Theoretical and jurisprudential considerations on res judicata authority

Author:Daniela Cristina Cret - Narcisa Mihaela Stoicu
Position:Faculty of Law, 'Vasile Goldi?' Western University of Arad, Romania - Faculty of Law, 'Vasile Goldi?' Western University of Arad, Romania
Pages:61-76
SUMMARY

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.

 
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Theoretical and jurisprudential considerations on res judicata authority
Associate professor Daniela Cristina CREŢ
1
Associate professor Narcisa Mihaela STOICU
2
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 doctrine
3
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.
Volume 6, Special Issue, October 2016 Juridical Tribune
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when there are no remedies allowing its modification
5
. 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
6
.
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 truth
7
, 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 claim
9
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
settled
10
.
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.

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