ro fr
universul juridic magazin

Considerations regarding the competence of the courts of law in the new civil code. material jurisdiction

The settlement of the material jurisdiction in the New Civil Code is based on the following fundamental solutions:
a) the court of law will be competent to judge the small value and/or low complexity cases, yet which are highly frequent in practice;
b) the tribunal will become a court with full competence to judge in trial court, in civil matters, maintaining the full competence of this court in other specialised matters such as the administrative and fiscal court, intellectual property, labour litigations and social insurance;
c) the appeal court will judge mainly the appeals against the resolutions given by the trial courts, thus going back to the court of general jurisdiction; if several decisions given in appeal are final, the jurisprudential role of the appeal will be very important;
d) the High Court of Cassation and Justice will become an appeal court of general jurisdiction in order to fulfil its constitutional role of ensuring the interpretation and unitary application of the law on a national level; there are however numerous exceptions to this rule, that are meant to prevent the overload of the supreme court;
e) provisions have been introduced that would ensure a unitary way of assessing the object of the request, so that the establishment of competency according to the value acquires a reasonable and consistent resolution.

A more reasonable settlement of the material jurisdiction is thus presumed and, in tight connection to it, of the remedy at law system, which complies both with the pre-war traditions and with the solutions provided in the European Comparative Law. In this sense, the appeal becomes again a real ordinary remedy at law that can be exerted mainly against all the decisions of the trial court, thus ensuring the double jurisdiction degree on the substance. In terms of the appeal, the necessary connection is re-established between the appeal function to ensure the unitary interpretation and application of the law by the courts of first instance, and the competence to settle this remedy at law, which will bestow, as a general rule, on the High Court of Cassation and Justice.

In the context of the near implementation of the New Civil Code, on 1.10.2011, Law no. 71/2011 regarding the implementation of the NCC brought changes to the Judicial organisation Law and established at the same time transitory norms that provide mainly the transformation of the existing commercial sections into civil sections or their unification with the existing civil sections, as well as the transformation of the commercial courts in specialised courts or, as applicable, in civil sections within the courts of general jurisdiction. These norms anticipate the implementation of the New Civil Code which, in accordance with the monist conception of the private law adopted by the New Civil Code, settles in a unitary way the competence to solve the civil affairs (generally), regardless of the quality of the parties, as professionals or non-professionals. However, the law provides expressly the possibility to establish panels specialised in different matters, which are listed as examples, such as the commercial companies and insolvency, in order to capitalize upon the judges’ specialisation and to ensure the quality of the legal act.