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Amendment of the Code of Civil Procedure

Law No. 134/2010, regarding the Code of Civil Procedure, has been amended under Government Emergency Ordinance No. 1/2016, particularly inasmuch as enforcement proceedings are concerned.

The Constitutional Court has recently found that the initiation of enforcement proceedings without prior court control represents a violation of the right to equitable relief, triggering lack of impartiality and independence that are attributes specific of the courts of law. In addition, the Constitutional Court has ascertained that the approval of enforcement may not be delegated to a court enforcement officer because such officer is not a court authority.”

The former method whereby enforcement proceedings can be commenced only on the strength of court judgement has been resumed”, states Government spokesman Dan Suciu.

Therefore, according to the latest amendments, after receiving the request for enforcement under court judgement, the court enforcement officer (court commissioner [in the  USA]) shall proceed to filing the application for enforcement and to initiating or refusing to initiate, for solid reasons, the enforcement procedure.

Within a maximum of three (3) days from the filing date of the application, the court commissioner shall apply to the relevant court for approval of enforcement, providing such court with the documents required by law.

The approval of enforcement shall allow the creditor to request that the court commissioner who applied for such approval should use, either simultaneously or successively, all the legal methods for enforcement with a view to having his/her rights restored, inclusive of being repaid the enforcement costs. The approval of enforcement shall produce legal effects throughout Romania. Such approval shall also extend to the writs of execution which will be issued by the court commissioner during the enforcement proceedings.

Where there is obvious danger that the traced assets may be fraudulently appropriated, the court shall order, upon creditor’s request and under such court’s decision regarding approval of enforcement, that the traceable assets should be forfeited, concurrently notifying the debtor thereof. In this case, mention should be made of the forfeiture in the very decision regarding approval of enforcement.

The application for approval of enforcement shall be handled within seven (7) days, at the latest, from the date of its filing with the court, under decision issued in the Council Chamber without any summons to the parties. The court may postpone rendering its decision by only 48 hours and the reasoning of such decision shall be communicated within seven (7) days, at the latest.

Consequently, enforcement proceedings will take longer than before, having in view the period required for the issuance by the competent court of its decision approving the enforcement.

LEGAL ALERT by Duncea, Stefanescu & Associates

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