Priority rules in solving legal procedural exceptions from the same category, according to the new civil procedure code

• Author: Andreea Ciurea
• Position: Law Departement, Transilvania University of Brasov
• Pages: 139-146

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 8 (57) No. 1 - 2015

PRIORITY RULES IN SOLVING LEGAL

PROCEDURAL EXCEPTIONS FROM

THE SAME CATEGORY, ACCORDING

TO THE NEW CIVIL PROCEDURE CODE

Andreea CIUREA1

Abstract: Procedural exceptions concern the most diverse irregularities

which appear during the lawsuit; therefore they have a different object and

character (proper lawsuit exceptions, content exceptions, absolute

exceptions, relative exceptions), and the way they are solved produces

various effects upon the lawsuit (dilatory exceptions, diriment exceptions). In

the following, we shall analyze the situation of concomitantly invoking the

procedural exceptions belonging to different categories as well as from the

same category.

Key words: proper procedural exceptions, content exceptions, order.

1 Law Departement, Transilvania University of Brasov.

1. Introduction

The quality of the justice process

depends on its accuracy and coherence, on

the exactitude and rigour with which each

trial phase is carried out, as well as on the

close and harmonious relation between the

elements that form it.

We must mention that there are a lot of

legislations that, by insisting on the

principle of procedural economy, regulate

this issue and – more than that – decide in

the sense that all incidents whose causes

exist simultaneously must be invoked at

once, according to the “de plano” rejection

(France: NCPC - art. 74; Spain: La Ley de

Enjuiciamiento Civil – art.416, 417;

Bolivia: Código de Procedimiento Civil –

art. 337; Columbia: Código de

Procedimiento Civil – art. 100, 140, 143;

Venezuela: Código de Procedimiento Civil

– art. 348; Panama: Codigo Judicial –

art.702).

It will be difficult to establish priority

rules when, in the same lawsuit, exceptions

from the same category are raised, be they

proper exception or content exception.

Thus, one shall notice that all content

exceptions have the same character –

absolute – and the same effect – diriment.

What criteria should we take into

consideration in establishing the solving

order, when there are two or more content

exceptions concomitantly raised?

It is a common fact to raise more proper

procedural exceptions simultaneously. In

what order shall the court solve them?

Thus many difficulties in practice and

various commentaries in the doctrine

emerge. Well-known theoreticians

analyzed one of the most interesting issues

that appeared in legal practice. They