Skip to main content
SpringerLink
Log in
Book cover

Civil Litigation in a Globalising World pp 363–377Cite as

Romanian Civil Procedure: The Reform Cycles

  • Chapter
  • First Online:

Abstract

Modern procedural rules in Romania go back to the 1830s. A modern Code of Civil Procedure was adopted in 1865. Its source was the Civil Procedure Law of Geneva. The French-inspired Court of Cassation Law (1861) also regulated proceedings. During the early 1900s civil procedure was modified on several occasions. The first structural modification of the Romanian procedural system occurred in 1948–1950, when a Socialist model was introduced. The second batch of amendments was brought in during the ‘transition’ period in a quest to reform the justice system (with 1993 and 2000 witnessing the most substantial modifications). Finally, the new Code of Civil Procedure is now ready to enter into force. It has been said that the present Code is to be criticised mainly because it failed to provide the conditions to ensure speedy trial and enforcement proceedings, and the predictability of judgments. It was also argued that the present Code was the reason for the overburdening of the courts. The new Code modifies the system of jurisdiction, the technique for originating proceedings, the structure/phases of the trial, the regime of party-requested delays, appeals and appellate courts, arbitration, enforcement procedures and some special procedures. These special procedures include: the complaint for delaying the proceedings; the request for the opinion of the Court of Cassation on legal issues; small claims litigation; land registration in specific cases and eviction. However, even though it is a solid instrument and the result of a commendable effort, the new Code alone cannot mark the completion of justice reforms in Romania. Further steps will have to be made for the improvement of regulations concerning justice-related issues including institutions, procedures, and the legal professions, in particular those regarding judges, prosecutors and justice personnel.

Senior Lecturer, PhD, University of Sibiu

This is a preview of subscription content, log in via an institution.

Chapter
USD   29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD   84.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD   109.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD   109.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

  1. 1.

    Romanian Regulamentele Organice. For earlier Romanian procedural legislation (going back to the 1700s), see Guţan 2008, 41–142, 153–155.

  2. 2.

    See also Stanomir, ‘[the “Regulations” were] true fundamental documents, [even if they] did not include a “Declaration of Rights” or a “Bill of Civil Liberties”[; they] belonged to a historical process of constitutional modernization…. “The rule of law” is framed here… : the law can no longer be defined in terms of a loose absolutism, like the Prince’s act of will, but it is defined as an agreement of will between the Ruler and the Assembly.’ For the text of the ‘Regulations,’ see Negulescu and Alexianu 1944, 1–368.

  3. 3.

    The ‘Regulations’ acknowledged the fact that one of the most frequent types of lawsuit of the time was the setting of landed property borderlines. The solution for reducing the number of such lawsuits was charging the Administration with the task of establishing the limits of all landed property in the country.

  4. 4.

    The new State was initially named ‘the Romanian United Principalities.’ In 1881, it became the Kingdom of Romania (until 1947).

  5. 5.

    The Civil Code (1865) and Commercial Code (1887) were adopted during that period. The first Code had the French Civil Code as a model; the second one, the 1882 Italian Commercial Code.

  6. 6.

    Paduraru 1943, 35–53. See also Hamangiu et al. 1930, passim.

  7. 7.

    See Stoenescu 1956, 703–707, 709, 715. See also, Hilsenrad 1956: ‘a more profound knowledge of the principles of USSR socialist judicial law … determined these [Code of] Civil Procedure … modifications’ (emphasis added).

  8. 8.

    Romanian ‘apel.’.

  9. 9.

    ‘Recurs’ is a final appeal lato sensu. It is a legal remedy heard by a lower court, and, in some cases, by the highest court; both the facts of the case and its legal aspects can be re-examined. Between 1948 and 1993 it replaced the previous ‘appeal,’ and from 1993 up to the present it has, in selected cases, functioned alongside ‘appeal.’.

  10. 10.

    Initially by way of the ‘recourse in surveillance,’ later the ‘extraordinary recourse’ and then the ‘recourse for annulment.’.

  11. 11.

    I.e. decisions in the interest of the law pronounced ex officio.

  12. 12.

    Porumb 1962, 14.

  13. 13.

    See Stoenescu 1956, 714.

  14. 14.

    Spinei 2010, 235–239.

  15. 15.

    The Supreme Court was renamed ‘High Court of Cassation and Justice’ in 2003.

