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Promjena tražioca izvršenja u toku izvršnog postupka

U posljednjih nekoliko godina, ovo pitanje se kao sporno pojavilo pred većinom sudova u Bosni i Hercegovinu, što je posljedica velikog broja parničnih i izvršnih postupaka u kojima su pravna lica koja se bave otkupom i (ili) naplatom potraživanje bili na strani tužioca odnosno tražioca izvršanja.

 

Prema čl. 30 Zakona o izvršnom postupku Republike Srpske izvršenje se određuje i na prijedlog i u korist lica koje u izvršnoj ispravi nije označeno kao tražilac izvršenja, ako ono javnom ili ovjerenom privatnom ispravom dokaže da je potraživanje na njega preneseno ili da je na njega na drugi način prešlo. Ako se prenos ne može dokazati na taj način, stranke svoja prava vezana za prenos potraživanja mogu dokazivati samo u parničnom postupku.

 

Dakle, navedenom odredbom je „pokrivena“ situacija kada je cesijom preneseno potraživanje na drugo lice prije pokretanja izvršnog postupka, pa se kao logično postavlja pitanje kako će sudovi postupati u slučaju promjene tražioca izvršanja u toku izvršnog postupka.

 

Takođe, navedena pravna lica su legitimno isticala i pitanja u pogledu toga da li bi citirani čl.30 ZIP trebalo tumačiti na „prošireni“ način da se dozvoli izvršenje i u korist lica koje nije u vjerodostojnoj ispravi označeno kao tražilac izvršenja.

 

Mišljenja sam da nema smetnji da se odredi provođenje izvršenja u korist lica koje u vjerodostojnoj ispravi nije označeno kao tražilac izvršenja, ali u situaciji kad je rješenje o izvršenju postalo pravosnažno, čime ono ima pravni karakter izvršne isprave i izvršava se kao svaka druga izvršna isprava. Kada se na osnovu ovjerene javne isprave (notarskog ugovora) prenesu potaživanja tražioca izvršenja na treće lice, a pogotovo kada taj prenos niko ne osporava, ne vrijeđa se načelo zaštite stranka, jer promjena tražioca izvršenja ni na koji način ne dovodi u pitanje zaštitu interesa izvršenika

 

Međutim, promjena tražioca izvršenja u toku izvršnog postupka pokrenutog na osnovu izvršne isprave potencijalno može imati negativne posljedice u smislu usporavanja i usložnjavanje postupka, te mogućih zloupotreba u slučaju blokade računa u cilju izigravanja povjerilaca i redosljeda namirenja, zbog čega bi po meni promjenu na strani tražioca izvršenja u toku postupka trebalo dozvoliti tek po pravosnažnosti rješenja o izvršenju, odnosno samo u ovom slučaju (uz ispunjavanje drugih uslova).

 

U smislu navedenog, prvenstveno bi višestepeni sudovi trebali težiti ka tome da zauzmu jednolične stavove, te da svojim autoritetom otklone nedoumice i nesigurnost, kako bi se i na taj način uticalo na zakonodavca da izmijeni navedenu odredbu.  

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