The character of the material-legal relationships and their subjective composition - appropriate criteria for the common general competence in the Republic of Moldova

Abstract

For a long time in the legal system of the Republic of Moldova, two criteria were the basis for delimiting the powers of jurisdictional bodies:

1) the nature of the legal relations from which the dispute arose;

2) the subjective composition of the parties to the delimitation of the jurisdiction of the courts and other jurisdictional bodies.

We do not recommend the re-incorporation of these criteria into the procedural legislation of the Republic of Moldova. We see their introduction in the national regulations of these criteria only through their materialization in the special rules delimiting the powers of the jurisdictional bodies, which would allow an accurate determination of the competence starting from the specific nature of the activity of the jurisdictional bodies. Thus, we consider that these two criteria that are the basis of the common general competence can constitute some configuration factors of the special criteria for establishing the competence of these entities. For example, when setting up a special rule of general competence resulting from the criterion "the nature of the legal relations from which the dispute arose" we identify it in art. 3 paragraph (2) from the Law on Arbitration no. 23 of 22.02.2008, which provides: "Claims related to family law, claims arising from lease contracts (rent) of residential premises, including disputes regarding the conclusion, validity, termination and qualification of such contracts, claims and patrimonial rights regarding homes cannot be the subject of an arbitration agreement". Thus, in our opinion, the criteria of the common general competence can find both direct and indirect materialization through the special rules of the special general competence.