Noutățile legislative în domeniul prescripției

8/2/2019 Noutățile legislative în domeniul prescripției

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Noută ile legislative în domeniulț

excep iei prescriptiei extinctiveț

The legislative updates regarding the exception of the executive prescription

Lector universitar av. dr. Emilia Cotoi

Universitatea Dimitrie Cantemir Targu Mureș

Abstract. In the Romanian system the executive prescription was considered, until now, one of

the main procedural sanction against the creditor who seemed to have a passive attitude regarding exercising the right to take legal measures to asserted their violated right. The New Civil Code which

came into force recently, has brought substantially changes regarding this field, giving more efficiency

to the principle „free access to the court”, according to which the litigant has every right to settle the

case by the judicial authority, where the matter putted to judgment has to be solved effectively.

1. General considerations

The adoption and then, the entry into force of the new Civil Code took the juridical

world by surprise, the law experts being impressed by the considerable size of the new

reglementation and being frightened by the amount of information that has to be assimilated on

the fly1.

In fact, things are not quite so. Actually, many of the new Civil Code are not new, but a

replay of the old institutions, which were re-collated by the editors of the Code, to suit the

doctrine and the case law that were developed over 150 years and presented in an legal

language updated in terms of terminology. A lesser extent, the Code includes new institutions,

but we cannot say that they are completely new, because either they are taken from other legal

systems (France, Switzerland, Spain, Italy and, especially, the Civil Code of Quebec) or from

Community legislation and other international legal documents, or are an expression of

commercial practices and customs, or are a codification of case law courts.

Until the entry into force of the New Civil code, the legal institution of extinctive prescription

was distinctly regulated by Decree no. 167/1958, which represented the common law, the special

1 Entered into force through Law no. 287/2009, published, for the first time in the Oficial Monitor on 24 July

2009, republished 15 June 2011

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provisions being also regulated in other normative acts, which settled different deadlines, especially

those covered in the common law.

The extinctive prescription represents the los of the right to action, which was not

executed in the limit prescribed by law. It has the legal nature of a civil penalty, where the

careless holder of the subjective right loses a part of his legal means for protecting his right,

unused within the period prescribed by law2.

The main function of the extinctive prescription is to ensure stability and security of

civil circuit (having the effect of the stimulated power of the extinctive prescription). The

existence of the executive prescription induces the holder of the right to take actions, to come

out from his passivity, because otherwise he would be penalized (penalty in function). This is

because over the time the evidence, which should be administered to prove the existence of the

claimed right in front of the court is less certain and more difficult to manage (the function to

consolidate a civil legal relation).

The effect of the extinctive prescription consists in losing the right of action in the

material sense. The subjective civil right itself is extinguished through prescription, but

survives, without being endowed with a right of action in the material sense, to assure

protection

2. The exception of the extinctive prescription

The means of defense in which it may invoke the loss of the right of action represents

the exception of the prescription, which is treated in a traditionally way by law, doctrine and

case law as a public order exception (an absolute exception). This classification (exception

regarding the public policy) drew the main consequence the fact that the court, during the trial,

would be able to invoke it at any level3. In this respect it was article 18 of 167/1958 Decree,

regarding the extinctive prescription, showing that “The Courts of law and the arbitral organ

must investigate, ex officio, if the right or the enforcement action is barred or not”.

2 For a deeply view regarding the extinctive prescription, to be seen: M. Nicolae, Tratat de prescripţie extinctivă,

Universul Juridic Editor, Bucharest, 2010; G. Beleiu, Drept civil român – introducere în dreptul civil, subiectele

dreptului civil, Şansa S.R.L. Editor, Bucharest, 1999, p. 224 – 284; O. Ungureanu, Prescripţia extinctivă, în

Principii şi instituţii de drept civil – curs selectiv pentru licenţă, 2002-2003, O. Ungureanu, A. Bacaci, C. Turianu,

C. Jugastru, Rosetti Editor, Bucharest, 2002, p. 100 – 117; M. Tăbârcă, Codul de procedură civilă, comentat şi

adnotat, cu legislaţie, jurisprudenţă şi doctrină, Rosetti Editor, Bucharest, 2003, p. 203 – 207.

3 To be seen, for example, M. Tăbârcă, Excepţiile procesuale în procesul civil , second edition, Universul Juridic

Editor, Bucharest, 2006, p. 99

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In the juridical doctrine, the opinion in which this absolute character regarding the

exception of the extinctive prescription does not comply with the new economic and social

realities had taken shape before the enforcement of the new Civil Code.

Indeed, the analyzed text was edited in 1958, so 53 years ago, when the social,

economic, cultural, political situation has a completely different nature than it has in the present.

The communist origins had as goal, even in justice, an excessive strictness and a control over

their socio-legal relationships. This explains also that legal provision, regarding to which the

courts of justice should punish ex officio any act of negligence and passivity of the creditors,

defending property rights (this last concept it’s itself contrary to the principles of the communist

regime, which has disavowed anything regarding the patrimony and its defense through legal

means)4.

