September 22, 2021 rcplegal 0 Comments

In contractual relations between economic agents, there is often a situation in which the beneficiary of a service provided by a supplier or any other contractual relationship in which a person received a good / service in exchange for the obligation to pay a price for the received goods/services, refuses to fulfil its payment obligations to the supplier. If the situation cannot be settled amicably by the parties, the supplier will have to submit a file to the competent court, in order to recover the claim he holds against the beneficiary.

Of course, to recover the amount of money owed, the economic agent who holds the claim must follow all the procedural steps before the courts (merits, appeal, even second appeal in some cases), and all these steps generate costs and take place over a quite long period of time. The plaintiff will have the possibility to execute the decision only after the communication of the decision by the court of appeal, but there is the unfortunate scenario in which, until this moment, the debtor liquidates all his assets, and the plaintiff has no assets to execute during the enforcement procedure.
In order to prevent this unfavorable scenario for the plaintiff who holds a certain, liquid and enforceable claim that may or may not be provided by a document, the legislator regulated in the Code of Civil Procedure the institution of Insurance Seizure (art. 952-959). As the name implies, the purpose of this measure is to make unavailable the traceable movable and / or immovable property of the debtor in his possession or of a third party for the purpose of capitalizing them when the creditor of receivable will obtain an enforceable title.

The measure of insurance seizure on the debtor’s property is obtained before the court which is competent to judge the main claim, by which the plaintiff requests the court to oblige the defendant (his debtor) to pay the amount due based on the contractual relations between them.
One of the conditions for admitting the request is that the plaintiff prove the filing of a lawsuit against the debtor which will be attached (in copy) to the request for insurance seizure, together with a registry certificate issued by the court competent to resolve the main claim.

An advantage established by this special procedure is that the plaintiff does not have the obligation to identify the goods to be seized, the court will approve the request up to a certain

amount that will be provided in the admission ruling. The procedure is solved urgently, without summoning the parties, the ruling being communicated only to the plaintiff, as this involves a surprise element for the debtor who, until the solution of the insurance seizure, may not even know about the main claim.

The ruling will be communicated to the debtor by the bailiff after the plaintiff will go through all the stages provided by the provisions of the forced execution to obtain the ruling of the approval from the competent court of execution. These enforcement proceedings must be taken by the plaintiff, as the measure of precautionary seizure is not an enforcement proceeding obtained in the enforcement procedure, but is distinct, obtained either in the main way or incidentally in the judicial proceedings before the court.

After the approval of the forced execution by the competent enforcement court, the bailiff will displace himself, in the shortest possible time, to the place where the goods on which the seizure will be applied are located. The bailiff will apply the seizure on the traceable assets only to the extent necessary for the realization of the claim. In all cases, the insurance seizure will be applied without summons or prior notification of the debtor, in order to prevent any intention of the debtor to diminish his patrimonial assets. Of course, in the case of real estate, the bailiff will take all necessary measures to mark the seizure in the land book, and in the case of movable property will take the necessary steps to mark it in the electronic registers to meet the conditions of opposability to third parties.

This measure is welcomed, equally protecting both the interests of the plaintiff (creditor) by making the assets unavailable until an enforceable title is obtained in the main claim, and the interests of the debtor who, in case the main claim will be rejected by the court, will be able to recover any damage arising from the unavailability of the security lodged by the applicant together with the request for the imposition of the measure

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