.

Entry into force of the decision de iure

The institute of entry into force of a court decision is regulated by Act no. 99/1963 Coll. The Code of Civil Procedure (hereinafter referred to as the "OSP"), as amended. § 159 of the OSP stipulates that a court decision, resp. the judgment is valid if it has been delivered and cannot be challenged on appeal. It follows that, if the conditions for delivery and the impossibility of challenging the judgment on appeal are cumulatively fulfilled, the judgment is de jure final.

Entry into force of the de facto decision

However, in order for a final judgment to be realistically applicable, it must also meet other criteria. One of these is the marked validity clause, resp. validity and enforceability clause. The validity clause is marked according to § 62 of the Decree of the Ministry of Justice of the Slovak Republic no. 543/2005 Coll. on the Administrative and Office Rules for District Courts, Regional Courts, the Special Court and Military Courts (hereinafter also the “Administrative Procedure Code”), as amended, by the Judicial Secretary.

According to the Rules of Procedure, "As soon as the Registrar finds that the decision has entered into force, he shall mark on the original of the decision bound in the case file the date on which the decision entered into force and affix his signature and the date of marking." Subsequently, anyone to whom the decision has been served can ask the court to indicate the clause.

However, generally binding legislation does not regulate the ways in which a Registrar can learn that a decision has entered into force. According to §45 et seq. OSP the generally accepted way is the return of the so-called delivery notes with the marked date of service of the decision and other legal requirements, or alternative service.

Still, situation may occur where the service of the decision meets all the statutory requirements, but the delivery note of the court that served the decision will not be returned (loss, impairment in the context of postal transport or court activity). Provided that this decision cannot be challenged on appeal, the decision is de jure valid, and in the case of judgments for enforcement, also enforceable after the expiry of the enforceability period. However, in the event of the need to comply expeditiously with the obligation imposed by the judgment, it is not possible to enforce the debtor because the Registrar is unaware of the delivery of the judgment and cannot therefore indicate the validity and enforceability clause. An example from practice can be given for illustration.

Both the plaintiff and the defendant were correctly served with the court's order. One month after this service, the plaintiff is trying to find out as to the validity of the order and finds that the order is not yet valid, as the court does not have a return receipt from the order addressed to him. The plaintiff claims that the order has been served on him and will also inform the court clerk of the date of service of the order. Despite his insistence, the court employee does not complain about the postal transport service. However, the plaintiff needs the order with a marked validity and enforceability clause. In the meantime, the plaintiff finds that, according to the date of service on him and the other party, the de iure order is already valid. Still, the Registrar cannot mark the validity clause on the original of the order without all the documents being served. Therefore, if the delivery note is lost or devalued and at the same time no complaint is made about the postal transport service, the resolution will never de facto become valid. Neither the legal order nor the case law deals with such a situation, so the solution is left to legal-application practice.

Meaning of the provision of § 62 of the Rules of Procedure could be interpreted as if the Registrar in any way learns of the fact that the decision is valid, he shall mark the validity clause. Ad absurdum, this explanation would, for example, include a telephone notification of the addressee of the delivery of the judgment. Of course, neither the excessive formalization of the procedure for marking validity clauses nor the arbitrariness of the Registrar in assessing the relevance of information on the service of a decision contributes to legal certainty.

As a compromise solution could serve a solemn declaration of the addressee on the fact of delivery, the date of delivery of the decision and mandatory requirements according to §144 par. 2 of the Administrative and Office Rules [1]. On the basis of this statement, the Registrar could indicate a validity clause pursuant to § 62 of the Administrative and Office Rules.

It can be argued that such a practice is exploitable, on the other hand, the Registrar has the possibility to find out when the judgment was sent and, on that basis, to consider whether the information given in the affidavit is true [2].

It is also possible to argue that according to § 62 of the Administrative and Office Rules, the Registrar has no power to decide, on the basis of § 5 par. 2 letter (a) of the Rules of Procedure may, however, request the instruction of a judge or the President of the Chamber.

Conclusion

In the light of the above, it is possible to reflect on the intention of the legislator in interpreting the legislation referred to in the article in relation to the principle of substitute service in civil proceedings, the principle of "vigilantibus iura scripra sunt" and thus to find the most appropriate solution. However, due to the smaller number of occurrences of similar cases, the author does not recommend the legislation adjustment, precisely in order to avoid the need of excessive case studies of legislation.

[1] To be indicated on the receipt

a) consignor,

b) proceedings number,

(c) an indication of the document served, including the number of the letter, such as "Article 45 judgment", "Article 12 order" or "Article 120 indictment"; and

(d) the addressee.

[2] In particular the date of delivery to the addressee