Judicial Error. Notions Of Comparative Law

• Author: George Mara
• Pages: 171-177

JUDICIAL ERROR. NOTIONS OF COMPARATIVE LAW

Assistant professor George MARA1

Abstract

Due to recent changes in the field of the judicial error regulations, that lead to a new definition of the concept

and to the creation of a dual system of liability for the damage caused through a judicial error (on one hand, an

objective liability of the State and, on the other hand, a personal liability of the magistrate), the paper aims to reflect

the po tential impact these new regulations can cause in the field of the judicial activity. The solutions for which the

lawmaker opted will be an alysed, by comparison with similar regulations that exist in various Eu ropean law systems

(which represents also a source of inspiration for the law making process) and proposal will be made, in order to

ensure an effective and uniform law application. The research methods used in order to achieve this aim are the

comparative method, the analytic and historical methods.

Keywords: judicial error, civil liability, comparative law, Spain, French .

JEL Classification: K41

We aimed to analyze the problematic of the judicial error, through a perspective of

comparative law, observing the recent regulations on this matter adopted in Romania and their

consequences on the field of State liability, on one side, and of the magistrate, on the other, for the

damage caused by a judicial error, but also observing the similar regulations provided by the

Spanish and the French law systems, states that have a longer tradition in the field of regulating the

field analyzed.

1. The innovation of the liability system for the judicial error in the national law

The recent modified regulations regarding the three laws composing the domain concerning

the organization and function of the judiciary (Law no. 303/2004 regarding the statute of the

magistrates, the Law no. 304/2004 regarding the judicial organization and the Law no. 317/2004

regarding the function and organization of the Supreme Council of the Magistracy) brought a series

of innovative changes in the field of the liability system for the prejudice caused by a judicial error.

Thus, it has been consecrated a dual system of liability, on one side, the liability of the State, as a

guarantor of the well-functioning of the Justice public system, and on the other side, the liability of

the magistrate who acted by a gross negligence or with a bad faith, thus causing the judicial error

that generated the prejudice. Also, taking into consideration the fact that acting with gross

negligence or with bad faith and thus causing a judicial error forms in the same time the element of

the disciplinary misconduct stated by the letter t) of the article 99 of the Law no. 303/2004, one can

observe a certain connection between the civil liability and the disciplinary liability of the

magistrate.

The necessity to regulate the notion of judicial error in an accessible and predicable manner,

according to the standards of the European Convention for Human Rights, generated its new

definition. Even treating this problematic under the old regulation, the doctrine2 stated that the

disciplinary liability of a judge is restrained by the coexistence of two other main principles

necessary in a democratic state: the independence of the judiciary and the principle of res judiciata

case law.

The Law no. 242 of 2018, that modified the regulations found in the Law no. 303 of 2004

states that there is a judicial error when a procedural act was instated with the evident breach of the

substantial or procedural regulations, and this act harmed the rights and freedoms of a person, a

harm that could not be repaired by using the remedies at law.

1 George Mara - West University of Timisoara, „1 Decembrie 1918” University of Alba Iulia, Romania, georgemara2006@

yahoo.com.

2 I. Gârbuleț, Abaterile disciplinare ale magistraților, Ed. Universul Juridic, Bucharest, 2016, p 482-489.