11. Indemnizarea prejudiciului cauzat prin efectul încuviințării măsurii pentru care a fost constituită cauțiunea în materia executării silite
11. Compensation for the damage caused by the approval of the measure for which the security was lodged within the field of enforcement

Summary/Abstract: Civil Procedural Code – the common law on security – lays down the conditions for depositing security in various matters. Legislators’ favorite field for security is that of enforcement, in relation to the different versions of stay of enforcement, fully reflected in the large number of practical situations in this matter în case law. This is why, our article mirrors this view, focusing on the request for stay of the enforcement and, respectively, for stay of enforceability of a judicial decision, as applications for which the security is deposited. The article aims to analyze the two related applications specific to security, i.e. the application for refund of the security and the damage claim from the amount of the security. As regards the application for refund of the security, the jurisdiction, the duty stamp fee, the operating mechanism and, implicitly, the destination of the amount filed by way of security are examined. Concerning the damage claim application from the amount of security, first of all are analyzed, the specific features of such claim, as they emerge from the legal architecture of the claim. This analysis answers several questions: is it an incidental or principal claim? A patrimonial or a non patrimonial? Which Court has jurisdiction to adjudicate such and what is the duty stamp fee? Is it a contentious or a non contentious claim? What is its intended purpose? What is the practical relevance of the security as a being qualified as a guarantee? Subsequently, the jurisdiction and the duty stamp fee, the type and concrete requirements of civil liability are analyzed, one by one. Specifically, with regard to the wrongful act, are examined (i) the possible relevance of the fact that the suspension was, by hypothesis, ordered by a Court towards the wrongful act and (ii) whether, in relation to the damage claim, the wrongful act should necessarily also meet the requirements of abuse of procedural rights. Astferwards, are x rayed the assessment and basis of calculation of the damages, and also the criteria for determining the damages; in the end, we made a brief comparison between the claim for refund of the security and the damage claim from the amount of security.

• Details
• Contents