Reflections - partially critical - on the amendments and supplements brought to the civil procedure code by Law no. 202/2010 regarding certain measures to accelerate the resolution of trials

• Author: Ioan Les
• Position: Professor, Faculty of Law, 'Lucian Blaga' University, Sibiu
• Pages: 1-31

REFLECTIONS – PARTIALLY CRITICAL – ON THE AMENDMENTS

AND SUPPLEMENTS BROUGHT TO THE CIVIL PROCEDURE CODE

BY LAW NO. 202/2010 REGARDING CERTAIN MEASURES

TO ACCELERATE THE RESOLUTION OF TRIALS

PhD. Ioan Leş

Professor, Faculty of Law,

“Lucian Blaga” University, Sibiu

Abstract

This study is designed to carry out a general examination of the provisions

established in Law no. 202/2010 regarding certain measures to accelerate the

resolution of trials. The author presents the most significant amendments and

supplements brought to the current civil procedure code in various fields: the

judgment before the trial court, the appeal, the second appeal, the special

procedure and the enforcement.

The author also formulates opinions regarding some of the new legislative

interventions. However, some “innovative” resolutions are also emphasized in

relation to the provisions of the new Civil Procedure Code itself, some of them

being considered by the author questionable.

Keywords: Law no. 202/2010; appeal; second appeal; appeal in the interest

of the law; enforcement; divorce; direct mediation and conciliation

1. Preliminary aspects. “The small reform”, as the new regulation regarding

certain measures to accelerate the resolution of trials is also called, i.e. Law no.

202/2010

1)

, brings important amendments to the Civil Procedure Code in force.

Most legislative amendments are meant to be become applicable before the

implementation of the new Civil Procedure Code (hereinafter NCPC, for the sake

of conciseness), adopted by Law no. 134/2010

2)

.

The legitimate question which might be asked is whether such a legislative

intervention is useful, since the NCPC has already been adopted. However, the

implementation of the NCPC by a distinct law might take a longer time. From this

perspective, such a legislative intervention could be considered legitimate and

also useful. However, it is worth noting that article 1110 paragraph 2 of the NCPC

compels the Government to submit the bill to the Parliament for enactment, with a

view to its implementation, within 6 months after the date of its publication.

1)

Published in the “Official Gazette of Romania”, part I, no. 714 of 26 October 2010.

2)

Law no. 134/2010 on the Civil Procedure Code is published in the “Official Gazette o f

Romania”, part I, no. 485 of 15 July 2010.

2

The set-up of a special commission in charge with drafting the Bill for the

implementation of the NCPC shows us the governmental authorities’ intention to

interfere, by new legislative amendments, on our new trial-related regulation. We

believe that such a procedure is questionable. It would be almost a novelty that

can only reflect serious and harmful inconsistencies in the process of enacting

certain codes that are essential for the destiny of the Romanian society. The

amendment of procedure-related rules before their entry into force rather shows

the incapacity to achieve a vast reform. Such an approach also suggests the

existence of certain questionable solutions promoted upon the adoption of the

NCPC. It is obvious that no judicial regulation can be perfect. And such an

assertion is also valid in the procedural field. A law having the size of a code

could be amended, if necessary, only after a certain time have elapsed since its

entry into force, i.e. after four or five years, because it is only during the law

implementation process that we can best discover the strengths and the

weaknesses of a law.

Over the last decade, the legislative amendments made in the procedural field

have been significant and frequent. The enactment of the NCPC should have

given us the perspective of a solid legislative stability in the civil trial-related field

which has always been more consistent than others.

One of the weaknesses of the "small reform” also consists in the fact that it

does not only becomes applicable before the implementation of the new code,

which, as we have noted, does not necessarily have to be a fundamental error, but

especially in the fact that the piece of legislation also contains certain different

solutions in fields regulated by the NCPC. We do not believe that such legislative

“innovations” are meant to have a limited time of implementation, i.e. until the

entry into force of the NCPC. Therefore, it is almost unavoidable that the NCPC

will be subject to appropriate amendments, which means that it will be adjusted to

the solutions promoted by the “small reform”.

Our intention in this study is to make an extremely detailed analysis of all the

amendments brought to the current Civil Procedure Code by Law no. 202/2010

regarding certain measures to accelerate the resolution of trials. We are going to

express some reflections on the most important legislative amendments and

supplements.

2. Amendments regarding the proceedings before the merits court. A.

Amendments relating to competence. The first amendment consists in the addition

of a new item, i.e. item 1

1

,

under article 1 of the Civil Procedure Code, reading as

follows: “1

1

. in the first instance and last instance courts, the trials and the

requests on claims having as their object the payment of an amount of maximum

RON 2,000”.

The solution promoted by the “small reform” law is almost new in the current

system of the Civil Procedure Code, due the fact that it includes the category of

3

decisions issued by first and last instance judges. The text sets forth an exemption

from the principle enshrined in article 1 item 1 of the Civil Procedure Code,

according to which district courts (judecătorii) are common law courts in the civil

field, and the decisions are issued in the first instance.

Indeed, the current provisions of articles 1-3 of the Civil Procedure Code only

refer to the category of decisions issued in the first instance, and not to the

category of the decisions issued “in the first and last instance”. However, by way

of interpretation, our doctrine also referred to this category of court decisions

3)

. As

regards this category of decisions, our older doctrine specified that “decisions are

issued in the last instance only exceptionally”

4)

. This is also the situation regulated

by the legal provisions commented upon.

The use of the “first and last instance” wording was usually meant only to

remove the ordinary recourse procedure of the appeal, and not that of the second

appeal. However, the lawmaker did not choose this legislative solution. Semantically

speaking, we have to admit that the wording used by the lawmaker could suggest the

exclusion of all recourse procedures, at least those meant for recasting.

However, it is worth noting that according to article 299 paragraph 1

1

of the

Civil Procedure Code – added to the code by Law no. 202/2010 – “The decisions

issued in the requests provided under article 1 item 1

1

shall not be subject to

second appeal.” Thus, the interpretation according to which, by the inclusion of

article 11 in the Civil Procedure Code, the lawmaker allegedly intended to remove

only the ordinary recourse procedure of the appeal is excluded.

However, we take the liberty of saying that a solution similar to the one

promoted by the NCPC within the procedure regarding the settlement of the

small-amount requests would have been more reasonable. Indeed, according to

article 1018 paragraph (1) of the NCPC, the decision issued in this field by the

district court is subject “only to the appeal in the tribunal, within 30 days after the

date of its communication”. The solution advanced by article 1018 paragraph (1)

of the NCPC should also have been promoted by the “Small Reform” Law in

order to ensure a proper harmonization of these legal provisions. Anyhow, after

the entry into force of the NCPC, the parties shall have the possibility to choose

either the procedure of settling the small amount requests or the common law

procedure set forth under article 1

1

of the Civil Procedure Code (article 1012

paragraph 1 of the NCPC), if the latest solution is maintained as it is today.

The waiver to the recourse procedure by appeal and second appeal could be

regarded as excessive in the future. In this case, a control of constitutionality

promoted from a party’s initiative is possible in the future and might be grounded

3)

For details, see V. M. Ciobanu, G. Boroi, Drept procesual civil. Curs selectiv. Teste grilă,

(Civil Trial-related Law. Selective Course. Multiple Choice Tests) edition 3, All Beck Publishing

House, Bucharest 2005, p. 335.

4)

V.G. Cădere, Tratat de procedură civilă (Civil Procedure Treaty), Cultura NaŃională

Publishing House, Bucharest 1928, p. 337.

4

on the very provisions of article 129 of the Constitution of Romania. Please be

reminded that according to such constitutional provisions: “The stakeholders and

the Public Ministry may use the procedures of recourse against court decisions,

according to law”. The principle of the dual degree of jurisdiction was not

considered to be constitutional in the practice of the constitutional court, the

lawmaker having the possibility to remove one of the recourse procedures regulated

by law

5)

. The solution was advanced by the supreme court also during the period

between the two world wars

6)

. During the same period, the decisions issued in the

first and last instance – not subject to appeal – were considered to be challengeable

only by second appeal

7)

. However, as we have already noted, such interpretation

can no longer be advanced considering the new trial-related regulations.

As regards these new competence-related provisions, it should be underlined

that they only cover the requests on “claims having as their object the payment of

an amount of maximum RON 2,000”. The nature or the source of the claim are

irrelevant, therefore the text covers all the requests having as their object amounts

of money that do not exceed the abovementioned ceiling, both in the civil field

and in the commercial field.

Article 1 item 22 of the “small reform” law gave a partially new wording to

article 159. According to the new wording: “Non-competence is of public or

private order. Non-competence is of public order:

1. in case of infringement of the general competence, when the trial does not

fall under the competence of courts;

2. in case of infringement of the material competence, when the trial falls

under the competence of a court of a different rank;

3. in case of infringement of the exclusive competence, when the trail falls

under the competence of a court of the same rank and the parties cannot remove

it. In all the other cases, the non-competence is of private order”.

