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Universul Juridic magazin

Aspects regarding the jurisdiction of the courts in the matter of partition

The proposed study is dedicated, as its heading unequivocally expresses, to certain aspects regarding the “jurisdiction of the courts in the matter of partition”. As regards the material jurisdiction, the existing normative solutions are unequivocally separated, in the sense that, if the claim of partition is promoted on principal, according to art. 94 item 1 letter i) of the Code of civil procedure, the court of first instance is competent to this end and, if it is ancillary or incidental to a main claim, according to art. 123 paragraph (1) of the Code of civil procedure, is subject to the jurisdiction of the court notified by the main claim. In exchange, in case of territorial jurisdiction, we have noticed the perpetuation of a legislative gap for the situation in which the claim of partition concerns two or more pieces of immovable property located in the territorial jurisdiction of several courts. According to art. 117 of the Code of civil procedure, as we are in the presence of a case of exclusive jurisdiction over a territory, each court is competent in order to decide the partition only in relation to the immovable property situated within its territorial circumscription. Concretely, in such situation there is an actual risk of ruling some non-unitary and even contradictory court orders. In order to remedy this situation, we proposed that, de lege ferenda, in the assumption exposed, the jurisdiction should belong to the court within whose precinct the domicile or the residence of any accomplice is located.