The Posibility Of The Debtor To Request Public Judicial Assistance In The Form Of Bail Exemption Or Reduction During A Provisional Suspension Of The Forced Execution Case

Author:Bogdan Sebastian Gavrila
Pages:22-30
SUMMARY

The situation is becoming more and more common nowadays. A debtor, lacking in sufficient fonds, is forced to request public judicial assistance from the Court so that he may be exempted from the obligation of paying bail during a provisional suspension of the forced execution case. The article shall focus on the applicability of Article 6 of the E.C.H.R., on the national provisions and on whether ... (see full summary)

 
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LESIJ NO. XXV, VOL. 2/2018
THE POSIBILITY OF THE DEBTOR TO REQUEST PUBLIC JUDICIA L
ASSISTANCE IN THE FORM OF BAIL EXEMPTION OR REDUCTION DURING
A PROVISIONAL SUSPENSION OF THE FORCED EXECUTION CASE
Bogdan Sebastian GAVRILĂ
Abstract
The situation is becoming more and more common nowadays. A debtor, lacking in sufficient
fonds, is forced to request public judicial assistance from the Court so that he may be exempted from
the obligation of paying bail during a provisional suspension of the forced execution case. The article
shall focus on the applicability of Article 6 of the E.C.H.R., on the national provisions and on whether
or not they may allow such a request to be analysed by th e Court and not be rendered inadmissible.
Some practitioners have viewed this possibility as inadmissible in accordance to our national
legislation. In their view, no legal text allows the debtor to request this type of aid and no legal means
are offered to regulate this type of legal problem. Others have granted public judicial assistance after
careful consideration of the economic situation of the debtor, in regard to the fact that his right to a
fair trial extends even to this particular situation. By not granting him the o pportunity to present his
arguments at this stage of the trial due to a lack of funds, a sort of discrimination may be generated in
favour of the debtors who can financially afford to present their case as opposed to those who cannot.
The article shall thus carefully ponder the interests and o bligations of the parties involved in the trial
so as to establish some useful conclusions or good practices regarding the issue at hand.
Keywords: public judicial assistance, bail exemption, provisional suspension, forced
execution, Court’s role.
1. Introduction
1.1. What matter does the paper
cover?
The paper deals with the situation o f a
forced execution of a legal title. The debtor
considers that his creditor is not entitled to
execute the title and thus calls upon the court
to suspend the execution. However, the
timing is not financially acceptable for the
debtor. He is unable to pay bail, despite the
obligation as laid out in Article 719 par. 7 of
the Civil Procedural Code
1
and thus his
PhD Candidate, Bucharest University of Economic Studies, Romania, judge (e-mail:
gavrila.bogdan.sebastian@gmail.com).
1
Law no. 134 of July 1, 2010 regarding the Civil Procedure Code, republished in the Official Journal of Romania
no. 247 of April 10, 2015.
request to suspend the execution cannot b e
analysed by the court. Thus, some debtors
have chosen to employ the use of
Emergency Ordinance no. 51/2008,
soliciting public judicial assistance in the
form of the exception or reduction of the bail
fees. The effect of this request means placing
the judge into a situation of not being able to
establish the legal text that may ad dress this
particular issue.
The main objective of the study is to
come accros an acceptable solution for this
legal difficulty, one which may provide the
legal subjec ts with a means of establishing
both a predictable and accessible course o f

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