Defenses in the civil lawsuit: a short comparison of regulations from Romania and France

Author:Andreea Catalina Ciurea - Georgeta-Bianca Spîrchez
Position:Ph. D., Senior Lecturer, Transilvania University of Brasov, Faculty of Law - Ph. D., Assistant Lecturer, Transilvania University of Brasov, Faculty of Law
Pages:89-102
SUMMARY

Any person who is a party to a lawsuit acts or reacts: the claimant raises claims and the defendant counters them. Under this litigation context, the Romanian NCPC expresses - for the first time in our procedural legislation - the modern concept according to which defense is a way of expressing the civil action and makes a fundamental classification of the defenses in justice (“substantive” and “procedural”). The action includes two categories of procedural means: those for the protection of the subjective right claimed by one of the parties and those for providing the defense of the lawsuit parties . In France, this concept, which reflects the diversity of civil action and of the means of defense, has been regulated for over four decades. This is precisely why we intended to make a comparison with the French judicial system, which can be beneficial on several plans, because legislative reforms are often preceded by comparative studies. Such a comparison improves the critical knowledge of our law: Romanian lawyers can better perceive what is latent, constant, which has been insufficiently explored in the own law. Foreign jurisprudence may also provide new assessment elements to the Romanian legislator either to apply common rules to several states or to construe the national law.

 
CONTENT
Defenses in the civil lawsuit: a short comparison of regulations from Romania 89
DEFENSES IN THE CIVIL LAWSUIT: A SHORT COMPARISON
OF REGULATIONS FROM ROMANIA AND FRANCE
Andreea Ctlina CIUREA
Ph. D., Senior Lecturer, Transilvania University of Braşov
Faculty of Law
a.ciurea@unitbv.ro
Georgeta-Bianca SPÎRCHEZ
Ph. D., Assistant Lecturer, Transilvania University of Braşov
Faculty of Law
georgeta-bianca.spirchez@unitbv.ro
Abstract
Any person who is a party to a lawsuit acts or reacts: the claimant raises claims and
the defendant counters them.
Under this litigation context, the Romanian NCPC expresses - for the first time in our
procedural legislation - the modern concept according to which defense is a way of
expressing the civil action and makes a fundamental classification of the defenses in justice
(“substantive” and “procedural”). The action includes two categories of procedural means:
those for the protection of the subjective right claimed by one of the parties and those for
providing the defense of the lawsuit parties .
In France, this concept, which reflects the diversity of civil action and of the means of
defense, has been regulated for over four decades. This is precisely why we intended to make
a comparison with the French judicial system, which can be beneficial on several plans,
because legislative reforms are often preceded by comparative studies.
Such a comparison improves the critical knowledge of our law: Romanian lawyers can
better perceive what is latent, constant, which has been insufficiently explored in the own
law. Foreign jurisprudence may also provide new assessment elements to the Romanian
legislator either to apply common rules to several states or to construe the national law.
Keywords: Private Law, defense, defendant, civil lawsuit
1. Introduction
The comparison method is increasingly being used in the legal field as a
previous stage for reforms and in order to harmonize national rights.1
The critical knowledge of the law is the essential function of the comparison.
Legists renew their analyses, better perceiving permanent, long-lasting things and
1 Laithier; Y-M., Droit comparé, Dalloz, Paris, 2009, p.14-24.
Law Review vol. VII, issue 2, July-December 2017, pp. 89-102
90 ANDREEA CĂTĂLINA CIUREA, GEORGETA-BIANCA SPÎRCHEZ
things which are insufficiently explored in one’s national law. “The person
comparing reveals the unperceived realities from the analyzed system.”2
In this way he may improve the national law by borrowing or imitating rules
from the foreign right which seem more adapted to social and economic realities.
Moreover, foreign law may grant the legislator new methods of assessment to
apply rules valid for many states or to interpret and complete the national law
system.
Moreover, in the context of the European integration, people are attempting to
find a base of rules to build a common legal culture: the assessment of certain legal
systems implies better social security, decreases the costs of right diversity, enables
exchanges. Therefore, the compared method may contribute to the harmonization
of the national law systems.
It has been discovered that doctrine best enables the delivery of certain legal
and lawful models. This is what determined the elaboration of the present study:
we hope that this comparison between the regulation of a more mature legislator
and a larger and more insightful doctrine (in terms of defense mechanisms) will
contribute to a more efficient application of the Romanian law and in terms of
distance, to its development/transformation.
2. Regulation of defense mechanisms in the French law
Firstly, the French Civil Procedure Code regulates the defence through the
directory principles of the civil lawsuit (art.18-20).
