IV. VARIA Interpretarea și aplicarea unor dispoziții din cuprinsul art. 906 Cod procedură civilă. Ce nu s-a spus prin Decizia nr. 47/2024 a Înaltei Curți de Casație și Justiție
IV. VARIA Interpretation and application of certain provisions of art. 906 Civil Procedure Code. What was not said by Decision no. 47/2024 of the High Court of Cassation and Justice

Summary/Abstract: The paper analyzes the interpretation and application of Article 906 of the Civil Procedure Code regarding the penalties stipulated for failure to perform obligations to do or not to do (purely personal), in the context of the Alba Tribunal's application to the High Court of Cassation and Justice for a preliminary ruling, a request rejected as inadmissible by Decision no. 47/2024 . The material starts from the doctrinal debates on the legal nature of penalties - either as a "punitive" instrument similar to punitive damages or having its origins in the French astreinte - and reveals the importance of establishing the nature of the penalties for the application of Article 906. The High Court of Cassation and Justice rejected the claim as inadmissible, but in the recitals noted that this special challenge is directed against the enforcement derived from the final judgment and may lead to the removal or reduction of penalties if the debtor has performed the obligation and proves good cause for delay. The authors argue for a more favorable interpretation, this time in favor of the debtor, viz: the challenge to enforcement based on the provisions of Art. 906 para. 5 of the Civil Procedure Code can be admissible also when the enforcement is voluntary (not only when a new enforcement has been initiated) and can indirectly allow the criteria used to establish the initial penalties to be censured, but under the cumulative condition of (at least partial) enforcement and proof of the well-founded reasons for the delay. As regards partial enforcement, most legal writers interpret the literal text as adding the condition of full enforcement, but the authors opt for a teleological interpretation which accepts the reduction of penalties even for partial enforcement if there are good reasons. The incompatibility between authorizing the creditor to execute in place of the debtor (Art. 904) and ordering penalties (Art. 906) for obligations intuitu personae is also asserted. Conclusion: the special complaint under Art. 906 para. (5) remains a procedural means for contesting the penalties, but its admissibility depends strictly on the conditions of the text - the fulfillment of the obligation and the existence of good cause for delay.

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