5)

See, for instance, the Constitutional Court, Plenary Decision no. 1/1994; the Constitutional

Court, decision no. 522/2005; the Constitutional Court, dec ision no. 440/2005; the Constitutional

Court, decision no. 522/2005; the Constitutional Court, decision no. 129/2006, in I. Leş,

Comentariile Codului de procedură civilă. Co mentariu pe articole (Comments on the Civil

Procedure Code. Commen ts by Articles). C.H. Beck Publis hing House, Bucharest 2007, 3

rd

edition, pages 758 and 762. See also V. M. Ciobanu, in ConstituŃia României. Comentariu pe

articole (The Constitution of Ro mania. Comments by Articles), work coordinated by I. Murar u and

E.S. Tănăsescu, C.H. Beck Bucureşti 2008 Publishing House, p. 124 7-1248.

6)

In this respect, see also V. M. Ciobanu, op. cit., p. 335-336.

7)

V. G. Cădere, op. cit., p. 409; P. Vasilescu, Tratat teoretic şi practic de procedură civilă

(Theoretical and Practical Civil Procedure Treaty), part III, tome I V, Bucharest 1943, p. 10. As

regards the classifications o f decisions in: decision s issued in the first instance, decisions issued in

the last instance and dec isions issued in the first and last instance: I. Deleanu, Tratat de procedură

civilă (Civil Procedure Treaty), tome II, edition 2, Bucharest 2007, p. 65; S. Spinei, Recursul în

procesul civil (Second Appeal in the Civil Proceedings), Hamangiu Publishing House, Bucharest

2008, p. 49-50.

5

Which are the innovations of this text? Are they only formal or also

substantial? Before answering our own question, we have to make some

preliminary remarks. First, we can easily see that the text accurately repeats the

wording of article 125 of the NCPC. The circumstance confirms our assertion that

the main intention of the authors was to generate the application of some of the

new trial-related regulations before the entry into force of the NCPC.

The second remark is that the amendments proposed to be made to the current

code are not essential. They are rather doctrine-related, which is materialized only

in the use of “general competence”, “material competence” and “exclusive

material competence” wordings. The use of such concepts in the case law and

especially in the doctrine is the bottom line of the judicial trial-related field.

The only “innovation” that could be found in the new regulation, if we would

like to insist on this topic, is the one included under the last paragraph of the

previous text which specifies that all the other non-competence cases are of

“private order”. The problem is that such solution was also applicable in the

regulation previous to the “small reform”, being inferred both from the limitative

regulation of the public order non-competence cases, and from the corroboration

of article 159 with article 19 of the Civil Procedure Code.

Some real innovations are included in article 159

1

of the Civil Procedure

Code, which is inserted by article 1 item 23 of the “small reform” law. According

to this text:

“The general non-competence of courts may be invoked by the parties or by

the judge in any stage of the case.

The material and territorial public order non-competence may be invoked by

the parties or by the judge on the first day of hearing before the first instance

court, but no later than the initiation of the discussions on the merits.

The non-competence of private order may be invoked only by the defendant

under a defense or, when the defense is not compulsory, on the second day of

hearing, at the latest.

On the first day of hearing, the judge is compelled to check, ex officio, and to

establish whether the court before which the proceedings were initiated has the

general, material and territorial competence to judge the case, specifying in the

ruling the de jure grounds based on which the competence of the court before

which the proceedings are initiated is established.

The checking of the competence according to article 4 does not prevent the

lodging of non-competence exceptions in the cases and under the conditions

provided under paragraphs 1-3, and the judge shall issue a decision on such

exceptions, pursuant to law”.

Before presenting the significant innovations brought by the “small reform”,

we should specify that the text commented upon is partially different from the one

included in article 126 of the NCPC. The differences are major and we are going

to present them briefly below. First, the wording of the text mentioned above is

6

better systematized in terms of judicial logics, as it initially covers the legal status

of the general non-competence; however, in the NCPC, such issue is subject to the

regulation included in article 126 paragraph 2, i.e. after the first paragraph which

covers the material and territorial competence.

Secondly, the regulation proposed by the “small reform” rectifies the third

paragraph of article 126 of the NCPC, which means that the private order non-

competence can be invoked by defense or “when the defense is not compulsory,

no later than the first day of hearing”. Such a rectification is, undoubtedly, useful,

since there are also other situations in the current legislation system when it is not

compulsory to lodge a defense. The use of the “first day of hearing” wording in

the current legislation is also natural, as, unfortunately, NCPC no longer uses this

procedural concept.

The most interesting “innovations” of the above text are related to the judicial

status of non-competence. The “small reform” promoted a differentiation in terms

of the judicial status, not only between the public order and the private order non-

competence, but also within the public-order non-competence itself. Indeed, the

general non-competence of courts may be invoked “at any stage of the case”. This

wording is prone to various interpretations

8)

, i.e. it is related only to the stage of

the judgment before the first instance, or also to the stage of the judgment before

the judicial control courts. In the light of the current legislation, it is obvious that

the absolute non-competence exception may be invoked both by appeal and by

second appeal. The same solution is also promoted by the NCPC (article 482

paragraph 1 item 3).

However, the material and territorial public order non-competence may be

invoked only in limine litis, i.e. “on the first day of hearing before the first

instance, but not later than the day when the discussions on the merits are

initiated”. This means that this time, the absolute non-competence is covered only

if it was not invoked before the first day of hearing. It is worth noting that this

time too, the failure to comply with competence-related rules falls within the

reason of second appeal provided by article 482 paragraph item 3 of the NCPC.

However, we note that there is a difference in terms of wording between

article 159

1

of the Civil Procedure Code, included by the "Small Reform" Law

and article 126 paragraph 1 of the NCPC. The latest text permits to invoke the

exception of the material and territorial public order non-competence in limine

litis, but “no later than the date when the judicial investigation is finalized before

the first instance”. The difference between the wordings used in the “small

8)

It is also used in the current regulation, in various texts of the Civil Procedure Code. For

example, the request to remove the case, grounded on a legitimate suspicion or for public safety

reasons may be made “in any stage of the case”. Sometimes, the law place s such legal wording

under particular conditions. Thus, according to article 163 paragraph 1 of the Civil Procedure

Code, the lis pendens excep tion may be invoked “in any stage of the case before the merits

courts”.

7

reform” law and the NCPC is not essential, in our opinion. Both wordings mean

the moment of the trial when the judicial investigation is finalized and the

discussion on the merits is initiated. Therefore, the exception we refer to may be

invoked until the judicial investigation is completed, i.e. before initiating the

judgement on the merits.

The difference in terms of legal status between the public order non-

competence exception in the two situations subject to review – the general non-

competence and the material and territorial non-competence of public order – is

difficult to understand from our standpoint. In our opinion, it is artificial and even

non-comprehensible under a strictly legal aspect. This happens because the breach

of absolute rules, irrespective of whether the competence is general, material or

territorial, is extremely serious, and the set-up of certain degrees of seriousness is

hard to imagine. Our argument, in this respect, is that at least in the case of the

failure to observe the material competence rules, the rules affected are those

related not only to the consistency of certain strictly procedural principles, but

also to the respect that has to be shown to the judicial system structures and

hierarchy. Otherwise, ignoring such rules might result in a case which is settled on

the merits by a court of a rank higher than the competent court, a circumstance

when the party would be deprived from a recourse procedure or even from both

recourse procedures relating to recasting – appeal and second appeal – which

seems inadmissible to us. We believe that it would be natural that the material and

territorial public order non-competence exception is invoked under the same

circumstances as the general non-competence exception. We understand the desire

of the "recasting” lawmaker to guarantee the promptness of the judicial procedure,

but we have the impression that sometimes it sacrifices the traditional and

essential principles of the judicial procedure. On the other hand, it often happens

that the same lawmaker tends to establish certain useless formalities that do not

serve at all to the idea of promptness which it insistently proclaims.

An example illustrating the abovementioned idea consists in the very provisions

of article 159

1

paragraph 4 of the Civil Procedure Code. The text establishes the

obligation of the judge to check and establish, on the first hearing date, ex officio,

whether the court before which the proceedings were initiated has the general,

material and territorial competence to judge the case, “recording, in the ruling of the

hearing, the de jure grounds based on which the competence of the court before

which the proceedings were initiated is established”. This obligation of the judge is

also established at present under the principle regarding the active role of the judge,

and, to a certain extent, also by the provisions of article 158 paragraph (1) of the

Civil Procedure Code. However, we believe that the final part of the text enshrines a

useless formality, meant to bureaucratize the activity of the judge even more. Our

trial-related legislation did not raise any serious issues in this respect until the

adoption of Law no. 202/2010. Therefore, the “small reform” compels us to give a

new motivation to a ruling. On the other hand, article 158 paragraph (1) of the Civil

8

Procedure Code imposes to the judge the obligation to establish the competent court

only when “its competence is questionable”. The harmony between the text

included in the current code by the “small reform” and article 158 paragraph 1 of

the Civil Procedure Code is not clear at all.

The abovementioned “innovation” is not enshrined in the NCPC. This is a

new circumstance that will determine an appropriate amendment of the NCPC if

the innovation is not "temporary”.

Law no. 202/2010 also amends the provisions of article 20 item 2 of the Civil

Procedure Code, indicating that there is a conflict of competence even when “two

or several courts declared that they are not competent to judge the same case”.

The text tends to preserve the solution promoted by the applicable Civil Procedure

Code, ant not to “claim” the principle advanced by article 128 item 2 of the

NCPC. The latter text enshrines the rule according to which a conflict of

competence arises even when “two or several courts mutually declined their

competence to judge the same trial or, if the competence is declined for two

successive times, if the last court before which the proceedings were initiated

declines, in its turn, the competence in favor of one of the courts which have

previously declared to be incompetent”.

