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Universul Juridic magazin

Theoretical and practical aspects aiming at the forced execution costs in the regulation of the new Code of civil procedure

The law provides the principle according to which the party that resorts to the services of an enforcement body has to advance the pecuniary costs that the second phase of the civil trial implies. In those situations when the acts or activities are ordered ex officio, the Code provides expressly that the creditor has to advance the costs. Furthermore, the debtor will have to bear also the enforcement costs made after the enforcement request was registered until the moment the obligation contained in the enforceable title is realised through voluntary execution for the fault for starting the enforcement belongs to the former – that is, the obligation of voluntary execution belonged to him before the enforcement body is invested. We consider that the costs implied by the preliminary step to the actual registration of the enforcement request and opening of the enforcement file, done according to provisions of art 664, paragr.1, civ. pr. C. are included in this category of costs. In close relation to the enforcement costs, the provisions of E.G.D. no. 51/2008 regarding the public judiciary aid in civil matters regulates the possibility of paying the fee of the judicial bailiff and of granting exemptions, reductions, phased over or delays from the payment of the judicial fees provided by the law and owed in the enforcement phase. The amounts of money entailed by the carrying out of the enforcement procedure that have to be paid are set by the judicial bailiff by a decision, on the basis of the evidence presented by the interested party, in the conditions set by the law. For the amounts of money so established, the decision represent enforceable title both for the creditor and the judicial bailiff. As an exception, in the conditions of art. 889 civ. pr. C., the enforcement costs related to the procedure of direct enforcement are set by a minute that represents enforceable title for the debtor. Furthermore, acording to art. 849 civ. pr. C., the enforcement costs related to the resuming of the auction are set by a auction minute that represent an enforceable title. These amounts of money can be censored by the court, if an enforcement appeal is formulated by the interested party and aftger weighing the pieces of evidence administered by it. When the fees of the bailiff are reduced as a consequence of admission of the enforcement appeal formulated by the debtor, the effect of the definitive ruling of the enforcement court will consist in binding the debtor to pay, at the end of the enforcement procedure, only the amount of money settled by the court as representing the enforcement fee, and that the part of the fee that is subject to reduction remains in the creditors’ charge, in application of art. 669 paragr 4, final thesis in conjunction with art. 451 paragr. 2, final thesis civ. pr. C.