Secondly, according to art. 30 from Code de procédure civile, „(1) The action is the
right of the claimant to be listened to, based on his civil action, so as the judge may
declare the claim grounded or ungrounded. (2) In terms of the opponent, the
action is the right to discuss the grounds of the claim.”
Based on this regulation and on the already classic mentality regarding the
right to act, French authors3 explain “the defense in court” as a right to act in terms
of the defendant.4 The action is also seen as the defendant’s prerogative to discuss
the grounds of the plaintiff’s claim; this distinct view of the right to act is what we
call “defense”.
S. Guinchard5 demonstrates that the “defense mechanisms” include all the
procedures which enable the defendant to react against the appeal initiated against
him by the plaintiff. In the same way, J. Héron6 considers that defenses are the
2 Muir Watt, H., ”La fonction subversive du droit comparé”, RIDC 2000, p.503-518, apud Laithier;
Y-M., op.cit, p.15.
3 Couchez, G., Lagarde, X., Procédure civile, Ed. Dalloz - Sirey, Paris, 2014; Guinchard, S., Ferrand,
F., Chainais, C., Procédure civile, Dalloz, Paris, 2011; Cornu, G., Foyer, J., Procédure civile, P.U.F., Paris,
1996; Cadiet, L., Droit judiciaire privé, Litec, Paris; Héron, J., Droit judiciaire privé, Montchrestien, Paris,
1991; Vincent, J., Guinchard, S., Procédure civile, Dalloz, Paris, 1996.
4 Couchez, G., Lagarde, X., op.cit, p.163.
5 Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.72.
6 Héron, J., op.cit, p.80.
Defenses in the civil lawsuit: a short comparison of regulations from Romania 91
follow-up of the court summoning so there is certain symmetry between them;
however defenses are not entitled to total autonomy: we cannot conclude a defense
without an application; the application is what suscitates the defense. Therefore,
the defense depends on the court summoning.
In G. Cornu’s7 opinion, defense is largely the contradiction of the application;
it’s the act whereby the defendant, refusing to meet the plaintiff’s claim, suggests
the judge his own means to “eliminate” the application, more or less on a final
basis.
Code de procédure civile is dedicated to the trilogy of defense mechanisms,
defining each of them. Therefore, Title V of Book I, entitled “Defense Mechanisms”
includes three chapters:
- chapter I: Defense of the matter on trial (art. 71-72);
- chapter II: Procedure exceptions (art. 73-121);
- chapter III: Fin de non recevoir (art. 122-126).
French theoreticians largely accept this legal classification, considering that the
basic criterion of the “division” is the nature of defense mechanisms. Based on the
legal definitions, authors such as L.Cadiet, G. Couchez, J.Cornu, J.Foyer, J.Héron, J.
Vincent, S. Guinchard explain the content, features and legal regime of the
mentioned institutions.
a) According to art. 71, “defense of the matter on trial” is any mechanism “which
tends to reject the opponent’s claim as ungrounded, after examining the matter on
trial of the right”. Therefore, with the help of the defense of the matter on trial, the
defendant directly opposes to the plaintiff’s claim and renders it ungrounded. As
such, the defendant accepts the game on the plaintiff’s field and follows the
rejection of the application as ungrounded, after examining the matter on trial.
Taking in consideration its fundamental character, the legist determined that
the defense of the matter on trial may be presented anytime, not only before the
first instance, but also before the court of appeal, before closing the debates. For
example, the law states that statement of forgery which implies contesting written
evidence represents a defense of the matter on trial and not a procedure exception,
because it can be claimed in any state of the cause.8 Moreover, the mechanism
resulted from the nullity of the legal document on which the claimant bases his
action (for example a sale promissory) is a defense of the matter on trial and may
be directly suggested in the appeal.9 However, in terms of invoking a direct
defense of the matter on trial before the Court of Cassation, one must consider the
7 Cornu, G., Foyer, J, op.cit., p.368.
8 See : Cour de cassation, 1ère Chambre civile 9 décembre 2015, pourvoi n°14-28216, BICC n°841
du 1er mai 2016: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000031608106.
9 See: Cour de cassation, Chambre civile 3, 16 mars 2010, N° de pourvoi: 09-13187:
https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechExpJuriJudi&idTexte=JURITEXT0
00021998714.
92 ANDREEA CĂTĂLINA CIUREA, GEORGETA-BIANCA SPÎRCHEZ
restriction of invoking new mechanisms before this court (provided by art. 619
Code de procédure civile).
b) Art. 73 Code de procédure civile provides the following: “Procedure exceptions
are any mechanisms which tend to declare the procedure irregular or closed or to
cancel its performance.” The procedure exceptions temporarily transfer the field of
the legal game; without directly answering the claim, the defendant opposes by
demonstrating that the application was delivered to an noncompetent judge, that
there is a similar process pending etc. A matter exterior and preliminary to the
litigation is submitted to trial, whose resolution must mandatorily precede the
debate of the matter on trial. Regularly there is a temporary obstacle in the
performance of the trial: after regulating the procedure, the litigation matter may
be debated.10
Art. 73-121 are dedicated to procedure exceptions. Art. 74 sets the legal regime
for the procedure exceptions so that art. 75-121 Code de procédure civile may
explicitly refer to four categories of procedure exceptions:
- incapacity exception – art. 75-99;
- lis pedens and connectedness exception – art. 100-107;
- dilatory exceptions - art. 108-111;
- nullity exceptions – art. 112-122.
Regarding the legal regime, this is more severe than the regime of the defense
of the matter on trial: “Under the sanction of inadmissibility, exceptions must be
simultaneously built before any defense of the matter on trial or before the fin de
non recevoir…” Obviously, the purpose of the legist is to avoid the rightful abuse
occurred by invoking these exceptions only for the purpose of tergiversating the
trial.
Therefore, the invocation of procedure exceptions is submitted to two
requirements: simultaneity (invoked all at once) and anteriority. Not meeting these
requirements is sanctioned with the inadmissibility of the exception, even if the
rules which support the procedure exception are of public order. However, we
consider that the mechanism resulted from this inadmissibility may be built even
firstly before the court of appeal as any fin de non recevoir.11
There are however derogations from this severe regime. For example, the
nullity exception may be invoked during the meeting of the procedure acts, the
connectedness exception may be invoked in any state of the case (if the party did
not have a dilatory intention)12, etc.
In terms of the four categories of procedure exceptions, is the list restrictive?
The dominant opinion is that the large definition from art. 73 demonstrates that the
legist regards a term which exceeds the list made through art. 75-121 CPC13.
10 Couchez, G., Lagarde, X., op.cit, p.183; Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.73
11 Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.74.
12 See : art.103, 111, 112, 118 CPC
13 Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.74.
Defenses in the civil lawsuit: a short comparison of regulations from Romania 93
Moreover, J. Héron14 notices that procedure exceptions which are related to art.
75-121 CPC are not really connected: they have different content and their legal
regime is their only connection. As a matter of fact, the law also included in the
category of the procedure exceptions: the rule of “the criminal taking the
responsibility of the civil”, the superannuation of the process15, etc.
c) According to art. 122: “fin de non recevoir is any mechanism which tends to
declare the action inadmissible, without examining the matter on trial, for lacks of
the right to act, such as: the lack of quality, the lack of interest, prescription,
imperative term, the matter on trial.
Through the “fin de non recevoir” the existence of the cause to action is under
discussion and not only a procedure problem; however, the judge is required not
to state on the merits. In fact, the inadmissibility stated by the judge stops the
examination on the merits.
Therefore, the “fin de non recevoir” has a mixed nature: it is closed to the
defence on the merits because it tends to be a final obstacle of the action in justice,
in comparison to the exception of procedure which, as a rule, represents a
temporary obstacle of the claim. On the other hand, it is closed to the civil
procedure exceptions because it focuses on the paralyzing of the action without
analysing on the merits the litigious matters16.
Regarding the fin de non recevoir, J. Héron defines it as being „the manner
which tends to the refusal, without the examination on the merits of a claim or a
defence, because the party does not fulfil the conditions required in order to
subject to the judgement that procedural act”17. The fin de non recevoir is an
anticipated obstacle for the examination of a procedural act, sanctioning the lack of
the complainant to sustain it. Therefore, contrary to the defence on the merits, the
fin de non recevoir is not defined by its constitutive elements, but through its
effect. Consequently, a procedural defence does not exist, through its “nature” as
refusal to comply: the determination of the refusals to comply depends exclusively
on its legislator’s will, unfortunately, on the one of the interpreter needing to
replace the lack of the first.
For example, if we analyse the dispositions of art. 56 and art. 57 Code de
procédure civile, we conclude that the lack of mentions in certain procedural acts is
appealed – in one case – through an exception of procedure, and in the other case –
similar one - through a fin de non recevoir. The difference is explained only
through the will of the legislator.
Also, Héron observed that certain matters which belong to the substantial law
are qualified, in an artificial manner, as fin de non recevoir. Sometimes the
legislator isolates an element of the merits and asserts the judge to examine it in
14 Héron, J., op.cit., p.93
15 Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.74.
16 Couchez, G., Lagarde, X., op.cit, p.185; Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.75.
17 Héron, J., op.cit., p.88.
94 ANDREEA CĂTĂLINA CIUREA, GEORGETA-BIANCA SPÎRCHEZ
advance. It is the legislator will that the merits have the regime of a fin de non
recevoir18. For example, art. 244 Code civil foresees that the reconciliation of the
spouses after the deeds invoked as reasons to divorce stops their subsequent use
for the dissolution of the marriage, and the judge will admit the claim as
irreceivable („Le juge déclare alors la demande irrecevable…”). The problem of the
guilt and the conciliation is part of the substantial law, but the examination in
advance of a conciliation will disengage the judge to examine the „promiscuity of a
marriage”19.
Most frequently, the identification of the fin de non recevoir is made with the
words used by the legislator: „receivable or „irreceivable”. One should remember
that, however, the fin de non recevoir must be received even if the inadmissibility
does not result from an express disposition, according to art.124 Code de procédure
civile.
It is considered, in the doctrine and jurisprudence, that the enumeration in art.
122 has not a limitative character. For instance, it was stated in the judicial practice
that it is considered as being the fin de non recevoir the mean deduced from the
existence of a conciliation case or mandatory mediation and prior to the court
apprehension20.
It is appreciated that the notion is applied to the defendant, as well; for
example, his procedural exception may be inadmissible because he invoked it after
the defences on the merits21.
Also, the notion of “fin de non recevoir” is seen as an extension of the
interdiction of the party to self-contradict in somebody else detriment – inspired by
the institution of estoppel, as well by the rule Nemo auditur propriam turpitudinem
allegans”22. There are presented the situations when one of the parties suddenly
changes the procedural position in order to mislead the opponent regarding his
intentions. In the French doctrine it was highlighted that in arbitrary matter,
through a refusal to comply, the attitude of ”lying in wait” is sanctioned,
abstaining at first from invoking a procedural irregularity in order to use it more
advantageously subsequently23. Thus, for the procedural contradictions, it is
18 Some of J. Héron observations and commentaries have been commented, detalied and
systematized in a study of professor Guy Block , Les fins de non recevoir en procedure civile, Ed. Bruyant,
2002;
19 Héron, J., op.cit., p.91.
20See: Cour de cassation, chambre civ.2, 16 décembre 2010, N° de pourvoi: 09-71575; Cour de
cassation, chambre civile 1, 8 avril 2009, N° de pourvoi: 08-10866 : www.legifrance.gouv.fr
21 Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.75.
22 For a detailed study, a se vedea: A.C. Ciurea, „Despre teoria estoppel sau noi instrumente de
filtrare a aciunilor în justiie” [About the estoppel theory or new instruments for filtering civil actions
brought before the court], Revista român de drept privat nr.4/2012, Ed. Universul Juridic, p.53.
23X. Delpech, Procédure arbitrale: la Cour de cassation définit la notion d’estoppel, published at :
www.dalloz-actualite.fr, 2010; X. Delpech, Procédure arbitrale: application de la théorie de l’estoppel,
published at : www.dalloz-actualite.fr, 2010.
Defenses in the civil lawsuit: a short comparison of regulations from Romania 95
inclined to the institution of a mechanism to block the action, as an inadmissibility
or a fin de non recevoir. The fin de non recevoir does not need to be expressly
provided by a law text, it has to be supported by a law text, being resulted from a
law principle – the one of procedural loyalty, for instance – which has the vocation
to irrigate all the judiciary procedures.
Regarding the judiciary regime, art. 123 Code de procédure civile indicates: “The
fin de non recevoir may be invoked in any stage of the case, with the possibility of
the judge to sentence to recovery to damages the one that abstained, with dilatory
intention, to invoke them earlier”.
Therefore, the fin de non recevoir do not have a supple and liberal regime, can
be invoked in any stage of the case and the interested party does not need to prove
the existence of the damage24. However, in order to diminish the risk of dilatory
labours, the judge must invoke ex officio certain refusals to comply, which have a
character of public order (lack of interest, lack of standing the trial, res judicata) or
which results from the failure to observe the terms within the mean of appeal that
must be exercises (art. 125 Code de procédure civile). On the other hand, the refusal to
comply deduced from the limitation of time cannot be invoked ex officio, by the
judge (art. 2247 Civil code).
Art.126 Code de procédure civile allows inadmissibility to be covered / alienated
/ eliminated if the situation which generated it may be regulated. For example, the
claim made by a person without a standing the trial is declared as inadmissible, if,
within a legal term, the person who may stand the trial intervenes in the trial
(becomes a part).
3. Regulation of defence means in the Romanian New Civil Procedure
Code (NCPC).
Firstly, we notice that the New Romanian Civil Procedure Code raises “The
defence right” (art.13) at the level of a fundamental principle of civil trial – a
deserved place in any system of modern, democratic law.
Then, in the Title intended to ”Civil action” it is provided that: ”Civil action is
the assembly of the procedural means provided by the law for the protection of the
subjective right pretended by one of the party or any other legal situation, as well
as in order to provide the defence of parties in the trial” (art.29 NPCC)
We notice that the action comprises two categories of procedural means: the
ones for protection of the subjective right pretended by one of the parties and the ones to
provide the defence of the parties in the trial. Therefore, the legislator expresses the
conception according to which the defence is a mean of manifestation of civil action.
Then, art.31 NCPC provides a fundamental classification of the “defences in
justice”, which may be: on the merits and procedural. The legislator, however, does
24 Couchez, G., Lagarde, X., op.cit, p.185; Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.77.
96 ANDREEA CĂTĂLINA CIUREA, GEORGETA-BIANCA SPÎRCHEZ
not explain, in any manner, which the difference between them might be, after
which criteria we may differentiate them, it does not exemplify.
In doctrine25 there were highlighted the features and the effects of the two
categories of defences. On the merits defences are those through which the subjective
right is contested by the opponent part, the existence of the legal relationship is
denied; they have as purpose the rejection of the action as proofless or
ungrounded, either the defendant succeeds to prove that the actual situation is
different from the one presented by the plaintiff, or he succeeds to rebut the legal
basis of the opponent part. The procedural defences represent the means of defence
through which the defendant, without refuting the fund of the plaintiff’s claims,
follows to obtain the delay of the judgement, remaking of certain documents, the
annulment of the sue petition or its disposing as inadmissible.
Then, within the section named “The inquiry of the trial”, our Code dedicates
art. 245 – 248 to “Procedural exceptions”. NPCC defines, for the first time in our
legislation, the procedurals exception (art. 245): ”The procedural exception is the
mean through which, under the law, the interested party, the prosecutor or the
court invokes, without putting into discussion the law merits, the procedural
irregularities regarding the composition of the panel or the court formation, court
competence or at the judgement procedure lacks referring to the cause of action
following, as the case may be, the declining of the competence, the delay of the
judgement, remaining of some documents or their annulment, rejection or
superannuation of the claim.”
The Romanian code differentiates, expressly, only between two categories of
exceptions, according to the imperative or dispositive character of the breached norm:
absolute and relative exceptions (art. 246). The absolute exceptions are those through
which the breaching of some public order norms is invoked (general
noncompetence, material and territorial noncompetence, lack of standing under
the law, res judicata, judge incompatibility, etc.); relative exceptions are through
which it is invoked the breaching of some norms which protect mainly the parties
interest (territorial incompetence, some cases of challenge, etc.).
Reported to the two categories, the legislator establishes the legal regime of the
defences used in litigation (art. 247 NPCC):
- Absolute exceptions: may be invoked by the party or by the court in any stage of
the trial, if the law does not provide otherwise; may be brought against the recourse
court, only if, for the solution, it is not necessary the administering of other proofs
besides the new documents;
- Relative exceptions: may be invoked by the party which justifies an interest, at
least at the first term of judgement after coming the procedural irregularities, in the stage
of trial proceedings and before putting submissions on the merits.
25 M. Tbârc, Drept procesual civil [Civil Procedural Law], Editura Universul Juridic, vol.II, p.248;
G. Boroi, M. Stancu, Drept procesual civil [Civil Procedural Law], Ed. Hamangiu, 2015, p.393; I. Leş,
Noul Cod de procedur civil. Comentariu pe articole [The New Civil Procedural Code. Comments of the
articles], 2011, Ed. CH BecK, p.54, etc.
Defenses in the civil lawsuit: a short comparison of regulations from Romania 97
It must be highlighted that, based on the definition given by the law, in
doctrine26 and jurisprudence other classifications have appeared for the trial
exceptions. Thus, according to their object, the exceptions may be:
- Proper procedure exception: through which there are invoked irregularities
regarding the formal frame of the judgement (panel composition or court formation,
court competence, performing the judgement procedure);
- Exceptions on the merits: through there are invoked lacks of the cause of action
(lack of interest, lack of stand trial, state of limitation, res judicata, etc.)
According to the effect produced as a result of admission of exception:
- Dilatory exceptions (sometimes declinator): the ones which produce only a
delay of the judgement (the exception of invalidity of procedure actions – when
these may be remade, litispendence exception, joinder exception, noncompetence
exception, etc.);
- Unanswering exceptions (nullifying): the ones which have as effect the
rejection of the action and the extinction of the trial (exception of state of limitation,
exception of res judicata, exception of lack of standing the trial, superannuation
exception etc).
Moreover, the Romanian legislator regulates the procedure of solving the
procedural exceptions, making an implicit application of principle of concentrating
the procedural means: the parties are obliged to invoke all the defence means and all
the procedural exceptions as soon as they know them; contrary, they will be liable for
the damages made to the other party (art.247 alin.3, art.189-191 NCPC).
If the court cannot decide immediately on the exception, it will postpone the
judgement, establishing a short term for solving the exception.
The court will decide, firstly, on the procedural exceptions which make useless,
completely or partially, producing the proofs or trial proceedings of the case. The
exceptions will be connected with the producing of proofs and with the merits of the
case only if for their judgement it is necessary to produce the same proofs as for the
completion of the trial proceedings or for solution on the merits.
In the case there were simultaneously invoked several exceptions, the court will
determine the order for the solving according to the effects they produce; in
principle, the proper procedure exception must be solved with priority than the
exceptions on the merits27.
Also, NPCC establishes the type and the regime of the decision through which
a procedural exception is being solved: “The conclusion through which the
exception was denied, as well as the ones through which, after admitting the
26 M. Tbârc, op.cit., vol.II, p.251-254; G. Boroi, M. Stancu, op.cit., p.394-399; I. Leş, op.cit,
p. 380-382, etc.
27 For a detailed analysis of this problem, see: M. Tbârc, op.cit., vol.II, p.269-282; M.Tbârc, Un
aspect al ordinii de soluionare a excepiilor ridicate concomitent în faa instanei civile [Aspect regarding the
order to settle exceptions invoked at the same time before the civil court], în „Dreptul” nr.2/1998,
p.63-65, etc.
98 ANDREEA CĂTĂLINA CIUREA, GEORGETA-BIANCA SPÎRCHEZ
exception, the court still remains endowed, may be attacked only on the merits, if it
is not otherwise indicated by the law.”
4. Conclusions
We underline, first of all, that the Romanian legislator adopted the modern
conception – existing for a long time within the French Code – according to which
the defence is a component of civil action, seen as a complex assembly of
procedural means.
Then, NPCC divided the defence means in two main categories – defence of
the merits and procedural defences – in a text very laconic (art.31). There is not
offered any criterion to select them, without any exemplification.
In comparison, Code de procédure civile dedicates the trilogy of the defence
means: on the merits defences, procedural exceptions and the fin de non recevoir.
In the French doctrine, some authors28 doubt the reliability of the three-party
”division” and propose the regrouping in on merits defences and procedural
defences (procedure exceptions and fin de non recevoir); it was noticed that the last
one is larger and that these procedural defences may be treated within the
”procedural incidents”.
The French legislator includes the procedure exceptions, as well as the fin de
non recevoir in the category of defences. As a matter of fact, the most legislations
and legal doctrines include “exceptions” in the category of defence means. This
association was made starting from the effect of their admission (postponing the
judgement, suspension, claim annulment, refusal, etc.) and to the fact they are
invoked – by the defendant (due to their effect on the action).
Actually, the procedural exceptions may be used as defence means, but their
main function is to stop the jurisdictional activity performance in inappropriate
conditions, illegal, which might intervene on the quality of the justice act. The
procedural exceptions are more than defence means. Their main procedural function
is to signalize the appearance of an incident which stops the fulfilment of the trial
purpose. The defendant may ”take advantage” of the omissions or existing
irregularities, transforming them in ”defence means”; procedural exceptions have
as derived function the defendant’s defence, when they lead to a delay of the
judgement or to a quick solution through the claim annulment or rejection.
In these conditions, we agree the choice of the Romanian legislator of not
assimilate, strictly, the procedural exceptions with the defences: in our Code, the
procedural exceptions are treated in the section about “Trial proceedings”.
On the other hand, we appreciate as being useful, in Romania too, the
legislator action in differentiating the material right defences from the proceeding
ones, reported to the features of the two means, their effects on the trial and the
legal regime.
28 For example: Héron, J., op.cit, p.81.
Defenses in the civil lawsuit: a short comparison of regulations from Romania 99
This intervention would be efficient for the law practitioners, much more the
notion of ”exception” is associated to some institutions of civil procedural right, as
well as to some institutions of substantial rights (see the New Romanian Civil Code:
art.369, art.1094, art.1247, art.1319, art.1448, art.2296, etc.). Nowadays, in doctrine29,
it is made – between the exceptions of material rights and procedural exceptions – a
distinction under several aspects: according to the object and the purpose of the
two categories of means of defence, the moment of their invoking, the quality of
various defence means, the people and the bodies of right to invoke different
means of defence or procedural incidents, the order in which the court shall
examine them, the procedural acts through which the court shall decide on the
defence means of the parties, etc. But, not always, this differentiation reflects
correctly in jurisprudence.
Regarding the classification of exceptions, we notice that (beside the absolute
and relative ones), the Romanian legislator distinguishes between ”procedure
exceptions” and ”exception on the merits”, NPCC keeping this objectionable
terminology, which may raise some confusions (with ”defences on the merits”)
hard to remove from the practicians thinking and language.
Benefic is, however, the delimitation which is made between the two
categories (art. 245 NPCC), by reporting to their “object”: the procedural exception
is the one through which there are invoked procedural irregularities regarding the
panel composition or formation, court competence and the judgement procedure,
and the exception on the merits is the one through which lacks regarding the cause
of action are invoked.
Therefore, in Romania, the denial of the existence of cause of action is made by
invoking exceptions on the merits; this terminology existed in the former Civil
Procedure Code (art. 137). Reading the current text (art.248 para.1), we conclude
that there are exceptions on the merits on which the court has to decide before
examining on the merits. The collocation “on the merits” shows that those exceptions
”belong” on the merits to the lawsuit. It may be about an “on the merits” which
has to be analysed ”before the examination on the merits”?! Making a logical and
systematic interpretation of the law, analysing the doctrine and jurisprudence, we
negatively answer: it is about an unfortunate terminology which leads to the
confusion of procedural exceptions, through which the existence of the cause of
action is denied, with the exceptions of material right.
On the other hand, in France, Code de procédure civile dedicated as an
instrument for the denial of the cause of action ”refusal to comply” (la fin de
non-recevoir), defined in art. 122 and explained above, in our paper.
We notice that, in art. 245-248 NPCC, the Romanian legislator does not
indicate, does not enumerate or exemplify “the exceptions on the merits”. Of
29 A. Suciu, Excepţiile procesuale în Noul Cod de procedur civil [The procedural exceptions in the
New Civil Procedure Code], Ed. Universul juridic, 2012, p.28-31; M. Tbârc, op.cit., vol.II, p.248, etc.
100 ANDREEA CĂTĂLINA CIUREA, GEORGETA-BIANCA SPÎRCHEZ
course, we may associate them with the lack of cause of action, pursuant to art.
32-40 NPCC. But, this does not eliminate the problem of identifying the exceptions on
the merits, wondering if there are more such exceptions, besides the deduced ones
in art.32 NPCC.
Thus as we have indicated, this matter is debated in France as well, in the
conditions the art. 124 shows that “refusal to comply must be received ... even if
the inadmissibility does not result from an express disposition”.
For us, traditionally, there are included in this category: the exception of lack
of interest, exception of standing a trial, exception of res judicata, exception of
statute of limitation. These exceptions refer to the general conditions for the right
to action; they are accepted in the judiciary doctrine and practice, per se, although
– in comparison to the art. 122 Code de procédure civile – our legislator does not
foresee them, not even for exemplification in a text with general applicability.
Therefore, for us the difficulties to identify them are bigger than the ones of the
French jurists. The different situations appeared in practice, connected to the
special conditions of cause of action, are not correctly identified and generate
questions (such as: “But is there such an exception?! The opponent or the judge has
just invented it?” from the ones who consider that the first court exceptions are
limited to the studied ones, as usually, during faculty / law school.
In conclusion, we appreciate as being useful, in Romania as well, the existence
of a law text which shall allow the more accurate differentiation of the merits
defences from the procedural ones, reported to the legal regime and their
proceeding effect.
Then, it will be welcomed for us too, the introduction of a text which should
allow the identification, in principle, of the exceptions which refer to the
inexistence of the cause to action. A limitative enumeration is not, however,
indicated because – anytime – through special laws the legislator may “super -
condition” the existence of the statute to limitations, in certain matters.
Also, does it keep the practical importance to the question: if, in the absence of
a law text, the judge or the parties may create “on the merits” / “refusal to comply”
exceptions?
Another problem which bring interest is that of the regulation of first court
exceptions: Is there such a possibility? If there is, how may it be accomplished? And
in this matter, a minimum legal clarification and the unification of the legal
practice may be useful.
More, the usage of a modern and appropriate terminology is imposed,
according to the importance the institution of “proceeding exceptions” has within
the civil case.
Defenses in the civil lawsuit: a short comparison of regulations from Romania 101
REFERENCES:
[1] Laithier; Y-M., Droit comparé, Dalloz, Paris, 2009, p.14-24.
[2] Muir Watt, H., ”La fonction subversive du droit comparé”, RIDC 2000,
p.503-518, apud Laithier; Y-M., op.cit, p.15.
[3] Couchez, G., Lagarde, X., Procédure civile, Ed. Dalloz - Sirey, Paris, 2014;
Guinchard, S., Ferrand, F., Chainais, C., Procédure civile, Dalloz, Paris, 2011; Cornu,
G., Foyer, J., Procédure civile, P.U.F., Paris, 1996; Cadiet, L., Droit judiciaire privé,
Litec, Paris; Héron, J., Droit judiciaire privé, Montchrestien, Paris, 1991; Vincent, J.,
Guinchard, S., Procédure civile, Dalloz, Paris, 1996.
[4] Couchez, G., Lagarde, X., op.cit, p.163.
[5] Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.72.
[6] Héron, J., op.cit, p.80.
[7] Cornu, G., Foyer, J, op.cit., p.368.
[8] Cour de cassation, 1ère Chambre civile 9 décembre 2015, pourvoi
n°14-28216, BICC n°841 du 1er mai 2016: https://www.legifrance.gouv.fr/
affichJuriJudi.do?idTexte=JURITEXT000031608106.
[9] Cour de cassation, Chambre civile 3, 16 mars 2010, N° de pourvoi: 09-13187:
https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechExpJuriJudi&id
Texte=JURITEXT000021998714.
[10] Couchez, G., Lagarde, X., op.cit, p.183; Guinchard, S., Ferrand, F., Chainais,
C., op.cit., p.73
[11] Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.74.
[12] See : art.103, 111, 112, 118 CPC
[13] Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.74.
[14] Héron, J., op.cit., p.93
[15] Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.74.
[16] Couchez, G., Lagarde, X., op.cit, p.185; Guinchard, S., Ferrand, F., Chainais,
C., op.cit., p.75.
[17] Héron, J., op.cit., p.88.
[18] Some of J. Héron observations and commentaries have been commented,
detalied and systematized in a study of professor Guy Block , Les fins de non recevoir
en procedure civile, Ed. Bruyant, 2002.
[19] Héron, J., op.cit., p.91.
[20] Cour de cassation, chambre civ.2, 16 décembre 2010, N° de pourvoi:
09-71575; Cour de cassation, chambre civile 1, 8 avril 2009, N° de pourvoi:
08-10866 : www.legifrance.gouv.fr.
[21] Guinchard, S., Ferrand, F., Chainais, C., op.cit., p.75.
[22] For a detailed study, a se vedea: A.C. Ciurea, „Despre teoria estoppel sau
noi instrumente de filtrare a aciunilor în justiie” [About the estoppel theory or new
instruments for filtering civil actions brought before the court], Revista român de
drept privat nr.4/2012, Ed. Universul Juridic, p.53.
102 ANDREEA CĂTĂLINA CIUREA, GEORGETA-BIANCA SPÎRCHEZ
[23] X. Delpech, Procédure arbitrale: la Cour de cassation définit la notion d’estoppel,
published at : www.dalloz-actualite.fr, 2010; X. Delpech, Procédure arbitrale:
application de la théorie de l’estoppel, published at : www.dalloz-actualite.fr, 2010
[24] Couchez, G., Lagarde, X., op.cit, p.185; Guinchard, S., Ferrand, F., Chainais,
C., op.cit., p.77.
[25] M. Tbârc, Drept procesual civil [Civil Procedural Law], Editura Universul
Juridic, vol.II, p.248; G. Boroi, M. Stancu, Drept procesual civil [Civil Procedural
Law], Ed. Hamangiu, 2015, p.393; I. Leş, Noul Cod de procedur civil. Comentariu pe
articole [The New Civil Procedural Code. Comments of the articles], 2011, Ed. CH
BecK, p.54, etc.
[26] M. Tbârc, op.cit., vol.II, p.251-254; G. Boroi, M. Stancu, op.cit., p.394-399;
I. Leş, op.cit, p.380-382, etc.
[27] For a detailed analysis of this problem, see: M. Tbârc, op.cit., vol.II,
p.269-282; M.Tbârc, Un aspect al ordinii de soluionare a excepiilor ridicate
concomitent în faa instanei civile [Aspect regarding the order to settle exceptions
invoked at the same time before the civil court], în „Dreptul” nr.2/1998, p.63-65,
etc.
[29] For example: Héron, J., op.cit, p.81.
[30] A. Suciu, Excepţiile procesuale în Noul Cod de procedur civil [The procedural
exceptions in the New Civil Procedure Code], Ed. Universul juridic, 2012, p.28-31;
M. Tbârc, op.cit., vol.II, p.248, etc.