Under such circumstances, this is another trial-related situation when the

“recasting” lawmaker intends to return to the solution promoted by the NCPC.

The text included in the current code no longer sets forth the condition that the

decisions issued by the courts which declare to be non-competent are irrevocable.

However, the solution complies with the new provisions of article 158 paragraph

3 of the Civil Procedure Code, a text according to which the decision to decline

the competence “is not subject to any recourse procedure”.

As regards the transfer of the civil trial, Law no. 202/2010 inserts a new

article 40

2

, which reads as follows:

“The transfer of the case may not be requested again for the same reason,

except for the case when the new request is grounded on circumstances that are

not known on the date when the previous request was settled or on circumstances

that occurred after the settlement thereof.

The request to transfer the case initiated in breach of the provisions of

paragraph 1 is inadmissible”.

The first paragraph of this text is similar, in terms of content, to the one

enshrined by article 141 of the NCPC. It is true that the latter text does not

expressly include the “same reason” wording. A review of the text obviously

shows that the NCPC covers the inadmissibility of a new request to transfer the

civil trial for the same reason. Although the second text has no correspondent in

the NCPC, it sets forth a natural solution which was applicable in the past as well,

since the admissibility of a second request based on the same reason was

somehow blocked through the res judicata mechanism.

9

B) Amendments regarding the procedural requests and documents. The first

procedural provision in this field covers the content of the requests submitted to

courts. Law no. 202/2010 provides that article 82 paragraph 1 of the Civil

Procedure Code shall have the following content:

“Any request submitted to courts shall be made in writing and include the

indication of the court, the parties’ surname, forename, domicile or residence or

the parties’ name and registered office, as the case may be, the name or residence

of the parties’ representatives, if applicable, the object of the request and the

signature. The request shall also include, if applicable, the identification details of

all the communication means used by the parties, such as the telephone number,

the fax number, the electronic mail address or other such items”.

As compared to the former article 82 paragraph 1 of the Civil Procedure

Code, the wording of the text is different and partially improved, especially as

regards the identification details of the communication means used by the parties,

as well as the specification of the modern communication means.

In this case too, we notice the strong desire of the "recasting” lawmaker to

innovate even in relation to the NCPC and before the entry into force of such

code. We should take into consideration that the text above no longer covers some

of the elements recently enshrined in article 143 paragraph 1 of the NCPC, i.e. the

grounds of the request and the indication of the amount of the claim, if applicable.

However, we believe that these elements should also have been promoted by Law

no. 202/2010. Therefore, we see, once again, that this is a “small legislative

reform” which will be totally identified with the solution promoted by the NCPC.

As regards the request to initiate the proceedings, Law no. 202/2010 brings no

amendments to the elements thereof in relation to the current provisions of article

112 of the Civil Procedure Code, but it brings amendments in relation to the

provisions of article 189 paragraph 1 letter a) of the NCPC, which is quite a

paradox. Actually, Law no. 202/2010 re-establishes, almost completely, the current

wording of article 112 item 1 of the Civil Procedure Code. The only significant

difference consists in the fact that the “small reform law” includes a mention

regarding the parties’ forename, whereas the current wording does not. This seems

to be the main reason of the “spectacular” legislative amendment brought by the

“small reform”. We wonder whether a reason like this required such a “spectacular”

legislative reform. The question is legitimate, especially if we consider that the

NCPC is not in force, and the provisions of article 112 item 1 shall be valid until the

implementation of the NCPC. A justification could be probably found in the

specification that the provisions of article 82 paragraph 1 sentence II regarding the

communication methods used by the parties are applicable.

As we have underlined, it is possible that the authors of the “small reform” set

a new vision as regards some of the provisions of the NCPC, including those we

are referring to in this context. However, from this point of view, the provisions of

article 189 letter a) of the NCPC have an appropriate wording, in our opinion,

10

which also took into consideration certain important doctrine-related criticisms.

Please be reminded that the criticism was targeted to the claimant’s obligation to

specify its personal number code, unique registration code or fiscal identification

code, the number of registration with the trade registry or the number of

registration with the legal entities’ registry and the bank account of the claimant

and of the defendant. However, the NCPC sets forth that such elements shall be

specified provided that “the parties have or were assigned such identification

elements according to law, if they are known by the claimant”. We believe that

the waiver to such specifications is an error. It is most certainly the result of a

“modern” desire to “innovate” or “recast” by all means, even by giving up certain

reasonable and relevant solutions.

“The small reform” also modifies article 115 of the Civil Procedure Code, a

text that sets forth the elements to be included in a defense. This time, the

amendments are aimed at updating the text in relation to the provisions of article

200 of the NCPC. However, some of the elements provided under article 200 of

the NCPC, such as the personal number code, were given up. The specification

made by article 200 of the NCPC regarding the fact that the mentions specified by

such code are necessary only if they were inserted in the request to initiate the

proceedings is also welcome.

Law no. 202/2010 inserts, in the current Civil Procedure Code, provisions

regarding the direct communication of procedural documents between the parties’

lawyers or legal advisers. For this purpose, article 86

1

shall be inserted in the code

and shall read as follows:

“After the proceedings have been brought before court, if the parties have a

lawyer or a legal adviser, the requests, the defenses or other documents may be

communicated directly between them. In this case, the person receiving the

document shall certify the receipt and shall record the date of receipt on the very

copy which shall be submitted in court, as soon as possible. Otherwise, the

respective document shall not be taken into consideration. The proof of the

communication of documents can also be provided by any other document

submitted to the case of the file which attests, by signature, the receipt of each

procedural document that was communicated”. The text is intended, once again,

to activate the provisions of article 164 of the NCPC, whose content is similar, but

not identical. However, it is worth noting that article 86

1

of the Civil Procedure

Code also specifies the sanction applicable for the breach of the provisions

regarding the communication of documents between lawyers or legal advisers:

the sanction consisting in the “failure to take into consideration” the document

received. The new regulation also includes a better wording regarding the

possibility to justify the submission of the document “through any other document

submitted to the file of the case”.

The clarifications brought by article 86

2

of the Civil Procedure Code – a text

inserted in the Civil Procedure Code by Law no. 2020/2010 – in relation to the

11

court’s access to the data and information required for the communication of the

procedural documents, in the possession of authorities and public institutions, are

also useful. The same text also imposes similar obligations to authorities and

public institutions, i.e. the obligation to take measures so as to ensure the court’s

access to the electronic data bases and the IT systems provided by the text.

The “small reform” includes an interesting provision also in the field of the

nullity caused by the non-competence of the court. The quotation of the text under

discussion is useful. In this respect, article 105 paragraph 1 of the Civil Procedure

Code is amended as follows:

“The procedural acts fulfilled by a judge in breach of the public or private

order competence rules shall be declared as void according to law”. The previous

wording of article 105 paragraph 1 only specified that: “The procedural acts

fulfilled by a non-competent judge shall be void”. The nullity caused by the court’s

non-competence also produced effects in the past under the conditions established

by law. Therefore, the change that occurred has, in our opinion, the same

"recasting” purpose as the other legal provisions which we have already discussed.

C) Other amendments regarding the judgment before the merits court. An

important amendment is the one regarding the parties’ conciliation procedure.

NCPC raised the parties’ conciliation to the status of a fundamental principle,

which is totally explicable in a democratic trial-related system where the

judgment is not a purpose in itself, and the parties’ conciliation is for the benefit

of both parties to the dispute. It is also meant to contribute to the reduction of the

courts’ caseload. Unfortunately, the excessive caseload of the courts seems to be a

permanent characteristic and become an endemic fact of the justice in the modern

law as well. Under such circumstances, the lawmaker’s concern in this respect is

fully understandable.

Law no. 202/2010 amends article 131 of the Civil Procedure Code, and gives

to it the following content, which is mostly different both from the previous one

and from the one anticipated by article 21 of the NCPC:

“During the entire trial, the judge shall attempt to conciliate the parties,

giving to them the necessary guidance, according to law. For this purpose, he

shall request that the parties are present in person, although they are represented.

The provisions of article 1321 paragraph 2 shall apply.

In the case of the disputes which may form the object of the mediation

procedure, according to law, the judge might invite the parties to attend an

information session regarding the advantages of using such a procedure. When the

judge considers it necessary, taking into account the circumstances of the case, he

shall recommend to the parties to use the mediation in order to settle the dispute

amicably, at any stage of the trial. Mediation is not compulsory for the parties.

If the parties reconcile according to paragraphs 1 and 2, the judge shall record

this in the decision to be issued. The provisions of articles 271 to 273 shall apply”.

12

The judge’s obligation to attempt to conciliate the parties was also enshrined

in the previous form of article 131 of the Civil Procedure Code. The difference is

that according to the old code, this obligation was valid only before the first

instance. Please note that the NCPC also includes a rule similar to the one

enshrined under article 131 paragraph 1, as amended by Law no. 202/2010.

The provisions included under paragraph 2 of the text commented upon are

new in relation to the previous regulation, but they bring an important innovation

also in relation to the provisions of article 21 paragraph 1 of the NCPC.

