Gold-american-eagle Comments

Cass. Civil Sec. 1 No 8126 April 2, 2010 In memory of Franco Cipriani

Cass. Civil Sec. I No 8126 April 2, 2010 - Order in civil (proceedings) Opposition generally

Done right and

Following the application of the Tiroler Sparkasse Bank, the court of Arezzo, section Montevarchi a preliminary injunction on May 27, 2004 against M, G and Z, said Executive March 24, 2005.

the intimate resort on March 30, 2005 Montevarchi sub-office, asking that the decree be declared ineffective ai sensi dell’art. 188 disp. att. c.p.c., ritenendo che esso non sia stato notificato regolarmente, mettendoli nella posizione di non essere venuti a conoscenza del decreto medesimo. Il giudice adito, con decreto del 1° aprile 2005 sospende l’esecuzione del provvedimento monitorio, inaudita altera parte.

La Tiroler Sparkasse si costituisce in giudizio dimostrando le notifiche effettuate, con la conseguente produzione delle copie dei rispettivi avvisi di ricevimento, eccependo l’inammissibilità del ricorso proposto ai sensi dell’art. 188 disp. att. c.p.c., poiché applicabile solo nelle ipotesi di mancanza o inesistenza giuridica della notifica del decreto ingiuntivo. At the same time calls for the rejection of the application and the revocation of the decree had suspended the implementation of the provisional measure monitors.

then the process is interrupted by the death of either party, to be resumed April 26, 2006 with the establishment in court he heirs of deceased party. The court to grant the application with the applicant's decision dated May 19, 2007 declaring the injunction ineffective because of failure to comply with the terms of the Code of Civil Procedure 644, and considering the applicable art. 188 avail. att. Code, even if the notification occurred after the date provided by art. 644 cpc

against the ruling, Tiroler Sparkasse, offers special appeal to the Supreme Court, pursuant to art. 111, 7th paragraph of the Constitution are not resistant and are not active defensively.

Given that the application should be considered admissible in spite of the extraordinary form of the measure adopted by the judge (rather than judgment order as provided for in art. 188 avail. Att. CCP), and that it shows that they have content decisional, because it affects the individual right of the creditor and the debtor, and is not otherwise actionable under the same Article. 188 avail. att. cpc paragraph 3, and given that according to the constant orientation Court, the aforementioned Article. 188 avail. att. Code of Civil Procedure shall apply only in cases of lack or absence of legal notification of the order and not even in case of missing the deadline laid down in Article. 644 CCP, it is considered that action worthy of acceptance, as any irregularity in the notification, can be relied on, or with the opposition under Article. 645 cpc, or with the opposition late in art. 650 of the CPC, showing the illegality of the interim order for suspension of the injunction tailored by the court, and issued an ex parte , in conflict with the need of upon opposing parties imposed by that article. 188, paragraph 3 avail. att. cpc

Therefore, the sentence is invalid because it was delivered in a case not covered by the Code of ritual, even the sweeping decree issued ex parte by which the court stayed enforcement of the measure.

PQM

The Court accepts the appeal, and no court case under appeal the ruling because the case could not be brought, condemning the notice to pay the costs of the entire trial.

Marithe Francois Girbaud Usa

Fedi (PD): the right to marry in Italy among Italian and foreign citizens residenti all’estero

a question for written answer with the Hon. Marco Fedi asked to know what measures pressing the Government intends to take to ensure that the municipalities, the diplomatic-consular network Italian and Italian citizens abroad to be informed about changes regarding marriage in Italy between Italian citizens and foreigners.
This action was necessary because, following the entry into force of Law No 15 July 2009 94, many Italian citizens living abroad who wish to marry in Italy with foreign nationals, residing abroad too, get confused and often wrong answers.
The freedom to marry and to choose their own spouse, concerns the sphere of autonomy and individuality, and is therefore a choice over which the State can not interfere. The right to marriage is for both the Italian law for the international and EU standards, an essential moment of expression of freedom and human dignity that must be guaranteed for all.
E 'therefore important to ensure that the rule - however much discussed for violations that it produces a series of fundamental principles and rights - what is less clear in its application.

question for written answer
by Marco Fedi
Wednesday, May 19, 2010
faiths. -
To the Minister of Foreign Affairs and the Minister of the Interior
- To know - given that:
Law No 15 July 2009 94 has introduced an amendment to Article 116 of the Civil Code - "Marriage of foreigners in the Republic" - the introduction, next to the statement that there is no impediment issued by foreign authorities, the obligation to produce "a document certifying the legality of stay in the Italian territory",
art. 116 of the Civil Code fixed for foreigners, similar conditions for marriage and that the production of a clearance in the country of origin allow marriage in the Italian territory,
the new law stipulates that the foreign national must submit a document certifying legally resident on Italian territory,
marriages to be celebrated abroad regulations do not change and the alien must not produce or documentation showing the regularity of the stay or go-ahead to marriage,
marriages to be celebrated in our consulates, for residents or by proxy at the AIRE representation by our municipalities would not be possible because the alien abroad can never document the legally resident on Italian territory,
marriages to be celebrated in Italy will be subject to the submission of that document on the regularity of the stay -:
whether this provision also applies to nationals of countries outside -EU, non-residents wishing to marry in Italy,
whether this provision applies even for non-EU citizens, non-residents wishing to marry in Italy with an Italian citizen,
which the Government intends to take urgent measures to ensure that the municipalities, the diplomatic-consular network Italian and Italian citizens abroad to be informed on changes relating to marriage in Italy.

