ASPECTE CONTROVERSATE PRIVIND REGULARIZAREA CERERII DE CHEMARE ÎN JUDECATĂ
CONTROVERSIAL ISSUES REGARDING THE SETTLEMENT OF THE PETITION FOR LEGAL ACTION

Summary/Abstract: This paper tries to achieve the exposure of the elements that have aroused controversies in the judicial practice, in regards to the regularization of the demand for judgment summoning, the identified case-law orientations, as well as the author’s opinion on each of them. Considering that this written prior procedure was an unknown mechanism in the Romanian legal system before the enforcement of the New Code of civil procedure, although from this moment it has been almost five years, in the case-law of many courts there are still seised contradictory opinions regarding some aspects. These are the subject for presentation in this article, namely: the cancellation of the sue petition if the documents attached are not certified as true copies, of the sue petition if the applicant does not mention the evidence, of the sue petition if the applicant does not mention the point of law on which his request is based, the possibility of granting a second deadline to fulfill the irregularities of the application, the possibility of constitutional challenging and the possibility of the applicant to drop the case. Along with a presentation of the case-law of the European Court of Human Rights and the Constitutional Court of Romania regarding this procedure, this article exposes the author`s opinion on each of the assumptions stated above. There are given detailed arguments for the opinion according to which the penalty of cancellation of the sue petition if the documents attached are not certified as true copies appears to be proportionate to the objective consisting in the proper administration of justice, given the procedural consequences that would be produced in the absence of a such penalty. The same conclusion applies in the case of the applicant’s failure to fulfill the obligation to indicate the evidence intended to be used in the trial, taking into account the type of the evidence and also the references exposed through the application. Regarding the possibility of cancelling the sue petition for failure to indicate the point of law, the paper is exposing the indissoluble link between this penalty and the need to respect the judge's active role principle in the legal classification of the acts or facts related to the case, imposing that the action will be annulled only if the legal reasons given are contradictory, so that the judge cannot proceed to determine the cause for judicial action. In addition, it was identified a situation in which the complete coverage of the prior procedure requires to grant the applicant with two deadlines of 10 days/each in order to fulfill his obligations, namely when the applicant does not mention the value of his request. In this case, initially the applicant is asked to specify the value and subsequently, he is given another 10 days to pay the judicial stamp fee on the principal amount previously mentioned. It is also possible to establish the responsibility of the applicant's obligation to indicate the defendant`s address within 10 days of notification, under penalty of cancellation, after the moment of the ordering the communication action to the defendant, in case the pleadings for it are being returned to the file with entries like "recipient moved from address", "unknown recipient at the address", "incomplete address", "address non-existent". Thus making a comeback to the written regularization procedure, this is however only apparent, given the reason that led to the enforcement of this prior procedure, which can only be complete when the application is received by the defendant. Regarding the possibility of referral to the Constitutional Court with a plea of unconstitutionality in the early stage of the regularization procedure, there was no legal impediment found in this respect, as long as the conditions of admissibility are met. However, there have been identified a series of different consequences from the procedure referral to the Constitutional Court in trial stage of the case, namely that the conclusion ordering notification will not find the point of view of the defendant, the fact that the judge can cancel the request, with the possibility of exercising the extraordinary appeal provided for by art. 509 par. 1 pt. 11 Code of Civil Procedure – review, or the judge can rule the voluntary suspension of the trial, according to art. 413 par. 1 pt. 1 Code of Civil Procedure. Referring to the possibility of the applicant to drop the case, there is no impediment at all, but it this case, it is required pronouncing a sentence in which to note the manifestation of the applicant’s will without subpoena or open debates, the applicant having the mean to appeal within 30 days from notification under art. 406 par. 6 in conjunction with article. 485 par. 1 Code of Civil Procedure.

• Details
• Contents