Consideration regarding the law no 77/2016 in view of decision of the constitutional court Nº 623/2016

• Author: Valentin Cocean
• Position: PhD Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest; Research Assistant (email: valentin.cocean@zrp.ro).
• Pages: 20-29

LESIJ NO. XXIV, VOL. 1/2017

CONSIDERATION REGARDING THE LAW NO 77/2016 IN VIEW OF DECISION

OF THE CONSTITUTIONAL COURT NO 623/2016

Valentin COCEAN

Abstract

The forced giving in payment regulated by Law no 77/2016 has created a lot of polemics which are not

necessarily solved by the Decision of the Constitutional Court. The present study represents an attempt

to clarify some of the implications of the Constitutional Court Decision upon the Law no 77/2016.

Keywords: giving in payment, hardship theory, loan, constitutionality, court.

1. Introduction

Adopted upon the existence of a

conflict, significantly emphasized by

economic events – the global economic

crisis, but especially that of the r eal estate

market, the evolution of the exchange rates

of some currencies, between consumers and

banks, Law no. 77/2016

1

sparked ample

controversy. The controversy manifested

mainly socially, while law professionals

were almost unanimously critical towards

the said Law

2

. The present study, however,

does not intend to analyze the said Law but

only the implications upon it of Decision no.

623/2016 of the Romanian Constitutional

Court

3

.

 PhD Candidate, Faculty of Law, "Nicolae Titulescu" University of Bucharest; Research Assistant (email:

valentin.cocean@zrp.ro).

1

Published in M.Of. no. 330 of April 28th 2016 and enforced on May 13th 2016.

2

See, e.g. Law on Giving for Payment: arguments and solutions, Valeriu Stoica, Marian Nicolae, Marieta Avram;

Bucharest, Hamangiu Publishing House, 2016.

3

Published in M.Of. no. 53 January 18th 2017.

4

M. Nicolae in Law on Giving in Payment: arguments and solutions, op. cit., page 96; C. Pintilie, D. Bogdan in

Law on Giving in Payment: arguments and solutions, op. cit., page 121-147; L. Mihai, Amicus Curiae regarding

giving in payment, https://www.juridice.ro/474428/amicus-curiae-cu-privire-la-darea-in-plata.html; C. Birsan, S.

Tirnoveanu, I. Craciun, Law on Giving for Payment – critical exam of some (un)constitutionality and

(un)convenyionality elements, https://juridice.ro/essentials/499/legea-privind-darea-in-plata-examen-critic-al-

anumitor-elemente-de-neconstitutionalitate-si-neconventionalitate.

5

The solution had already been brought forward by doctrine. See V.Stoica in Law on Giving for Payment:

arguments and solutions op. cit., pages 22-29 and, a di fferent view, M. Avram, About the Law on Givin g for

Payment: between juridical folklore and the reason of law, pt. 3, https://www.juridice.ro/455084/despre-legea-

privind-darea-in-plata-intre-folclorul-juridic-si-ratiunea-dreptului.html.

The aforementioned Decision, which

is by no means safe from any criticism,

brought, both legally and socially, a

satisfactory solution for all envolved

interests. Without preventing the application

the dispo sitions o f the Law it criticised, as

some authors had anticipated

4

, the

Constitutional Court established the

interpretation, prob ably the sole possible

one

5

, by which these could be enforced

without transgressing constitutional

priciples and , also, without injuring the

rights of one of the ca tegories of subjects

involved in the relations sought by the Law.

Below we wish to analyze some of the

aspects involved by the passing of this

Decision, both regarding civil substatial law

and civil procesual law, but only, as the