Every Meaning For Colored Bracelets

FEDI (PD): Minidecreto omnibus del Governo per cancellare il risarcimento alle vittime del nazismo e prorogare Comites e Cgie

"What unites two items - different in scope, nature, material and political objectives - such as art. 1 on the suspension of the effects of decisions on compensation to victims of Nazism and the artist. 2 for an extension of representative bodies of the Italian community in the world - Committees of Italians abroad and the General Council of Italians Abroad? "

With this question opened his speech in Parliament, Hon. Marco Fedi, in the general discussion into law of decree-law April 28, 2010, No 63, entitled "Urgent provisions concerning immunity from jurisdiction of foreign States and Italian elections of representative bodies of Italians Abroad (3443).

expressing a negative opinion on the measure under consideration in the House, Fedi said that this is "yet another decree by the Government decided to drag in the emergency two issues on which it would be possible have a real thorough parliamentary debate. As often happens, and as noted during the examination in the Foreign Affairs Commission, these rules determined by the Government on the basis of need and urgency alleged - of which we do not share the reason - resulting from 'international legal requirements, as regards' art. 1 and "reforms in the pipeline" for the art. 2. Also on minidecreti the Government chooses a path of confusion.
On the one hand we have a serious act that carries the risk of eliminating the right to seek compensation from Germany for the Italian victims of Nazi crimes and their families. An act that is reflected in an equal manner on Italian in Italy e all’estero. Dall’altro, invece, abbiamo la decisione di indebolire gli organismi di rappresentanza politica e comunitaria dell’emigrazione italiana, il tentativo di delegittimare i luoghi della discussione, della conoscenza e dell’incontro, tra questi appunto i Comites e il Cgie”.

“Questo provvedimento richiede - ha precisato Fedi – una riflessione di carattere politico sul futuro del rapporto con le comunità italiane nel mondo. Oggi che il Governo annuncia misure drastiche di riduzione delle spese, con altri tagli lineari, come quelli che hanno già penalizzato le comunità italiane nel mondo”. Una riflessione necessaria ha continuato “poiché siamo preoccupati da un Governo che non parla di riforme ma solo di tagli. Un Governo e una maggioranza sempre più lontani dalle esigenze vere, poste in maniera chiara e trasparente proprio dagli organismi di rappresentanza, grazie al loro forte legame con le comunità italiane nel mondo”.

A questo proposito Fedi ha ricordato il tema della cittadinanza e di “come Governo e maggioranza non agiscano su questo fronte lasciando inapplicate sentenze della Corte di Cassazione sulla facoltà della donna di trasmettere la cittadinanza ai propri figli avendola perduta per il matrimonio con uno straniero, superando l’odiosa discriminazione a scapito delle donne. Oppure riaprendo i termini per il riacquisto della cittadinanza italiana e ristabilendo la verità history of those who have never really given up to be Italian, or recognizing the jus soli to those born in this country. " But the theme of new generations of cultural and linguistic ties with Italy "with the reform of 153/71 that does not take off, with the loss of resources in the education sector, with the closure of the reader, the cultural institutes increasing in difficulty. "

Then there are "issues of pension and social security - even by people with power of pensioners' unions CGIL, CISL and UIL - with the request for a regularization of the INPS completed without undue malice for the Institute for the delay, the recognition of the check of solidarity for the elderly in poverty, born in Italy and abroad; the repeal of the requirement of ten years of continuous stay in Italy to be entitled to the office if residing in Italy, the ratification of bilateral agreements, for example Morocco, Canada, Chile, and we add the exemption from payment of ICI on the first house in Italy, if not hired, even for Italians abroad: in essence, fairness, equal treatment, care and sensitivity against many older Italians working abroad who still live in poverty and hardship. "
And yet "The theme of the consular network - place in all its gravity - as a matter that relates to the presence of the Italian abroad in all its complexity: economic and commercial, cultural, linguistic, and service. A framework that requires investment and resources before proceeding with the closure of sites. It remains open the issue of trade union rights - in terms of participation and representation in the workplace - as is still pending final settlement of the issue of tax deductions for dependent family. "

