Theoretical and jurisprudential considerations on res judicata authority

• Author: Daniela Cristina Cret/Narcisa Mihaela Stoicu
• Pages: 61-76

Theoretical and jurisprudential considerations on res judicata authority

Associate professor Daniela Cristina CREŢ1

Associate professor Narcisa Mihaela STOICU2

Abstract

One of the effects of judgment, established by both the old and the current Code of

Civil Procedure, is res judicata authority. This prevents retrial of a dispute on the basis of

the triple identity of parties, object and cause. The paper will analyse some of its

aspects from the perspective of civil procedural legislation, ECHR case law and national

jurisprudence.

Keywords: judgement, effects of res judicata, exception from res judicata

authority, identity of parties, object and cause, exception from res judicata authority .

JEL Classification: K40, K41

1. Introduction

Judgement, as a final procedural act in conducting judicial activity, which

terminates the dispute between the parties and enables them to protect and valorise

their legitimate rights, thus helping to restore the rule of law, has certain effects,

such as: disinvestment of the court after the judgment is pronounced, res judicata

authority, enforceability, probative value, inversion of prescription, compulsoriness

and challenge ability.

Res judicata is a Latin phrase, which means that which has been tried or

settled. In foreign doctrine3 it has been suggested to distinguish between two

meaning of res judicata: the first meaning refers to the legal stage where certain

litigious matters are given final judgement within a trial, where it can be stated that

“the court has decided on the litigation in a final and irrevocable manner”4; in the

second meaning, res judicata concerns the effects determined by certain

judgements. According to this meaning, a judgement has res judicata authority

1 Daniela Cristina Creţ - Faculty of Law, “Vasile Goldiș” Western University of Arad, Romania,

danacristinacret@yahoo.com .

2 Narcisa Mihaela Stoicu - Faculty of Law, “Vasile Goldiș” Western University of Arad, Ro mania,

stoicu.narcisa@gmail.com .

3 For details regarding the meaning of the term res judicata, see Emilio Alfonso Garotte Campillay,

Anything deemed constitutional sui generis and its effect on the rulings of the Constitutional Court

in terms of non-applicability and constitutionality (Cosa juzgada contitucional sui generis y su

efecto en las sentencias del tribunal constitucional en material de inaplicabilidad e

inconstitucionalidad) in “Estudios constitucionales”, vol. 10, no. 2, 2012, pp. 393-398,

[http://www.scielo.cl/pdf/estconst/v10n2/art10.pdf], last consultation on 26/08/2016 .

4 Andrés De La Oliva Santos, Sobre la cosa juzgada, Ramón Areces, Madrid, 1991, p. 17, apud

Emilio Alfonso Garotte Campillay, op. cit., p. 393.

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when there are no remedies allowing its modification5. However, differing from

these meaning, the term “sui generis res judicata” is found in constitutional issues

as a “decided thing” (cosa decidida), which can be modified6.

In Romanian legislation, this is currently regulated in art. 430-432 of the

Code of Civil Procedure, which specifies the judgements that benefit from this

attribute, the effects of res judicata, and the exception from res judicata authority.

The old Romanian Civil Code and the old Romanian Code of Civil

Procedure regulated res judicata authority in an inconsistent way: ex-art. 1201 of

the Civil Code as an absolute legal presumption of conformity of the decision with

the truth7, and ex-art.166 of the Code of Civil Procedure, as a substantive,

peremptory and absolute exception.

In the same context, Romanian literature, under the rule of former

regulations on the matter, made a distinction between res judicata

authority and power of res judicata. Res judicata authority was considered to be “a

quality attached to the judgment, from the time of its adoption until the expiry of

the term for lodging appeals for reform or retraction, or, where appropriate, until

the rejection of such”, whereas the power of res judicata constitutes “a quality

attached to the judgment, which cannot be reformed or retracted”8. The current

Code of Civil Procedure, as well as the other laws in force, uses the expression of

res judicata authority in a consistent way, as a result of changes made by art. 14 pt.

2 of Law 76/2012.

Res judicata authority avoids pronouncing a final judgement on one claim9

more than once, based on the presumption that a judgement expresses the truth, and

for this reason it should not be invalidated by another decision (res judicata pro

veritate habetur).

The basis for res judicata authority lies in the idea of immutability of the

judicial act by which, in the contentious procedure, the dispute was tried and

settled10.

In the current Romanian regulation, as in the previous regulation, the

existence of res judicata authority is determined by the triple identity of parties,

object and cause, provided suggestively by art. 431 of the Code of Civil Procedure:

“No one can be sued twice in the same capacity, under the same causes and for the

same object”.

5 Eduardo Couture, Fundamentos del Derecho Procesal Civil, 4th ed., IB de F Publishing House,

Buenos Aires, 2010, p. 326.

6 Among the arguments underlying “ sui generis res judicata” one remarks: existence of a legislative

gap regarding res judicata in constitutional matters, the dynamism and flexib ility of judgements

pronounced in constitutional matters, constitutional ju risprudence (Emilio Alfonso Garotte

Campillay, op. cit., pp. 398-399).

7 For details on res judicata authority in the old regulation, see Ioan Leş, Tratat de drept procesual

civil, 5th edition, C. H. Beck Publishing House, Bucharest, 2010, pp. 478-500.

8 Ion Deleanu, Valentina Deleanu, Hotărârea judecătorească, Servo-Sat Publishing House, Arad,

1998, p. 72.

9 Emilio Alfonso Garotte Campillay, op. cit., p. 393.

10 Ion Deleanu, Tratat de procedură civilă, vol. II, Universul Juridic Publishing House, Bucharest,

2013, p. 72.