Procedure on Small Claims in Regulating the Bill of the Code of Civil Procedure
| Author | Alexandrina Zaharia, PhD |
| Position | Associate Professor. "Danubius" University of Galati |
| Pages | 97-106 |
Page 97
The special procedures are applicable only in the cases that impose a different regulation of common law. These, irrespective of the place in which they have been regulated, comprise, according to the specificity of the special procedure, only the derogatory matters of common law. Accordingly, the special procedure departs from the common law and is aimed at simplifying and accelerating the judging of thePage 98disputes. But in all the cases in which a judicial norm that regulates a special procedure is applied, it has to be completed by the common law rule of procedure, as it does not always comprise a complete regulation of civil process in that matter.
The present Code of civil procedure regulates the special judicial procedure in Book VI, namely "Special procedures" in articles 581- 720.10, including: presidential ordinance, restoring documents and missing decisions, payment offer and consignation, levy, seizure, divorce, procedure of judicial division, requests regarding possessions, solving litigations in commercial matters.
The draft1 of the Code of civil procedure (named in the present paper 'draft') maintains Book VI with the same denomination and regulates in articles 884-1016, besides the judicial procedures mentioned above, the procedure of placing under judicial interdiction, the procedure of death declaration, procedure of payment ordinance, judicial bail and the procedure on small claims. In the present paper's demarche we will analyze the regulation of the procedure on small claims by comparison with CE Regulation no. 861/2007 on July, 11th 20072 was adopted by the Parliament and the Council on establishing a European procedure for small claims, named in the present paper 'regulation'. The aim of this procedure is to facilitate the access to justice in the EU member states. The regulation was adopted in order to guarantee identical conditions both for the creditors as well as for the debtors all over the EU.
By adopting the norms of European procedure on the requests with this object, the purpose was to simplify and accelerate the settlement of cross-border litigations and cost reduction. In the same time, the purpose was also to offer the interested parties an optional instrument that completes the possibilities regulated by the member states' legislations, without bringing them prejudice. The scope of the regulation is limited to litigations that have a cross-border feature and this is the reason why the Romanian legislator has included this special procedure in the draft.
In the draft, the procedure regarding small claims is regulated in title XII, articles 1009- 1016 and in a vas extent, the procedure is assumed from the regulation.Page 99
In what concerns the scope, the text of article 1009, al. 1 defines the content of the collocation "small claims" as being that request formulated in civil and commercial matters, whose object, when referring to the instance, does not exceed 10.000 lei. This sum does not include the interests, legal charges and other accessory incomes. More inspired seems to be the collocation "other costs" comprised in the Regulation, rather that the "accessory incomes", not defined in the content of the abovementioned article.
We assert as welcome the statement that this procedure does not apply to the requests regarding: martial status or judicial incapacity of private persons; patrimonial rights deriving from family relations; inheritance; insolvency; procedures on liquidating insolvable companies or other judicial persons and similar procedures; social insurances; arbitrary; labor law; rental of immobile goods except actions regarding claims on paying a sum of money; prejudice to the right to private life or rights concerning personality. This listing is comprised by the regulation that also adds calumny.
The special procedure on small claims is made available to the claimant, who has the possibility to choose between the procedure regulated by the present title and the common law procedure. We assert the fact that the regulation offers judiciaries an alternative to the procedures provisioned by the member states' legislations and eliminates the intermediary procedures that are necessary for the recognition and execution in a member state, within the European procedure regarding small claims. Eliminating the exequatur procedure ensures the fast recovery of small claims as the Regulation marks a substantial progress at a European level. In what concerns the scope, in article 2, al. 1, the Regulation expressly provisions that it is applied to claims that do not exceed 2.000 euro when referring to the instance, both in civil and commercial matters in cross-border causes, irrespective of the instance's nature if at least one of the parties has the premises or residence in a member state, other than the one in which the referred judicial instance is located.Page 100
Returning to the draft, we assert that regulating the alternative feature in art. 1019 al.1 was not necessary, as it is well known that the claimant is legitimate to choose the judicial procedure when one of his subjective civil rights has been violated or invaded. In the same article 1010 in the succession of paragraphs, par. 2 provisions the possibility to solve a request formulated under the conditions of common law according to the...
To continue reading
Request your trial