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Law emerged as a dimension of the normative social order at the same time as human being, at the same time as its civilization activity. In this respect, law is sine qua non component of any civilization, having specific forms of the respective times and places. The condition of mentality is reflected upon a pedagogical and teaching phenomenon established in docimology. The examiner’s mentality, of Pestalozzian origin, that he has done his job until the examination, and the tested person must do his job when taking the exam is extremely harmful for the instructive and educative process, which however, is a process.
More...Obligativitatea considerentelor deciziei pentru instanțele judecătorești
The courts are not held responsible by the considerations of the Decision no. 895/2015 regarding its effects, since the way in which the decision acknowledging unconstitutionality shall be applied, in terms of the effects produced by the legal text into question, does not depend on the explanation of the operative part of that decision, and is not a prerogative of the Constitutional Court.The judge shall carry out its own analysis related to these effects, considering that the decision is not applicable to the appeals against enforcement filed prior to its publication and that the annulment of the enforcement proceeding shall not be justified or, otherwise, he may appropriate the opinion of the Constitutional Court out of the considerations of the decision.In this last assumption, it is necessary to fulfil several conditions: the appeal against enforcement should be filed within the deadline provided by law; it should be admissible in relation to the provisions of art. 713 para. (3) of the Code of civil procedure; its object should consist as well, in the annulment of the writ of execution; the legal basis of the request for annulment shall consist in the unconstitutional nature of the provisions of art. 666 of the Code of civil procedure; the plea of unconstitutionality should have been declared as admissible under a resolution delivered by the court having jurisdiction to settle the appeal against enforcement.
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The attached third party, which does not owe and shall not owe any amounts to the pursued debtor, has to notify the fiscal body about this circumstance, within 5 days from the receipt of the attachment letter. The above-mentioned third party has not filed any appeal against enforcement; however, he is interested, in the light of art. 237 of the Code of civil procedure, in promoting the action regulated by the rule into question.Art. 701 para. (4) of the Code of civil procedure initiates the solution of the cancellation by operation of law of the enforcement proceedings at the theoretical level, if certain conditions are fulfilled. However, in relation to some possible scenarios, we find that the concrete effects produced in the matter of attachment are governed by other legal texts.The pursued debtor shall benefit from the amounts crediting its account subsequent to the granting of suspension of the enforcement proceedings.
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This article aims at answering the question whether the European writs of execution falling within the Regulation (EC) no. 805/2004, Regulation (EC) no. 1896/2006, Regulation (EC) no. 861/2007 and Regulation (EU) no. 1215/2012 have to carry out the national procedure of the declaration of enforcement regulated under art. 666 of the Code of civil procedure.The goal of these European regulations is to outline a uniform law in the enforcement matter at the European level, for facilitating the immediate and efficient recovery of claims eliminating the difficult exequatur proceedings.The main pros and cons are further discussed regarding the need to carry out the national procedure of the declaration of enforcement regulated under art. 666 of the Code of civil procedure, as well as the non-unified judicial practice and the necessary delimitations are described between the institution of declaration of enforceability regulated under art. 666 of the Code of civil procedure and the institution of declaration of enforcement of the foreign judgement on the Romanian territory regulated under art. 1103-1110 of the Code of civil procedure.Finally, the conclusions are stated in the sense that the carrying out of the procedure of declaration of the enforcement regulated under art. 666 of the Code of civil procedure is necessary and mandatory in case of the European writs of execution.
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The question of the order of the satisfaction of claims is often raised in practice if there are several creditors of the same debtor (or even of certain different debtors), who, however, hold concurrent guarantee rights over the same property. In theory, the question should be settled in compliance with the prior tempore, potior iure principle, so that the first creditor, which made its guarantee right known, should take precedence over the satisfaction of its claim. However the situation becomes more complicated when we have to deal with two (or several) guaranteed creditors, whose guarantees are placed over different assets, which are unified by accession, under the circumstances in which each creditor was the first to fulfil the advertising formalities with respect to the asset over which its guarantee is placed.Concretely, the following question is raised: What happens to the lien over a movable property, under the circumstances in which the creditor as beneficiary of this lien enjoys a special privilege as well, recognized by the provisions of art. 2339 para. (1) letter b) of the Civil Code, in case the holder of the lien is involuntarily stripped of the movable property [in case of voluntary stripping, it shall result in the extinction of the lien according to art. 2499 para. (2) sentence I of the Civil Code, but also in an extinction of the special privilege according to art. 2340 of the Civil Code], and it is incorporated in an immovable property over which another creditor holds a right under a mortgage.This matter is of relevance given that both guarantee rights were made known by their record in the public registers, and thus, each of the creditors participating in the competition holds a first rank guarantee regarding the asset over which it is placed.
