Name of the Republic of Moldova
of December 14, 2017 No. 39
About exceptional case of illegality of Articles 15 of the h. (2) item d) and 38 h. (4) item f) Executive code of the Republic of Moldova (address No. 24g/2017 of)
Constitutional court in structure:
Tudor Pantsyru, chairman,
Auryl to Beesh,
Victor of Pop,
Vyacheslav Zaporozhan, judges,
with the assistance of the secretary of meeting Lyudmila Kikhay,
in view of the address provided and registered on February 22, 2017
having considered the specified address in open plenary meeting, considering acts and case papers,
having carried out discussion in the consultative room,
issues the following decree.
Points of order
1. The address about exceptional case of illegality of Articles 15 of the h formed the basis for consideration of the case. (2) item d) and 38 h. (4) the item f) the Executive code of the Republic of Moldova No. 443-XV of December 24, 2004, declared by the lawyer Aureliu Skortsesku in No. 2rh-164/2016, being in production of Appeal chamber Chisinau.
2. The address was brought into the Constitutional court on February 22, 2017 by board on civil cases of Appeal chamber Chisinau (Anna Panov, Maria Moraru, Valeriu Efros) according to Art. 135 of the h. (1) the item and) and the item g) Constitutions, in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also Regulations on procedure for consideration of the addresses brought into the Constitutional court.
3. The author of the address in effect claims that provisions of Articles 15 of the h. (2) item d) and 38 h. (4) the item f) the Executive code contradict Articles 1 of the h. (3), 46 h. (1) and h. (2) and 54 h. (1) Constitutions.
4. Determination of the Constitutional court of March 10, 2017 without decision in essence the address was acknowledged acceptable.
5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government and National union of legal executives.
6. In open plenary meeting of the Constitutional court the address was supported by the lawyer Aureliu Skortsesku. The parliament was represented by Valeriu Kuchuk, the chief of service of representation in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament. The government was represented by Eduard Serbenko, the state secretary of the Ministry of Justice.
A. Circumstances of the main dispute
7. Court of the sector to Chentr мун. Chisinau transferred on March 21, 2006 to executive bureau of the sector of the Botanist of Executive department of the Ministry of Justice the writ of execution about collection with L.A. for benefit of L.S. of the alimony for content of the minor child.
8. The bailiff Marjan Naku took out on May 6, 2006 determination about adoption of the executive document to execution, excitement of enforcement proceeding and provision of term for voluntary execution. Afterwards based on the statement of the debtor of October 18, 2006 the executive document was transferred on its place of employment for implementation of payroll deductions by the employer.
9. The parliament adopted on June 17, 2010 the Law No. 113 on legal executives which entered system of private legal executives on the basis of the new principles and methods of activities.
10. With respect thereto under the delivery-acceptance certificate of September 29, 2010 the bailiff Ruslan Ciobanu accepted enforcement proceeding according to writ of execution of March 6, 2006.
11. Though the debtor L.A. monthly paid the alimony for content of the minor child, the legal executive took out on November 25, 2015 determination about application of measures for ensuring execution of the executive document, having imposed bans on property of the debtor and on issue of the passport to it.
12. After representation by the debtor of the documents confirming implementation of payroll deductions, the legal executive lifted on December 29, 2015 the ban established by determination of November 25, 2015. Besides, determination from the same number the legal executive decided to collect from the debtor in own favor the fee in the amount of 23257 lei for the performed actions for execution during the period from November, 2010 to December, 2015, and also charges and expenses on enforcement proceeding in the amount of 240 lei.
13. L.A. filed a lawsuit on January 27, 2016 sectors of the Botanist мун. Chisinau the action for declaration against L.S. and the third party, the bailiff Ruslan Ciobanu in whom demanded cancellation of determination of December 29, 2015 about collection of expenses on execution.
14. Court of the sector of the Botanist мун. Chisinau determined on March 28, 2016 that the legal executive did not take any actions for the purpose of execution of the executive document of March 6, 2006 as it already was in the course of execution, and, respectively, cancelled determination of the legal executive of December 29, 2015.
15. As a result of submission of the writ of appeal by the legal executive, determination of June 23, 2016 the Appeal chamber Chisinau cancelled determination of court of the sector of the Botanist мун. Chisinau of March 28, 2016. In reasons for the decision the court specified that as the executive document of March 6, 2006 was transferred by the legal executive on place of employment of the debtor, the address of collection on the salary of the debtor within enforcement proceeding is qualified as measure of forced execution. So, the legal executive has the right to add the fee according to provisions of the Executive code.
16. L.A. submitted on October 17, 2016 to Appeal chamber of Chisinau the application for review in auditing procedure for the above-stated determination.
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