Search

The study analyzes several proposals to ensure the settlement with celerity of the civil trial. The authors consider that these are the following: providing the necessary staff; generalization of the process of digitalization of justice and the transition to the „online civil trial"; transferring the competence to settle non-contentious application for certain areas to other authorities; extension of the special simplified proceedings carried on exclusively in writing or even without summoning the parties; pronouncing the judgments in civil matters only after they are motivated; abandoning the verification of the material competence in the stage of regularization; proposal to repeal the procedure for regularization of the application for summons. A very important proposal is the one that suggests that the pronouncing of judgments in civil matters should be made only after they are motivated. The authors consider that it is necessary for the drawing up to be made prior to the pronouncement of the judgment, because the considerations must be identified and formulated before the pronouncement, because they must necessarily be the basis for transposing the law by the act of justice. Another important aspect proposed by the authors is the complete repeal of the regularization procedure in its current form and the establishment of the first trial term in the urgent cases after a period of two weeks from the registration of the application and 30 days later in the case of the other applications, following that the possible measures of regularization be ordered by the judge at the first trial term with the summoning procedure being legally fulfilled, following that, practically, in a period of maximum two months, it will be possible to proceed to the investigation of the trial. [ABSTRACT FROM AUTHOR]

The study analyzes the provisions of the Law No 114/2021 on some measures in the field of justice in the context of the COVID-19 pandemic in civil cases. The mentioned normative act provides the conditions for conducting the court hearings in the civil trial by videoconference. The conditions are the following: to be decreed the state of alert instituted in order to prevent and combat the effects of the COVID-19 pandemic also for a period of 30 days from its cessation; to be about a civil case; to have the agreement of the parties in this respect; to have the possibility; the approval of the court of law. The Constitutional Court, by the Decisions No 157/2020 and No 457/2020, has established that the justice cannot stand still, not even during the COVID-19 pandemic, under this requirement the legislator regulating by the Law No 114/2021 the manner of conducting judicial proceedings during this period. However, the legislator did not rise up to the standards imposed by the Constitutional Court of Romania, in the sense that it did not regulate an effective way of access to justice, in the situation where the objective pandemic conditions restrict this possibility. Although we appreciate positively the provisions of the Law No 114/2021 referring to the development of the civil process by electronic means, we consider that the measures ordered should be generalized and not applied, as provided by Article 1 (2), only for reasons generated by the COVID-19 pandemic. [ABSTRACT FROM AUTHOR]

The article, a continuation of the study with the same title published in the previous issue of „Dreptul" magazine, presents in detail the minority point of view expressed within the civil procedure collective of the Faculty of Law of the West University from Timișoara, according to which the object of the incidental or provoked appeal/review may be the grounds or the solutions contained in the judgment of the court and in the preliminary conclusions, whether they have been challenged or not by means of the main appeal/review. In the same sense, the High Court of Cassation and Justice - the Panel for the settlement of the appeal in the interest of law also has ruled on the unitary interpretation and application of the provisions of Article 472, Article 473 and Article 491 of the Civil Procedure Code, in the sense that the object of the incidental appeal or review, respectively the provoked one, may concern a part of the judgment of the first instance or of the court of appeal that was not challenged with main appeal or review, keeping in mind that the provisions of Article 491 (1), Article 472 (2) and Article 473 of the Civil Procedure Code do not condition the formulation of the incidental appeal/review on the invocation of some grounds of appeal/review that concern only the provisions of the challenged judgment that were criticized by the main appeal/review, considering that the reasons of the incidental or provoked appeal/review may tend to quash the challenged judgment in any aspect that is of interest to the respondent who declares an incidental or provoked appeal/review. The main argument for adopting this interpretation is represented by the premise of regulating the incidental appeal/review, but also the purpose of the regulation from Articles 472, 473 and Article 491 of the Civil Procedure Code. The accessory nature of the incidental appeal or review, respectively the provoked one, does not represent an argument to justify the interpretation that the incidental appeal/review can refer only to that part of the judgment that has already been challenged by the main appeal/review, being impossible for the accessoriality, not expressly proclaimed by the legislator, to be extended beyond the cases restrictively provided in Article 472 (2) of the Civil Procedure Code, because it would bring prejudice to the purpose of the incidental appeal or review, expressly mentioned in Article 471 (1) of the Civil Procedure Code, that of aiming to change the challenged judgment, denying the relation of legal adversity between the person who has formulated the main appeal or review and the respondent. In the opinion of the author of the present study, the incidental appeal or review, respectively the provoked one, should not exclusively concern the provisions of the challenged judgment criticized by the main appeal or review; in the unitary interpretation and application of Article 472, Article 473 and Article 491 of the Civil Procedure Code, the object of the incidental appeal or review, respectively the provoked one, may concern the considerations or the solutions contained in the judgment of the court and in the preliminary conclusions, whether they were challenged or not by the main appeal or review. [ABSTRACT FROM AUTHOR]

