Action for confirmation of ownership. Subsidiary nature. Inadmissibility

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

The fact that the plaintiff has unsuccessfully brought an action for enforcement (in recovery) prior to bringing an action for a declaration of enforceability does not mean that the latter loses its subsidiary character, in view of the provisions of Article 35 of the Civil Procedure Code, which expressly state that such an application cannot be accepted if 'the party may seek enforcement of the right by any other means provided by law'.

Since the plaintiff had at its disposal such an action for the enforcement of a right, which it also brought, irrespective of the outcome of the proceedings, the action for a declaration of the same right retains its subsidiary and therefore inadmissible character, in the context of the existence of rules governing the specific procedural means of enforcing the right.