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

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.