According to law, the use of mediation is a right of the parties and therefore this

alternative method of settlement cannot be requested by the court. The NCPC

established the judge’s obligation to recommend the mediation. The conclusion can

be inferred from the wording of the provisions of article 21 paragraph 1 of the

NCPC. The new regulation introduced by Law no. 202/2010 no longer has a

mandatory wording as regards the instruction given to the parties to use the

mediation. On the contrary, the wording of article 131 paragraph 2 of the Civil

Procedure Code shows that the judge only has power to recommend the mediation.

The solution is inspired from article 5 item 1 of Directive 2008/52 EC, a text which

promotes the principle according to which “a court before which an action is

brought may, when appropriate and having regard to all the circumstances of the

case, invite the parties to use mediation in order to settle the dispute”.

The abovementioned Directive was written for preventing the courts from

adopting measures by which they could impose mediation to the parties. Such

directives are always minimal standards. The court’s obligation to recommend the

mediation is not the same as the parties’ obligation to follow such a

recommendation. This is the reason why we are wondering whether the new

solution is the most appropriate, since the entire economy of the text commented

upon obviously shows that the judge has the freedom to appreciate whether it is

advisable or not to recommend the mediation. However, the provisions of article

131 paragraph 1 of the Civil Procedure Code show that the judge is compelled to

attempt to reconcile the parties during the entire trial. For this reason, we believe

that it would have been more appropriate to also preserve the judge’s obligation to

recommend the mediation. In our opinion, such a solution is also in line with the

provisions of the special law.

Indeed, according to article 7 of Law no. 192/2006: “The judicial and arbitral

bodies, as well as other jurisdictional authorities shall inform the parties about the

possibility and the advantages of using the mediation procedure and instruct them

to use such a method in order to settle the conflicts between them”. Such a

wording was established very recently, i.e. further to the amendment of Law no.

192/2006 by Law no. 370/2009.

A particular remark covers the fact that the judge may recommend the

mediation “at any stage of the trial”. The wording used is different from the one

provided by the text commented upon relating to the parties’ reconciliation which

13

can be made “during the entire period of the trial”

9)

. As the text makes no

distinction between the possible stages of a judgment in the first instance or

before a judicial control instance, we believe that it is not the case to identify any

important differences between the two wordings. However, we believe that the

mediation made by a third party should have been recommended only before the

merits courts.

Finally, a novelty also in relation to the NCPC consists in the legal provisions

regarding the parties’ invitation to attend an “information session regarding the

advantages” of the mediation. The text suggests the “organization” of a special

session, meant to inform the parties about the advantages of the mediation. The

wording used by NCPC was sufficiently clear, in our opinion, and involved only the

minimal information of the parties about the recommendation to use the mediation

“according to the special law”. A special session for information, made by the court,

could be considered excessive, as it would turn the judge into a mediator. The

insertion of an exaggerated formalism is contrary to the objective of settling the

trials in a prompt manner, which is so much advocated by the “reformists”.

Please also note that the party’s failure to attend the information session is a

deviation and may be punished by a fine, as provided by article 108 paragraph 1

item 1 letter f, a text which was inserted in the code by Law no. 202/2010. As the

text suggests, the deviation depends upon the party’s consent to attend the

information session. If the parties are free to accept the mediation, we do not see

any reason why the party should be punished for the failure to attend the

mediation meeting, although it had initially accepted this. This sanction seems

excessive to us, although it consists only in a judicial fine.

Law no. 202/2010 promoted certain interesting amendments also in relation to

the preliminary procedure. Therefore, the new wording of article 109 of the Civil

Procedure Code is the following:

“Anyone who claims a right against another person shall submit a request to

the competent court.

A matter can be brought before the court only after the fulfillment of a

preliminary procedure, if the law expressly provides so. The proof of the

fulfillment of the preliminary procedure shall be enclosed to the request to initiate

the legal proceedings.

The failure to fulfill the preliminary procedure may only be invoked by the

defendant, under a defense. Otherwise, the statute of limitation shall apply.

When the claimant brings before the court the discussion of the succession-

related procedure, the claimant shall lodge a ruling issued by the notary public

regarding the checking of the succession-related records provided by the Civil

9)

A similar provision also exists in the Swiss Civil Procedure Code of 2008. According to

article 214 paragraph 2 of the Civil Procedure Code, the Swiss tribunal may guide the parties to

use the mediation, at any stage of the trial.

14

Code and the law. In this case, the failure to fulfill the preliminary procedure may

be invoked not only by the defendant, but also by the court, ex officio”.

Please note that the first two paragraphs also exist, under almost identical

conditions, in the former article 109 of the Civil Procedure Code. However, the

new regulation also enshrines the sanction applicable in case of non-fulfillment of

the preliminary procedure and the conditions for invoking the statute of limitation.

From this standpoint, we do not identify any differences either in relation to the

regulation included in article 188 paragraphs 1 and 2 of the NCPC.

The wording of article 109 paragraph 1 is different than the wording included

in the NCPC. The re-adoption of the previous solution does not seem justified to

us. Indeed, article 30 paragraph 1 of the NCPC provides that: “Any person who

has a claim against another person or intends to settle in court a judicial situation

is entitled to lodge a request to the competent court”. However, the wording used

by the NCPC is much more comprehensive than the one evoked by article 109

paragraph 1 of the Civil Procedure Code, meaning that it not only covers those

situations when a person may claim a right, but also the situations when a person

intends to take conservatory measures, to maintain a de facto situation, provide

evidence or establish the non-existence of a certain right etc. Also, the use of the

claim-related concept seems more appropriate to us because it avoids the situation

when the right is seen as a condition for exercising the action in court.

The provisions included in the last paragraph of the text commented upon are

new and important. This time, they are in perfect harmony with the provisions of

article 188 paragraph 3 of the NCPC. The concern for a proper administration of

justice in the succession-related trials justifies the set-up of a legal framework

permitting to the court to get informed on the succession-related records provided

by the Civil Code and the law. Therefore, it is normal that the claimant is

compelled to submit to the file, within a preliminary procedure, a ruling issued by

the notary public about the succession-related records provided by the Civil Code

and the law. As an example, please note that the authentic statement of acceptance

and the statement of waiver are recorded in the national notary registries (articles

1109 and 1120 of the new Civil Code)

10)

.

The fulfillment of the preliminary procedure is absolutely necessary since it may

contribute to the avoidance of the registration, for two or several times, of the same

succession-related cases both with courts, and with notary offices or notary publics.

10)

The Regulation implementing the Law on Notar y Publics and the Notary Activity no.

36/1995 established the obligation to set up special registries, such as the natio nal registry of

successions, the national registry of authe ntic wills and the national registry of succession-related

options (articles 561-564).

Please note that the abovementioned Regulation was adopted by Order no. 710/C/1995 issued

by the Ministry of Justice and published in the “Official Gazette of Romania”, part I, issue no. 176

of 8 August 1995, and was later amended and supplemented.

15

The “small reform” law showed a particular concern for the acceleration of

judgments, as its title also suggests. The circumstances of such a concern are also

reflected in the provisions of article 132

1

inserted in the current code by Law no.

202/2010. The most important provisions are those established in the first paragraph

of the abovementioned text, according to which: “Depending on circumstances, the

court shall set hearings at short intervals, even from one day to the other, in order

to judge the trial. The court may also set hearings at longer intervals when it

considers it to be necessary. The provisions of article 153 shall apply”.

The abovementioned legal provisions are extremely generous and are meant to

contribute to the acceleration of the judgment of trials. This desire can be fulfilled

provided that the courts act with caution in order to achieve a balanced situation for

the parties and to avoid sacrificing their legitimate rights. The reason why we state

this is that an erroneous application of the text might seriously harm the parties,

infringing the very principles that govern the quality of the act of justice.

However, it is worth noting that the judge does not have the obligation to set

hearings at short intervals, as he has the possibility to order this “depending on

circumstances”. The wording of the text shows that the principle promoted by the

new regulation consists in the setting of hearing at short intervals. This is the

reason why the second sentence of the text specifies that hearings can be set at

longer intervals if the court “deems it necessary”.

The quoted text does not establish any express sanction for the judge’s failure to

observe the provisions set forth. It is rather about a strictly procedural sanction.

However, it is true that the repeated failure, for imputable reasons, to comply with the

legal provisions regarding the prompt settlement of cases is a deed of misconduct

(article 99 letter e of Law no. 303/2004 on the status of judges and prosecutors).

The lawmaker should probably establish maximum deadlines for the

settlement of certain categories of disputes: work-related disputes, civil disputes,

administrative disputes, family law disputes etc. Such a procedure is used in the

laws of other countries as well

11)

.

Article 132

1

of the Civil Procedure Code, in the wording given by the “small

reform”, also contains other important provisions having the same purpose: the

prompt settlement of the trial. Thus, judges have the obligation to order that

checks are made in connection with the fulfillment of the summoning and

11)

See, for instance, article 34 of the Argentinean Civil Procedure Code. As an example,

please note that the abovementioned text establishes the obligation to issue a sentence in the

common law pro cedure within 40 or 60 days, depending on whether the court consists of a single

judge or of a body of judges, whereas in the summary procedures, this period is of 30 and 50 days

respectively. For examples, se e also V. Lozneanu, A. Savin, Scurtă in cursiune asupra principiului

celerităŃii în co ncepŃia noului cod de procedură civilă, (Brief Incursion in the Pr omptness

Principle, according to the New Civil Procedure Code) in «International Scientific Session:

„Internal Affairs and Justice in the P rocess in the European Integration and Globalization”», 3rd

Edition, Pro Universitaria, “Alexandru Ioan Cuza” Police Academy, Bucharest 13-14 May 2010,

p. 47.

