28. Capacitatea procesuală pasivă a unei persoane juridice radiate. Rolul activ al judecătorului versus principiul disponibilităţii părţilor
28. The passive legal capacity of a deregistered legal person. The active role of the judge versus the principle of availability of the parties

Summary/Abstract: By regulating the principle of availability, the legislator has established the rule that the plaintiff must determine the procedural framework from the point of view of both the subject matter and the case and the parties. The principle of the active role of the judge was also regulated in order to complete the picture outlined by the litigants, with the aim of preventing mistakes and finding the truth by all means provided by law. In addition, according to Article 22 Code of Civil Procedure, the judge may order other persons to be brought into the case, in accordance with the law. Thus, this regulation recognises, as a rule, the judge's power to bring other persons into the case. The premise of the matter at hand is based on the summons of a deregistered legal person. In the light of this circumstance, the plaintiff considered that the court was obliged to take steps to bring the successors of the deregistered legal person to the case, whereas the court dismissed the action on the basis of failure to comply with the provisions of Article 56(1) Code of Civil Procedure. As far as we are concerned, we consider that the court's decision is well founded and lawful, as it is not within its prerogative to carry out investigations in order to establish the procedural framework. Moreover, such a situation is not covered by any of the exceptions regulated by the law which would require the application of Article 78 Code of Civil Procedure.

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