On specific measures relating to Comites and CGIE Fedi expressed his "suspicion that the extension to December 31, 2012 it will be useful to weaken this representation in view of other denominations and a reform that is anything but a strengthening of the political role of these organisms. The reform is not shared, the times are uncertain and concerns about financial security, already rejected by the Senate Budget Committee, will not be easily overcome.
For many months the government has maintained that it was necessary to revise legislation to harmonize it with parliamentary representation. Today we are in the process - if we listen to the statements of numerous members of the majority - to draw a constitutional reform that will reduce the number of members of parliament and establish a federal Senate of the Regions, and then put into question the role, number and location of Parliamentarians, in addition to re-examine the rules of election.
Well, would not be useful and renew Comites CGIE today, a contribution action to ensure completion of the reforms? "

At the conclusion of his speech, the deputy of the Democratic Party have expressed their strong concern about the item seems combine the two issues considered in the order: "With the intervention on Comites and CGIE is extending the period of maturity in elected bodies, with intervention on compensation is suspending the effectiveness of decisions made by the Italian courts, in both cases the Government, and when the majority decides to follow this path, there will be more than a natural course of events – oltre il principio di “natural justice” – determinando un pericoloso precedente sia in termini di “funzionamento democratico” di organi elettivi che di “efficacia delle sentenze.
Per queste ragioni avevamo presentato in Commissione un emendamento soppressivo dell’articolo 2 che ripresenteremo in Aula e per queste ragioni esprimiamo un giudizio negativo sul provvedimento”.

-------------------------------------------------

Intervento in discussione generale On. Marco Fedi (PD)
24 maggio 2010Conversione in legge del decreto-legge 28 aprile 2010, n. 63, recante disposizioni urgenti in tema di immunità di Stati esteri dalla giurisdizione italiana e di elezioni bodies representative of Italians abroad - (3443)
I want to open this posting with a question and a general consideration: what is it that unites two items - different in scope, nature, material and political objectives - such as 'Art. 1 on the suspension of the effects of decisions on compensation to victims of Nazism and the artist. 2 for an extension of representative bodies of the Italian community in the world - the Committees of Italians Abroad and the General Council of Italians Abroad?
no obvious connection. Heterogeneity of matter, as often happens during the examination and as noted in the Foreign Affairs Committee in addition to the remarks on the certainty and reasonableness of time. Rules adopted by the Government on the basis of need and urgency alleged - of which we do not share the reasons - from "international jurisdictional requirements" with regard to art. 1 and "reforms in the pipeline" for the art. 2.
Indeed a common thread exists but is consistent with the very reasons why the Democratic Party has said no to this measure in committee, in this latest decree from the Government decided to drag in the emergency two issues on which it would be possible to have a real and extensive parliamentary debate.
is the theme of migration - that links the stories of many people in Italy and worldwide.
is the story of who, before emigrating, he sacrificed for Italy - in the armed forces, the partisans or civilians - their lives.
Many migrants have participated in the pages of history, have helped to build freedom and democracy with guerrilla warfare, with the imprisonment, internment, always with the personal and family sacrifice. Here
these stories - of internment, imprisonment and emigration - mark the common line between the two articles of this decree.
On the one hand, we have a serious act that carries the risk of eliminating the right to seek compensation from Germany for the Italian victims dei crimini nazisti e per le loro famiglie. Un atto che si riflette in maniera paritaria su italiani in Italia e all’estero. Dall’altro, invece, abbiamo la decisione di indebolire gli organismi di rappresentanza politica e comunitaria di queste storie di emigrazione, abbiamo il tentativo di delegittimare i luoghi della discussione, della conoscenza e dell’incontro, tra questi appunto i Comites e il Cgie.
Credo sia giusto fare una riflessione di carattere politico sul futuro del rapporto con le comunità italiane nel mondo. Oggi che il Governo annuncia misure drastiche di riduzione delle spese, con altri tagli lineari, come quelli che hanno già penalizzato le comunità italiane nel mondo. Credo sia necessario farlo poiché siamo concerned about a government that does not speak of reforms but only cuts.
majority government and not acting on the front of citizenship - disapply Court of Cassation on the ability of women to transmit citizenship to their children having lost to the marriage with a foreigner, overcoming the hateful discrimination against women. Or extending the deadline for the reacquisition of Italian citizenship and restoring the historical truth of those who have never really given up to be Italian, or recognizing the jus soli to those born in this country. What better occasion of the 150th