The unpredictability involves the intervention of the judge in a contractual legal relationship. Intellectual property can be considered a „laboratory" in which the intervention of the judge in the agreement of the parties has always been allowed. Without any connection with the unpredictability, in patent law there are legal mechanisms that allow the court to intervene to complete the contract regarding the quantum of the price in order to encourage the exploitation of the invention. In this hypothesis, the parties agree to contract, they do so, setting even the object of the contract, less the sale price. In other cases, the parties are obliged to contract by law, the court being required to intervene in the contractual mechanism established by law to determine the price. In Romania it cannot be argued that under the influence of the previous Civil Code the legislator has ruled on the non-application de plano of the unpredictability and that he would have been in favour of its application in certain special laws, such as the one from the field of intellectual property, because the reason for the judge's intervention in the agreement of the parties is to favour the exploitation of intellectual creations, encouraging creativity. In the new Civil Code the conditions of the unpredictability are: 1. the existence of an excessive onerosity caused by an exceptional change (out of the ordinary, and not an ordinary one, simple or routine) and unforeseen (unpredictable), including as extension, of the circumstances existing at the conclusion of the contract. Excessive onerosity represents a contractual imbalance in relation to the initial contractual balance, which must exist as long as neither of the parties' benefits can have a significantly higher value than the other, in the light of the regulation of the injury in the new Civil Code. The contractual imbalance, which must result in both excessive onerosity for the debtor, and a correlative gain for the creditor, requires the contract to be adapted by the Romanian judge by adjusting a contractual obligation to the correlative law of the co-contractor, and not the revision of the contract, to which only the French judge can proceed, simply changing the agreement of the parties. 2. change of the circumstances capable of leading to the adaptation of the contract to intervene after the conclusion of the contract. The condition, which has the legal value of a premise, is also fulfilled when in the content of the (apparently) immediate performance contracts enter continuous obligations capable of leading to a contractual imbalance, such as the obligation of non-competition in the case of a patent assignment. 3. the parties have not assumed, expressly or implicitly, the risk of changing the circumstances existing at the conclusion of the contract. Any assumption may concern certain individually determined risks, but not all risks, the debtor not being able to give up completely and in advance the possibility of invoking the unpredictability. In patent law, the emergence, development of new technologies or the existence of factual circumstances that „amplify" the use of the invention can lead to the adaptation of the contract or its termination in order to increase the remuneration of the one who has assigned his rights over the invention, falling under the hypothesis of unforeseen circumstances. On the other hand, the non-exploitation of the invention is due to the inability of the person who acquires the rights over the invention, not in the presence of an objective circumstance, but of a subjective one. If this inability has existed since the beginning of the contract, the person who assigns the rights to the invention can invoke the dolus, and if it subsequently occurs, he can request the termination of the contract on grounds of the resolution. At the same time, a fixed remuneration increases the probability of successfully invoking unpredictability in the field of patents, especially in the relationships between the employed inventor and the employer. [ABSTRACT FROM AUTHOR]