Nout ile legislative n domeniul excep iei prescriptiei extinctive The legislative updates regarding the exception of the

executive prescription

Lector universitar av. dr. Emilia Cotoi Universitatea Dimitrie Cantemir Targu Mure

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

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.

For a deeply view regarding the extinctive prescription, to be seen: M. Nicolae, Tratat de prescripie extinctiv,

Universul Juridic Editor, Bucharest, 2010; G. Beleiu, Drept civil romn introducere n dreptul civil, subiectele dreptului civil, ansa S.R.L. Editor, Bucharest, 1999, p. 224 284; O. Ungureanu, Prescripia extinctiv, n Principii i instituii de drept civil curs selectiv pentru licen, 2002-2003, O. Ungureanu, A. Bacaci, C. Turianu, C. Jugastru, Rosetti Editor, Bucharest, 2002, p. 100 117; M. Tbrc, Codul de procedur civil, comentat i adnotat, cu legislaie, jurispruden i doctrin, Rosetti Editor, Bucharest, 2003, p. 203 207.
3

To be seen, for example, M. Tbrc, Excepiile procesuale n procesul civil, second edition, Universul Juridic

Editor, Bucharest, 2006, p. 99

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 its 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.
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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 justice5.
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 its 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 doesnt invoke at the right term the exception, he will decay from his right to invoke it.

To be seen E. Rdulescu, Prescripia extinctiv culegere de practic judiciar, C. H. Beck Editor, Bucharest, 2006; M. M. Pivniceru, C. Moldovan, Prescripia extinctiv si principalele aciuni in justiie, practic judiciar, Hamangiu Editor, Bucharest, 2007;

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 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. the new law are entirely submitted under the laws they have established