INCIDENŢA SANCŢIUNII PROCEDURALE A AMENZII JUDICIARE ÎN CAZUL INTRODUCERII, CU REA-CREDINŢĂ, A UNOR CERERI [ART. 187 ALIN. (1) PCT. 1 LIT. A) C. PROC. CIV.]
APPLICABILITY OF THE PROCEDURAL SANCTION OF THE JUDICIAL PENALTY IN CASE OF FILING CERTAIN CLAIMS IN BAD FAITH [ARTICLE 187 PARA. (1) ITEM 1 LETTER A) OF THE CODE OF CIVIL PROCEDURE]

Summary/Abstract: In this study, the author performs an analysis of the conditions for the application of the procedural sanction of the judicial penalty in a specific case, namely that of filing in bad faith certain claims or an “obviously inappropriate” appeal. The text establishing this penalty actually includes two distinct assumptions: that of filing in bad faith certain main, ancillary, additional or incidental claims and an obviously inappropriate appeal. A first conclusion of this study is that, in all cases, the judicial penalty involves a subjective requirement which lies within the simple or aggravated fault of the author of the claim or of the appeal. However, it is noticed that, in those cases provided for under Article 187 para. (1) item 1 letters a)-e) of the Code of Civil Procedure, the law requires greater requirement, namely that of an offence committed in bad faith. That is why, it is noticed that, in such circumstances, including in the case of filing a main claim, the judicial penalty should be applied with great caution by the court seized. The author insists on the second assumption governed by the text at issue: filing an “obviously inappropriate” appeal. Such a regulation was not ruled on, under the same terms, in the former Code of Civil Procedure. That is why, the question which has been raised is whether the text shall also be applicable in the case of inadmissible remedies at law. A recent case law suggests a positive solution. Examining this solution, the author takes the view that such a procedural option is correct, even if he acknowledges that any arguments could also be relied on for a contrary sentence, as inadmissibility cannot represent a situation which exceeds the fault of the party filing an inadmissible appeal.

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