Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms

The present study aims at the extended interpretation of the legislative reformulation of the article 713 paragraph (2) Criminal Procedure Code through the Law no. 310/2018 on the amendments the Code of Civil Procedure, with emphasis on the possibility and, in concreto, on the admissibility to claim...

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Main Author: Răducan Gabriela
Format: Article
Language:English
Published: Sciendo 2020-07-01
Series:Proceedings of the International Conference on Business Excellence
Subjects:
Online Access:https://doi.org/10.2478/picbe-2020-0116
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spelling doaj-77be0018fc3f434ea5d6ba98a3e324ec2021-09-05T14:00:58ZengSciendoProceedings of the International Conference on Business Excellence2558-96522020-07-011411222123210.2478/picbe-2020-0116picbe-2020-0116Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten termsRăducan Gabriela0Titu Maiorescu University,Bucharest, RomaniaThe present study aims at the extended interpretation of the legislative reformulation of the article 713 paragraph (2) Criminal Procedure Code through the Law no. 310/2018 on the amendments the Code of Civil Procedure, with emphasis on the possibility and, in concreto, on the admissibility to claim the nullity of the substantive law (also in respect of unfair or unwritten terms), but also other causes of ineffectiveness of the legal act constituting enforceable title, other than a court judgement. The problem of interpretation was generated by the addition of the phrase „including a common law action” at the end of the legal text which allows to invoke some de facto or de jure reasons relating to the substance of the law, in the levy of execution regarding another writ of execution than a court judgement, as long as the law does not provide another procedural way to annul it. The notion of “procedural action” being chosen and the identification of the action “of general jurisdiction” are going to generate non-unitary practice, so we opted for their explanation, but the present study aims mainly to argue that the legislative amendment does not affect however, the possibility to claim, in the levy of execution, of some causes of ineffectiveness of the legal act representing the enforceable title, such as absolute or relative nullity (total or partial) of general jurisdiction, but also when it is determined by the identification of unfair terms or terms deemed as unwritten, but also the possibility to claim the exception of non-execution of the contract, along with other permitted defences (legal compensation, statute of limitation, force majeure, causes of extinction of the claim, etc.). In particular, in the area of abusive clauses, although the debtor has the right to an action of general jurisdiction, the national judge will not be able to allow the inadmissibly of their claim by way of the levy of execution. The conclusions of the study are of the utmost importance and can contribute to the standardization of the judicial practice and, in terms of abusive clauses, to its harmonization with the jurisprudence of the C.J.E.U. (Court of Justice of the European Union).https://doi.org/10.2478/picbe-2020-0116levy of executionnullityunfair termsunwritten termschosen procedural actionaction of general jurisdictionsubstantive defencesadmissibilityinadmissibilityjurisprudence c.j.e.u
collection DOAJ
language English
format Article
sources DOAJ
author Răducan Gabriela
spellingShingle Răducan Gabriela
Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms
Proceedings of the International Conference on Business Excellence
levy of execution
nullity
unfair terms
unwritten terms
chosen procedural action
action of general jurisdiction
substantive defences
admissibility
inadmissibility
jurisprudence c.j.e.u
author_facet Răducan Gabriela
author_sort Răducan Gabriela
title Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms
title_short Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms
title_full Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms
title_fullStr Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms
title_full_unstemmed Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms
title_sort claiming the nullity of a substantive right in the levy of execution. the issue of unfair and unwritten terms
publisher Sciendo
series Proceedings of the International Conference on Business Excellence
issn 2558-9652
publishDate 2020-07-01
description The present study aims at the extended interpretation of the legislative reformulation of the article 713 paragraph (2) Criminal Procedure Code through the Law no. 310/2018 on the amendments the Code of Civil Procedure, with emphasis on the possibility and, in concreto, on the admissibility to claim the nullity of the substantive law (also in respect of unfair or unwritten terms), but also other causes of ineffectiveness of the legal act constituting enforceable title, other than a court judgement. The problem of interpretation was generated by the addition of the phrase „including a common law action” at the end of the legal text which allows to invoke some de facto or de jure reasons relating to the substance of the law, in the levy of execution regarding another writ of execution than a court judgement, as long as the law does not provide another procedural way to annul it. The notion of “procedural action” being chosen and the identification of the action “of general jurisdiction” are going to generate non-unitary practice, so we opted for their explanation, but the present study aims mainly to argue that the legislative amendment does not affect however, the possibility to claim, in the levy of execution, of some causes of ineffectiveness of the legal act representing the enforceable title, such as absolute or relative nullity (total or partial) of general jurisdiction, but also when it is determined by the identification of unfair terms or terms deemed as unwritten, but also the possibility to claim the exception of non-execution of the contract, along with other permitted defences (legal compensation, statute of limitation, force majeure, causes of extinction of the claim, etc.). In particular, in the area of abusive clauses, although the debtor has the right to an action of general jurisdiction, the national judge will not be able to allow the inadmissibly of their claim by way of the levy of execution. The conclusions of the study are of the utmost importance and can contribute to the standardization of the judicial practice and, in terms of abusive clauses, to its harmonization with the jurisprudence of the C.J.E.U. (Court of Justice of the European Union).
topic levy of execution
nullity
unfair terms
unwritten terms
chosen procedural action
action of general jurisdiction
substantive defences
admissibility
inadmissibility
jurisprudence c.j.e.u
url https://doi.org/10.2478/picbe-2020-0116
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