CONSIDERAȚII CU PRIVIRE LA EXCEPȚIILE PROCESUALE ÎN CONTEXTUL PREVEDERILOR PROIECTULUI NOULUI COD DE PROCEDURĂ CIVILĂ
CONSIDERATIONS ON PROCEDURAL EXCEPTIONS IN THE CONTEXT OF THE DRAFT NEW CIVIL PROCEDURE CODE
Subject(s): Law, Constitution, Jurisprudence
Published by: Universul Juridic
Keywords: the New Civil Procedure Code; procedural exceptions: categories; invocation; settlement.
Summary/Abstract: Procedural exceptions, which are so numerous and various, but, especially, so “subtle”, “moralizing” and, often so “drastic”, can be considered together the “grammar” of the civil procedure. Anyone who does not know them or does not manage them correctly during the civil trial tries in vain to make a decision resolving the litigation. Inevitably, in the composition of the regulations of various procedural institutions, the new Civil Procedure Code not only insists on adjacent exceptions as well, but it also devotes a subsection in the trial investigation to such exceptions, providing us with the fundamental landmarks for approaching the theme and exemplifying to us, by some exceptions, the procedure of invoking and solving them, as well as the effects of admitting or rejecting them. Accepting, with reserves, the envisaged regulation, we bring or bring again to your attention some possible assertions, in particular regarding the: connotation of the expression “procedural exceptions”; their delimitations from defenses on the merits; categories of procedural exceptions; absolute exceptions and relative exceptions; order of invocation and resolution of procedural exceptions; exception of the lack of capacity to sue and exception of the lack of proof of capacity of representative; exception of the pendency of case; exception of connection; exception of res judicata. Although the exception of lack of competence is not regulated in the subsection on procedural exceptions, but where it belongs – in the matter of the competence of courts –, we insist on it as well, in this context, with a few observations since, at least in our opinion, its regulation, as it is envisaged, seems one of the most questionable. In the prospect of adopting the new common civil procedure law, the exegesis of the virtually regulatory texts and, here and there, some observations in relation thereto might be useful, first of all for facilitating their appropriation, but also for potential other specifications or, as the case may be, even reconsiderations in the final form of the draft.
- Issue Year: 2009
- Issue No: 04
- Page Range: 27 - 58
- Page Count: 32
- Language: Romanian