16

communication procedure for each hearing. However, the provision cannot be

regarded as a totally new one. Furthermore, the text specifies that the court may

also order the parties’ notification by modern communication means (fax, email

etc.). Finally, the court may establish duties for the parties and other participants

in connection with the submission of evidence or any other actions required for

the settlement of the case.

Law no. 202/2010 brings an important rectification as regards the procedure

of correcting, clarifying, supplementing and removing contrary provisions,

meaning that such operations may no longer be requested “by way of appeal or

second appeal, but only as provided by articles 281-282

2

” (article 282

2a

of the

Civil Procedure Code). Therefore, this procedural provision removes any right of

the parties to choose between the procedural methods enshrined by the texts we

are referring to, including the appeal or the second appeal.

3. Amendments regarding the judgment before the court of appeal. The

first legislative intervention in the field of the appeal covers the object of this

ordinary recourse procedure. In fact, article 282

1

of the Civil Procedure Code was

supplemented only by inserting in the text “the claims for the remedy of the

damages caused by the judicial errors made in the criminal trials”. Therefore, the

appeal is removed also in connection with such requests. It is worth noting that a

provision similar to the one included under article 282

1

of the Civil Procedure

Code does not exist in the NCPC in connection with the appeal. However, it exists

in connection with the second appeal, NCPC removing the second appeal in most

of the cases when the district courts have first instance competence (article 477

paragraph 2 of the NCPC). The NCPC excluded the second appeal also in certain

cases falling under the first instance competence of the tribunal. These are the

claims in the field of intellectual property and labor conflicts (article 477

paragraph 2 of the NCPC).

The supplementation of the current civil procedure code covered, as we have

already noted, only the requests to remedy the damages caused by the judicial

errors perpetrated in the criminal trials”. This shows that the recasting lawmaker

is not consistent, as it would have been logical, from the judicial standpoint, that

the disputes belonging to the same category (those that fall under the first instance

competence of tribunals) have the same legal status in terms of the removal of the

recourse procedure of the appeal (at least until the entry into force of the NCPC,

which removes the second appeal in connection with some of these cases).

Important amendments were brought by the “small reform” also as regards the

solutions issued by the court of appeal. In its new wording, article 297 of the Civil

Procedure Code reads as follows:

“If it is established that the first court erroneously settled the trial without

judging the merits or that the judgment was made in the absence of the party that

was not legally summoned, the court of appeal shall cancel the challenged

17

decision and shall judge the trial, invoking the merits. However, if the first

instance court settled the trial without judging the merits, the appeal court shall

cancel the challenged decision and shall send the case for re-judgment, only once,

to the first instance court or to another court of the same rank as the first instance

court, in the same judicial district, if the parties expressly demanded such

measures under the request for appeal or the defense. The court of appeal shall

also cancel the challenged decision and shall send the case for re-judgment, only

once, to the first instance court or to another court of the same rank as the first

instance court and in the same judicial district, if the judgment in the first

instance was made in the absence of the party who was not legally summoned,

and the party expressly demanded, under the request for appeal, that such

measures are taken. The solution given to the matters of law by the court of

appeal and the need to administrate certain evidence are compulsory for the

judges of the merits”.

The solutions promoted by the quoted text are inspired from article 474

paragraph 3 of the NCPC, despite certain differences in terms of wording. Article

474 paragraph 3 of the NCPC is more concise. It seems that the recasting

lawmaker was also concerned by the quantity of the new regulations it

anticipated. However, as we are going to see later on, the lawmaker did not take

over all the solutions promoted by the NCPC under article 474.

The primary novelty of the text is also related to the fact that under the two

assumptions promoted by such text – the settlement of the trial without

investigating the merits and the settlement of the trial in the absence of the party

that was not legally summoned – the automatic transfer of the case for re-

judgment to the merits court can no longer be ordered after the cancellation of the

challenged decision.

The principle enshrined by the new regulation and by the NCPC as well,

consists, in the abovementioned cases, in the fact that the merits are invoked by

the very court of appeal. The intention is to accelerate the judicial procedure in the

appeal phase and to avoid transferring the case for re-judgment

12)

.

The new regulations provide an exemption from the abovementioned

principle to the cases when the parties requested the annulment with transfer.

Article 297 of the Civil Procedure Code, in the wording given by Law no.

202/2010, unlike the NCPC, distinctly covers the two assumptions mentioned

above. The first assumption consists in the case when the first instance court did

not judge the case on the merits, an assumption when the annulment with transfer

is to be ordered “if the parties expressly demanded such a measure under the

request for appeal or the defense”. However, being ambivalent, the wording is

12)

For details on the justification of such a solution also from the perspective of the European

Case Law, see also Gh. L. Zidaru, Noua reglementare a apelului în Proiectul de lege privind Codul

de procedură civilă (“The New Regulation of the Second Appeal in the Bill regarding the Civil

Procedure Code”) in Curierul judiciar (The Judicial Mail), Supplement, issue no. 9/2009, p. 24-25.

18

somehow ambiguous. By using the plural, it suggests that the request should be

filed by both parties in order to make it possible to order the annulment with

transfer. However, the final part of the text covers the express demand for such

measures, a demand made “under the request for appeal or the defense”, which

suggests the very opposite.

The doctrine established that the text under discussion is applicable under the

assumption that “at least one party expressly requested that the case is transferred

for re-judgment”. However, the same author further notes that the solution of the

annulment with transfer is “logical and necessary, because, if both parties agree

that the merits of the case should be settled by the court of appeal, for reasons

regarding the promptness of the trial and the cost reduction, there is no longer any

justified need that the case is re-judged by the first instance court, because the

parties would be deprived from a rank of jurisdiction”

13)

. We quoted this opinion

also because it is extremely important as regards the justification of the solution

chosen by the lawmaker, i.e. to sacrifice, at last, the benefit of the two ranks of

jurisdiction in favor of promptness.

We have to note that the abovementioned opinion was justified due to the fact

that the Bill, just like the NCPC, covered, in a single text, the two situations

treated by the regulation inserted by Law nr. 202/2010. In our opinion, the

annulment with transfer under the first assumption– the failure to judge on the

merits– is possible provided that both parties expressly requested such annulment

with transfer. According to us, this is a solution necessary despite the ambivalent

wording of the text. The reasons of the regulation, in terms of the parties’ interest,

advocate the interpretation promoted by us. However, the waiver to a rank of

jurisdiction deprives not only the claimant in appeal, but also the defendant which

is often interested in obtaining an annulment with transfer, from a set of trial-

related powers that could be used before the merits court. Our opinion is also

supported by the fact that the lawmaker regulated the two exceptions distinctly.

The second assumption– the judgment of the trial in the absence of the party

who was not legally summoned– includes the same solution consisting in the

annulment with transfer, which is, however, applicable when “the party expressly

requested that such measures are taken under the request for appeal”. Therefore,

as regards the clear wording of the text under discussion, we have to conclude that

this time, the annulment with transfer may be requested only by the claimant in

appeal, i.e. by the very party who was not legally summoned upon the judgment

of the case on the merits.

The annulment with transfer may be ordered only once under the both

assumptions that were briefly analyzed above. The solution is required due to the

same desire for promptness and to the need to avoid successive re-transfers, that

13)

Ibidem, p. 28.

19

was also reported by the European court in Strasbourg, and which may result in

the unjustified prolongation of trials.

A welcome provision is the one included in the final part of the text

commented upon that enshrines the obligation of the judges on the merits to

observe the resolutions issued by the appeal court. This is an implementation, in

the field of appeal, of the principle on the second appeal, enshrined by article 315

paragraph 1 of the Civil Procedure Code. Such a regulation is related to very

essence of the judicial control

14)

, which is hard to conceive in the absence of

certain trial-related means meant to impose the observance of the decisions

promoted by higher courts.

4. Amendments regarding the judgment in the merits court. The most

important procedural provision in the field of the second appeal, which was inserted

in the current code by Law no. 202/2002, covers the limitation of the annulments

with transfer. For this purpose, a new paragraph, i.e. paragraph 6, was inserted

under article 312 of the current Civil Procedure Code and reads as follows:

“The annulment with transfer may be ordered only once during the trial for

the case when the court whose decision is attacked settled the trial without

investigating the merits, for the case when the judgment was made in the absence

of the party which was not correctly summoned both upon the administration of

evidence and upon the discussion on the merits, as well as for the case of

annulment for lack of competence. If the annulment with transfer provided by

paragraph 5 or 6 is followed by a new annulment in the same case, the tribunals

and the courts of appeal shall re-judge the case on the merits and the provisions

of paragraph 4 shall apply”.

The decisions issued in the second appeal are partially different from those

promoted in the field of appeal, as we can see very easily. First, the law covers all

the three situations when the annulment with transfer can be ordered in principle.

Secondly, since the second appeal is an extraordinary recourse procedure, the law

no longer enshrines the principle of invoking the merits in the three cases, but

approves the annulment with transfer only once.

The regulation established by the “small reform” law is also an innovation in

relation to the provisions of article 492 of the NCPC which does not establish the

rule according to which the annulment with transfer can be ordered only once.

