Academic journal article Contemporary Readings in Law and Social Justice

Legal Approaches towards the Appeal for Annulment Both in Former and New Procedure Regulation

Academic journal article Contemporary Readings in Law and Social Justice

Legal Approaches towards the Appeal for Annulment Both in Former and New Procedure Regulation

Article excerpt

ABSTRACT.

The central theme of the study represents the civil procedural law withdrawal remedies. They occupy an important place within the system of extraordinary means of appeal, both due to the diversity of reasons that may lead to their exercise and to the consequences that may occur as a result of the acceptance of such remedies. The correct identification of the hypothesis for legal grounds for promoting withdrawal remedies and knowing the circumstances within which such an appeal is admissible frees the litigant from the unnecessary expenditures of time and material or even moral resources and lead to a faster acceptance of a decision in the relevant case. It is more accurate and thorough knowledge of the law governing these remedies is particularly important protagonists of a lawsuit.

Keywords: remedy; withdrawal; appeal for annulment; proceedings; Civil Procedure Code

1. Introduction

Judicial practice has proven that there are sufficient legal situations within which errors of judgment had been committed and it is necessary that they are removed, and this is only possible by regulating a system of means of appeal that would permit, at first, a judicial review by a higher court, and secondly would allow the court that issued the decision has the opportunity to examine some new circumstances in cases and conditions expressively provided by law, allowing to retract wrong decision. In this context, the remedies are identified as essential legal means indispensable to a fair trial, available to the parties participating in any proceedings.

Remedies occupy an important place within the system of law, as the correct identification of the working hypothesis for promoting withdrawal remedies and knowing the circumstances within which such an appeal is admissible frees the litigant from the unnecessary expenditures of time and material resources or even moral and lead to a faster acceptance of a decision in the relevant case. It is more accurate and thorough knowledge of the law governing these remedies is particularly important protagonists of a civil lawsuit.

The present Civil Code, though created a different perspective of means of appeal, bounding and clearly delimitating two degrees of jurisdiction, reshaping in an extraordinary way the means of appeal, kept almost unchanged the extraordinary appeal of a review and the appeal for annulment. We use the "almost" word for our intention is to highlight within this paper some of the new aspects which bring up the difference the new procedural regulation from the former one, regarding the appeal for annulment.

2. The Appeal for Annulment

The appeal for annulment is a peculiar civil procedural law institution of the Romanian law. It was said that "within the modem law, this means of appeal has a genuine character, as it is unknown in other law systems."1 This means of appeal was not regulated in the civil procedure Code of 1865 as an independent institution.2 It was introduced in the civil procedure Code by the Law no. 18 of February 12, 19483 to obviate the lack and difficulties in the field of procedural errors, gaining a distinctive regulation, different from that of procedural nullities.4

The appeal for annulment was, originally, a creation of the judicial practice for the purpose of removing the gaps and difficulties in the matter of procedural irregularities compensation. The lack of a specific means brought the jurisprudence to consider that the judgment is by itself a procedural act and can be canceled using the procedure of cancellation of any other legal act, without any distinction.5 Since the solution used by the jurisprudence contravened to the principle that judgments, although procedural acts, can be cancelled only by procedural means qualified by the law as "remedies;" yet the procedure proved to be particularly useful for the annulment of judgments rendered within non-procedural conditions, on the occasions of changes brought to the civil procedure Code in 1948, the appeal for annulment was introduced as a distinctive, specific and extraordinary remedy. …

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