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During the period of 6 years, the Constitutional Court of Romania returned the request for declaration of enforcement twice to the judge: for the first time in the year 2009, under the Decision no. 458; for the second time, at the end of the year 2015, under the Decision no. 895. What is the practical consequence of those two reference decisions of the Constitutional Court? How must the judge’s role, extremely increased by the Court in those two decisions, be shown in the legal reality, outside the Constitutional Court? What does the judge’s control involves in relation to the amount for which the declaration of enforcement is requested? Which is the applicable sanction in case of declaration of enforcement under a court resolution for granting where the amount is not mentioned, according to art. 666 para. (3) of the Code of civil procedure – absolute or relative nullity? Where shall the advantages of holding a writ of execution, other than a court order, be extended to?Here are certain questions arising in relation to the procedure of application of the law of a request for declaration of enforcement and which are imposed on the judge charged of such requests. This article emerged with a view to share the answers towards which introspection led us on these questions.
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The finding of a fact by the judicial bailiff is a present procedure in the legislation of many European countries, which may be referred to in various areas, such as Internet, intellectual property, unfair competition, dwelling relationships, family relationships, trade, constructions etc.The finding represents an efficient method of preserving some evidence related to a fact on which a party intends to build its claims in a future dispute. Moreover, the carrying out of a finding regarding a fact in relation to which a dispute has resulted in a document with the force of evidence of an authentic instrument may facilitate both the formulation of the winning opportunities of the involved parties, and also the amiable settlement of the dispute, in this manner, broadly participating in the alternative methods of settlement of disputes.
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The enforcement of the court orders ruled in the administrative matters determines a series of consequences related to the applicable law, depending on the manner in which the penalty and/or sanctions were established even under the decision of the court for administrative matters, writ of execution, respectively under the decision delivered according to art. 24 of Law no. 554/2004.In all cases, it is essential to determine the moment when the enforcement is deemed as commenced, in relation to the specificity of this matter.
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Law no. 77/2016 regarding the legal proceedings provided under Law no. 77/2016 on the giving in payment of immovable assets in exchange for the discharge of debts obligations undertaken by credits regulates a special procedure having as goal to discharge the debts arising from the loan agreements falling within the scope of this regulation. The article examines the legal proceedings regulated by this law, respectively the application by which the creditor challenges the fulfilment of the admissibility conditions of the procedure of giving in payment, the action by which the debtor requests the delivery of a decision standing for an instrument of giving in payment and the action by which the debtor requests the finding of the discharge of the debt as a result of the sale of the asset on which the security was set up in an enforcement proceeding.
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The privilege of the house owners’ association goes ahead the real estate mortgage; therefore, all the claims of the house owners’ association should be paid at this rank (the claim resulting from the utility, penalties, court fees and enforcement fees not being in the common interest of the creditors). The registration date of the privilege in the land book is not relevant. The registration of the privilege of the house owners’ association shall not confer the rank of this privilege; however, it only preserves it. Therefore, the fact that both the real estate mortgage of another creditor, as well as the writ of enforcement issued by the judicial bailiff is registered in the land book of the respective estate on the issue date of the request of the association has no relevance on the rank of the privilege of the house owners’ association.The prior registration of a mortgage may be opposed against a house owners’ association only in relation to the claims by way of utility expenses that are older than more than 3 months prior to the registration of the mortgage.
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A shift from the sense of common law of enforcement towards the special provisions setting forth enforcement with the intent to capitalize certain tax claims necessarily focuses on the legal provisions regulating the institution of the revenue agent, which may identify its legal situation, its role and powers in the tax enforcement proceeding, at the same time revealing some comparative issues between the revenue agent and the judicial bailiff.
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During the preliminary ruling proceedings, such as those subject to the adoption of a provisional measure such as the presiding judge’s order, the applicability of art. 6 of the Convention depends on the fulfilment of certain conditions.In the light of the regulations of the new Code of civil procedure, the provisional suspension of the enforcement proceedings under the presiding judge’s order is excluded. The urgent nature of the special procedure of the presiding judge’s order resulting in the adoption of certain provisional measures for the claimant, has to be duly considered and ensured as well, during the enforcement stage of the presiding judge’s order.
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