5 Juridical Trib. 7 (2015)

handle is hein.journals/juridtrib5 and id is 1 raw text is: 




STUDIES AND COMMENTS


   Comparison between the legal regime of the extinctive prescription
                     in Romanian civil law and fiscal law


                                                 Professor Silvia Lucia CRISTEA


        Abstract
        This article analyses the institution of the extinctive prescription, first synthesizing
the common law stated by the Romanian Civil Code (Section I) and then the special
regulation given by the Romanian Code of Fiscal Procedure (Section II) in which we
differentiate between the particular legal regime of the extinctive prescription in the area of
the rights of claim (Section 2.1-2.2), in the area of the right to initiate the foreclosure
(Section 2.3), and in that of the right to ask for compensation and restitution (Section 2.7).
The comparison between the legal regime of the extinctive prescription in civil law and its
regulation given by the fiscal law it is stated by the last section, structured into similarities
and differences.

        Keywords: civil law, tax law, extinctive prescription, comparison.

JEL Classification: K34, K40

        1. Extinctive prescription in the civil law.
             Notion, regulation, functions, purpose, effects

        1.1 Notion

        The extinctive prescription is a legal mean of settling the obligations as an
effect of the passage of time; the creditor who does not act in a certain period of
time in order to fulfil his subjective right to claim shall lose the protection given by
the law, namely his right to legal action2. After the passage of the time established
by the law, the debtor cannot be forced, legally, to perform his obligation, because
the subjective right of his creditor does not enjoy anymore the legal sanction
represented by the legal action.
        As a mean of extinguishing the obligation, the extinctive prescription has
as effect the loss of the right to action, in the material sense, but not the extinguish
of the subjective right of the creditor; only that after the expiration of the extinctive
prescription, the debtor shall perform the obligation if he wants to do so.


Silvia Lucia Cristea - Bucharest University of Economic Studies, Law Department,
  silvia drept@ yahoo.com.
2 Silvia Lucia Cristea, Dreptul afacerilor, third edition, revised and enlarged, Universitara Publishing
  House, Bucharest, 2012, p. 229.

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