Currently, the realities are different; Romania is a country of law, is a member of the

European Union and has ratified the European Convention on Human Rights and so legislation

like of art. 18, no longer can find application in such a legal order. In this sense is also the

ECHR practice which regarding the application of the access to the court principle, held that in

a civil procedure, the litigant has all the right to have the cause solved by the judicial organ,

what means he has the right to obtain a definitive decision, where the problem has to be solved

effectively. It seems that – through the right granted to the court to be able to invoke the

prescription ex officio (so without being invoked by the claimant) – the main component of the

access to justice is dangerous limited, and also the right to obtain an effective solution of his

own cause in the limited civil actions

In other cases, The European Court of Human Rights has decided and established that

the countries have a concrete and positive duty in realizing the access to the court, like

providing a legal system which allows an appropriate and reasonable way for creditors to oblige

the debtors, not only by the court through the judicial decisions, but also ensuring their effective

implementation.

A disposition which offers not only to the interested part the right to claim his refusal to

appeal in court, but also to the court of law to take measures which should determine the refusal

of the request of the applicant summons, without being actually analyzed in substance,

represents a veritable and unjustified obstacle to the achievement of the litigants rights, by not

respecting the positive duties of the state.

In another train of thoughts, the claimer (the person who suffers a prejudice) must

receive as much ease as possible in his desire, to be able to achieve his right though court.

4 http://www.juridice.ro

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http://www.juridice.ro/

http://www.juridice.ro/



Regarding these last aspects, wisely, the foreign doctrine stated that “ the national

court... has an obligation to use, having the duty to remove the obstacles that may impede the

access to justice”5.

2.1 The relative character regarding the exception of the executive prescription

The Civil Code, recently entered into force, took over the doctrinal and practical ECHR

direction, so the article 2512 from the Civil Code states: “The prescription may be opposed only

to the benefit that flows, in person or through a representative and without having the duty to

make any contrary title or to be with good-faith. The competent jurisdiction organ cannot

impose the prescription ex officio. This rule applies even if the invocation of the prescription

would interest the state or the administrative-territorial units”. Through this rule the legislator

has established the relative character of the exception of the executive prescription, which

means that it can be invoked only by the interested part, without exception even if the

invocation of the exception would be in the interest of the state.

In this context, it was taken and stated the opinion according to which the rules that are

governing the prescription can be considered only acts of disposition, having a private nature.

We notice that its place cannot be near the exceptions like the one regarding material or

territorial incompetence.

As for the principle of the active role of judge, no matter how large we would try to

interpret it, this cannot be exercised by having the purpose of the applicant obstruction in

achieving their rights in the court.

3. Procedurals aspects regarding the exception of the extinctive prescription

The prescription exception regarding the right of action represents a real mean of

defense, and so it’s important to establish until what date the interested part can invoke this

incident in front of the court. In this sense the article 2531 from Civil Code sais that:

“Prescription can only be opposed in the first instance, through screen or, in the absence of the

invocation, no later than the first hearing where the parties are legally summoned”. Thus, also

regarding the moment when interested part can invoke the exception, it had been given a

relative character. If the interested part doesn’t invoke at the right term the exception, he will

decay from his right to invoke it.

5 To be seen E. Rădulescu, Prescripţia extinctivă – culegere de practică judiciară, C. H. Beck Editor, Bucharest,2006; M. M. Pivniceru, C. Moldovan, Prescripţia extinctivă si principalele acţiuni in justiţie, practică

judiciară , Hamangiu Editor, Bucharest, 2007;

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http://ujmag.juridice.ro/Mona-Maria-Pivniceru-Carmen-Moldovan/Prescriptia-extinctiva-si-principalele-actiuni-in-justitie-Practica-judiciara/






Besides the principle debtor, the exception can be invoked by any co-debtor or guarantor

for solitary or indivisible obligation and even the one regarding the guaranty, even if one of the

co-debtors has neglected to make it or has gave up to it. Same way can do the creditors of the

interested part, or even other interested person.

The juridical relations submitted to the new rules of prescription are settled in the article

6 of the Civil Code according to which: documents and legal acts concluded or committed or

produced before the entry into force of new laws may not generate legal effects other than those

provided by the applicable law at the closing, commission or production date.

The prescriptions, the invalidations and the usucaptions started and unfulfilled until the

entry into force of the new law are entirely submitted under the laws they have established

them.

4. Conclusions

We consider that the change regarding the law regime which are governing the

extinctive procedure becoming so acts of disposition with a private nature, being a mean of

defense able to be used only by the interested part, is in line with the new socio-economic

realities and with the new status of Romania.

The place of this exception – as a mean of defense cannot be near the exceptions like the

one regarding material or territorial incompetence, not even the near the judged case exception.

The last one, indeed, regulates issues of particular importance in the economical performance of

a civil trial, which however, cannot be said about the prescription, which regards only the

private relations between the parts (creditor and debtor) and has not ambitions of fundamental

institution, which governs the primary rules of the civil procedure.

Regarding the principle of the active role of judge, no matter how broadly we would try

to interpret it, it may never be exercised, in our opinion, in the sense to purpose the obstruction

of the applicant in achieving their rights in court, this limiting himself in persevering to find the

truth and to find the real positions of the parties in the process.

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Noutățile legislative în domeniul prescripției