No Complaint Was Inadmissible. 50G / 2016 Regarding The Exception Of Unconstitutionality Of Article 900 Of The Civil Code (Tenancy)

Original Language Title: de inadmisibilitate a sesizării nr. 50g/2016 privind excepţia de neconstituţionalitate a articolului 900 din Codul civil(contractul de locațiune)

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The Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, judges
with Ms Ludmila Chihai, Registrar,
Considering the complaint filed on 25 April 2016
Registered on the same date
examined the admissibility of the referral mentioned
Considering documents and materials,
deliberated on 29 April 2016 in the room the council
Delivers the following decision: tHE FACTS

1. The case originated in the objection of unconstitutionality of Article 900 of the Civil Code raised by Mikhail Balan in the civil file nr.2ra-503/16 before the Supreme Court.
2. The referral was submitted to the Constitutional Court on 25 April 2016 by the panel of judges of the Supreme Court (Tatiana Vieru, Tamara CHISCAU-Doneva Iuliana Oprea Ion Druţă Oleg Sternioală), pursuant to Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision No. 2 of 9 February 2016 and the Regulation on the procedure for examining complaints lodged with the Constitutional Court.
A.
Three main circumstances in the proceedings. Michael Balan on 19 February 2009 bought a plot of land for building the house special and on 20 February 2009 registered ownership of the land plot in Chisinau OCT.
4. The plot bought by Mikhail Balan is used by LLC "LAL" car parking, with movable installed on it which create obstacles in land use by the owner.
May. On August 6, 2014 Mikhail Balan filed the lawsuit against the LLC "LAL", requiring evacuation of movable and removing obstacles to the use of the plot.
June. By judgment of 20 December 2014 Court Ciocana, mun. Chisinau, the action was dismissed as unfounded. On December 9, 2015 Court of Appeal upheld the appeal by Mikhail Balan, quashed the first-instance judgment and ordered the eviction LLC "LAL" on the lot of land belonging to Mikhail Balan.
July. LLC "LAL" appealed. By concluding the Supreme Court of Justice of 10 March 2016 was admitted the appeal filed by LLC "LAL".
August. On April 18, 2016 Michael asked Balan raising the objection of unconstitutionality of Article 900 of the Civil Code.
September. By the end of 20 April 2016, the Supreme Court suspended the trial, ordered the lifting of the objection of unconstitutionality and referral submission Constitutional Court for resolution.
B. 10
relevant legislation. The relevant provisions of the Constitution (republished in the Official Gazette, 2016, no. 78, art. 140) are:

Article 46Dreptul to private property and its protection

"(1) The right to private property and state bonds guaranteed.
(2) No one may be expropriated except in the public interest, established by law, against just compensation paid in advance.
(3) Legally acquired assets may not be confiscated. Legality of acquirement shall be presumed.
(4) goods intended for, used or resulted from crimes or offenses may be confiscated only under the law.
(5) The right to private property compels to the observance of duties on environmental protection and ensuring good neighborliness, as well as other tasks which, by law, are owner.
(6) The right to inherit private property is guaranteed. "

Article 54Restrângerea exercise of certain rights or freedoms

"(1) In the Republic of Moldova can not adopt laws that would suppress or weaken fundamental rights and freedoms of man and citizen.
(2) The exercise of rights and freedoms can not be subjected to any restrictions other than those prescribed by law and which meet generally accepted principles of international law and are necessary in the interests of national security, territorial integrity, economic welfare, public order, to prevent mass riots and crimes, protecting the rights, freedoms and dignity of others, preventing disclosure of confidential information or guarantee the authority and impartiality of the judiciary.
(3) The provisions of paragraph (2) do not restricting the rights proclaimed in Articles 20 to 24.
(4) The restriction must be proportionate to the situation that caused it and can not touch the existence of the right or freedom. "

11. The relevant provisions of the Civil Code of the Republic of Moldova no. 1107-XV of 6 June 2002 (OJ 2002, no. 82-86, art. 661) are:
Article 875Contractul lease


"By tenancy, one party (the lessor) undertakes to give the other party (lessee) a specific item of individual temporary use and occupancy or use, and it undertakes to pay the rent."

Article 900Efectele change leased property owner

"If the leased asset, after being handed over to the lessee, the lessor is alienated to a third party, the latter acquires the lessor's rights and obligations under the lease."
Article 905Rezilierea tenancy


"(1) Termination of the lease term can be ended without the request of either party with three months' notice to property and movables a month if the contract does not provide otherwise.
(2) If the dwelling or other space intended for residence is in a condition that creates a real danger to health, the tenant may terminate the lease without observing the notice period. The lessee has the right, and if, at the end of the contract, knew about the danger and did not submit claims related thereto.
(3) Termination of the lease and has the effect of terminating the sublease tenancy if not otherwise provided. "

Article 906Rezilierea initiative lessor contract

"(1) The lessor is entitled to demand cancellation of the contract if the tenant:
a) does not use the leased asset at the destination or in accordance with the contract;
B) admits intentionally or negligently worsening asset or creates a real threat to such worsening;
C) does not pay the rent during 3 months after the deadline for payment if the contract does not provide otherwise;
D) enter into a sublease agreement without the lessor's consent.
(2) The law or the contract may provide for additional grounds for termination of the lease the lessor's initiative. "
12. The relevant provisions of Protocol 1 to the European Convention on Human Rights and Fundamental Freedoms, as amended by the Additional Protocols (signed at Rome on 4 November 1950 and ratified by the Parliament of Moldova no. 1298-XIII of 24 July 1997) They are:
Article 1Protecţia property


