El proceso monitorio en el nuevo código procesal civil hondureño

Abstract

ntroduction The small claims procedure is an instrument for achieving fast and effective credit protection. Its efficiency is due to its particular structure: a court order for payment is issued inaudita altera parte debitoris, resulting only from the creditor¿s claim, and if the debtor does not pay or oppose, the order can be enforced as if it were a judgment, like res judicata. On the other hand, if the debtor pays, the claim is successful because the credit has been rapidly satisfied. The procedure will also come to an end if the debtor opposes, allowing the creditor to continue the claim through an ordinary process that is completely independent. Given the case that the debtor does not pay nor does he oppose, the court order for payment will be enforced without the creditor having to request it. The small claims procedure was created in the medieval Italy, originating from a payment order known as praeceptum o mandatum de solvendo cum clausula iustificativa. It was conceived as an alternative to the slow and expensive solemnis ordo iudiciarius, that was completely inoperative given the excessive amount of credit claims caused by the substantial growth of commerce in that period. Gradually, the small claims procedure has acquired more relevance in European legislations and lately also in several Latinamerican countries. Nowadays, two different types of small claims procedures exist, the ¿pure¿ ones and the ¿documented¿ ones. The pure small claims procedure does not require a principle of documentary evidence that indicates the legitimacy of the debt claimed by the creditor. On the contrary, in the documented small claims procedure all claims must be accompanied by a document that contains a principle of evidence confirming the creditor¿s right. In Honduras, the small claims procedure has been introduced in the Code of Civil Procedure (Código Procesal Civil, Decree 11-2006), which entered into force in November 2010. In this Law, the small claims procedure is designed to rapidly and effectively collect monetary debts that are liquidated, overdue and enforceable, of a determined amount that does not exceed 200,000 Lempiras (approximately 7,400 Euro), when a documentary principle of evidence is presented with the claim. Methodology Comparative Law study of the small claims procedure in Europe and its application in the Honduran Code of Civil Procedure; its origins, evolution, legislative solutions and successful performance. Conclusions In order to obtain a greater benefit in Honduras from the efficiency of the small claims procedure¿s particular structure, it is necessary to carry out certain legal reforms. These modifications should be targeted as follows: 1. It must resemble the pure small claims procedure. The requirement of documentary evidence should be eliminated so that there has to be no assessment of a principle of evidence prior to the admission of the claim. If the debtor opposes, he would not have to justify his motives for not paying and, as a consequence, the latter declarative procedure would be completely independent from the small claims one. In case the debtor does not react, it would not be necessary for the creditor to request the enforcement of the payment order. 2. Extend its application to other kinds of claims, such as the recovery of real estate or personal property, or those related to obligations of taking action. 3. Remove the quantitative limit of the debts that have access to the small claims procedure. 4. Include some sort of protective measures that, without interfering with the debtor¿s right of defense or the legal certainty of his equity, can guarantee that the judgment of the latter ordinary process, or the enforcement of the court order for payment that follows the debtors passivity, will be successful. 5. Establish means for introducing the progressive use of information and communication technologies in the small claims procedure, especially for filing the claim and serving judicial communications.