Análisis de la vulneración a la tutela judicial efectiva en el numeral 4, ejecución de contratos prendarios y con reserva de dominio: un enfoque en la ausencia de excepciones previas

Abstract

This paper analyzes the impact of effective judicial protection on the enforcement of pledge and retention of title contracts, focusing on the absence of prior exceptions in these proceedings. Effective judicial protection, conceived as a fundamental right within due process, guarantees that the parties to the proceedings may exercise their defense under equal conditions. However, in the enforcement proceedings regulated by the General Organic Code of Processes (COGEP, by its Spanish acronym), the debtor does not have suitable mechanisms to question the validity of the enforcement title prior to the adoption of coercive measures. The study examines the legal nature of prior objections, their doctrinal evolution and their classification, highlighting their importance in procedural refinement. Subsequently, an analysis of the regulatory framework of enforcement procedures applicable to pledges, retention of title, and mortgage contracts is developed, noting how the lack of prior objections restricts the right of defense and violates legal certainty. Therefore, the COGEP must be reformed to allow the inclusion of prior exceptions in enforcement proceedings and guarantee a procedural balance between the parties.