Internal Judicial Delegation within the Yemeni Civil Execution – Comparative Study

Abstract

The judicial delegation within the local execution is an exception of the provisions of territorial competence for the execution judge.  Judicial delegation also aims to achieve the objective of the legislator/lawmaker in making the competence of the case execution over a single execution court despite diversity of money execution or diversity of domestic competent courts. This desire comes as a result of non –dismemberment of the case among different execution courts.

Throughout this study, it was shown that the execution competence was handed to one of the competent execution courts when there are numerous competent courts, while divested  competence of the rest of the courts. Therefore, it was essential to mention judicial delegation.

However, judicial delegation in the Yemeni law –related execution is an imperative rule of the deputizing court and deputized court when there are justifications and terms, provided that there is no any legal hindrance and is not subjected to the discretionary power.

The scope of judicial delegation is broad and encompasses rendezvous procedures, executive seizure of movable property, seizure of the debtor's property to the other party, seizure of real property, execution without sale and execution of arbitrators' judgment.

Judicial delegation –related execution and its continuity has some terms and conditions which are as follows:

• Judicial delegation shall be related to an  execution procedures.
• Judicial delegation shall be carried out based on an existing case.
• The deputizing court and deputized court shall abide by the legal rules regulating the judicial delegation.
• Both The deputizing court and deputized court shall be legally qualified/competent to  its practices.
• Existence of duplicity in the territorial competence between the two courts.

Judicial delegation can only be performed according to the procedures determined by the legislator, some of which is a commitment to the deputizing court and other is a responsibility of the deputized court. 

Judicial delegation –related execution has some effects, whether related to the deputizing court or deputized court or to the parties. Some of these effects are as follows:  the deputizing court carries out some duties such as: distribute incomings of the execution after the deputized courts provide the deputizing courts with the money/funds being collected.

 The Yemeni procedure Act did not address the cases of refusal of the judicial delegation by the deputized court, except some cases with obstacles and actions taken in respect thereof.

We recommend the Yemeni legislator or lawmaker to stipulate an article in the procedure law when adjusted by identifying the cases of judicial delegation's rejection by the deputized court for any of its cases such as: conflict of executive title with another executive title  until the conflict is removed.

We also recommend the Yemeni lawmaker to exclude the provision of the article No.(58) of the arbitration due to the problems it causes.