Editura Universul Juridic Procedural exceptions in the new Code of Civil Procedure. 4th edition, revised and added - Alexandru Suciu

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Publisher: Universul Juridic

Author: Alexandru Suciu

Pages: 600

Publisher year: 2019

Edition: a 4-a, revizuita si adaugita

ISBN: 978-606-39-0290-1

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The approach is original, the procedural exceptions being treated in relation to the exceptions from the material law and the non-receipt ends from the French procedural law. From this perspective, it is distinguished as particularly useful the analysis of legal institutions which, although they are called "exceptions" or have characteristics of exceptions, do not have the character of procedural exceptions, and the correlation between the forfeiture of substantive civil law and forfeiture of procedural law .
The paper The procedural exceptions in the new Code of Civil Procedure have a pronounced practical character, the research of the theoretical aspects being in close connection with the solutions from the jurisprudence. The author was not content to reproduce legislative provisions, opinions from doctrine and jurisprudential solutions, but examined them critically, bringing his own new arguments.

Prof. univ. Dr. Viorel Mihai Ciobanu


Exceptions and procedural incidents treated in this paper:
Generalities on procedural exceptions
Procedural incidents that affect the substantive investigation of the civil action
- Inadmissibility and inadmissibility
- The exception of nullity of a legal act of material law
- The exception of illegality
- The exception of unconstitutionality
- Reference for a preliminary ruling from the Court of Justice of the European Union
- Referral to the High Court of Cassation and Justice in order to issue a preliminary decision for resolving legal issues
- The appeal regarding the delay of the process

Exceptions regarding the conditions for exercising the civil action
- The exception of the lack of procedural capacity to use
- Except for the lack of procedural capacity to exercise
- The exception of the lack of procedural quality
- Except for lack of interest
- Exceptions related to the formulation of a claim or the assertion of a right: the exception of the prematurity of the action, the exception of the non-fulfillment of the preliminary procedure, the exception of the exercise in bad faith of the right to action, the exception of the abuse of right

The exception of the prescription of the right to action
The exception of the prescription of the right to obtain the forced execution
Exception of res judicata
The exception of lis pendens
Connection exception
Exceptions for incompetence
The exception of exceeding the attributions of the judiciary in relation to the exception of incompetence
The exception of the wrong composition or constitution of the court
The exception of incompatibility
Exception of obsolescence
Nullity of procedural documents
The exception of nullity of the request for summons
The exception of nullity of the appeal request
The exception of nullity of the appeal request
The exception of nullity of the procedure for summoning or communicating the procedural documents

Exceptions regarding the non-observance of the terms of material or procedural law
Exception of non-stamping of the application or insufficient stamping
The exception of the lack of representative capacity
Except for the lack of proof of representative status

The modalities and conditions of invoking and solving the exceptions, the conditions of admissibility of the exceptions, the object of the exceptions, distinctions and similarities between some exceptions are treated.
  • Procedural exceptions in the new Code of Civil Procedure. 4th edition, revised and added - Alexandru Suciu

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Content
Abbreviations / 13
Preface / 15
Generalities on procedural exceptions / 17

Preliminaries / 17
Procedural exceptions, a means for resolving the civil process quickly / 18
Procedural exceptions - regulation of the notion, legal nature, classification of exceptions and delimitation of substantive defenses / 19
Regulation of the notion of “procedural exception” / 19
The legal nature of procedural exceptions / 21
Classification of procedural exceptions / 25
Delimitation of procedural exceptions from substantive defenses / 31
General differences between procedural exceptions and substantive defenses / 31
Procedural exceptions and material law exceptions / 35
Procedure for resolving exceptions / 40
The manner of invocation and settlement before the court of first instance / 40
The way of invoking and solving the procedural exceptions in the remedies / 48
The possibility of joining the exception with the administration of evidence or with the merits of the case / 50
The order of solving the procedural exceptions / 52

