of February 15, 2001 No. 11
About control of constitutionality of the Law No. 1367-XIV of November 10, 2000 "About entering of amendments into some legal acts" *
Name of the Republic of Moldova
Constitutional court in structure:
George SUSARENKO - the chairman
Mihai KOTOROBAY is judge-speaker
Konstantin LOZOVANU is judge
Ion VASILATI is judge
with the assistance of Corinna of Pop, the secretary of meeting, Anatol Ciobanu, the deputy of Parliament, the author of the address, Ion Kryange, the permanent representative of Parliament in the Constitutional court, being guided by Art. 135 of the h. (1) item and) Constitutions, Art. 4 of h (1) item and) and Art. 16 of the h. (1) the Code of the constitutional jurisdiction, considered in open plenary meeting case on control of constitutionality of the Law N1367-XIV of November 10, 2000 "About entering of amendments into some legal acts".
The address of the deputy of Parliament Anatol Ciobanu provided on November 29, 2000 according to Art. 24 and 25 of the item g) the Law on the Constitutional court, Art. 38 and 39 of the Code of the constitutional jurisdiction formed the basis for consideration of the case.
The address is accepted determination of the Constitutional court of January 11, 2001 to consideration on the merits and is included in the agenda.
Having considered the case papers, the conclusions provided by Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Highest trial chamber, Economic court and the Prosecutor General's Office, having heard the message of the judge-speaker, arguments of the author of the address and the representative of Parliament, the Constitutional court established:
1. On November 10, 2000 the Parliament adopted the organic Law N1367-XIV "About Entering of Amendments into Some Legal Acts" (further - the Law N1367-XIV).
The Art. I, II, IV of this law the Civil code is added with the Art. 95, Art. 11 of the Law on property of N459-XII of January 22, 1991 is added with part 5 and the Civil Procedure Code is added with the Art. 4081, the text of which of identical content: "On the property which is public property of the state in strategic industries of economy (power, communication, transport) and component of continuous engineering procedure and also on natural resources collection according to claims of creditors cannot be turned".
Provisions of the Art. I, II and IV of the Law N1367-XIV according to the Art. V extend to the legal relations which arose since January 1, 1999.
In meeting of the Constitutional court the author expanded subject of the address and addressed with the petition for control of constitutionality of the Art. III of the Law N1367-XIV, which Art. 4 of the h. (1) the Law on the state fee of N1216-XII of December 3, 1992 * * it was added with the item 16) providing that the state companies "Moldtranselectro", "Termotehservice" and Termocom joint-stock company for claims in degree of jurisdiction for debt collection for the heat and electrical energy consumed by debtors are exempted from payment of the state fee.
2. The author of the address considers that the changes made by the Law N1367-XIV to the Civil code, the Law on property and the Civil Procedure Code contradict Art. 126 of the h. (1) and (2) item b), Art. 127 of the h. (4) Constitutions. In his opinion, the fact that on state-owned property in power, bonds, on transport collection according to claims of creditors cannot be turned causes damage to economic agents who dispose of this property as banks, other economic agents, considering this provision, will refuse loan granting. Thus, the companies of these industries which property is mainly state are delivered in unequal conditions with other economic agents, and lack of the necessary credits can result in their bankruptcy.
At the same time, giving to the challenged provisions retroactive effect, the legislator puts creditors in position in case of which they will not be able to return the credits which are already provided to them by the companies of power, communication and transport.
The author of the address notes also that syntagma "on property..., being component of continuous engineering procedure" it is not specific and allows possibility of distribution of the challenged provisions on any property of the state companies of the specified strategic industries, inclusion in the disputed text of syntagma "and also on natural resources" considers unreasonable as according to Art. 127 of h (4) Constitutions natural resources are objects of exclusively public property and, therefore, apriori are inaliennable and integral.
3. Having analyzed Art. 95 of the Civil code, Art. 11 of the p. 5 of the Law on property and Art. 4081 of the Civil Procedure Code, the Constitutional court notes that these provisions regulate the relations concerning, first, public property of the state as the constitutional principle (the Art. 9), secondly, of public property of the state in strategic industries of national economy as the constitutional principle and as material expression of these relations (Art. 127 of the h. (4) Constitutions).
Despite identity of content, the challenged provisions regulate the individual relations in each separate case and belong to different branches of law. The constitutional court notes that the challenged provisions create the legal basis contradicting both to some provisions of the corresponding regulations, and separate constitutional provisions.
Having established in Art. 95 of the Civil code restriction for collection according to claims of creditors for the property which is public property of the state in strategic industries of economy, the legislator ignored general provisions of the code, in particular regulations on obligations, guarantees and general terms of their implementation. According to Art. 155 of the Civil code owing to the obligation one person (debtor) shall make certain action for benefit of other person (creditor), somehow transfer property, perform work, pay money, etc. or refrain from certain action, and the creditor has the right to demand from the debtor of execution of its obligation.
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