Tag the cessation of entirety by judicial partition

The object of the exception of unconstitutionality is the provisions of art. 990 paragraph (1) of the Code of Civil Procedure. The Court observes that, after addressing the Court, the Code of Civil Procedure was republished in the Official Gazette of Romania, Part I, no. 247 of 10 April 2015 and after the renumbering of the criticized law text is found in art. 991 paragraph (1) of the Civil Procedure Code, which states: "If none of the co-owners does not require assigning the real estate or, even though it has been awarded to his provisionally, there were not recorded, within the deadline, the payments for the other co-owners, the court, by ruling, will sales the real estate, and shall also establish if the sale will be made by the agreement of the parties or by bailiff. " By examining the claim of unconstitutionality, the Court holds that the criticized legal provisions, in conjunction with other texts of Title V - Procedure of legal partition of book IV - Special Procedures of the Civil Procedure Code, aim at facilitating, in a more equitable manner the cessation of the entirety. In the special judicial procedure of partition, the court has three options for handling the application for partition: partition in nature, giving the asset to a single co-owner or sale of the asset. The latter possibility, sale of the asset, is the way to liquidate the co-ownership to the extent that the division cannot be achieved through other ways, either they cannot be divided in nature or allocated to a single co owner, or that all co-owners request to resort to this means of liquidation of joint ownership. The legal provision criticized in the present case provides that, in case none of the co-owners does not require assigning the asset to him, even though it has been awarded provisionally, there were not recorded within the deadline the payments to the other co-owners, the court, by ruling, will sale the asset, setting, however, if the sale will be made by the parties agreement or by bailiff. The court shall order that the sale be conducted by public auction bailiff in case one of the parties had not agreed to the sale by agreement or if the sale was not made within the term set . In the present case one of the co-owners called asset allocation, situation in which the court should have ordered its sale if there was not recorded in the deadline the amounts due to other co-owners. Given those used in the previous paragraphs and the mechanism of the special procedure of legal partition, the Court finds that from the wording of criticism, the author of unconstitutionality tend to change the legal norm, in favor of extending the scope of its regulation by adding a new hypothesis for the sale of goods, which would distort the overall special judicial procedure stipulated by the Code of Civil Procedure. In legal partition procedure is aimed primarily dividing their properties, and if this is not possible, proceeds to sell them. Or, what is proposed is the direct sales division of the money thus obtained. Consequently, since according to Art. 2 paragraph (3) of Law no. 47/1992, the Court rules only on the constitutionality of provisions of referral, unable to amend or supplement them the exception of unconstitutionality of art. 991 paragraph (1) of the Civil Procedure Code, as formulated, is to be dismissed as inadmissible.

Constitutional Court’s decision on the cessation of entirety by judicial partition

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