Volume 6, Special Issue, October 2016 Juridical Tribune
when there are no remedies allowing its modification
. 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 modified
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
, 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”
. 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 claim
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
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
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
Eduardo Couture, Fundamentos del Derecho Procesal Civil, 4th ed., IB de F Publishing House,
Buenos Aires, 2010, p. 326.
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).
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.
Ion Deleanu, Valentina Deleanu, Hotărârea judecătorească, Servo-Sat Publishing House, Arad,
1998, p. 72.
Emilio Alfonso Garotte Campillay, op. cit., p. 393.
Ion Deleanu, Tratat de procedură civilă, vol. II, Universul Juridic Publishing House, Bucharest,
2013, p. 72.