The new regulation also includes certain useful clarifications in the Civil

Procedure Code. Thus, a new paragraph, i.e. paragraph 3

1

inserted under article 31

, sets forth that: “In the case of re-judgment after annulment, irrespective whether

the case is considered for judgment or is transferred, any evidence provided by

14)

Fo r the sec ond appeal, see the High Court of Cassation and Justice, the Civil Sentence,

decision no. 1444/2007, in Buletinul JurisprudenŃei. Culegere d e decizii (The Bulletin of Case

Law. Collection of Decisions) for year 2007, p. 404.

20

law is admitted”. The solution is meant to avoid any controversy on the

admissibility of the administration of new evidence after the annulment of a court

decision. It is applicable irrespective of the scope of annulment, i.e. whether the

annulment is total or only partial

15)

. As regards this procedural provision, we also

note that is totally repeats the provisions of article 495 paragraph 4 of the NCPC.

Therefore, once again, the “small reform” did nothing but become applicable

before the implementation of the NCPC in time.

Please be reminded that in the field of the second appeal, the lawmaker

eliminated such recourse procedure also in the disputes regarding the claims the

object of which consists in an amount of money of maximum RON 2,000, which

were transferred to the first and last instance competence of district courts.

An interesting legislative intervention is the one regarding the reason for

second appeal grounded on the breach of the competence rules. In this respect, as

a result of Law no. 202/2010, article 304 item 3 reads as follows: “when the

decision was issued in breach of the public order competence of another court,

invoked according to law”. The text is similar to the one enshrined in article 482

paragraph 1 item 3 of the NCPC. Unlike the NCPC, the text commented upon also

adds the condition of invoking the non-competence situation, according to law.

In relation to the regulation previous to the “small reform”, the current text

only covers the failure to observe the public order competence rules. However,

this means that relative non-competence may no longer be invoked in the second

appeal court. This is an innovating solution, determined by the same major need

to accelerate the judgment of cases. Certain authors justify it also by the fact that

“it is hard to accept that the breach of certain private order competence rules

(established mainly to the parties’ best interest) results in the termination of the

decisions issued in two ranks of jurisdiction”

16)

. We have to admit that the

motivation is not irrelevant, but there may be cases that exceed such a motivation,

especially if we consider the legislation in force.

We also underline the existence, in the NCPC, of a totally particular rule in

the field of second appeal which is consistent with the need for a prompt

resolution of civil cases. Indeed, according to article 482 paragraph 2 of the

NCPC, the reasons for second appeal “may not be accepted unless they were

invoked by appeal or during the judgment of the appeal or, although being

invoked in due time, they were rejected or the court failed to issue a decision on

them”. The text imposes an important limitation of the right to use the second

appeal in civil cases, emphasizing the extraordinary nature of the second appeal.

15)

See I. Leş, Tratat de drept procesual civil (Treaty of Civi l Trial-related Law), C.H. Beck

Publishing House, edition 5, Bucharest, 2010, p. 776.

16)

Gh. L. Zidaru, Noua reglementare a recursului în Proiectul de lege privind Codul d e

procedură civilă (The New Regulation of the Second Appeal in the Bill regarding the Civil

Procedure Code), in Curierul judiciar (The Judicial Mail), Supplement no. 10 /2009, p. 24.

21

Such a limitation shows, once again, the huge difficulties encountered upon

the identification of the best and most efficient body to deal with a trial, but

particularly upon the set up of a judicial system within which judicial duties are

established in reasonable manner. Under such circumstances, the desire to have a

uniform case law and to avoid the process consisting in the “federalization of

justice”, mentioned by a famous specialist in the judicial procedure, will not be

easy to fulfill.

5. Amendments regarding the second appeal for the interest of law. The

first amendment and supplement brought to article 329 of the Civil Procedure

Code covers the subjects of the second appeal for the interest of law. The new text

– article 329 of the Civil Procedure Code – adds, to the current subjects, the

Management Body of the High Court of Cassation and Justice and the

Ombudsman. As we have underlined on a different occasion

17)

, we believe that

such an extension of the active trial-related competence is totally justified in the

case subject to this review. The certification of the trial-related capacity of the

Management Body of the supreme court is convincing and natural, as this body is

the most capable to establish the existence of a non-unitary case law.

The extension of the active trial-related capacity to the level of the

Ombudsman is also welcome. The prestige of this body can be strengthened in

this manner, as it shall have an efficient procedural method of promoting the

democratic values of society

18)

. Although such a procedural method does not

directly contribute to the protection of the citizens’ fundamental rights and

freedoms, it may be useful for the process of consolidating the case law unity.

It is also worth noting that the wording of article 329, as amended and

supplemented by Law no. 202/2010, is identical to the one provided by article 508

of the NCPC. The new wording of the text commented upon also has a certain

meaning that gives us another perspective on the institution. The old regulation

governed the right of the general prosecutor and the management bodies of the

courts of appeal to request to the supreme court to issue a decision on the matters

of law that had been settled by courts in a different manner. The new regulation,

just like the NCPC, governs the obligation of the subjects whose active trial-

related capacity was acknowledged, to bring the matter before the supreme court.

Of course, the reasonable nature of such an important extension of the

certification of the trial-related capacity in the second appeal for the interest of

law could be questioned, especially today, after the active trial-related capacity of

the Management Body of the supreme court was also acknowledged. In other

words, the legitimate question under such circumstances is whether the

17)

I. Leş, Asigurarea unei jurisprudenŃe unitare în perspectiva viitorului Cod de procedură

civilă (Ensuring a Unitary Case Law in Anticipation o f the Future Civil Procedure Code), in

Curierul judiciar (The Judicial Mail) issue no. 11/2008, p. 28.

18)

The solution is also set forth by article 491 of the Spanish Civil Proc edure Law.

22

acknowledgment of the active trial-related capacity of the management bodies of

the courts of appeal is still justified. We believe that since the law “speaks about”

the obligation to bring the matter before the supreme court, such an approach

should have been abandoned. It would have been justified if the previous wording

regarding the right to bring a second appeal for the interest of law before the

supreme court had been maintained. On the other hand, it is also worth noting that

no sanction is provided in relation to such an obligation.

Law no. 202/2010 also inserted in the current Code other important provisions

materialized in articles 330

5

-330

7

. The first text, inspired by the NCPC, specifies

that “The second appeal for the interest of law can only be admitted if it is proved

that the matters of law forming the object of the judgment had been settled

differently by irrevocable court decisions, enclosed to the request”. The solution

is natural and has also been promoted by the case law so far. Therefore, it does not

involve any special comment.

The second text– article 329

6

of the Civil Procedure Code – contains special

innovations regarding the structure of the panel that is to judge the second appeal

for the interest of law. According to the first paragraph of the text invoked, the

second appeal for the interest of law shall be judged by a panel consisting of the

president or, in his absence, of the vice-president of the High Court of Cassation

and Justice, of the presidents of sections, as well as of 20 judges, of whom 14

from the section under whose competence the matter of law which had been

settled differently by courts falls and also of two judges within the other sections.

The president of the panel is the president, respectively the vice-president of the

High Court of Cassation and Justice.

However, it is sometimes possible that two or several sections of the supreme

court are interested in the matter forming the object of the second appeal for the

interest of law. In this case, the president or the vice-president of the supreme

court, as the case may be, “shall establish the number of judges in the interested

sections that are to form the panel provided under paragraph 1, and the other

sections are to be represented according to the provisions of the same

paragraph” (article 330

6

of the Civil Procedure Code).

We believe that the new regulation was the result of the practical difficulties

of bringing together the United Sections of the supreme court which had the

competence to issue a decision on the second appeals for the interest of law. The

new structure of the panel which is competent to issue a decision on the second

appeal for the interest of law is, undoubtedly, a structure much more flexible than

the previous one. However, it has the disadvantage of not being as representative

as the United Sections. Such an assertion is obvious if we consider the fact that

the members of the panel settling the second appeal for the interest of law do not

represent at least one quarter of the total number of the judges of the supreme

court. In this context, please be reminded that our supreme court is one of the

biggest (in terms of the number of its members) superior court in Europe and not

23

only, and as compared to the number of the population, it can be considered a

champion hard to defeat. The new trial-related regulations, especially the NCPC,

should result in a reduction of the supreme court’s case load.

Law no. 202/2010 promoted new solutions also as regards the procedure of

settling the second appeal for the interest of law. From this standpoint, the legal

provisions regarding the possibility to appoint a rapporteur for drawing up the

draft decision are interesting. The rapporteur shall be appointed by the president

of the panel from the judges of the section under whose competence the matter of

law settled differently by courts falls. If two or several sections are interested in

the matter of law, the president of the panel shall appoint one judge from such

sections in order to draft the report. Please note that article 510 paragraph 4 of the

NCPC sets forth the appointment of three judges to draft a report on the second

appeal for the interest of law.

The president of the panel may request to certain acknowledged specialists to

give their written opinion on the matters of law that were settled differently, with

a view to drafting the report. This is a new solution in our trial-related law. It is

also enshrined in article 510 paragraph 5 of the New Civil Procedure Code. In its

initial form, the draft Civil Procedure Code included a wording that showed the

obligation to consult certain acknowledged specialists. The current legal wording

shows that the law does not provide the obligation to consult the specialists, since

the president of the panel has the possibility to issue a decision in this respect.