Unification of Italy to establish an important moment of great unity through our community in the world and humanity that is established in Italy.
Instead we have a government and a majority who can not see beyond their nose. That close within increasingly narrow boundaries. Government and the majority who are increasingly alienated from real needs, placed in a clear and transparent by their representative bodies, with their strong ties with the Italian community in the world.
The theme of the new generations and the cultural and linguistic ties with Italy, for example, is among them. The reform of 153/71 does not start, losing resources in the school, close readers, cultural institutions are increasingly difficult.
The issue of pensions and social security posto con forza anche dai sindacati dei pensionati di CGIL, CISL e UIL, con la richiesta di una sanatoria degli indebiti INPS maturati senza dolo per responsabilità dei ritardi dell’Istituto, il riconoscimento dell’assegno di solidarietà per gli anziani in condizioni di indigenza nati in Italia e residenti all’estero, l’abrogazione del requisito di dieci anni di soggiorno continuativo in Italia per avere diritto all’assegno sociale se residenti in Italia e il tema delle convenzioni bilaterali in attesa di ratifica dal Marocco, al Canada, al Cile, solo per fare alcuni esempi.
E a ciò si aggiunge l’esonero dal pagamento ICI sulla prima casa in Italia, se non affittata, anche per gli italiani all’estero: essentially fairness, equal treatment, care and sensitivity to many elderly Italian emigrants who still live in poverty and hardship.
The theme of the consular network - place in all its gravity - as a matter that relates to the presence of the Italian abroad in all its complexity: economic and commercial, cultural, linguistic, and service. A framework that requires investment and resources before proceeding with the closure of sites.
We are not convinced that the government has consolidated the foundation of this premise, which is why every time he puts in a rationalization of the consular network is the suspicion that is going to be on the basis of the usual short-term emergencies rather than "reform" actually improving the conditions in which the Italian state offers consular services abroad.
is still open the issue of trade union rights - in terms of participation and representation in the workplace - as is still pending final settlement of the issue of tax deductions for dependent family.
Lo, President, the circle is closed. The representation allows us to understand and learn more about the impact of the choices of the government. The government, interested in understanding how it changes our community of Italians in the world? We want to offer real opportunities of development in relations with these Italians in the world?
The question is legitimate because if really interested and Comites CGIE - up to now the government and the majority argue that they should stay with us, or rather should be strengthened - well if this is the direction, which has weakened the sense now, right now? Not to renew these bodies - remember that the deadline was in 2009 and the Government has already extended them by the deadline of December 31, 2010 - weakens the role and authority.
The reasonable suspicion - so - that the extension to December 31, 2012 it will be useful to weaken this representation in view of other denominations and in view of a reform that is anything but a strengthening of the political role di questi organismi – questo forte sospetto Signor Presidente – è destinato a rafforzarsi.
La riforma non è condivisa, i tempi non sono certi e le perplessità sulla copertura finanziaria, già espressi dalla Commissione bilancio del Senato, non saranno facilmente superate.
Per molti mesi il Governo ha sostenuto la tesi che occorreva rivedere la normativa per armonizzarla con la rappresentanza parlamentare. Oggi siamo in procinto – se dovessimo prestare ascolto alle dichiarazioni di numerosi esponenti della maggioranza – di disegnare una riforma Costituzionale che ridurrà il numero dei parlamentari e istituirà il Senato federale delle Regioni e quindi metterà in discussione ruolo, numero e collocazione Parliamentarians, as well as to reconsider the rules of election.
Well, would not be useful and renew Comites CGIE today, a contribution action to ensure completion of the reforms?
We had other extensions in the past, it's true! It was always short extensions - shared with a proposal submitted by the Government. Both shared the reform was passed in the legislative Comites both the House and the Senate. I conclude by recalling President
a second element that combines two issues in this decree so different. With the intervention on Comites and CGIE is extending the period of maturity in elected bodies, with intervention on compensation is suspended effective of decisions made by the Italian courts, in both cases the government, and when the majority decides to follow this path, there will be more than a natural course of events - beyond the principle of "natural justice" - causing a dangerous precedent in terms of "functioning democracy" that the elected bodies of "effective decisions".
For these reasons we presented in the Commission an amendment to Article suppressive. 2 and again in the House and for these reasons, we express an adverse opinion on the measure.

