Academic journal article Contemporary Readings in Law and Social Justice

The Appeal for Annulment Admissibility. General and Special Conditions

Academic journal article Contemporary Readings in Law and Social Justice

The Appeal for Annulment Admissibility. General and Special Conditions

Article excerpt

1.Backgrounds

The appeal for annulment is an institution of Romanian civil procedural law specific legislation. It was said, "in modern law, this remedy is of a novel nature, and it is not known in other judicial systems" (Leş, 2012: 219).

Originally, the appeal for annulment was a jurisprudential creation. The courts, in the absence of a specific procedural means, but necessary to correct some imminent procedural errors, have appealed to the institution of the nullity of the legal act, in order to annul a judgment pronounced in violation of the procedural rules (Mocanu, 2014: 23-26). Considering the existence of a remedy for the unacceptable situation of procedural errors in connection with the trial, the legislator created the appeal for annulment as an extraordinary remedy, imposing both specific grounds for declaring and specific conditional terms without the fulfillment of which it cannot be declared admissible. In this paper, we shall address these conditions.

2.Regulation

In order to determine the conditions under which the extraordinary way to file the appeal for annulment may be used, we must start from the text of the Civil Procedure Code, precisely the article 503 para (1) and (2) according to which, "(1) Definitive judgments can be appealed with an appeal for annulment when the contestant was not legally summoned nor was he present at the time of the trial.(2) The judgments of the appeal courts may also be challenged with an appeal for annulment when: 1. the decision given in the appeal was pronounced by an incompetent or incomplete court or in violation with the rules on the composition of the court and, although the appropriate exception was invoked, the court of appeal failed to rule on it; 2. the release of the appeal is the result of a material error; 3. the court of appeal, rejecting the appeal or admitting it in part, failed to investigate any of the grounds for dismissal raised by the appellant within the timelimit; 4. the court of appeal did not rule on one of the appeals in question."

Particularly important is the provision inserted in article 504 of Civil Procedure Code, entitled "Conditions of admissibility," according to which "the appeal for annulment is admissible if the grounds provided at article 503 para (1) might have been invoked in an appeal file. However, the appeal may be admitted if the plea was raised in the appeal, but the court rejected it because it needed factual verifications incompatible with the appeal or if the appeal, without the party's fault, was dismissed without being investigated in substance. A judgment against which an appeal for annulment has been brought can no longer be challenged by the same party with a new appeal for annulment, even if other grounds."

3.General Conditions of Admissibility

This category of requirements encompasses those that result unequivocally from the regulation of the article 503 para (1) and (2) Civil Procedure Code, previously noted, relating to the subject matter of the appeal for annulment.

A first general condition for the admissibility of an action for annulment is circumscribed to the subject matter of the ordinary annulment appeal, namely that it cannot be the subject of this appeal before final decisions, as they are stated by article 634 para (1) items 1-6 Civil Procedure Code. Any decision that fulfills the condition of being final1 may be susceptible to be challenged based on the appeal for annulment whenever the parties' summon is the procedural rule. This category includes lower and upper courts' decisions (regardless of the degree of the court which rendered the judgment) or in the forced execution procedure, as well as interlocutory judgments pronounced during or after the conclusion of the trial, whether or not it is the contentious or non-contentious procedure provided that it fulfills the requirement of being definitive within the meaning of the aforementioned rule.

The second general condition of admissibility of an appeal for annulment is circumscribed to the subject matter of the petition for special annulment, namely, they may be challenged in this way, for the reasons set out in article 503 para (2) New Civil Procedure Code (incompetence, material error, failure to investigate the grounds for disqualification or failure to adjudicate on one of the remedies declared) only the decisions of the appeal or recourse courts which, according to the law, cannot be appealed. …

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