Procedural incidents affecting the substantive investigation of the civil action / 64
Inadmissibility and inadmissibility / 65
The notion of “inadmissibility” / 65
The notion of "fine of inadmissibility" in French law / 67
Are the deficiencies of the summons, notified within the procedure of verification and regularization of the request, a fine of non-receipt? / 71
Inadmissibility as a distinct procedural exception / 74
The exception of nullity of a legal act of material law / 78
Who can invoke the nullity exception / 79
The legal nature of the nullity exception. / 80
The object of the nullity exception / 81
Term of invocation and prescription / 82
The solution on the nullity exception and its effects / 84
The exception of illegality / 86
The legal nature of the exception of illegality and
comparison with other procedural incidents / 87
The object of the plea of ​​illegality / 90
Procedure for judging the exception of illegality / 94
The exception of unconstitutionality / 96
Conditions of admissibility of the exception of unconstitutionality / 97
Procedure for resolving the exception of unconstitutionality / 101
Reference for a preliminary ruling from the Court of Justice of the European Union / 104
Generalities / 104
Preliminary referral procedure / 107
Referral to the High Court of Cassation and Justice in order to issue a preliminary decision for resolving legal issues / 113
The appeal regarding the delay of the process / 117
Reasons for which an appeal can be filed / 118
Measures that the court can take / 119
Criteria for determining the violation of the right to solve the process in an optimal and predictable term / 120

Exceptions regarding the conditions for exercising the civil action / 123
Civil action / 123
The concept of "civil action" / 123
The modern conception: the right to action is distinct from the material (substantial) subjective right / 125
The uniqueness of the right to action or its duality. The right to action in the material sense and the right to action in the procedural sense / 127
Conditions for exercising the civil action / 131
The exception of the lack of procedural capacity to use / 132
Procedural capacity of use of natural persons / 133
Procedural capacity of legal persons to use / 135
The exception of the lack of procedural capacity to use / 139
The exception of the lack of procedural capacity for exercise / 140
Procedural capacity of individuals to exercise / 141
Procedural capacity of legal persons to exercise / 142
The exception of the lack of procedural capacity for exercise / 144
The exception of the lack of procedural quality / 146
Procedural legitimation / 146
Extraordinary procedural legitimation / 148
Procedural legitimation of some public organizations and authorities / 148
Procedural legitimation in collective actions / 151
Procedural legitimation in some special situations provided by the new Civil Code / 153
Procedural legitimation in some cases that have generated controversy / 155
Procedural legitimation of the state / 155
Procedural legitimation of bailiffs and the Office for Cadastre and Real Estate Advertising / 161
Procedural legitimation of administrative-territorial units / 162
Transmission of procedural quality / 167
Legal transmission of procedural quality / 167
Conventional transmission of procedural quality / 169
Conditions for invoking and resolving the exception of lack of procedural quality / 173
The exception of lack of interest / 174
Conditions of interest / 174
Exceptions related to the formulation of a claim or the assertion of a right / 179
The exception of the prematurity of the action / 182
The distinction between the exception of prematurity and the exception of non-fulfillment of the preliminary procedure / 186
The exception of the non - fulfillment of the preliminary procedure / 188
Mediation procedure in the new Code of Civil Procedure / 192
The exception of the exercise in bad faith of the right to action. Exception of abuse of law / 194

The exception of the prescription of the right to action / 203
General considerations / 203
The right to action - autonomous rightor element of subjective civil law? / 204
The legal nature of the prescription of the right to action / 206
Extinctive prescription terms. Calculation method / 210
Suspension and interruption of prescription terms / 216
Suspension of the limitation period / 217
Interruption of the term of extinctive prescription / 221
The legal regime of the exception of the prescription of the right to action / 229
The legal character of the exception of the prescription of the right to action / 229
Persons who can invoke the exception of the prescription of the right to action / 230
The term until which the prescription exception is invoked and the procedural act by which it is invoked / 231
The effects of the exception of the prescription of the right to action / 232
The legal regime of the prescriptions started before the entry into force of the new Civil Code / 233
Obligation and possibility of the court to invoke ex officio the exception of the extinctive prescription and the possibility of the party to invoke the same exception in any procedural stage / 234
Application of cases of suspension and interruption of the prescription term from the new Civil Code and of the prescriptions started before October 1, 2011/234