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FEDI (PD): La logica dei tagli colpisce anche i lettorati presso Università straniere

linear cuts have immediate effects and others resulting from budget cuts. Are also emerged from the cuts forecast. They change the methods but the logic is always that of the cut - said the Hon. Marco Fedi submitting a question to the Minister of Foreign Affairs on the situation of lectures at universities in Australia and worldwide.
The University - with the presidents - expressing alarm notifications received from the Consulate and related to "new standards" that, by creating conditions of conflict are well known and well-established practice with local universities, and funding risk to undermine the existence of the reader. In addition to a legitimate concern is right to ask the right "technique" of these new procedures.
Ours is also a policy concern - on the choices of government resources - both linked to the extraordinary economic measures at the next Finance Act. I believe we need to operate in the world can be kept high the image of Italian language and culture, even at tertiary level - said the Hon. Faiths. The full text of question

To the Minister of Foreign Affairs. - To know - given that:
· Numerous Australian universities at which our country has, over the years, established successful relationships, even with the presence of 'readers', expressing strong concern about the provision of 'new criteria' that - In fact - creating conditions of conflict with well-known and established practice local university, and funding risk to undermine the existence of the player itself;
· the University of Sydney, in particular, indicates that it has already received a notice to that effect by Consulate General in Sydney;
· in some geographical areas - like Australia - the total number of pupils who attend Italian language courses has been gradually increasing and, over the years, the presence of players at the university level has allowed a connection immediate and profitable with the tertiary sector, in terms of research and relationships between universities and the sizeable resources Financial decided by the Government can not allow to share in a linear fashion the budget cuts but should be safeguarded, the logic of investment and productivity, even in linguistic and cultural
· Any progressive and drastic reduction of the commitment of the Italian State Australia, and lectures at the university level, is a sign of serious negligence in respect of a politico-economic strategically located in Asia - Pacific -:
- whether well-founded concerns raised by Australian universities at which our country has readers, in particular the University of Sydney, in relation to the new criteria communicated to the diplomatic-consular network;
- if you do not see fit to intervene so that the Italian language and culture also see a continuity of commitment to the tertiary level;
- which the Government intends to take urgent steps immediately to ensure continuity in the Italian presence at the university level in Australia, and Sydney in particular;
- if you do not feel a need to ensure, in the world, can be kept high the image of Italian language and culture, even at tertiary level.

Court House On Queens Blvd 120-55

Almost a month away from the loss of our dear Master, prof. Cipriani, I wonder about the fate of his studies, that fascinate him so much, to be completely absorbed for hours. Each new discovery added a piece a picture that was perfected by now, so they seemed likely, since you can only verosomiglianza speak, for how hard you can do, you can be sure of being riusciti ad arrivare al solido cuore della verità. Questo era il Suo obiettivo principale: ricostruire gli avvenimenti che avevano portato alla realizzazione dell’attuale codice di procedura civile, spesso facendo parlare in prima persona gli autori di quelli avvenimenti, perché ciò che accade avviene per mano degli uomini, ed è naturale che anch’essi debbano entrare a far parte “dell’intero disegno”.

Mi riferisco principalmente a Piero Calamandrei, principale ispiratore del codice di procedura civile insieme a Carnelutti e Redenti, e del quale Egli nutriva una viva passione, un enorme entusiasmo che ha trasmesso a chi ha avuto la fortuna, (And I refer mainly to me), to attend his lectures, sometimes a little 'sui generis and seasoned with irony, which the Professor seemed physiologically established.

few months before it failed, and precisely in the month of December, took the unusual variety of documents at the State Archives, the same evening he called me to warn me to want to publish in the journal - Civil Due Process, the last issue of this year, coinciding with the 70th anniversary of the promulgation of the Code of Civil Procedure, which as we all know it happened on October 28, 1940. Unfortunately, the professor had no the time to write something about those papers, the less I think they are, at this point, published, because without his commentary, there are only "paper orphans" of a director, needed to bring order to the events of that period, because it is fair to say that he was only to deepen the that thorny issue related to the drafting of a code of fascist-inspired, drawing much criticism, which in most cases did not contribute to play a role in verifying heuristic of the facts, but which were, and remain, nothing but criticism.

The last time we met, one week before the sad event, asked me to write a short piece on the Latin maxim dum pendet Realise , a result of some recent findings, conducted by myself and a tonne on possible origins of that maxim . He had argued in his book Piero Calamandrei and civil procedure ESI Edizioni, 2007, p. 243, that was the result of an adaptation made by Piero Calamandrei macaroni, there are no endings in Latin Realise. In fact the first volume of The Diary of Sigmund Manci (1756-1762), edited by Marco Stenico, Trento, 2004, p. 94, contains the following statement: "Seeing no response be from Vienna to any possession, congietura you for sure that you leave prolong Firmian, imperoché pendet dum, understand . Furthermore, in a book titled Giuntini Fulignati-company of the famous Hvar-DIALOGUE, chapters, reasoning, dated 1647, states on page 65: "Too many would want us to deal with ways to win: why should this lead to almost all sciences and the arts, as would the cavillationi de 'jurists and prosecutors, and holidays, and deadlines to take the long fights, because dum pendet lis, crumena Realise. " Finally, Ton told me he had found the same expression, although the proposal in a key diversa (finchè il ramo pende, rende) in una raccolta di proverbi molfettesi curata da Rosaria Scardigno, Nuovo lessico molfettese – italiano, 1963, p. 386, segno che l’espressione non poteva essere attribuita in alcun modo a Calamandrei.

Detto questo, intendo rendere noti un paio di quei documenti che affidai al caro Professore, riservandomi di pubblicare, nelle sedi opportune, i risultati di quelle ricerche alla quali Egli mi condusse, attraverso il suo entusiasmo e la passione per lo studio che lo hanno sempre accompagnato fino all’ultimo momento. Egli è stato il vento, trascinante da non potergli resistere, e forte, da non poter essere dimenticato.

____________________

Roma, 19 ottobre 1941 XIX

Caro professore,

mi è giunto graditissimo il Vostro gustoso dialogo.

Ho incominciato a leggerlo con tanto piacere. È stata, la Vostra, un’idea veramente felice che avrà un successo practice of persuasion which can not achieve certain treaties.

And now we wait for the continuation of your magnificent institutions.

accept my most cordial greetings

your

F.to Mandrioli

Cav. of Gr.Cr. Prof. Piero Calamandrei

Albizi Borgo, 14

FLORENCE

____________________________

Roma, 2 febbraio 1943 XXI

Carissimo professore,

ho letto oggi il vostro scritto sulla certezza del diritto e la responsabilità della dottrina.

