of October 3, 2000 No. 34
About control of constitutionality of the Order of the Government No. 676 of October 6, 1995 and the Provisional regulations approved by it *
Name of the Republic of Moldova
Constitutional court in structure:
Pavel BARBALAT is chairman
Nicolae KISEEV is judge
Mihai KOTOROBAY is judge-speaker
Konstantin LOZOVANU is judge
Ion VASILATI is judge, with the assistance of Alena Balaban, the secretary of meeting, Dumitra Visternichan, the representative of the Highest trial chamber, Galina Kirinchuk, the permanent representative of the Government in the Constitutional court, and in the presence of Sergey Arnaut, the judge of the sector Ryshkan of municipium of Chisinau, being guided by Art. 135 of the h. (1) subitem and) and g) Constitutions, Art. 4 of h (1) subitem and) and g), Art. 25 of the item d) and Art. 31 of the Law on the Constitutional court, considered in open plenary meeting case on control of constitutionality of the Order of the Government N676 of October 6, 1995 "About the state and private investments into construction of incomplete apartment houses" and the Provisional regulations for the state and private investments into construction of incomplete apartment houses approved by it.
The appeal of the Highest trial chamber provided according to the petition of court of the sector Ryshkan of municipium of Chisinau according to Art. 24 and Art. 25 of the Law on the Constitutional court formed the basis for consideration of the case.
The address is accepted determination of the Constitutional court of June 22, 2000 to consideration on the merits and is included in the agenda.
During preliminary consideration of the address the Constitutional court requested the conclusions of Parliament, the Ministry of Economics and reforms.
Having considered case papers, having heard the message of the judge-speaker, arguments of the representative of the Highest trial chamber and participants of meeting, the Constitutional court established:
1. On April 20, 2000 the Highest trial chamber appealed to the Constitutional court with request to exercise control of constitutionality of the Order of the Government N676 of October 6, 1995 "About the state and private investments into construction of incomplete apartment houses" and the Provisional regulations for the state and private investments into construction of incomplete apartment houses approved by it. The request of the Highest trial chamber about permission of exceptional case of illegality on idea of court of the sector Ryshkan of municipium of Chisinau which considered the petition of citizens N. Berdos, A. Arseni and P. Bakal addressed to Consind-Prim joint-stock company, of cancellation of the decision made by it, concerning agreement cancelation, concerning investment of private equity into construction of the incomplete apartment house on Ulitsa Kuza-Vode, and their exceptions of the list of investors formed the basis for the address. During consideration of the civil action it is determined that in connection with non-payment claimants or partial payment of the sum determined in the agreement the CEO of Consind-Prim joint-stock company, being guided by item 8 of the challenged Provisional regulations, terminated unilaterally agreements and excluded claimants from the list of investors.
2. The order of the Government N676 of October 6, 1995 determines that registration of investment agreements of private equity in construction of incomplete apartment houses is performed by customers, and registration of contribution agreements in construction of incomplete apartment houses at the expense of means of the state companies and the organizations and the companies and the organizations with the mixed kapitalomministerstvo of privatization and management of state-owned property.
According to item 8 of Provisional regulations in case of non-compliance with terms of the contract by the investor for investment the customer has the right to attract other investor, previously having terminated the investment agreement unilaterally what it notifies the investor violator in writing at least in 10 days prior to its termination on.
3. The constitutional court exercised control of constitutionality of the Order of the Government N676 of October 6, 1995 and the Provisional regulations approved by it from the point of view of their compliance to the principles of separation of the authorities and differentiation of powers of the supreme bodies of the state established by the Constitution.
In the item 8 parts one of Provisional regulations are established by the Government the bases for termination unilaterally of the investment agreement in case of non-compliance with terms of the contract by the investor about investment. The constitutional court considers that the main essence of the principle of obligation of the agreement consists in mutual obligation of the Parties to perform in full the works provided by the agreement. This principle follows from provisions of Art. 200 of the Civil code according to which "mutual duties under the agreement shall be fulfilled at the same time if from the law, the agreement or being of the obligation other does not follow". Moreover, according to Art. 191 of the Civil code unilateral refusal from obligation fulfillment and unilateral change of terms of the contract are not allowed, except as specified, provided by the law. These legal conditions are based on provisions of Art. 72 of the h. (3) the item i) the Constitution providing that the general legal regime of property is regulated by the organic law.
The court notes that these provisions establish the rule of proportionality of agreements, it means that any agreement, being result of mutual assent of the parties, can be terminated or cancelled in principle in the same order. Cancellation of the agreement unilaterally is impossible, except as specified, provided by the law. In case of deliberate non-compliance with one of the parties of terms of the contract other party has the right to address to degree of jurisdiction.
4. According to Art. 102 of the h. (2) Constitutions of the order of the Government are issued for the organization of execution of the laws.
At the same time Art. 72 of the Constitution provides that only the Parliament regulates general legal regime of property.
According to Art. 46 of the Constitution the right of private property belongs private (to citizens in individual or general procedure) and to legal entities. The same article of the Constitution establishes legal guarantees of private property. Deprivation of physical person or legal entity of property against its will is performed only according to the law.
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