The Judge's Active Role and the Principle of the Availability of the Parties in a Civil Lawsuit

• Author: Foltis, A.
• Position: Law Department, Transilvania University of Brasov
• Pages: 123-128

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 6 (55) No. 1 - 2013

THE JUDGE’S ACTIVE ROLE AND THE

PRINCIPLE OF THE AVAILABILITY

OF THE PARTIES IN A CIVIL LAWSUIT

Adina FOLTIŞ1

Abstract: The main aspects through which the active role of the judge is

manifested and which can be, at the same time, perceived as limitations of

the principle of the availability of parties in a civil lawsuit are: the right of

the court to set in order for the evidence to be considered useful in finding

the truth, apart from the evidence proposed by the parties and sometimes

against the ones commonly supported by the parties; the possibility of the

judge to demand explanations regarding the actual situation from the parties

and the motivation de jure that the parties invoke in advocating their

demands and defenses, as well as subjecting to debate any circumstances de

facto or de jure, even though they are not comprised in the summons or in the

statement of defense; the enforced introduction of other people in the cause;

legal classification of the deeds and facts inf erred from the judgment made by

the judge.

Key words: judge, active role, Civil Code, court.

1 Law Department, Transilvania University of Braşov.

1. Introduction

The judge’s active role must be analyzed

in correlation to the principle of

availability which governs the civil

lawsuit, an established principle in the

current Civil Code article 9 and which, in

essence, establishes that the object and the

limits of the process are settled through the

demands and the defenses of the parties.

This specific principle of the civil

procedure cannot be derogated from on the

grounds of the active role of the judge

without a special legal disposition.

Under the influence of the previous Civil

Procedure Code, starting from the

provisions of article 129 from the Civil

Procedure Code from 1865, its doctrine [1],

stipulated that the main aspects through

which the active role of the judge is

manifested and which can be at the same

time perceived as limitations of the

principle of availability of the parties in the

civil lawsuit are:

a). the right the court of law has to set in

order the evidence which is

considered useful in finding the

truth, apart from the evidence

proposed by the parties and

sometimes even against the one

commonly supported by the parties.

In this sense, article 129, paragraph (5)

from the 1865 Civil Procedure Code

stipulated that: “The judges have the duty

to insist, using all the legal means, on

preventing any mistake regarding finding

the truth in the cause on the grounds of the