Regulating the Procedure of Judging the Appeal in the Civil Law Suit in the Draft Civil Procedure Code

Author:Associate Professor Alexandrina Zaharia, PhD
Position:"Danubius" University of Galati
SUMMARY

The present study aims at analyzing the dispositions regarding the appeal, as presented in the present form of the Civil Procedure Code, motivated by the fact that recently, the Ministry of Justice has launched a public debate on "The strategy of developing justice as a public service 2010-2014" in which it proposes a set of measures on the functioning of the judicial system and the consolidation of justice independence and integrity. The Ministry of Justice will advance this document of great ... (see full summary)

 
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In this paper the Law on the Civil Procedure Code has been considered, in the form sent to the Romanian Parliament, as well as the strategy of developing justice as a public service 2010-2014.

Associate Professor Alexandrina ZAHARIA, PhD is Judge at the Court of Appeal Galati, commercial, maritime and fluvial sector. alexandrinazaharia@univ-danubius.ro

1. Introduction

The judicial practice has demonstrated that the instances, although they aim at establishing in the judicial activity, the correct situation and facts to which they apply the law in order to make legal and solid decisions, they sometimes make mistakes. In order to reduce these mistakes, the civil procedural law has created a legislative frame on the conditions in which the parties can exert the ways of attack, the circumstances in which the superior judicial instances, legally invested, have the possibility to verify the legality and solidity of the decisions coming from inferior instances and eliminate the possible errors. By exerting the ways of appeal on one side it is accomplished the repair of the mistakes in the decision and on the other side the homogenization in interpretation and application of these decisions as well as a unitary judicial practice. The judicial process in ways of appeal, irrespective of its object- decision taken by the first instance or decision in solving another way of appeal- is always and activity of judicial control, which represents for the parties involved in a civil lawsuit, represents one of the guarantees of the right to defense. The legislator has been concerned not only with organizing the lawsuit in front of the law court but also to present which are, in certain situations, the ways of attack through which the illegal or not grounded decisions could be eliminated, changed or annulled. Both in the present Code of civil procedure as well as in the Law on the Code of civil procedure (named in the following draft) the appeal is the only ordinary way of appeal in the civil lawsuit and the extraordinary ways are the recourse, appeal in annulment and review. But in case of the appeal, ordinary way of attack provisioned in special laws, the trial is made according to the dispositions in the Code of civil procedure. In the civil lawsuit, after December 1989, following the reform in justice1 was reintroduced, by Law no. 59 on July 23rd 1993 amending the Code of civil procedure, the Family code, the Law of administrative contentious no.29/1990 and Law no.94/19922 that introduced, in the category of ordinary ways of attack, the appeal and recourse. Subsequently, by the Government Emergency Ordinance no. 138/20003 amending and completing the Code of civil procedure, approved with the subsequent amendments and completions by Law no219/2005, that led to the introduction of the recourse in the category of extraordinary means of attack and the appeal remained the only ordinary way of attack. In the present, the Code of civil procedure regulates the appeal in articles 282-298 and the project in Book II, Title II with the title Ways of attack, Chapter II named "The appeal" in article 453-468.

Concerned with the justice, the Ministry of justice launched a political debate named "The strategy of developing justice as a public service 2010-2014"4 (named in the following the Strategy) that proves to be "an institutional instrument supporting the tendencies to modernize the functioning of the judicial system and consolidate the independence and integrity of justice". The Strategy aims at establishing the conditions for "a transparent judicial act, in due time and at an acceptable cost for the citizens"; in what concerns the specific objectives, they are the finalization of the process for adopting the codes of civil procedure (including the execution of the penalties), perfecting the frae legislation applicable in the justice system, the unification of the judicial practice and improving the professional training of the magistrates etc. and in what regards the directions for action, the coming into force of the codes, elaboration of the laws to implement the codes and the impact studies; accelerating the lawsuits and eliminating the institutional vulnerabilities (simplifying the summoning procedures, including the lawsuits with several parties; eliminating the appeal for some causes; reducing the competence of the High Court of Cassation and Justice etc.).

In this paper we will analyze the way in which the draft of the new Civil procedure code regulates: the conditions that have to be fulfilled in the request of appeal, the instance intimation with the request of appeal and the delay in which the appeal can be exerted.

2. The Request of Appeal in the Regulation of the Draft Civil Procedure Code

In what regards the request of appeal, the draft provisions the obligation of the appellant to indicate the given name and the personal identification code5 of the parties. We do not know what inspired the author of the draft in provisioning the obligation of the appellant to indicate the personal identification code. Maintaining this provision prevents the access to justice on one side and on the other side it makes the activity of the computerized inventory books of the person. To these the crime of using the personal identification code by anyone is added, in order to give credibility to fraudulent acts. In the practice of the judicial instances, is has been noticed that in the summoning, the appellant added the personal identification code of the defendant, even if the law didn't stipulate this, but this detail...

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