Objection To The Precautionary Attachment
A provisional attachment order is a type of temporary legal protection aimed at ensuring that the creditor receives their claim. When a provisional attachment order is issued, the debtor’s assets are temporarily seized. The court may issue a provisional attachment order at the creditor’s request. When deciding on provisional attachment, the court may hear the debtor’s side or issue a provisional attachment order without hearing the debtor. In practice, a provisional attachment order is usually issued without hearing the debtor. In this case, if the court decides to hear the debtor, the debtor may dispose of their property and render the enforcement proceedings or lawsuit against them futile before the provisional attachment order is issued. Therefore, a provisional attachment order is issued without hearing the debtor. While this practice, which produces results in favor of the creditor, eliminates these drawbacks, it may also lead to unfair results for the debtor. For example, a provisional attachment order may have been issued against the debtor by the court even though the conditions for provisional attachment did not actually exist, or the court may have issued a provisional attachment order even though it lacked jurisdiction. In order to eliminate such drawbacks, the debtor is given the opportunity to object to the provisional attachment order. The debtor can have it lifted by objecting to the provisional attachment within the specified time limit.
1. Conditions for Objecting to Provisional Seizure
The first condition for the debtor to be able to object to the provisional seizure issued against them is that the provisional seizure decision was issued without hearing the debtor. If the provisional seizure decision was issued after hearing the debtor, it is not possible for the debtor to object to this decision. According to Article 265 of the Enforcement and Bankruptcy Law
“The debtor may object to the grounds on which the provisional attachment was issued without the debtor being heard, to the court’s jurisdiction, and to the security; in the case of attachments made in the debtor’s presence, the debtor may object to the attachment within seven days of the date of service of the attachment record to the court, otherwise.”
Objections to provisional attachment can only be made on the limited grounds listed in the text of the article. It is not possible to object on any other grounds. Accordingly, objections to provisional attachment may be made on the grounds on which the provisional attachment is based, on the grounds that the provisional attachment decision was issued by an incompetent court, or on the grounds of the security.
Third parties whose interests are affected by the provisional attachment, other than the debtor, may also object to the provisional attachment. However, their objections cannot relate to the jurisdiction of the court. They may only raise objections regarding the grounds on which the provisional attachment is based and the security.
The debtor must attach all documents on which their objection is based to the objection petition.
2. Time Limit for Objecting to Provisional Attachment
The provisional attachment must be made within a 7-day time limit, after which the right to object is forfeited. The start of the period is calculated based on the date the attachment was applied in attachments where the debtor was present, or the date the attachment record was served on the debtor in attachments where the debtor was not present. The judge is obliged to investigate and consider whether the objection to the provisional attachment was made within the time limit.