Spero non Vi dispiaccia ricevere i miei più vivi ringraziamenti per la luce che ne emana e per la chiarificazione, benefica certo per me, ma ritengo anche per altri moltissimi.

Coi migliori saluti

Vostro

F.to Mandrioli

Cav. di Gr. Cr. Avv. Prof. Piero CALAMANDREI

Borgo Albizi , 14

FIRENZE

_____________________

Rome, April 15, 1942 XX

Dear Professor,

I received regular folders for your circular on guidelines for implementing the new Code.

Thank you much on behalf of the Minister for your fatigue, as expected has perfectly matched the expectation. As for comfort not have any concerns because he was fully aware and found good and faithful to your revision. also is concerned about the well-known judgments partial instructions are being developed on the transitional rules that have become clear to all.

And then we rely on good will of the people and the Divine Providence.

Please accept my cordial greetings

F.to Mandrioli

Cav. of Cr Gr. Prof. Piero Calamandrei

Albizi Borgo, 14

FLORENCE

Griha Pravesh In New Home Invitation

astreinte provided by the 614 bis cpc

1.-L 'art. 49 of Law No 69/2009 introduces the art. 614 bis of the Code of Civil Procedure, providing for the application an indirect measure of restraint for the obligations to do infungibili and obligations do not [1] .

models run in Europe which make indirect reference are those of zwangsstrafes Germanic, which include fines, imprisonment and securities of contempt of Court Anglo [2] and astreints French law. Just them the Italian legislature has drawn to coerce the will the debtor and to induce him to fulfill the measure of condemnation in order to avoid payment of a sum of money for each day of delay in, or to pay a fixed sum for each violation, while in the field of recognition and enforcement of civil and commercial judgments between the States belonging to the European Community, art. 49 of EC Regulation 44/2001 of 22 December 2000 provides that foreign judgments that a periodic payment, shall be enforceable in the requested State, unless the amount of the payment has been finally determined by the courts of the Member State of origin. [3]

Our system already provides for such measures in the field of industrial patents [4] , protection of workers, consumers [5 ] and towards the protection of copyright.

The intention is to rely indirectly on the desire to fulfill the debtor requiring payment of a "fine" in the event of failure to adapt to the issue of sentencing, facilitating the creditor, which cover the default del debitore di obblighi di questo genere, si vede costretto ad instaurare un successivo giudizio per far accertare la violazione.

L’introduzione del 614 bis c.p.c. si affianca al già esistente 612 c.p.c. che disciplina, invece, l’esecuzione in forma specifica di una condanna per violazione di un obbligo di fare o di non fare, che può essere attuata forzatamente per via della fungibilità, nonché della possibilità materiale o giuridica dell’obbligo del debitore. In altre parole, indipendentemente dal comportamento del debitore, il creditore vede soddisfatta la sua pretesa tramite l’attività dell’organo esecutivo che può delegare a terzi ciò che il debitore should do or not do to fulfill the measure of condemnation. Think of a sentence to the demolition of illegally built on a ground work of others in case of failure, the enforcement court, with the powers conferred by Article. 612, paragraph 2, by order may designate appropriate persons to ensure the destruction of the work accomplished. The same conclusion can not be sent in case of default in respect of that measure has the right to visit a parent provided at the separation of spouses, when lacking the cooperation of the custodial parent who objects to a refusal.

2 .- The rule, which says, in the first paragraph provides that the measure with the sentencing judge, unless this is manifestly unfair, fixed at the request of a party, the amount of money due to any breach by parties or subsequent breach, or for any delay in the measure. The order of condemnation is enforceable for the payment of sums due to any breach or non-compliance. The provisions of this subparagraph shall not apply to employment disputes and public-private partnerships in Article coordinated and continuous. 409.

Therefore, the request for dell’ astreinte non è suscettibile di essere pronunciata d’ufficio e dovrà essere avanzata dalla parte nel corso del giudizio di ottenimento di una condanna ad un fare infungibile o ad un non fare [6] , mostrandosi poco adeguata nell’ipotesi di prestazioni continuate o periodiche, o quando l’inadempimento è dovuto a circostanze sopravvenute alla pronuncia del provvedimento di condanna.

Tale ultimo riferimento fa supporre che la pronuncia della misura coercitiva possa essere aggiunta anche a provvedimenti emanati in sede cautelare o a provvedimenti sommari decision made pursuant to art. 702 bis cpc

is controversial, however, the question concerning the application of this measure to the minutes of conciliation proceedings under Article. 185 cpc [7] . It is enforceable for its obligations under the Code of Civil Procedure 612, and should also be applied for the 614 bis of the CPC, providing that the court at the request of the parties, and having verified infungibilità the behavior of the obligation, to ratify the agreement, on the basis of which, in case of violation, failure to comply subsequent or delay, a penalty is applied, provided that the same judicial body should not be considered manifestly unjust. In support of what you said you call the first piece of art. 140, 7th paragraph Cod cons. : with the measure that defines the trial judge set a deadline for the fulfillment of obligations and, at the request of the party has acted in court and has, in the event of default, payment of a sum of money from 516 € to € 1,032 for each day of delay or failure on the severity of the incident. In case of default of the obligations arising from the minutes of conciliation the parties may appeal the court proceedings with in closed session so ascertained the breach, has the payment of such sums of money.