In our opinion, the consultation of prestigious specialists in the field can

contribute to a sound and convincing substantiation of the decisions issued in the

second appeals for the interest of law. The wording used by the law shows the

conclusion that the consultation of legal specialists is taken into consideration.

The issue that we have also invoked on a different occasion

19)

is whether such

specialists could come from any field of the law. Therefore, the appointed person

could be a researcher, a member of the university teaching staff, a notary public, a

bailiff etc. In principle, the appointment of a magistrate cannot be excluded either,

although some relevant objections could be raised in this respect. However, what

matters is that the appointed person is an extremely prestigious professional, i.e.

he/she is considered, according to law, a specialist in the field.

The law also establishes the elements that have to be included in the report: the

resolutions given to the matter of law and the arguments on which it is grounded,

the relevant case law of the Constitutional Court, the European Court of Human

Rights, the European Union Court of Justice and the opinion of the consulted

specialists, if applicable, as well as the doctrine in the field. The text that covers

19)

For details, see I. Leş, Asigurarea unei jurisprudenŃe unitare în perspectiva viitorului Cod

de procedură civilă, (Ensuring a Unitary Case La w In Anticipation of the Future Civil Procedure

Code), as quoted above, p. 29.

24

such elements is, in our opinion, very well drafted, as it includes all the elements

which can contribute to the enactment of a convincing and judicious decision.

It is also worth noting that the judge who is the rapporteur (and the judges

who are rapporteurs) shall also draw up the “draft solution to be proposed for the

second appeal for the interest of law” (article 330

6

paragraph 6 of the Civil

Procedure Code). The law expressly sets forth that “rapporteurs are not

incompatible”. The solution is natural, as this is not a recourse procedure that

produces effects which are useful for the parties.

The second appeal for the interest of law is judged within three months after

the matter is brought before the court (article 330

6

paragraph 10 of the Civil

Procedure Code). As we have indicated, it would have been useful that the

lawmaker also sets a limit period for the exercise of second appeal for the interest

of law, which should run as of the date of the last judicial decision

20)

.

The provisions included in article 330

7

of the Civil Procedure Code do not

give us any new solutions in relation to the previous provisions or the provisions

set forth in the NCPC. Thus, as regards the effects of the issued decision, these are

actually repeated by the provisions of the former article 329 paragraph 3 of the

Civil Procedure Code. However, it is specified that the resolution given to the

judged matters of law “is compulsory for the courts as of the date when the

decision is published in the Official Gazette of Romania, Part I”. The new

regulation also requires the motivation of the decision within 30 days after its

issuance and the publication of such decision in the “Official Gazette” within 15

days after its motivation. These latest solutions are actually taken over from

article 511 of the NCPC.

6. Amendments regarding the enforcement. The first important amendment

in the enforcement field is related to the extension of the territorial competence of

bailiffs. The principle enshrined by article 373 paragraph 1 of the Civil Procedure

Code, in the wording included in Law no. 202/2010, is the one according to which

“the judicial decisions and the other writs of enforcement are executed by the

bailiff in the judicial district of the court of appeal where the enforcement is to be

made, or, in case of prosecution of assets, by the bailiff in the judicial district of

the court of appeal where such assets are located”. Therefore, the new regulation

was extended, for practical reasons, from the level of the judicial district of a

district court to the judicial district of the court of appeal. The solution is meant to

prevent other malfunctions which might be generated by the existence of a low

number of bailiffs in the judicial district of district courts. The solution is also

20)

Ibidem, p. 29-30.

25

useful when the object of the prosecution consists in movable assets that can be

easily transferred from one judicial district area to another

21)

.

The same text establishes, under paragraph two, an alternative competence if

the movable or immovable assets are in the judicial district of several courts of

appeal. In this case, the competence shall belong to any bailiff attached to the

respective court of appeal. Please note that article 642 of the NCPC includes more

detailed rules regarding the territorial competence of the bailiff which is also

circumvented at the level of courts of appeal. The law also inserts a new

paragraph under article 373, i.e. paragraph 3, a text which establishes the duties of

the enforcement court. According to this text, the enforcement court “shall settle

the requests for approval of the enforcement, shall judge the challenges lodged

against the enforcement, as well as any other incidents that occur during the

enforcement, except for those established by law as falling under the competence

of other courts or bodies”. Such provisions are not totally new. Thus, it should be

noted that according to article 400 paragraph 1, the challenge against enforcement

shall be filed with the enforcement court. The incidents that occur during the

enforcement used to be settled also further to the enforcement to a challenge

against enforcement. The new text provides a better systematization of the matter.

It actually repeats the provisions of article 641 paragraph 2 of the NCPC.

The “small reform” law brought important amendments and supplements to

article 373

1

of the Civil Procedure Code. The text partially takes over only the

provisions included in the NCPC about the procedure of approving the

enforcement. It also includes certain innovations we are going to present below.

According to the new regulation and to the NCPC as well, the request for

enforcement shall be filed with the bailiff, accompanied by the writ of

enforcement. The bailiff has the obligation to request to the enforcement court,

within 5 days after the registration of the request, (3 days according to NCPC) to

approve the enforcement. In its turn, the enforcement court shall approve the

investigation “only by one ruling issued in closed session, within 7 days after the

registration of the request to approve the enforcement, without summoning the

parties” (3 days according to the NCPC).

The law provides no procedural sanction for the failure to meet the deadlines

specified by the bailiff and by the judge, except for the one applicable if the deed

is considered as misconduct. This is the reason why the specified deadlines are

rather recommendations. Meeting such deadlines could be sometimes difficult due

to the excessive workload of the judges. At the same time, we hope that the

“message” of the law is received by courts in an appropriate manner, so as to

eliminate the situations that occurred in practice and which resulted in the delayed

settlement of the requests to approve the enforcement. Anyway, we believe that

21)

There are also certain European countries where the territorial competence of the bailiff is

extended to the entire national territory: the Czech Republic and the Netherlands.

26

the approval of the enforcement by the bailiff itself would have been a more

reasonable solution and should have been preserved. We have no intention to

reiterate all the arguments invoked on a different occasion and are going to

confine ourselves to emphasizing that any procedural irregularity committed by

the bailiff, also as regards the approval, may be challenged before the enforcement

court

22)

. We confine ourselves to appreciating that this is a classical example of

formalism that could have been removed, as it is useless, since we are, in

principle, in the presence of a final and irrevocable court decision, constructed as

an enforceable title provided by law.

A totally reasonable provision having positive effects on the economy and

efficiency of the enforcement is the one enshrined in article 373

1

paragraph 3 of

the Civil Procedure Code. According to this text: “According to the ruling

accepting the request to approve the enforcement, the bailiff may proceed to the

enforcement of the obligation established by enforcement in any of the forms

provided by law and the provisions of article 37

1

paragraph 3 shall apply

accordingly. The approval of the enforcement shall be valid as of right also in the

case of the writs of enforcement to be issued by the bailiff within the approved

enforcement procedure”.

The text above eliminates any practical controversy regarding the

enforcement body’s right and duty to proceed, based on the same ruling of

approval, to the prosecution of the debtor in any form provided by law. In

practice, there were cases when the enforcement forms were cancelled by courts

as a result of the fact that the bailiff, after having established the impossibility of

prosecution by a certain form of enforcement, started to use another method

provided by law (for instance, it waived the prosecution of movable assets and

initiated the garnishment).

The second important rule established by the quoted text is that the approval

of the enforcement is valid as of right also for the writs of enforcement to be

22)

See I. Leş, Pe ma rginea un ei decizii de neconstituŃionalitate (Discussions on a Non-

constitutionality Decision), in Revista română de e xecutare silită (The Romanian Magazine on

Enforcement), issue no. 2 /2009, p. 81-93. See also: V. M. Ciobanu, Curtea ConstituŃională –

garant al supremaŃiei ConstituŃiei, putere legiuitoare sau expert parlamentar?, (The

Constitutional Court – a Guaranto r of the Supremacy of the Constitution, a Law-making Power or

a Parliamen tary Expert?) in Revista română de drept privat (The Romanian Private Law

Magazine) issue no. 3/2009, p. 84-93; C. L. Pope scu, note to decision no. 458 of 31 March 2009

issued by the Constitutional Court, in Curierul judiciar (The Judicial Mail) issue no. 5/2009, p.

265-267; E. Hurubă, ConsideraŃii privitoare la necesitatea încuviinŃării de către instanŃă a

începerii executării silite şi unele note critice la Decizia CurŃii ConstituŃionale (Consi derations

regarding the Need for the Approval, by the Court, of the Enforcement Initiation and Certain

Critical Notes to the Constitutional Court Decision) issue no. 458 of 31 March 2009, in Revista

română de executare silită (The Romanian Magazine on Enforcement”), is sue no. 1/2009, p. 40-

54; A. Tabacu, note to decision no. 458/2009 of the Constitutional Court, in Pandectele române

(The Romanian Compendiums) issue no. 5/2009, p. 102-112.

27

issued by the bailiff within the enforcement procedure, such as those regarding the

enforcement expenses (article 371

7

paragraph 4 of the Civil Procedure Code) or

the amounts owed by the former adjudicator and established by the bailiff in the

tender-related minutes (article 513 of the Civil Procedure Code). Finally, please

note that the reviewed legal provisions are also included under article 656

paragraph 4 of the NCPC).