  16. 16.

    See http://ec.europa.eu/public_opinion/archives/eb/eb69/eb69_ro_exe.pdf (last consulted in May 2011). The EU15 are the Member States of the European Union prior to the accession of the new candidate countries on 1 May 2004. In 2006, the level of trust in the judiciary was 34% in the new Member States and 48% in the EU15.

  17. 17.

    See http://ec.europa.eu/romania/documents/news/eb_68-2_raport_national_validat.pdf (last consulted in May 2011). The level of trust only reached 20% according to another survey (see http://www.alegericsm.ro/documentare-articole-etalii.aspx?articleId=8; last consulted in May 2011).

  18. 18.

    See http://www.transparency.org.ro/politici_si_studii/studii/masurarea_perceptiei_coduri/OptiuniProcedura.pdf (last consulted in May 2011).

  19. 19.

    And Bulgaria, both countries joining the EU at the same time. See http://ec.europa.eu/dgs/secretariat_general/cvm/index_en.htm (last consulted in May 2011): ‘When they joined the EU on 1 January 2007, Romania and Bulgaria still had progress to make in the fields of judicial reform, corruption and organised crime. To smooth the entry of both countries and at the same time safeguard the workings of its policies and institutions, the EU decided to establish a special ‘cooperation and verification mechanism’ to help them address these outstanding shortcomings. In December 2006, the Commission set criteria (‘benchmarks’) for assessing progress made on these issues. The decision to continue assessing Bulgaria and Romania shows the EU’s commitment to see the two countries develop the effective administrative and judicial systems they need to deliver on the obligations of membership as well as enjoying the benefits.’ See European Commission Decision of 13.12.2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, C(2006)6569 (December 2006).

  20. 20.

    European Commission, Key findings of the progress report on the Cooperation and Verification Mechanism with Romania (July 2007); European Commission, Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism, COM(2008)494 final (July 2008).

  21. 21.

    Minister of Justice – Statement of Grounds for the New Code of Civil Procedure.

  22. 22.

    Law [Legea] No. 134/2010 regarding the Code of Civil Procedure, published in the Official Journal of Romania [Monitorul Oficial al României], Part I, No. 485 of 15.07.2010.

  23. 23.

    A Law for the Implementation of the Code of Civil Procedure is awaiting Parliamentary debate.

  24. 24.

    By Order of the Minister of Justice No. 829/C of 24 March 2006.

  25. 25.

    See http://www.cdep.ro/pls/proiecte/upl_pck.proiect?idp=10395 (last consulted in May 2011).

  26. 26.

    Tezele prealabile ale noului Cod de procedură civilă, approved by Government Decision [Hotărârea Guvernului] No. 829/2007, published in the Official Journal of Romania, Part I, No. 556 of 14/08/2007. See also at http://www.just.ro/ (last consulted in May 2011).

  27. 27.

    Also known as the Carol II Code of Civil Procedure, after the King of Romania who initiated its drafting. The Code was, however, never applied due to World War II-related and subsequent events.

  28. 28.

    The new Swiss Code of Civil Procedure.

  29. 29.

    Leş 2010, 39–65. See also Ciobanu 1997, 42–52 and Deleanu 2007, 20–35.

  30. 30.

    Chapters I and II of the Preliminary Title. Chapter II also stipulates some procedural rights and duties of the participants.

  31. 31.

    This refers to the parties’ power to conduct proceedings––initiate the trial, determine its scope, withdraw the claim or settle the dispute, et cetera.

  32. 32.

    National minorities and foreigners have the right to use their own language as well as translation.

  33. 33.

    This means that the judges before whom the case has been argued should also deliver judgment.

  34. 34.

    This is the phase when the ‘framework’ of the case is configured through the claim and defence and counterclaim, as the case may be.

  35. 35.

    Until now, some of these rules could be found in the Civil Code.

  36. 36.

    Tierce opposition, Arts. 582–592 of the French Code of Civil Procedure. See also Cadiet 1998, 698–704 and Vincent and Guinchard 1999, 995–1005.

  37. 37.

    This signifies, among other things, that only parties can configure the ‘subjective’ framework of the process, i.e. establish who participates in the trial.

  38. 38.