Then, in the injunctions laid down in Article .140 Cod cons., The persons entitled, according to a report format conciliation out of court under Article. 140.2 first paragraph, and enforced by a decree of the court finding that the formal regularity of the minutes, the court may refer the matter to identify the breach and ordering the payment of the sums of money, a fortiori the minutes of conciliation proceedings may allow the application of a ' astrente.

It is not clear, however, what should be the criterion used by the court to grant a measure of restraint so that it does not prove to be manifestly unjust debt from the delinquent. It is clear that the provision leaves some discretion to the court, and probably find is only limited by the objective impossibility to perform.

3 .- The order of condemnation is enforceable for the payment of sums due to any breach or non-compliance. The enforceability of the measure, therefore, extends to ancillary sentencing, as well as the appeal against conviction, which promoted principal, will require the separate action of ' astreinte [8] , save yourself the opportunity to challenge the only coercive measure, even by the creditor, if he has interest.

The provision is most welcome for those measures, such as emergency or protective measures that are not endowed with enforceable by allowing, in the event of a failure to do or not do infungibili, to proceed with Enforcement to obtain payment of the coercive measure of restraint.

The debtor would always be able to challenge the alleged failure by an opposition under Article. 615 cpc, eliminating the roots of the possibility of claiming the money inherent in the coercive measures.

of dubious constitutionality is the lack of ability to apply coercive measures to the failure of the obligations of the employer [9] , employment disputes arising from public or private partnerships and coordinated and continuous, allowing for positive discrimination in favor of the employer, when from more parties has called for greater protection of the sentence in favor of the employee. It would be more reasonable not to allow the application of ' astreinte on family and people, because even though for the performance, you should not exercise compulsion on man free [10] . We think the refusal of the child entrusted to the mother who does not want to allow the father his visitation rights following the separation of the spouses or the sick person who does not want to undergo an assessment for the assessment of his mental illness.

4.-Passing to the determination of the extent of ' astreinte , the 2nd paragraph of art. 614 bis cpc, provides: the court determines the amount of the sum referred to in the first paragraph taking into account the amount in dispute, the nature of performance, quantify and predict the damage and all other circumstances helpful. This time the court is largely discretionary assessment is required to be applied case by case basis, as well as a prognostic assessment to the damage quantified and predictable on the basis of the violation, the subsequent failure or delay in the measure, without providing a minimum or maximum, which could provide reference (or limit the discretion of the court), as was envisaged in the draft prepared by Proto Pisani [11] , which provided that: the penalty is proportionate to 'scale needed to induce spontaneous forced execution. For each day it can not be less than one hundred euro and more than one hundred thousand euro. addition, the national legislature is silent on the method of compensation, resulting in the failure of the bond, and also who is responsible for this task, that if they use the French system could also be the responsibility of enforcement court, unless the judge who pronounced the sentence does not expressly reserving the settlement, even in the event of appeal. [12]

lack guidance regarding the beneficiary of the sum paid, which will surely be a creditor, but as has been proposed in the draft Vaccarella could also involve a residual State. [13]

Dr. ssa Carmen Laruccia

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[1] ASPRELLA-GIORDANO, La riforma del processo civile , in Giust. civ . suppl. n.6/09, 116. Un primo tentativo di introduzione dell’astreinte nel nostro ordinamento è inserito nel progetto Carnelutti del 1926, che prevedeva agli artt. 667 e 668, che in caso di mancata esecuzione di un obbligo di fare o di non fare, l’avente diritto poteva domandare la condanna dell’obbligato al pagamento di una somma di denaro per ogni giorno di ritardo, a partire dal giorno stabilito dal giudice. Il Ministro Reali presenta nel 1975 un progetto recante provvedimenti urgenti relativi al processo civile che prevede all’art. 23 un’aggiunta al codice di procedura civile di un art. 259 bis, che permette al giudice, con la sentenza che accerta la violazione di un obbligo di fare o di non fare, di condannare al risarcimento del danno, di far cessare il comportamento illegittimo e di poter fissare una somma per ogni violazione, inosservanza successiva o ritardo. TARZIA, Presente e futuro delle misure coercitive civili in Riv. trim. e dir. proc ., 1981,806. Va ricordato anche il progetto Vaccarella del 2003 che prevede all’art. 42 l’introduzione di una misura coercitiva di natura capital which would benefit the lender and a residual state also. Vullo E. , Running indirect between Italy, France and the European Union in Riv. dir. proc. , 2004, 737.

