Procedural incidents: relinquishing the legal action in the appeal proceedings or in the extraordinary legal remedies

Author:Andreea Stoican
Position:Law Department, Bucharest University of Economic Studies, Romania
Pages:70-76
SUMMARY

The principle of law of the availability implicitly includes the possibility granted by the lawmaker to the parties to perform proceeding disposition acts. As regards relinquishing the legal action, the Civil Procedural Code applicable to date included, in art. 406, para. 5, an apparently irrelevant amendment; however, the jurisprudence shows this cannot go ignored, as the premises of party... (see full summary)

 
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Procedural incidents: relinquishing the legal action
in the appeal proceedings or in the extraordinary legal remedies
Assistant professor Andreea STOICAN
1
Abstract
The principle of law of the availability implicitly includes the possibility granted by
the lawmaker to the parties to perform proceeding disposition acts. As regards relinquishing
the legal action, the Civil Procedural Code applicable to date included, in art. 406, para. 5,
an apparently irrelevant amendment; however, the jurisprudence shows this cannot go
ignored, as the premises of party damage proved to be present. Therefore, this paper aims at
sounding the alarm on the potential consequences of annulling previous Court Orders in
case of relinquishing the legal actions during the appeal proceedings or in the extraordinary
legal remedies, which, as proven by the jurisprudence in Court, may lead to important losses
for the Party that is not at fault.
Keywords: relinquishing legal action, disposition act, quashing, legal expenses,
consent.
JEL Classification: K41
1. Introduction
The principle of law of the availability implicitly includes the possibility
granted by the lawmaker to the parties to perform proceeding disposition acts.
Therefore, they are entitled to have full control of the trial subject, as well
as of all the proceedings means available for defending their rights.
Thus, according to the provisions of articles 406-410 of the Civil Procedural
Code, the Claimant can relinquish the legal actions or even the claimed right, at any
time, and the Defendant can also acquiesce in the Claimant’s demands or both parties
can reach an understanding regarding the conclusion of a transaction whereby to
extinguish the litigation between them.
As regards relinquishing the legal action, a unilateral proceeding disposition
act requiring the existence of the legal capacity of exercise to stand trial
2
, the Civil
Procedural Code applicable to date included, in art. 406, para. 5, an apparently
irrelevant amendment; however the jurisprudence shows this cannot go ignored, as
the premises of party damage proved to be present.
The Claimants usually resort to relinquishing the legal action either when
finding that their actions were prematurely formulated, or when they hold no
sufficient evidence to win the case submitted for settlement with the court-of-law.
1
Andreea Stoican Law Department, Bucharest University of Economic Studies, Romania,
andreeastoican@yahoo.co.uk
2
Ioan Leș, Tratat de drept procesual civil, vol. I, Universul Juridic, Bucharest, 2014, p.862.

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