European trends in the right to education during the pandemic. Measures taken by the european commission during the pandemic to ensure the protection of the right to education

AuthorBeatrice Stefania Niculae
PositionPhD student, Faculty of Law 'Nicolae Titulescu' University of Bucharest, Romania
Pages18-23
AGORA International Journal of Juridical Sciences, http://univagora.ro/jour/index.php/aijjs
ISSN 1843-570X, E-ISSN 2067-7677
No. 1 (2020), pp. 18- 23
18
THE ADMISSIBILITY OF THE EXCEPTION REGARDING THE LACK
OF ACTIVE PROCEDURAL LEGITIMACY IN VIEW OF ART. 906
CODE OF CIVIL PROCEDURE
B.-Ș. NICULAE
Beatrice-Ștefania NICULAE
PhD student, Faculty of Law
"Nicolae Titulescu" University of Bucharest, Romania
E-mail: beatricestefania.niculae@gmail.com
ABSTRACT
The present article aims to analyze the different solutions pronounced by the courts in
relation to the admission, respectively the rejection of the exception regarding the lack of
active procedural legitimacy, in disputes having as object the application of delay penalties
under art. 906 Code of Civil Procedure, in the situation where the request for the enforcement
was initiated by an association established under Government Ordinance no. 26/2000 on
associations and foundations. Consequently, we will be considering the argument that the
applicable legislation does not establish a right of representation of the association towards
its members, as it happens in the case of trade unions founded on the basis of the Social
Dialogue Law no. 62/2011.
KEYWORDS: active procedural legitimacy, association, delay penalties, creditor,
representation.
INTRODUCTION* *
In recent judicial practice, some divergences have been observed with regard to
resolving the exception of lack of active procedural legitimacy, considering a number of
arguments, such as: the right to represent a person before enforcement bodies and courts
(including enforcement courts), respectively to whom belongs the attribute to initiate a
request for enforcement and, subsequently, the right to initiate a litigation having as object
the application of delay penalties for the non-execution of the obligation to perform by the
debtor.
Thus, the debtor was obliged to proceed with the reconstitution of the accounting
documents attesting the gross incomes on component elements for all the plaintiffs, during the
entire period in which they held the status of employees. The enforceable title was obtained
following the initiative of an association to bring such an action before the courts, on behalf
of all its members.
Irrespective of the reason for non-compliance with the obligation that the debtor should
have fulfilled, it is perfectly justified for the sanction of the obligation to intervene.
Specifically, “the sanction of the obligation consists in the creditor's right to sue the debtor
and to proceed with the forced execution of his property in order to realize his claim
1
”.
However, since the obligation we have in question is to perform, modern law has
maintained the concept that it cannot be realized in kind (in nature)
2
, this being, moreover,
the reason why the provisions of art. 906 Code of Civil Procedure have found application,
namely the attempt to compel the debtor to perform the obligation he/she is required to do, in
order to avoid the establishment of penalties for the delay in this respect.
1
See in this respect Liviu Pop, Ionuț-Florian Popa, Stelian Ioan Vidu, Tratat elementar de drept civil:
Obligațiile, Universul Juridic Publishing House, Bucharest, 2012, p. 18.
2
Idem, p. 729.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT