The Initiative of the Judge in Matters of evidence. Aspects of comparative Law

• Author: Ciurea, A.
• Position: Faculty of Law, Transilvania University of Brasov
• Pages: 93-98

Bulletin of the Transilvania University of Braşov • Vol. 5 (54) No. 1 - 2012

Series VII: Social Sciences • Law

THE INITIATIVE OF THE JUDGE IN

MATTERS OF EVIDENCE.

ASPECTS OF COMPARATIVE LAW

Andreea CIUREA1

Abstract: This paper aims at exploring a controversial issue in doctrine,

jurisprudence and legislation of European countries and Latin America: the

role jud ges should play in the system of evidence in the civil trial. Certain

legislations and some theorists argue for a judge to be an "expectant

observer", other for an active j udge, a guide of the trial. We will try t o

emphasize the practical advantages and disadvantages of the e xisting

theories (especially t he Romanian, French and Spanish ones), in order to

decide which solution is the most effective to achieve t he purpose of civil

trial: social peace.

Key words: judge, evidence, duty, party.

1 Faculty of Law, Transilvania University of Brasov.

1. Introduction

The system of evidence is often

compared - as a function of the civil trial -

either with the nervous system or the

respiratory system of an organism.

A key issue that impacts th e pattern of

the civil trial and the type of judge is that

of the judge’s i nitiatives that can be

recognized in matters of evidence.

In the Spanish doctrine it was noticed

that the issue of th e judge’s probatory role

can be analyzed from at least two aspects:

a) all legislations recognize the right and

obligation of the judge to intervene in the

management of evidence: he/she can order

the presentation of a document by a third

party at the request of any party, question

the witnesses, request clarification from

the expert, perform local research, etc. b)

in addition, the question is if the judge – in

order to learn more about reality and to

ascertain the allegations of the sides – may

require the management of some evidence

that was omitted by one party. See: [7].

2. Aspects of comparative law on the

judge's evidentiary initiative

In the last years there has been noticed,

at a legislative level, the consolidation of

the judge’s initiatives i n the matter of

evidence. Even i n England a "code" of

Civil Procedure was created – "The Civil

Procedure Rules" came into force in 1999

– which defines the expert as more of a

technical auxiliary of the judge than an

"advisor" for the party.

In France, as well as in Romania, the

evidence system is based on the Roman

adage: idem est non esse et non probari

(not having the right or not being able to

prove it are equivalent situations, an