Protecția creditorului prin acțiunea oblică

Abstract

Derivative action is a means of guaranteeing the execution of obligations placed by the legislator at the disposal of the creditor who has a certain and enforceable claim, through which he can exercise the rights and actions of his debtor in the event that the latter neglects or refuses to do so. It may happen that a debtor does not exercise his rights towards his own debtor or otherwise omits to defend his rights and legitimate interests, due to absence, negligence, disinterest, due to a feared or imminent insolvency, or even because he intends to harm his creditors by not performing his obligations. In contractual relations, the creditor and the debtor could stipulate a right of the creditor to obtain information from the debtor regarding the evolution of the exercise of its rights vis-à-vis third parties if the debtor begins to commit non-performance of the contract towards the creditor. Therefore, when the debtor neglects to exercise an action that belongs to him, the creditor can exercise that power of attorney with or without filing an action in court, indirectly, obliquely, on behalf of his debtor. It is certain that the object of the derivativr action is limited to patrimonial rights and actions (given the fact that it is a measure by which the common guarantee of creditors is desired) and which are not closely related to the person of the debtor. Thus, the creditor will not be able to exercise, for example, the action to abolish or reduce the maintenance pension, the divorce action, the action to annul the marriage, etc. These proposals were interspersed with the objective of the given paper – better understanding of the subject by paying special attention to the comparison procedure, as we consider this method of effective research. DOI: https://doi.org/10.53486/sstc.v2.57; CZU: 347.276; JEL: K15