Състезателното начало във въззивното производство по граждански дела
The Adversarial Principle in the Appellate Proceedings in Civile Cases

Author(s): Tanya Gradinarova
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Civil Law
Published by: Университет за национално и световно стопанство (УНСС)
Keywords: limited appeal; adversarial principle; appeal proceedings; manifest irregularity; appeal; cross-appeal; response to the appeal
Summary/Abstract: A significant period of time has elapsed since the entry into force of the Code of Civil Procedure (CPC). The procedural doctrine emphasizes that the introduction of limited appellate proceedings under the CPC, combined with the selective nature of the cassation appellate proceedings, poses significant challenges before the law enforcement within the correct interpretation and application of the legal provisions under the matter. The analysis of case law of the Supreme Court of Cassation on the application of independent grounds for access to cassation of obvious incorrectness in Art. 280, § 2, sentence 3 of the CPC leads to the conclusion that failure to comply with the requirements for duly carried out appellate activity is defined as a violation of the principles of the legal order and the fundamental rules of civil procedure – namely the adversarial principle and the equal right of the parties to present their case, with which the legislator guarantees the right to judicial protection. Violation of these principles prevents the party from exercising its procedural rights and deprives it of the right to a fair trial. According to these arguments, the importance of the topic related to the appellate proceedings, as well as the manifestations of the basic principles in this phase of the development of the claim proceedings, is increasing in the modern development of the civil procedure. The report is dedicated to one of the manifestations of the adversarial principle as a basic principle in the civil procedure in the appellate proceedings, namely the limitations in the appellate activity when establishing the factual side of the substantive dispute referred for consideration before the appellate instance, when exercising its powers and the binding nature of the appellate activity when assessing the correctness of the appealed first instance decision, in accordance with Art. 269, sent. 2 of the CPC. It contains an analysis of the theoretical views, the case law of the Supreme Court of Cassation under the matter, considering the importance of the initial and cross-appeal, as well as the appellate defendant’s response, for determining the parameters of the activity of the appellate court.

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