Întelesul conceptului de „instanta" de executare” cu referire la atribuþia acesteia de încuviinþare a executãrii silite
The meaning of the concept of “court of enforcement” with reference to its duty of approving compulsory execution

Summary/Abstract: The place of enforcement is not always at the debtor’s home address/registered office, but its determination comes under the duty’s character established under the writ of execution, which influences the form of execution – direct or indirect – that shall be employed. The purport of Article 3731 of the Code of Civil Procedure, as amended by Law no. 202/2010 is likely to contribute to increasing the celerity of the enforcement business, by conferring a much suppler character to this particular procedure and granting the bailiff a greater freedom in choosing the type of enforcement, this right being born, but only after getting the Court’s authorization, when, according to the evidence to be collected by the enforcement body on the debtor’s traceable income and assets, the same shall decide in agreement with the creditor which is the most suitable form of tracking applicable in order to promptly meet the writ of execution. In default of the document granting the compulsory execution, the bailiff is not allowed to make any approach with the view to identify traceable income or a ssets, the relevant deed bearing the legal nature of an authorization of the bailiff to proceed to enforcement. Determination of the Court of enforcement must be carried out exclusively by reference to the incidental legal provisions in the field of compulsory execution in conjunction with the principle of availability also governing the compulsory execution phase, the judge being not allowed to use simple, unsubstantiated presumptions. In terms of the simple presumption’s conclusive evidence, it is worth mentioning that, unlike the relative legal presumption, this does not lead to the reversal of the burden of proof, which means that, for the judge to make the reasoning on which the Court presumption is based, the Party making the proposal before the judgment is required to prove its claims. This means that, in order to enjoy conclusive evidence, the simple presumption should necessarily be corroborated with other forms of evidence submitted to the file, being not sufficient by itself to ground the Court’s ruling.

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