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universul juridic magazin

Judicial finding of giving in payment and the recourse action – the implementation of the decision no. 623/2016 of the constitutional court of romania

Law no.77/2016 regarding the giving in payment of some immovable property in order to discharge the obligations assumed under loans introduced in the national legal system in virtue of art. 8 and art. 9, a new institution, whose generic name is “declaratory action for the giving in payment”. However, this is a vague name, as the actual nature of the application for completion of the procedure of giving in payment, incorrectly named “declaration of giving in payment” was that of application for entitlements. We hereinafter focus on this type of civil proceedings, proposing an approach from the practical perspective, considering also the Decision of the Constitutional Court no. 623 of 25 October 2016. Although the courts have not been referred yet with a significant number of such claims, and the judgments rendered final in such disputes have been reduced to a smaller number so far, the debates regarding the manner in which the concerned disputes shall be conducted from the material and procedural point of view are still a live issue. The questions raised in relation to this declaratory action are already multiple, as they are raised both in writing and in public debates. In relation to this issue, as well, we shall endeavour to find answers, however, without claiming them to be final. This approach is structured so that it may comprise all points of interest, respectively the conditions of exercising the action, the persons capable of participating in this procedure, the rules according to which these claims may be settled and the effects of the court resolution rendered finally. Finally, we intend to examine a less discussed text of the Law from the same practical perspective, respectively art.6 paragraph (4), dealing with a recourse action against the main debtor. Although it is currently ignored in an apparent way this action is also of interest from the practical point of view, however, far off in the future. But it is important that we should try at least to foresee how this mechanism operates in practice, what it represents, to whom it is addressed and how it will operate.