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Universul Juridic magazin

Considerații privind posibilitatea de a porni executarea silită în temeiul unui certificat de grefă privind soluția pronunțată în cauză

In most cases, forced execution is initiated in reliance upon an enforceable deed consisting of a court decision. In practice, the question was raised whether it was possible for the pursuing creditor, beneficiary of a favorable decision materialized in the issuance of an enforceable decision, to initiate forced execution against its debtor prior to the decision being drawn up, in reliance upon a court clerk certificate attesting to the decision rendered in the case. Traditionalist opinion upholds a negative reply to this practice, deeming that, in accordance with the relevant legal provisions, an enforceable deed consists of the court decision in full, drawn up, containing all its three sections: introductory, arguments and the operative part. Nevertheless, the judicial practice has witnessed contrary solutions, where the initiation of forced execution was admitted based on a court clerk certificate specifying the ruling, mainly in reliance upon the argument that such a document is the minutes of the decision which identically reiterates its operative part, while the section of the decision which needs to be enforce is precisely that operative part. A compromise solution, intermediary between the two, in the practice of the courts, consisted of admitting requests to allow forced execution made and submitted by the creditor, even when only accompanied by the court clerk certificate, provided that, by the limit date granted for the settlement of the request to allow forced execution, the court decision is also submitted in full, as certified copy. De lege lata, such a solution, in light of the new civil procedural provisions, could also be supported by the provisions of art. 177 para. (3) of the civil procedure Code.