    In 2003, a Government Ordinance, after receiving French advice and assistance, re-established cassation––all types of cassation should be heard by the Supreme Court, renamed the High Court of Cassation and Justice (the Ordinance also ruled that all appeals will be judged by the Courts of Appeal). Because the reform was not properly prepared and accompanied by logistical measures, the Supreme Court found itself flooded with cases. At times, the first date of hearing a complaint in cassation was scheduled after one year or more had elapsed and the same interval would separate the various court sessions (see http://www.scj.ro/Raport%202004.asp; last consulted in May 2011). Hence, the above-mentioned reluctance. In 2004 and 2005 the measure was abrogated.

  39. 39.

    For the first time in the history of Romanian civil procedure.

  40. 40.

    Similar to the French avis de la Cour de cassation.

  41. 41.

    Divorce by mutual consent will be handled by the Notary Public, and no longer by the courts.

  42. 42.

    In comparison, the work on the new Swiss Code of Civil Procedure started in 1999 with the commissioning of a group of experts; in June 2003 they issued a first draft and an explanatory report; after public debates, a second draft was submitted to Parliament in June 2006; the Code was adopted in December 2008 and entered into force in January 2011. See Baumgartner 2010; Draft of the Swiss Code of Civil Procedure 2007; Grob 2003. Comparable to the haste in the Romanian reform process is the haste in introducing the Spanish Ley de Enjuiciamiento Civil. In this case a commission started work in 1996; the draft was presented by the Government to Parliament in late October 1998; the Code was adopted in December 1999, officially published in January 2000 and came into force in January 2001. Thanks are due to Dr Christian Koller (University of Vienna) and Professor Antonio Maria Lara Lopez (University of Malaga) for the preceding information.

  43. 43.

    In my opinion, such a survey should not have ignored, e.g., the Austrian, Spanish, Portuguese and British solutions. One would also have expected to see the experience of some other former Socialist European countries considered.

  44. 44.

    See also, for an extended analysis of the new Code, Deleanu 2009, 25–52.

  45. 45.

    See supra n. 26.

  46. 46.

    Art. 92.

  47. 47.

    Art. 93.

  48. 48.

    Art. 94.

  49. 49.

    According to the English version of the French Code of Civil Procedure (Art. 1054, at.

  50. 50.

    Arts. 418, 448. See, for a critical opinion, Leş 2009, para 11.

  51. 51.

    Art. 233, mentioned in Sect. 18.6. Since this estimate can be reconsidered during the proceedings, it cannot really fulfil its proclaimed ‘disciplinary’ function.

  52. 52.

    The complaint is addressed to the same court that is in charge of the case in which the delay has occurred. The interlocutory judgment which dismisses the complaint can be challenged before the superior court. According to some, it would make more sense to address the superior court directly. At the same time, it should be remarked that comparable instruments in other jurisdictions have proven to be ineffective. Such is the case of the Austrian Fristsetzungsantrag (application to set a time limit), directed to a higher court and requesting an order to an inferior court to perform a procedural act within a certain time limit. The application is rarely used, most likely because it generates further delay. See Van Rhee and Verkerk 2006, 120–134.

  53. 53.

    It is true that the plaintiff will benefit, and the defendant cannot try to stall for time anymore, but justice will not gain, as instead of one lawsuit, there will be at least two.

  54. 54.

    Art. 477(2) point 3 Ley de Enjuiciamiento Civil. According to para 3 of the same article, there is sufficient interest in bringing cassation proceedings ‘when the challenged decision opposes the case law of the Supreme Tribunal, concerns issues upon which there are contradictory rulings of lower courts (Audiencias Provinciales) or applies legal rules in force for less than 5 years without there being case law of the Supreme Tribunal on previous rules with identical or similar content.’.

  55. 55.

    Or if the intervention of the Court is necessary in case of the existence of a legal gap or divergent case law––Art. 554 Zivilprozessordnung, see Leş 2009, 11–39.

  56. 56.

    Measures have already been taken for the immediate implementation of some solutions of the new Code into the present one and for amending the Law of the Constitutional Court. The latter eliminates the stay of civil proceedings during constitutional review (Law No. 177/2010, published in the Official Journal of Romania, Part I, No. 672 of 4/10/2010).

