137/2009 BR ROD (512140)
(1ST LAW PUBLICATION)
Civil procedure. Material competence based on the value of its object
difference. In case of doubt, the guilt is not joint and several. Provided that
more co-owners are entitled to a divisible benefit, which corresponds
in the benefits of the conjuncture, each creditor has the right to receive an equal share, the
which constitutes the value of the subject matter of the dispute. It refers to the cathelium
competent Magistrate's Court.
Decision number: 137/2009
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF RHODES
(Regular Procedure)
Consisting of Judge Efrosyne Maria Dortou, Judicial Paredros, the
which was appointed by the President of the Court of First Instance of Rhodes and the secretary
Georgios Laudikos.
He sat in his audience on 12.2.2009, to try the case
between:
The plaintiffs: 1) ...5), defendants residents of Rhodes, who were represented
by their attorney Panagiotis Foutoulis and
of the defendant: Anonymous Company with the name "...", based in Rhodes
and legally represented, who was represented by the attorney
lawyer of Ioannis Karamihalis.
The plaintiffs request that their action of 17.8.2007 be accepted, which
deposited in the Registry of this Court under filing number 355/2007,
discussion of which today's hearing was set, after being initially postponed
appointed on 8.5.2008.
During the hearing of the suit, attorneys for the parties requested
to accept what is mentioned in the minutes of the trial and those filed
their suggestions.
AFTER STUDYING THE LITERATURE
CONSIDERED ACCORDING TO THE LAW
From the combination of the provisions of articles 7, 8, 9, 10, 11 § 1 and 14 § 2
K.Pol.D., it is concluded that in the cases where the material competence of
court is determined by the value of the object of the dispute, for the
assessment of the request of the lawsuit is taken into account, without being taken into account
to it the accompanying applications for fruits, interest and costs. In case
common law, and if it is a matter of divisible rights, the request is taken into account
each claimant, i.e. the amount requested by each of them or the amount requested by each
defendant, i.e. the amount claimed by each defendant. Further, according
with the provision of article 14§2 of the Civil Code, as it was in force at the time
bringing legal action, within the jurisdiction of the Single Member Courts of First Instance
includes all differences that can be valued in money and that h
value of their object is over 12,000 euros, but does not exceed
80,000 euros, while according to paragraph 1 sec. a of this above provision
K.Pol.D., all disputes that
can be valued in money and that the value of their object does not
exceeds 12,000 euros. Besides, according to the provision of article 46
K.Pol.D. if the Court is not materially competent, it shall rule on it
ex officio and specifies the competent Court, to which it refers
the case. Finally, according to the provisions of article 480 of the Civil Code, if more
they owe a split benefit or if several are entitled to a split benefit,
in case of doubt each debtor has the obligation to pay and
each creditor is entitled to an equal share. With this provision,
an interpretive rule is introduced, which is valid as long as from the connecting party
participating persons legal transaction or any special agreement between them or
the law does not infer either division of guilt into unequal parts or guilt
jointly passive or active (see Georgiadis/Stathopoulos, Civil Code,
according to the interpretation of the article, volume 11, in article 480 para. 9).
In this matter, the plaintiffs allege, in their present action and
according to the plaintiff's correct assessment, that they are co-owners, with the defendant, of him
property referred to in the above lawsuit and that the latter, in the year 1992,
in bad faith, occupied the disputed property, by extending it
hotel unit. They request: a) that the defendant be obliged to pay,
in equal parts to each of them, as benefits from its utilization
property, the amount of 22,000 euros, with legal interest from the service of the lawsuit
until full payment, b) to declare the decision temporarily enforceable and
c) to order the defendant to pay their court costs.
This action, according to the majority opinion, is inappropriately brought to
debate before this Court, given that each of the plaintiffs,
in accordance with the provision of article 480 of the Civil Code, requests the amount of (22,000/5 =)
4,400 euros. Therefore, this case should be referred to him
competent court in terms of content and location, i.e. before the Magistrate's Court
Rhodes. Finally, because the referring decision is final, it must
the plaintiffs are ordered to pay the court costs of the defendant, in accordance with
defined in particular in the operative part of the present.
FOR THOSE REASONS
JUDGES opposition of the parties.
IT IS DECIDED that it is materially incompetent to adjudicate the case under review
lawsuit.
REFERRED the action for adjudication before the Magistrate's Court of Rhodes.
ORDERS the defendant's legal costs against the plaintiffs which
set at the amount of four hundred and fifty (450) euros.
ADJUDGED, decided and published in Rhodes, in extraordinary public
meeting in his audience on 17 August 2009.
THE JUDGE THE SECRETARY
P.B.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)