Resolution of Supreme Court, Civil Chamber
2 December 2003
Case No. III CZP 92/2003
Involuntary capped mortgage
Payment order
Interim relief
1. A non-final payment order in a proceeding by writ of payment may be the basis for an involuntary capped mortgage, without issuance of an enforcement clause for the order.
2. A creditor whose claim has been reduced to a writ of enforcement as specified in provisions concerning execution proceedings may obtain an involuntary mortgage on the basis of the writ on all the debtor's real property. Under Art. 109(1) of the Act on Land and Mortgage Registers and on Mortgages, an involuntary mortgage may also be obtained on the basis of an interim order of the court or a decree by the prosecutor, pursuant to specific regulations, on the basis of a decision even if non-final, or an order granting interim relief pursuant to provisions on administrative execution proceedings (Art. 110). However, an involuntary mortgage entered on the basis of a non-final judgment, interim order of the court, prosecutor's decree or non-final decision is a capped mortgage (Art. 111).
3. It follows from the definition of an involuntary mortgage in Art. 109(1) of the Act on Land and Mortgage Registers and on Mortgages that the basis for entry of an involuntary mortgage is a writ of enforcement specified in provisions concerning execution proceedings.
4. Under Civil Procedure Code Art. 492 §2, a plaintiff seeking interim relief to secure its claim is required to indicate the type of security. Under Civil Procedure Code Art. 747(2), one of the methods for securing a monetary claim is to encumber the debtor's real property with an involuntary mortgage. The indication of this method of security, pursuant to a non-final payment order issued in a proceeding by writ of payment, which constitutes an enforceable writ of security without issuance of an enforcement clause, thus meets the requirements of Art. 110 of the Act on Land and Mortgage Registers and on Mortgages for obtaining an involuntary capped mortgage.