ro fr
universul juridic magazin

Exercising the immediate second appeal in the New Code of civil procedure

The New Code of Civil Procedure (“NCPC” or „the new Code”) proposes a reconfiguration and a resizing of the second appeal proceedings, bringing about a series of material amendments in the matter of the extraordinary remedy such as the reintroduction of the filtering procedure, waiver of the hybrid appeal set forth by art. 3041 of the Code of Civil Procedure, the express consecration of the provoked and incidental second appeal or the regulation of the immediate second appeal. Among those, the possibility of lodging the omisso medio second appeal against a judgment which otherwise would be susceptible of appeal, draws the attention. The allowance of the mechanism regulated by the new Code by avoiding the ordinary common law remedy – the appeal – puts the parties at certain unavoidable indirect risks, such as the waiver of the devolutive character of the ordinary remedy, the “drastic” limitation of the cassation grounds to a single ground, the impossibility to produce other new evidence than the new documents in the remedy. These risks have to be made aware of in the first stage so that the party knows the “sacrifices” required to be made, and in the second stage it examines whether it is timely for its trial stand to agree to the enforcement of the mechanism of the immediate second appeal. Even if the regulation of the examined institution seemed to be protected from any criticism, however, for the purpose of ensuring a certain coherence of the provisions in the examined matter, the immediate second appeal is required de lege ferenda, to follow the legal regime of the common law second appeal, including in relation to the deadline of exercising the remedy. Likewise, it is required to regulate the immediate second appeal in the re-judgment after cassation