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Procedure of conveying by the creditor of the debtor's auctioned good – constitutional
On 6 February 2014 the Constitutional Court delivered its judgment on the constitutionality of the Art. 139 para. (3), (4), Art. 140 para. (1), (3) - (10) of the Enforcement Code and certain provisions of the Art. 28 para. (1), let. e) of the Law on Immovable Property Cadastre, regarding the enforcement proceedings on judgments of the court, by the bailiffs (Complaint No. 32a/2013).
Circumstances of the case
At the origin of the case lies the application submitted to the Constitutional Court on 17 July 2013 by the MP Oleg Ţulea.
The author of the application alleged, in particular, that the challenged provisions, whereby the bailiff is entitled, by the deed, to convey to the creditor the debtor’s auctioned good on the account of the debt extinguishment, if the latter accepts, in case that the auction was not held, are contrary to the Articles 20, 46 para. (1), 115 and 119 of the Constitution.
The Constitutional Court ruled on the application in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEŞU,
Mr Igor DOLEA,
Mr Tudor PANŢÎRU,
Mr Victor POPA,
Mr Petru RĂILEAN, judges
Conclusions of the Court
Examining the reasoning of the parties, the Court held that the judgment enforcement is an integral part of the judicial process, but laying down the rules of conducting the enforcement is an exclusive prerogative of the legislator, which can establish, taking in consideration some special circumstances, particular rules of procedure. The enforcement procedure is meant to contribute to the achievement of the creditor’s rights, recognized by an enforceable document submitted for enforcement in the manner prescribed by law.
Concurrently, the Court underlined that the option of the creditor to take the good on the account of the debt represents a part of the selling goods procedure, which facilitates the enforcement proceeding, with the creditor’s will, without affecting the debtor’s rights, by avoiding the occurrence of the circumstances that would make the enforcement difficult or impossible.
In terms of the alleged, the Court considered that the bailiff is not responsible for deciding on conveying the good, but the creditor is, due to his/her right to decide on assuming that good in his/her property.
The Court found that the author of the application challenges, in fact, the abuses committed by some bailiffs, referring to such situations, which are not related, in essence, to the constitutionality of the challenged provisions.
The Court held that any deed of the bailiff is liable to judicial control and the particular circumstances that occur due to the failure to comply with this right is a consequence of the failure to comply with the law, but not the consequence of its unconstitutionality.
Moreover, the Court found that the effective and efficient enforcement of the enforceable documents is a right guaranteed by the Constitution. This guarantee of the creditor can not be opposed to the debtor’s right to property. A right provided by the Constitution can not be guaranteed by violating another right prescribed by the Supreme Law.
Judgment of the Court
Starting from the reasoning invoked above, the Constitutional Court rejected as unfounded the application of the MP Oleg Ţulea and recognized as constitutional the provisions of the Art. 139 para. (3), (4), Art. 140 para. (1), (3) - (10) of the Enforcement Code of the Republic of Moldova adopted by the Law No. 443-XV of 24 December 2004, as well as the text: “or the reports of the forced conveying of the right to property on the immovable good, laid down by the bailiff” of Article 28, paragraph (1), let. e) of the Law No.1543-XIII on Immovable Property Cadastre adopted on 25 February 1998.
The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.