The new Non-contentious Proceedings Act takes up the commitment the legislator made in the eighteenth Final Provision of the Civil Procedure Act 1/2000 definitively separating non-contentious proceedings from common procedural regulation.
The coming into force of the new Non-contentious Proceedings Act (hereinafter, the “LJV“) amends a more than significant number in a no less considerable list of legal bodies. Therefore, the LJV means alterations in a total of 96 articles of the Civil Code, 35 of the Notaries Act, 17 of the Civil Procedure Act 1/2000 (hereinafter, the “LEC“), 13 of the Companies Act, 8 of the Civil Registrars Act, 2 of the Mortgages Act and 1 of the Commercial Code, among other provisions.
Precisely one of the main objectives pursued by the LJV is the removal of the non-contentious proceedings from the judicial system. The legislator bases this intention on the experience of other countries, as well as on the optimisation of the available public resources and that judges can “focus their efforts on fulfilling the essential mission entrusted to them by the Constitution, as exclusive holders of jurisdictional authority”.
However, proceedings that affect the public interest or the civil status of a person, that require specific protection of the substantive rules, that can provide acts of disposition or recognition, creation or extinction of subjective rights as well as those in which the rights of minors or persons with a legally modified capacity are at stake, will be assigned to judges and court clerks. All the remaining non-contentious proceedings not included in the abovementioned list correspond to notaries and property and commercial registrars.
Despite that the most significant content of the LJV deals with matters on the subject of the rights of individuals, successions and family rights, it also regulates, from a more expert proceduralist’s view, such normal situations like conciliation hearings or the new notarial proceedings to claim undisputed debts.
To this effect, article 139 of the LJV regulates the proceedings on conciliation hearings. In this respect the new legal body disposes that the promoter of the proceedings shall approach the First Instance or Commercial Court – whichever corresponds according to the subject matter of the petition – of the address of the claimant. It is worth highlighting that the procedure described in the new LJV bears many similarities with the procedure regulated to date by articles 460 et seq. of the 1881 Civil Procedure Act. Therefore, after submitting the claim or petition for conciliation, the Judge will accept it for consideration within a period of five (5) working days, summoning the parties to appear at the corresponding conciliation act. If the parties are in agreement, this will be recorded in the minutes, which will be enforceable according to the provisions in articles 517 1.2.9º of the LEC.
On the other hand, regarding the notarial procedure to claim debts, this will prosper if all the formal and subjective requirements described in article 70.1 of the Notarial Act are met. In this sense, and when referring to material requirements, these debts must be monetary, cash, due and payable. Nonetheless, it is important to bear in mind that debt incurred due to non-payment of proprietor’s community contributions and also any debt connected to a contract between an entrepreneur or professional and a consumer or user, among others, are specifically excluded from these proceedings.
Regarding formal requirements, this debt should be recorded in detail, indicating the amounts corresponding to the principal, remunerative interests and default interests. In relation to the appropriate procedure, it must be pointed out that it has been based on the payment procedure of the LEC, in such that the system of notification, terms and effects of non-appearance or opposition by the debtor is very similar to the provision in articles 812 et seq. of the LEC.