Exception of the prescription of the right to obtain the forced execution / 237
The legal nature of the prescription of the right to obtain the forced execution / 237
The legal regime of the prescription of the right to obtain the forced execution / 239
The prescription terms of the right to obtain the forced execution / 239
The right to obtain the forced execution and the beginning of the prescription course / 240
Suspension of the limitation period of the right to obtain the forced execution / 244
Interruption of the prescription term of the right to obtain the forced execution / 247
Exception of the prescription of the right to obtain the forced execution / 252
Invoking the prescription by or before the enforcement body / 252
Invoking the prescription by way of action in finding / 254
Impossibility of invoking ex officio the prescription by the enforcement court on the occasion of approving the forced execution / 257
Invoking the prescription exception within the enforcement appeal / 258

Judicial work authority / 268
Notion, legal nature / 268
"Judicial work authority" and "judged work power" / 270
Decisions that have res judicata authority / 274
Judicial work authority of the decisions of the Romanian courts / 274
Judicial work authority of foreign court decisions / 287
Judicial work authority of arbitral awards / 292
Judicial work authority of the decisions of other jurisdictional bodies / 294
The part of the decision that benefits from res judicata authority / 297
The working authority judged in the same litigation / 302
The effects of res judicata / 311
Positive effect / 312
Negative effect / 318
Object identity / 319
Identity of cause / 321
Identity of parties in the same capacity / 325
Judicial work authority and enforcement force of the decision / 328
Exception of the res judicata authority / 330
Delimitation of the work authority judged by lis pendens / 331

Exception of lis pendens / 334
Litispendenta interna / 335
The exception of litispendence / 336
International litigation / 346

Connection exception / 355
Internal connection / 356
Connection conditions / 356
Connection exception. Characteristics, way of invoking and solving / 361
International connection / 368

The exceptions of incompetence / 372
The exception of general incompetence of the courts / 374
National competence of the Romanian courts / 374
General international competence of the Romanian courts / 375
Arbitration exception / 380
Exceptions of jurisdictional incompetence / 388
The exception of incompetence of specialization (functional) of the sections or panels of court / 390
The exception of material incompetence (ratione materiae) / 392
The exception of absolute territorial incompetence / 401
The exception of relative territorial incompetence / 404
Conventional extension of relative competence / 406
Procedure for judging exceptions of incompetence / 408
Procedure for the ex officio verification of the competence in the regularization phase of the summons / 411

The exception of exceeding the attributions of the judiciary in relation to the exception of incompetence / 414

The exception of the wrong composition or constitution of the court / 420
Wrong composition of the court / 421
Wrong establishment of court / 427

The exception of incompatibility / 430
General incompatibilities / 430
Special incompatibilities / 431
The exception of incompatibility / 441

Exception of obsolescence / 444
The notion and legal nature of obsolescence / 444
Conditions of obsolescence / 446
Exception of obsolescence / 452
Court expiration / 458
Expiration of forced execution / 459

Nullity of procedural documents / 464
General considerations on the nullity of the procedural documents / 464
Classification of nullities in civil procedural law / 467
Theory of non - existent procedural documents / 476
Exi conditionsstent of the nullity of the procedural documents / 479
The exception of nullity of the procedural documents / 489
Invoking the nullity by way of exception. / 489
The way of solving the nullity exceptions and the effects of their admission / 496
The main exceptions to the nullity of the procedural documents / 500
The exception of nullity of the summons / 500
The exception of nullity of the appeal request / 505
The exception of nullity of the appeal / 507
The exception of nullity of the procedure for summoning or communicating procedural documents / 509
The procedure for canceling the request for summons in the regularization phase provided by art. 200 NCPC / 517
Legal nature of the measure / 517
Assessment of the reasons for nullity / 518

