6. Rolul judecătorului în aflarea adevărului
6. The judge's role in finding the truth

Summary/Abstract: When we accepted the challenge to take another look at Article 22 of the Civil Procedure Code, we did not expect that the much too often invoked article would reveal something new. However, humbly re appropriating the subject "the role of the judge in finding the truth", we understood that we are no longer in front of the regulation of a fundamental principle of the civil process, but only in the presence of the regulation of the role that the Romanian legislator conferred on the judge in "finding the truth in the case". We were surprised when we became aware of the wise legislator's philosophy: the dispensation of justice in civil matters will be carried out with a view to finding the truth in the case, a truth telling process in which both the parties and the judge will participate. I understand that the legislator did not design a judge mandated to identify the Truth Beyond the Cause, but wanted a judge who, with the parties and together with them, would participate in "finding the truth in the case". What is the role of the judge in this context? Settling the dispute in accordance with the rules of law applicable to it, by establishing the facts and correctly applying the law, endeavouring, by all legal means, to prevent any mistake, in order to pronounce a well founded and legal judgment which will have the authority of res judicata. What are the characteristics of this role? Firstly, it is conditioned by the availability of the parties and the rules of law applicable to the dispute and only secondly it is active, through the possibilities granted by the legislator to the judge. In the second part of the analysis, we set out to find out to what extent it is justified to simply invoke Article 22 of the Civil Procedure Code in the grounds for cassation decisions ordered under Article 488 para. (1), point 5 of the Civil Procedure Code, which should themselves take into account that the role of the judge both in the first instance and in the court of judicial review is to resolve the dispute in accordance with the rules of law applicable to it.

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