Applicability Of Law No. 77/2016, In Relation To The Relevant Jurisprudence Of The Constitutional Court Of Romania In The Situation Of A Forced Executation Before The Entry Into Force Of The Legal Text

• Author: Bogdan Sebastian Gavrila
• Pages: 164-170

APPLICABILITY OF LAW NO. 77/2016, IN RELATION TO THE

RELEVANT JURISPRUDENCE OF THE CONSTITUTIONAL COURT OF

ROMANIA IN THE SITUATION OF A FORCED EXECUTATION BEFORE

THE ENTRY INTO FORCE OF THE LEGAL TEXT

PhD. student Bogdan Sebastian GAVRILĂ1

Abstract

This paper seeks to establish a suitable working hypothesis for the situation mentioned in th e title, referring to

the fact that on many occasions the practice of the courts was not constant, leading to diametrically opposed solutions in

similar cases, with very significant effects on the litigant parties. It is the case where some of the debtors, whose claim

has been admitted by the court, all obligations arising from a bank loan contract subject to a forced execution having

ceased, were no longer obliged to cover the difference between the prin cipal debt due and the amount of money earned

from the forced sale of the mortgaged property. On the other hand, other debtors, whose case regarding the extinction of

the debt due to the forced execution of the mortgaged property, was dismi ssed, since the remission of the good was not

voluntarily, and who were found in the situation where the forced execution was continued for the remaining debit after

the distribution of the proceeds from the sale of the adjudged asset. The debt was usually employed penalizing interest

and thus the forced execution proceedings continued until all outstanding amounts were extinguished. The analysis will

follow the applicable law and ju risprudence of the Constitutional Court of Romania, the relevant doctrine and

jurisprudence, in order to identify an appropriate solution to the problem of law.

Keywords: Law no. 77/2016, Constitutional Court of Romania , decision no. 623/2016, previously sold

immovable asset.

JEL Classification: K14, K39, K41

1. Introduction

The article shall attempt to analyse the legal situation that has led to a different practice among

courts, which have come up with solutions with significant effects on law subjects, in some cases

extremely beneficial but in accordance to the relevant legal provisions, and in others, capable of

attracting serious economic difficulties for some of the parties involved.

Consideration will be given to those erroneous examples of the judicial practice, in concretely

establishing the effects of the Constitutional Court of Romania (C.C.R.) interpretation of Law no.

77/2016, in establishing a useful point of view regarding the legal issue.

The primary role of the legal text was to help the segment of borrowers who faced serious

economic difficulties and are no longer fit to meet their contractual obligations initially agreed upon

at the onset of their manifestation of will. The interpretation of C.C.R. aimed to limit possible abuses

committed by those debtors who speculated the legal provisions to leave contractual loan agreements,

without an objective reason for doing so. Instead, the most vulnerable debtors, which were executed

earlier, prior to the entry into force of the law, and to whom the legal provision is directly intended

for, must be given an adequate consideration of their legal situation, in compliance with the legal text

and the case law of the Constitutional Court of Romania.

2. The legal texts

Firstly, the provisions of the Civil Code of 18642 stated in article no. 969 that : "Legally

established conventions have the power of law between the Contracting Parties. They may be revoked

by mutual consent or by lawful cases". In most of the situations, loan agreements were concluded

while these legal provisions were in place.

1 Bogdan Sebastian Gavrilă – Doctoral School of Law, Bucharest University of Economic Studies, Romania,

gavrila.bogdan.sebastian@gmail.com.

2 The Civil Code was decreed on 26 November 1864, promulgated on 4 December 1864 and implemented on 1 December 1865.