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HCCJ. Action in finding of nullity of the provision for restitution in kind, made ​​on common law

The High Court of Cassation and Justice decided that, person being a third party in relation to both the issuer and the beneficiary of a provision for restitution issued under Law no. 10/2001, may request finding of invalidity of that provision only by an action for annulment of the common law, the procedure provided by the Law no. 10/2001 being made ​​solely for the persons entitled for the purposes of this law. The High Court noted, however, that although the applicant’s action is not brought under special procedural provisions of Law no. 10/2001 does not mean that the act should not be checked in terms of its conformity with the provisions of this law. Therefore, the solution of the appellate court which examined the contested act only by reference to the general conditions of validity of the legal act and not in terms of compliance with Law no. 10/2001 is illegal, as long as the action was based on art. 966 of the Civil Code. (Art. NCC 1236), in this situation the examination of the cause of the act being required, fraud in law respectively. (Decision no. 4675 of the 22nd of October 2013, rendered in appeal by the First Civil Division of The High Court of Cassation and Justice, covering the finding of absolute nullity of the provision for restitution)

:: The source: JURIDICE.ro

Anda Laura TĂNASE

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