References

  • Baumgartner SP (2010) Civil Procedure reform in Switzerland and the role of legal transplants. In: Walker J, Chase O (eds) Common law, civil law and the future of categories. Available at http://ssrn.com/abstract=1677478 (last consulted in May 2011)

  • Cadiet L (1998) Droit judiciaire privé. Editions Litec, Paris

    Google Scholar 

  • Ciobanu VM (1997) Tratat teoretic şi practic de procedură civilă. Editura Naţional, Bucharest

    Google Scholar 

  • Deleanu I (2007) Tratat de procedură civilă. Editura C.H Beck, Bucharest

    Google Scholar 

  • Deleanu I (2009) Consideraţii generale şi unele observaţii cu privire la Proiectul Codului de procedură civilă’. Revista Română de Drept Privat 2 :25–52

    Google Scholar 

  • Draft of the Swiss Code of Civil Procedure (2007). Available at http://www.swlegal.ch/Publications/Newsletter/Draft-of-the-Swiss-Code-of-Civil-Procedure. aspx (last consulted in May 2011)

  • European Commission (2007) Key findings of the progress report on the cooperation and verification mechanism with Romania. Available at www.europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/262&format=HTML&aged=0&language=EN (last consulted in May 2011)

  • European Commission (2008) Report to the European Parliament and the council on progress in Romania under the co-operation and verification mechanism, COM(2008)494 final. Available at www.eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008DC0494:EN:NOT (last consulted in May 2011)

  • Grob B (2003) Federal code of civil procedure, legal and tax news Switzerland. Available at http://www.swlegal.ch/downloads/memberspub/586.pdf (last consulted in May 2011)

  • Guţan M (2008) Istoria dreptului românesc. Editura Hamangiu, Bucharest

    Google Scholar 

  • Hamangiu C et al (1930) Recursul în casaţie şi contenciosul administrativ. Editura Naţională S, Ciornei, Bucharest

    Google Scholar 

  • Hilsenrad A (1956) Preface to Codul de procedură civilă. Editura de Stat pentru Literatură Economică şi Juridică, Bucharest

    Google Scholar 

  • Leş I (2009) Dispozitivul hotărârii judecătoreşti şi procedura de filtrare a recursului în viziunea Proiectului noului Cod de procedură civilă. Dreptul 10:12–26

    Google Scholar 

  • Leş I (2010) Tratat de drept procesual civil. Editura C.H Beck, Bucharest

    Google Scholar 

  • Negulescu P, Alexianu G (1944) Regulamentele Organice ale Valahiei şi Moldovei, vol 1. Intreprinderile Eminescu S.A., Bucharest

    Google Scholar 

  • Păduraru Gh D et al (1943) Accelerarea judecăţilor. Tiparul Românesc S.A.R, Bucharest

    Google Scholar 

  • Gr Porumb (1962) Codul de procedură civilă comentat şi adnotat, vol 2. Editura Ştiinţifică, Bucharest

    Google Scholar 

  • Spinei S (2010) Stadiul procedurii civile române în perspectiva adoptării Noului Cod. Revista Română de Drept Privat 1:235–239

    Google Scholar 

  • Stoenescu I (1956) Curs de drept procesual civil. Litografia Învăţămîntului, Bucharest

    Google Scholar 

  • Van Rhee CH, Verkerk R (2006) Civil procedure. In: Smits JM (ed) Elgar Encyclopedia of comparative law. Edward Elgar, Cheltenham, pp 120–134

    Google Scholar 

  • Vincent J, Guinchard S (1999) Procédure civile. Editions Dalloz, Paris

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. University of Sibiu,  Sibiu,  Romania

    Sebastian Spinei

Authors
  1. Sebastian Spinei
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Sebastian Spinei .

Editor information

Editors and Affiliations

  1. , Erasmus School of Law, Erasmus University Rotterdam, Burgemeester Oudlaan 50, Rotterdam, 3062 PA, Zuid-Holland, Netherlands

    X.E. Kramer

  2. , Faculty of Law, Maastricht University, Bouillonstraat 1-3, Maastricht, 6211 LH, Netherlands

    C.H. Rhee

Rights and permissions

Reprints and permissions

Copyright information

© 2012 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors/editors

About this chapter

Cite this chapter

Spinei, S. (2012). Romanian Civil Procedure: The Reform Cycles. In: Kramer, X., Rhee, C. (eds) Civil Litigation in a Globalising World. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-817-0_18

Download citation

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation