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

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