[2] Proto Pisani A., The effectiveness of those remedies particularly the implementation of conviction, in Riv. dir. proc. 1975, 627. The Anglo-Saxon model of the Contempt of Court provides for criminal sanctions such as arrest or imprisonment, failure to comply with the order of the court. The Italian Penal Code provides for art. 388.1 first paragraph to pay a fine or imprisonment for those who commit fraudulent acts or simulated in order to avoid the fulfillment of civil obligations arising from a conviction, while the 2nd paragraph of that article punishing those who evade execution the judge's ruling concerning custody of a minor or incompetent, in addition to the circumvention of protective measures to defend the ownership, possession or credito.Cfr. WHALE, Elements of civil procedure, vol. I, 3rd ed. Bari, 2006.36.

[3] Per le questioni interpretative riguardanti la circolazione delle misure coercitive all’interno della Comunità Europea si rinvia a VULLO E. , op. cit . , 768 ss. Nel 1980 il Professor Morel Storme of Ghent university riunì un gruppo di lavoro con l’intento ambizioso di realizzare un European judicial code. La commissione per la sua redazione era costituita da dodici membri appartenenti ad altrettanti Stati, i lavori terminarono nel 1993. Specifiche proposte di armonizzazione della legge sull’imposizione della sentenza possono rinvenirsi nella Draft directive che all’art. 13,comma 1 prevede: subjet to national law imposing sanctions for the non performance of any order of the Court,the Court may,on the request of a party,order any other party who fails to comply with the order of the Court to pay a sum of money know as astreinte. The order for the payment of an astreinte shall be without prejudice to any liability in demages incurred by the party who fails to comply with the order of the Court.Liability to pay an astreint cannot be incurred until after notification to the party affected of the judgment by wich such liability is imposed. KENNETT W., Enforcement of judgement in Europe, 2000,36.

[4] GIORDANO-LOMBARDI, Il new civil trial , Rome, 2009, 467. Article. 86, paragraph 1, RD 29 June 1939 No 1127 on patents for industrial inventions and art. 66, 2nd paragraph, RD June 21, 1942 No 929 patents to trade marks, provide that the court assumes responsibility for the damages, as well as to establish an amount due for each subsequent violation or non-infringement and any delay in implementing the measures contained in the same sentence.

[5] astreinte The consumer protection is laid down. 140, 7 ° Code paragraph Cons. which states: with the measure that defines the trial judge set a deadline for the fulfillment of obligations, and at the request of the party has acted in court and has, in the event of default, payment of a sum of money from 516 € to 1032 € for each day of delay or failure on the severity of the incident.

[6] MANDRIOLI-Carratta, How to change the civil trial, Torino, 2009, 94 in note 10. Tarzia The project envisaged the possibility of applying the ' astreinte also in breach of delivery and release is not related to the lease for residential purposes. For the futility of such measures and the option for damages RICCI GF, reform of the civil trial, Torino, 2009, 89. Not even the fear of indirect measure may force an individual to do what it wants to do and although the performance will be forced to evade ' astreinte can always perform a benefit is not entirely satisfactory.

[7] -Contra MANDRIOLI Carratta, op. cit. , 97 which excludes the application of coercive measures in conciliation court since its record is comparable to a measure of conviction. However it can be argued that the legislature of 2005, art. Cpc equates to 474 convictions, the provisions of similar content (anticipatory sentencing orders, injunctions) and other acts to which the law expressly enforceable, including certainly the conciliation report pursuant to Art. 185 CCP, which is no longer required a judge's ruling with which ends the process. Contra-Gioda also LOMBARDO, op. cit., 461.

[8] See E. Vullo, op. cit., 755 in note 87, with reference to ' astreinte French.

[9] In this regard, it was envisaged the possibility of extending the measure of restraint also in the field of employment law to the exclusion in case of conviction in taking employment or self. CIPRIANI F. Civinini-MG-Proto Pisani A., A strategy for civil justice in the XIV legislature, hole in it., 2001, V, c. 3.

[10] Colesanti On this point, Coercive measures and protection of the rights in Riv. dir. proc. 1980, 607. See Tarzo, Present and future measures of coercive civil in Riv. trim. and dir. proc., 1981.802 et seq.

[11] PROTO PISANI A. , For a new Code of Civil Procedure in Foro en. , 2009, V, 1 ff. V. art. 4174, paragraph 2.

[12] E. Vullo, op.cit., 756 ss.

[13] The liquidation value of the creditor was seen with a critical eye on one side of the French doctrine that considers an unjust enrichment for the party to whom it reported. The legislature over the Alps, however, have never conceded that this sum is also intended in part to the State and even that is not paid to the creditor but to the national fund of social assistance, coloring this part of the process of a grain journalism. E. Vullo, op.cit., 759. The same criticisms have been made in jurisdictions such as Belgium, the Louisiana and Quebec agree that the sum determined by way of astreinte be paid to the State and does not serve to enrich the parties in court. BRYANT-GARTH-CAPPELLETTI, International encyiclopedia of comparative law, 1987.16