ro fr
universul juridic magazin

Presidential ordinance in the new Code of civil procedure. Elements of novelty and continuity. Suggestions de lege ferenda

In principle, the special rules applicable to the injunction order have not undergone impressive changes in the new Civil Procedure Code (“NCPC” or “New Code”), NCPC editors choosing to devote explicit rules that in the light of the former Civil Procedure Code (“C. pr. civ.”) were tested by virtue of the case-law. Among these “so-called changes” stands out the express provision that the judge will examine the ppearance of right, the prospect of rendering the injunction on the same day of its registration if there is a particular emergency, establishing the discretionary nature of the statement of defense, the inadmissibility of producing evidences that require a long time, the possibility of transforming the request for an injunction order into a regular claim, the applicability of res iudicata under the special procedure. Even if the provisions of the New Code represent an improvement in comparison to the former one, we found it necessary to highlight the shortcomings of the examined procedure in the NCPC and to draw some de lege ferenda proposals, which, in our opinion, should succeed in unraveling the “mysteries” of the new regulation and should support the desideratum to ensure an uniform judicial practice, such as the indication of specific provisions applicable from the written procedure in the special procedure, or embracing a clear remedy regarding the mean/means of appeal that may be filed in this procedure.