ro fr
universul juridic magazin
Revista Română de Drept Privat

Is the court entitled to change the legal quali

A well-articulated process system must achieve a balance between two apparently conflicting principles, namely the availability principle and that according to which the judge is required to determine the legal institutions and rules of law applicable in question, which must make the application, regardless of the legal grounds invoked by the parties (iura novit curia). In the doctrine and practice of Romania can be seized a certain tension between these two essential elements of civil process. In the former regulation, the question of knowing whether the court may change the legal classification given, even if it insists in appropriate legal basis, was a controversial issue, so there were numerous jurisprudential solutions in a negative way. This approach can not be maintained in the light of article 22 paragraph (1), (4) and (5) of the New Civil Procedure Code, which shows that the judge is not usually limited by the legal qualifications raised by the parties, because he is entitled to question and give the exact legal qualification. In doing so, the judge does not violate the availability principle, because he is not changing the subject of the application in which he was vested or the fact reasons on which the complaint is based (immutable elements of the dispute). The solution adopted by the New Code, the one that we argue in this study, is inspired essentially from the French doctrine, which, in turn, shows a visible resemblance to the German doctrine and practice. This circumstance makes us say that there is a common element in the European legal space on the essential judicial function of a judge, which is to tell the law, fully solving the litigation he was vested with.