"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and by the general principles of international law.
The preceding provisions shall not affect the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. "
|| THE LAW | A. Arguments exception of the non-stituţionalitate author
13. Author exception Mikhail Balan, argues that Article 900 of the Civil Code, according to which the buyer of a property leased lessor acquires the rights and obligations under the lease, affecting the right of ownership Land owned. Thus, the challenged norm violates Article 46 of the Constitution and Article 1 of the Protocol No. 1 to the Convention.
B. The Court's assessment
14. Examining the admissibility of the notification regarding the exception of unconstitutionality, the Court finds as follows.
15. Under Article 135 para. (1) a) of the Constitution, Article 4 para. (1) a) of the Law on Constitutional Court and Article 4 para. (1) a) of the Code of Constitutional Court shall, upon appeal, the constitutionality of laws.
16. The Court finds that the notification regarding the exception of unconstitutionality, being raised by Michael Balan folder nr.2ra-503/16 before the Supreme Court, it is made the subject of legally authorized, under Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of February 9, 2016.

17. The Court held that the power to handle exceptions of unconstitutionality, which was vested by Article 135 para. (1) g) of the Constitution requires establishing the correlation between the laws and the Constitution, taking into account the principle of the primacy and relevance of its contested provisions for resolution of the dispute in the courts.
18. The Court notes that the subject of the objection of unconstitutionality is the provisions of Article 900 of the Civil Code, which regulates the effects of changes in ownership leased asset, namely "if the leased asset, after being handed over to the lessee, is estranged from lessor to a third party, the latter shall the lessor acquires the rights and obligations under the lease. "
19. In this regard, the Court notes that Article 24 para. (2) of the Law on Constitutional Court and Article 39 of the Constitutional Jurisdiction Code, notification must be substantiated and contain the subject and the circumstances that bases its subject requirements.
20. Analyzing the exception of unconstitutionality in relation to the arguments, the Court observes that the author of the objection claims that the subrogation new lessor rights and obligations under the lease agreement the previous owner of the property violate the ownership of the first guaranteed by Article 46 of Constitution.
21. The Court finds that the author only exception noted that the rule violates the disputed property without presenting convincing arguments in support of this fact.
22. The Court notes that Article 46 of the Supreme Law guarantees the right to private property and its protection. Its content, this law excludes the possibility of containment, using economic and social levers and oblige third parties to refrain from any action that would prejudice that right.
23. In that logical, the Court notes that article 315 of the Civil Code states that the owner is entitled to possession, use and disposition of its assets and exercising this right exclusively in the name and interest, without the intervention of others.
24. The Court also retains the legal protection of ownership is determined by limiting its task under Article 46 of the Constitution, it is for the legislature.
25. Subsequently, pursuant to Article 72 para. (3) i) of the Constitution, Parliament adopts the organic law regulating the legal status of property and inheritance. Thus, the Parliament was vested with the power to determine the legal status of participants in the civil circuit, bases emergence of ownership and how to exercise it.
26. Subjecting the preliminary examination of data on the subject exception of unconstitutionality, the Court notes that the author's arguments relating to the limitation of the privilege of exercising the right of private property under Article 46 para. (5) of the Constitution.
27. In this context, the Court certifies that the constitutional provision relating to the limitation of property rights in order to comply with the owner of a task which by law have gained organic tinting in the Civil Code.
28. The Court notes that the field related to the subject exception of unconstitutionality related to civil contractual relations, in particular the obligation of third parties who became owner of the leased property to the lessor subrogate the rights and obligations under the lease.
29. Thus, the Court notes that the legislature, in Chapter VIII of the Civil Code, entitled "Lease" regulated end of the tenancy, rights and obligations of the parties, the manner of termination, extension and termination of the contract.
30. In the context of alleged Court notes that, in arguing his critics, author of the notification ignore the existing legal provisions. According to these provisions, the legislature established the legal framework for the enforcement of ownership in case of a tenancy, so as not to come into collision with the interests of general or particular interests legitimate of other subjects of law, instituting legal solutions field.
31. The Court also held that the notification addresses essentially disputed circumstances in nature. The Court has jurisdiction to consider the application of a legal provision of a concrete situation.

32. Similarly, the Court notes that concrete settlement of disputes between concrete persons is exclusive prerogative of the courts, and they are only able to quantify in concreto the effects of applying the rule to the facts inferred court.
33. The Court notes that it is for the court to determine whether each case is compliance with statutory limit on the exercise of ownership.
34. Under those listed above, the Court finds that, in the absence of constitutional argumentation incidence relied on the contested provisions, notification is unfounded, not admissible for examination.
For these reasons, pursuant to Articles 26 para. (1) and 31 of the Law on Constitutional Court, Articles 61 para. (1) and 64 of the Code of Constitutional and pct.28 lit. d) of Regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court

DECIDED:

1. Declares inadmissible the complaint regarding the exception of unconstitutionality of Article 900 of the Civil Code raised by Mikhail Balan in case no. 2ra-503/16 before the Supreme Court.
2. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

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