Name of the Republic of Moldova
of September 27, 2016 No. 26
About exceptional case of illegality of some provisions of the Law No. 142-XVI of June 26, 2008 on mortgage (the notification of the mortgage debtor) (the Address No. 83g/2016)
Constitutional court in structure:
Vyacheslav Zaporozhan, chairman,
Auryl to Beesh,
Victor of Pop, judges,
with the assistance of the secretary of meeting Anna Floryan,
in view of the address provided and registered on July 15, 2016
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 the second proposal of h formed the basis for consideration of the case. (2) Art. 31 of the Law No. 142-XVI of June 26, 2008 on mortgage, declared by lawyers Igor Litvinenko and Dionysius Vition in No. 2a-4933/14, being in production of Appeal chamber Chisinau.
2. The address was brought into the Constitutional court on July 15, 2016 by judicial structure of Appeal chamber Chisinau (Nina Trachuk, Marina Anton and Yury Kotrutse), according to provisions of 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. Authors of the address, in effect, consider that provisions of the second proposal of h. (2) Art. 31 of the Law on mortgage according to which the notification is considered received after seven working days from the date of departure whereas according to the first offer the notification goes the registered mail with confirmation on delivery contradict Articles 1 of the h. (3), 4 and 20 Constitutions.
4. Determination of the Constitutional court of September 6, 2016, 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 and the Government.
6. In open plenary meeting the address was supported by the lawyer Igor Litvinenko. The parliament was represented by Valery Kuchuk, the main consultant in the head legal department of the Secretariat of Parliament. The government Igor represented Viera, the deputy chief of legal management of the Ministry of Regional Development and Construction.
Circumstances of the main dispute
7. JSC CB Energbank on April 15, 2014 took a legal action sectors Ryshkan мун. Chisinau with the civil action against KP of "Nordmobirom-Lux" of Ltd company and Kozhokara Anatoly, Kozhokara of Oksana, Gervas Aleksandra, Ion's Lari, Valentina's Lari, Redukanu Lidiya and Redukana Vasily about collection of bank debt, transfer to ownership of the property pledged and encumbered with mortgage, and forced eviction of debtors from the buildings encumbered with mortgage.
8. The court of the sector Ryshkan satisfied on September 24, 2014 in full the claim of JSC CB Energbank.
9. Without having agreed with the decision of the first instance, Gervas Aleksandra and Redukanu Vasily appealed it in appeal procedure. Meanwhile KP of "Nordmobirom-Lux" of Ltd company, to Kozhokar Anatoly, to Kozhokar Oksana, Lari Ion, Valentin and Redukanu Lidiya's Lari submitted the statement of accession to the petition for appeal.
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