The judicial share proceedings by the new civil procedure code

• Author: Andreea Tabacu - Ramona Duminica
• Position: Faculty of Law and Administrative Sciences University of Pitesti, Pitesti, Romania - Faculty of Law and Administrative Sciences University of Pitesti, Pitesti, Romania
• Pages: 183-188

THE JUDICIAL SHARE PROCEEDINGS BY THE NEW CIVIL

PROCEDURE CODE

A. Tabacu, R. Duminică

Andreea Tabacu

Faculty of Law and Administrative Sciences

University of Piteşti, Piteşti, Romania

*Correspondence: Andreea Tabacu, 71 Republicii Blvd., Piteşti, Romania

E-mail: andreea.tabacu@upit.ro

Ramona Duminică

Faculty of Law and Administrative Sciences

University of Piteşti, Piteşti, Romania

*Correspondence: Ramona Duminică, 71 Republicii Blvd., Piteşti, Romania

E-mail: duminica.ramona@yahoo.com

Abstract

The New Code of Civil Procedure regulates the divis ion o f assets among the special

procedures. Without bringing any real new elements of procedure, the new norms are in

agreement with the stipulations of the Civil Code, especially with regards to the effects of the

judicial decision of division, which loses its declarative quality and becomes a title of

property from the date of definitive attribution.

Keywords: division of assets, New Code of Civil Procedure, procedure, decision,

prescription.

Introduction

The division of assets represents a procedure whereby any form of communal property

ends

1

. The regular form it takes is voluntary division. The parties or co-owners could cease

their communal property upon request by petitioning for an ad partitionem motion or through

a notary public. However, if one of the parties is a bsent, he is deprived of the capacity to

exercise his right or has a limited capacity and lacks the authorization of the court in order to

finish the division of assets. If the parties simply cannot come to an agreement with regards to

the division of assets, there is a misunderstanding between them, then the judicial division of

assets becomes mandatory.

1. The Parties in the Division of Assets

The parties in such a case are the co-owners, also known as the spouses who hold their

property jointly. Either one could be the plaintiff, having an active position while the other

co-owners are passive. The demand can also be made by the rightful heirs of the co-owners in

support of or against them, as well as by the creditors of the co-owners or of their heirs,

depending on the case.

The division of assets is also called judicium duplex, in which either party can be both

a plaintiff as well as a defendant, being intereste d to put forward their reason for quitting the

co-ownership. This particularity allows the parties certain procedures which could not be

done jointly.

1

Fl. Baias, E. Chelaru, Rodica Constantinovici, I. Macovei, Noul Cod civil, comentarii pe articole, C.H. Beck

Publishing House, Bucharest, 2012, p. 727.