Considerations about the Civil Action in the New Civil Procedure Code

• Author: Ciurea, A.
• Position: Law Department, Transilvania University of Brasov
• Pages: 109-114

Bulletin of the Transilvania University of Braşov

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

CONSIDERATIONS ABOUT THE CIVIL

ACTION IN THE NEW CIVIL

PROCEDURE CODE

Andreea CIUREA1

Abstract: In the modern age, regarding the opening of a civil trial, we

operate with multiple concepts (or rights?): “the free access to justice”, ”the

right to refer to the court”, “the right to action” etc. In the last 150 years,

important theories of great value have been in this area, which revolutionized

the civil proceedings law. The “free acce ss to justice” is a fundamental right

established in all the democratic states’ legislation: we all have the right to

refer to the Jurisdictional Power of the State. The access to justice represents

a guarantee for the exercise of all the other rights and liberties: the

guarantee that potential conflicts shall be settled in a peaceful manner, by an

impartial judge. Art. 21 of the Romanian Constit ution provides, in paragraph

1: „Any individual can refer to justice….”

Key words: access to justice, civil action, conditions.

1 Law Department, Transilvania University of Braşov.

1. Introduction

In principle, any petition addressed to

justice generates a trial and an analysis

from a court.

Therefore, the unstamped petition, the

petition addressed to a court with no

jurisdiction, the petition of a mentally

incompetent individual – all these initiate a

trial, a resolution from a judge. We find

that, although any petition generates a trial,

not every petition can generate a viable

trial.

We have to ask for the fulfilling of

certain minimal conditions that could

indicate, de plano, if the plaintiff could be

right or he/she is committing an abuse. To

be provided with the right to action means

to fulfil the necessary conditions for the

court to be bound to hold in substance.

Thus, we come to discuss also about the

existence of “the right of action”- the right

to receive a substantive decision. The right

of action is connected with a certain claim,

with an actual litigious circumstance. The

right of action, without confusing it with

the subjective right submitted for trial, is a

priori “associated” or “enclosed” with a

claim pertaining to a specific individual.

Therefore, the right of action is

independent of the subjective right

submitted for trial; the right of action is

recognized before examining the material

right existence.

If the petition was rejected as ill –

founded, it means that a substantive ruling

was issued and that the right of action was

recognized prior to the substantive claim.

Whatever the solution in substance, it

involves the right of action recognition!