The new regulation also establishes, in a limitative manner, the cases when

the enforcement court is entitled to reject the request to approve the enforcement.

The provision is meant to remove any possibility of abuse that could be made by

courts. According to article 373

1

paragraph 4 of the Civil Procedure Code, the

rejection of the request for approval shall be issued in one of the following cases:

“1. the request for enforcement shall be settled by an enforcement body, other

than the one before which the matter was brought;

2. the title was constructed as enforceable if, according to law, such a request

is necessary for the initiation of the enforcement;

3. the receivable is doubtful, is not liquid and due;

4. the writ of enforcement includes provisions which may not be fulfilled by

enforcement;

5. there are other obstacles provided by law”.

The quoted text basically preserves the current status of the ruling issued by

the enforcement court on the request for approval and promotes the principle of

the bailiff’s active role.

An innovating provision in the field of enforcement is the one that covers the

period when the enforcement of a decision for eviction may be ordered. The

solution is set forth by article 578

1

of the Civil Procedure Code, a text inserted in

the code by the "small reform” law. This text provides that:

“No eviction from the real estate properties used as dwellings can be

performed between December 1 and March 1 of the next year if the creditor

proves that pursuant to the provisions of the dwelling legislation, he/she and

his/her family have no appropriate dwelling or that the debtor and his/her family

have another appropriate dwelling where they could move immediately.

The provisions of paragraph 1 do not apply to the eviction of the persons that

occupy a dwelling abusively, factually, without being in possession of any title

over it, or to the persons who had been evicted because they endanger the

cohabitation relations or disturb the public order”.

The conditions and exceptions established by the quoted text are totally

justified. Therefore we are not going to insist on them. The legislative solution

subject to review is reasonable and shows the humanity of a democratic society that

cannot ignore the major difficulties to which certain persons could be faced if they

were evicted in winter. This solution was inspired from the French law; it was

inserted by the so-called Aubry Law of 29 July 1998 (the law forbids any measure

of eviction, in principle, between November 1 – March 1 of the next year).

28

7. Amendments and additions relating to the divorce procedure. The

“small reform” law amended article 613

1

of the Civil Procedure Code only

partially. This time as well, the legislative intervention is spectacular especially in

relation to the provisions established as regards the NCPC. The first two

paragraphs of the abovementioned text basically remained the same. The only

difference is that according to the new amendment, after the presiding judge

verifies the existence of the spouses’ consent, he shall directly set the date of the

hearing in public session.

Please note that pursuant to article 918 of the NCPC, the application for

divorce, grounded on the spouses’ consent, may also be signed by a joint attorney-

in-fact based on an authentic power of attorney, and if the attorney-in fact is a

lawyer, he shall certify the signature according to law. The new regulation no

longer includes such an option.

The new regulation inserts a new text in the code, i.e. article 614

1

, that reads

as follows:

“The merits court shall insist that the parties settle the divorce by mediation.

If the judge recommends the mediation and the parties accept it, they shall go

before the mediator in order to be informed about the advantages of the

mediation. The mediator may not request any fee for informing the parties. After

being informed, the parties shall decide whether they accept the divorce

settlement by mediation or not.

The parties shall submit the minutes drafted by the mediator about the result

of the information session before the hearing set by the court, i.e. which cannot be

sooner than 15 days.

The provisions of paragraphs 2 and 3 shall not apply if the parties attempted

to settle the divorce by mediation before initiating the proceedings”.

Marriage is a fundamental institution of any society. This is the reason why

the lawmaker’s concern to find solutions resulting in the spouses’ reconciliation

and the rescue of their marriage, when possible, seems understandable to us.

Under such circumstances, the provisions included in the quoted text seems

reasonable and extremely useful to us.

However, we have to note the particular nature of the provisions regarding the

mediation which have no correspondent in the NCPC. The legal provisions

regarding the mediation also have a particular nature in relation to the common

law provisions. As we have already noted, pursuant to article 131 paragraph 2 of

the Civil Procedure Code, the judge might invite the parties to attend an

information session regarding the advantages of using such a procedure. However,

according to the text commented upon herein, if the parties accept the mediation,

they shall go to the mediator “in order to be informed about the advantages of the

mediation”. The lack of harmonization between the two texts is obvious. If the

intention had been to establish a differentiation, we believe that it should have

29

been made to the contrary, i.e. the information session before the judge should

have been established in the divorce field, and not in common law.

8. Amendments and additions relating to the procedure of settling

requests in the commercial field. The amendments brought to the settlement of

commercial disputes are also surprising because the NCPC no longer enshrines

such a special procedure

23)

. However, there are not too many amendments in this

field. The most important legislative intervention is the one regarding the

introduction of the mediation as an alternative method of settling commercial

disputes. In this respect, article 720

1

of the Civil Procedure Code sets forth that:

“In the case of commercial proceedings and requests which can be evaluated in

money, before the application for initiation of the proceedings is filed, the

claimant shall attempt to settle the dispute either by mediation or by direct

conciliation”.

Therefore, in the commercial field, the law enshrines, besides the direct

conciliation

24)

, the claimant’s possibility to also use the mediation. The use of the

two procedural methods – conciliation and mediation – are preliminary to the filing

of the application for initiation of the legal proceedings, a circumstance that results

from the provisions of the quoted text. Such circumstance does not exclude the

judge’s right to recommend the mediation, a possibility that is expressly established

by article 720

7

of the Civil Procedure Code, as amended by Law no. 202/2010. The

information about the advantages of the mediation shall be made by the mediator,

as during the divorce procedure, the provisions of article 720

7

paragraphs 2-4 and of

article 614

1

paragraphs 2-4 of the Civil Procedure Code being similar. Under such

circumstances, we are entitled to believe that the claimant’s failure to fulfill his

obligation to use the mediation, before the request to initiate the legal proceedings is

filed, may no longer result in the rejection of the action as inadmissible, as it is

complemented by the recommendation made by the judge.

The lawmaker established in this field as well the principle according to

which the judgment, even on the merits, may continue in public session or in

closed session, on the next day or at regular successive intervals notified to the

parties. Finally, a useful provision is the one according to which the statute of

limitation in relation to the right to initiate legal actions regarding the doubtful

right shall be suspended during the mediation procedure, “but for no longer than

3 months after the initiation of such a procedure” (article 720 paragraph 1

1

of the

Civil Procedure Code, in the wording of Law no. 202/2010).

23)

As regards the j ustification of this sol ution, see V. Belegante, D. A. Ghinoiu, Succintă

prezentare a sistemului şi soluŃiilor leg islative preconizate de Proiectul noului Cod de procedură

civilă (Brief Presentation of the System and the Legislative Solutions Anticipated by the Bill of the

New Civil Procedure Code), in Dreptul (The Law) issue no. 1/201 0, p. 21.

24)

As regards the reasons which determined the waiver to the settlement of disputes in the

commercial field, also due to the time-consuming nature of the conciliation, see ibidem, p. 21-22.

30

9. Conclusions. Our intention was to make, in these pages, a vast research on

the legislative interventions anticipated by Law no. 202/2020, known in the

judicial world as the “small reform”. We did not intend at all to demonstrate the

transient nature of the amendments and supplements brought to the current Civil

Procedure Code. It is absolutely natural that the “life” of the current code is short,

given the imminent implementation of the NCPC.

However, some of the anticipated solutions will undoubtedly turn out to be

sustainable, as they are also enshrined in the NCPC. As we have noted, there are

also certain innovating solutions in relation to the NCPC. As regards some of

these solutions, we elaborated appropriate judgments, but in relation to other

solutions, we had certain reserves, which are justified in our opinion.

Life is going to show the durability or the vulnerability of the solutions

anticipated by the “recasting” lawmaker. Such an assertion is valid in respect to any

legislative work, also as regards the NCPC. Even the important codes of the 19th

century were subject to important amendments in time. This will also happen as

regards the NCPC. We also believe that it will be natural to rectify the weaknesses

which the judge's experience will reveal after several years of implementation.

However, this study highlights the lawmaker’s frequent hesitations shown in

the scope of the civil procedure, which has often happened especially over the last

decade. Such a phenomenon is almost general and might generate major

difficulties within the law implementation process. The frequent changes of

legislative options might undermine the citizens’ trust in justice. We have no

intention at all to discuss the need for a major justice reform, but it is high time

that such reforms were finalized and strengthened.

The set-up of a commission of specialists for the implementation of the NCPC

seems to announce new amendments to such code, right before its implementation.

If this is the intention of governmental authorities, it does not seem to us to be the

most appropriate approach. The normal approach would be to wait for a period

when the legislation stabilizes itself and is faced to the daily implementation

process and to draw afterwards the required conclusions with the view to a potential

subsequent improvement. However, we hope that the Bill for the implementation of

the NCPC enshrines, as we have noted, only transient rules required for its

correlation with various other institutions of material or trial-related law

25)

.

References

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soluŃiilor legislative preconizate de Proiectul noului Cod de procedură civilă

(Brief Presentation of the System and the Legislative Solutions Anticipated by the

Bill of the New Civil Procedure Code), în Dreptul (The Law) issue no. 1/2010;

25)

In this respect, see V. Belegante, D. A. Ghinoiu, op. cit., p. 35.

31

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