Article on the Rights of Ownership

Adina Nicolae recently published an article entitled, The Legal, Common Law Nature of the Action for Recovery of the Right of Ownership Over an Estate, Forwarded by the Administrative and Territorial Unit, Romanian Case L. Rev., no. 3, 2012. The abstract on SSRN is provided below:

1) Contrary to the appellant’s pleading, lodging an action under which it strived after the recognition and recovery of the right of ownership over an estate, Cluj County, in its capacity as claimant, acted as a legal entity governed by private law – at the same time, holder of civil rights and obligations, – however not as a bearer of public power, of the executive authority.

In the case in point, there was raised neither the question of recovering certain administrative actions, nor, as claimed, of delimiting the public domain of the county (in order to fall within the scope of art. 23 of Law no.213/1998, regarding the submission of such disputes to the administrative court), but the question of legal sanction of a subjective civil right.

2) The effect of the authority of res judicata shall be enclosed to those jurisdictional examinations and to those decisions of the court representing the subject matter of contradictory debates of the parties and which substantiated the adopted solution.

Or, by the previous sentence a plea of illegality was allowed, establishing, under the terms and conditions of art. 4 para 1 of Law no. 554/2004, that the settlement of the dispute on the merits does not depend on the invoked administrative action.

Consequently, contrary to the appellant’s pleading, the administrative court, being limited as regards its examination, concerning the connection of the administrative action with the settlement of the dispute on the merits, may not separate the question of the registration of the party’s right of ownership in a manner empowered with the authority of res judicata.

3) Both aspects submitted for appeal are inadmissible, regarding the manner in which the court fees were established and respectively, the manner in which the application for legal aid was settled regarding the matter of the court fees (meaning that, instead of the exemption from the payment of court fees, they were only staggered), taking into consideration that they had already been recovered by the special legal remedy (reexamination) initiated according to law against such solutions of the court.

The circumstance that it was an internal legal remedy – exercised, according to art. 18 and respectively, art. 21 of Law no.146/1997, before another panel of the same court – shall not affect the equitable judicial proceeding, just as it is understood under the terms of art. 6 para 1 of the ECHR.