UNELE CONSIDERAȚII PRIVIND RECURSUL ÎN REGLEMENTAREA DATĂ DE PROIECTUL NOULUI COD DE PROCEDURĂ CIVILĂ
CONSIDERATIONS REGARDING THE APPEAL TO THE REGULATION PROVIDED BY THE DRAFT OF THE NEW CIVIL PROCEDURE CODE
Subject(s): Law, Constitution, Jurisprudence
Published by: Universul Juridic
Keywords: the Draft New Civil Procedure Code; regulation of second appeal; requirements arising from the European Convention on Human Rights.
Summary/Abstract: The draft of the Law on Civil Procedure Code regulates the appeal as an honest extraordinary modality of challenging, which may be exercised only in exceptional situations when the legality has been infringed and the formal reasons of appeal, which do not have an impact on the legality, have been eliminated. As novelty elements, we took notice of, inter alia, the introduction of the compulsoriness of drafting the appeal application, of exercising and supporting the appeal only by a lawyer or by a legal counsellor, the reintroduction of the procedure of rejection of appeals which falls under the competences of the High Court of Cassation and Justice, the extension of the term of exercising the appeal, the drafting of the file by the court whose decision is appealed, the introduction of the cross-appeal and of the determined appeal. The rejection procedure has the purpose of relieving the higher court of law of inform appeals, but in the same time it aims at providing the requested right to be won in a reasonable limit of time. The enforced procedure complies with the predictability exigencies of the judicial procedures resulting from the European Convention on Human Rights and Fundamental Liberties and, implicitly, form the procedures decided in C.E.D.O. jurisprudence. The contracting states have more freedom in choosing their own means to allow the judicial system to meet the provisions of article 6 of the Convention on the defending of human rights. Article 6 of the Convention does not forbid the contracting states to promulgate regulations to permit the access of the litigants to an appeal court, if such regulations aim at the provision of a good management of the justice. The introduction of the mandatory judicial assistance by lawyers or legal counsellors, as the case may be, in the appeal stage, is aiming at imposing the procedural formality and discipline. The imposed stipulation cannot be considered a restriction of the free access to justice, based on the reason that the litigant who does not have the material means to hire a defender shall not be able to challenge by appeal a decision which they considered to be illegal, because, in compliance with article 86 of the new regulations, the person who is not able to sustain the expenses caused by the opening and by the development of a lawsuit without prejudicing its own supporting or the support given to their family, may benefit from judicial assistance, under the provisions of the special law.
- Issue Year: 2009
- Issue No: 04
- Page Range: 59 - 78
- Page Count: 20
- Language: Romanian