Exceptions regarding the non - observance of the terms of material or procedural law / 522
The exception of the lateness of the action / 524
Exceptions regarding the non - observance of the procedural terms / 530
General considerations on what exceptions
sanctions non-compliance with procedural deadlines / 530
Cases and general conditions for invoking exceptions regarding non-compliance with procedural deadlines / 532
Invoking and finding the exceptions regarding the procedural terms / 539
The effects of admitting the exceptions regarding the non - observance of the procedural terms / 542
Distinctions between the forfeiture of procedural rights and the forfeiture applicable to the terms of the substantive law / 543
Distinctions between the forfeiture of procedural rights and the prescription of the right to action / 545

Exception of non-stamping of the request or of the insufficient stamping / 547
Stamp duty - impediment to free access to justice? / 548
How to establish the stamp duty in different matters / 552
Procedure for establishing and communicating the stamp duty / 562
Exception of non-stamping or insufficient stamping of the application / 566

The exception of the lack of representative quality and the exception of the lack of proof of representative quality / 571
Legal representation of the parties / 571
Legal representation of natural persons / 572
Legal representation of legal entities / 575
Judicial representation / 577
Conventional representation / 577
Representation by ordinary ad litem mandate of natural persons / 578
Representation by lawyer / 581
Representation by legal mandate of legal persons / 583
The exception of the lack of the quality of representative (of the “power to represent”) and the exception of the lack of proof of the quality of representative / 585
Bibliography / 593

The approach is original, the procedural exceptions being treated in relation to the exceptions from the material law and the non-receipt ends from the French procedural law. From this perspective, it is distinguished as particularly useful the analysis of legal institutions which, although they are called "exceptions" or have characteristics of exceptions, do not have the character of procedural exceptions, and the correlation between the forfeiture of substantive civil law and forfeiture of procedural law .
The paper The procedural exceptions in the new Code of Civil Procedure have a pronounced practical character, the research of the theoretical aspects being in close connection with the solutions from the jurisprudence. The author was not content to reproduce legislative provisions, opinions from doctrine and jurisprudential solutions, but examined them critically, bringing his own new arguments.

Prof. univ. Dr. Viorel Mihai Ciobanu


Exceptions and procedural incidents treated in this paper:
Generalities on procedural exceptions
Procedural incidents that affect the substantive investigation of the civil action
- Inadmissibility and inadmissibility
- The exception of nullity of a legal act of material law
- The exception of illegality
- The exception of unconstitutionality
- Reference for a preliminary ruling from the Court of Justice of the European Union
- Referral to the High Court of Cassation and Justice in order to issue a preliminary decision for resolving legal issues
- The appeal regarding the delay of the process

Exceptions regarding the conditions for exercising the civil action
- The exception of the lack of procedural capacity to use
- Except for the lack of procedural capacity to exercise
- The exception of the lack of procedural quality
- Except for lack of interest
- Exceptions related to the formulation of a claim or the assertion of a right: the exception of the prematurity of the action, the exception of the non-fulfillment of the preliminary procedure, the exception of the exercise in bad faith of the right to action, the exception of the abuse of right

The exception of the prescription of the right to action
The exception of the prescription of the right to obtain the forced execution
Exception of res judicata
The exception of lis pendens
Connection exception
Exceptions for incompetence
The exception of exceeding the attributions of the judiciary in relation to the exception of incompetence
The exception of the wrong composition or constitution of the court
The exception of incompatibility
Exception of obsolescence
Nullity of procedural documents
The exception of nullity of the request for summons
The exception of nullity of the appeal request
The exception of nullity of the appeal request
The exception of nullity of the procedure for summoning or communicating the procedural documents

Exceptions regarding the non-observance of the terms of material or procedural law
Exception of non-stamping of the application or insufficient stamping
The exception of the lack of representative capacity
Except for the lack of proof of representative status

The modalities and conditions of invoking and solving the exceptions, the conditions of admissibility of the exceptions, the object of the exceptions, distinctions and similarities between some exceptions are treated.

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