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The prerequisites of parties for bringing a civil action under the new code of civil procedure.

1. Preliminary Specifications

The civil action encompasses a set of complex procedural means, regulated by law, aiming at providing the protection of a subjective right claimed by one of the parties, in other legal situations, or at defending the parties in a lawsuit. Therefore, in order to participate in judicial activities, the parties to a lawsuit are required to meet certain prerequisites.

Therefore, the New (1) Code of Civil Procedure, in article 32, provides for the general condition regarding the parties' locus standi. The formula used within the text regards the possibility for the author of a claim "to stand to sue." Such a formula is used more frequently in procedural law, in other democratic countries, such as Italy (article 75 of the Code of Civil Procedure), in order to express the capacity to pursue the proceedings. In our opinion, NCCP, in article 32, makes reference to this requirement universally recognized within the doctrine and jurisprudence. Moreover, a similar formula was also used in article 42 of the former Code of Civil Procedure.

One of the most controversial conditions of a civil action regards the locus standi. Our doctrine disputes were fought especially on the contents of this condition for the pursuance of civil proceedings. (2) We believe that the doctrine discussions will not cease, since the NCCP does not offer decisive reference points about the procedural meaning of the concept of "quality." However, we note that, according to article 38 of the NCCP, "The quality of party can be legally or conventionally transmitted as a result of the transmission, under the law, of the rights or legal situations sent to trial." The legislator establishes a solution constantly promoted both in the doctrine and jurisprudence. Thus, at a cursory analysis, such a legal statement does not seem to raise special problems.

Nevertheless, this provision stirs several reflections regarding the provisions of article 39 of the NCCP. According to the first paragraph of the text: "If during the trial the litigious right is transmitted by inter vivos acts, in a particular way, the trial will continue among the original parties. However, if the transfer is made, under the law, by way of particular documents, upon the cause of death, the trial will continue with the author's universal successor or with his/her successor under the universal title, where applicable." The final part of this text harmonizes fully with the provisions of article 38 of the same law, representing only a particular application of the principle enshrined by law (article 38). However, the text creates an exception to the rule of locus standi transmission, i.e. for a single hypothesis--that of the transmission of the conflicting right by "inter vivos acts under a particular title." We can legitimately ask: why did not the legislator pass a similar exception regarding the inter vivos transmissions under a universal title?

In our opinion, the procedural provisions that can cause serious controversies are those enshrined in article 39, paragraph (2) of the NCCP. According to the text: "In all cases, the successor under a particular title is obliged to intervene into the question if he/she knows about the process, or if he/she can be called into question, upon request or ex officio. In this case, the court will decide, according to the circumstances and taking into account the position of the other parties, whether his/her transferor or universal successor or successor under a universal title remains or, if applicable, will be removed from the trial. If his/her transferor or universal successor or successor under a universal title remains or, if applicable, is removed from the trial, the lawsuit will proceed only with the successor under a particular title, who will undertake the case as it is at the time when he/she got involved or was introduced in question."

Our observation refers to the obligation of the successor under a particular title to intervene in the trial. It is true that this obligation, as it is apparent from the comment above, is available only if the successor under a particular title "knows about the trial." However, the implementation of this obligation may encounter serious difficulties because it relates to a subjective element. On the other hand, the intervention in the trial can be the result of the third party's own initiative or of one of the parties. Nevertheless, the text does not grant a form of forced entry into the trial to the third party-acquirer. It refers to the possibility to introduce the third party into the trial on request or ex officio. It would have been more appropriate for the legislator to grant to the court the power to order the introduction of the third party-acquirer, ex officio, into the trial, between the initial parties.

NCCP also established, in article 40, the penalties that may occur in case of non-compliance with the requests related to the exercise of action. The text refers to the sanctions triggered by the lack of locus standi, the lack of status (of standing) in a lawsuit or of interest. A special remark concerns the fact that article 40 aims at the applications made by a person "who does not have a locus standi." This finding is useful to conclude that, in this situation, the law does not refer to the ability to stand to sue, as article 32, paragraph 1, letter a) of the NCCP does. Therefore, article 40 of the same law generally takes into consideration the lack of locus standi, i.e. both of usage and of exercise. This also explains the reference made in article 40 to the cancellation and nullity of the request. The annulment regards the lack of the legal competence and the nullity regards the lack of standing under the law. We believe that, in connection to the provisions of article 40 of the NCCP, this is the only solution that must prevail. We should also note that article 43 of the former Code of Civil Procedure established the sanction for the cancellation of the demand; wherever it was found that there was "a lack of legal competence regarding the procedural rights." The Old Code of Civil Procedure did not provide for the incident penalty for the lack of standing under the law, but the NCCP covers this legislative gap.

It is important to note that, for the lack of status and interest, NCCP establishes the penalty for the rejection of the formulated demand or defense. The reference made by the law to the formulated defense is fully explainable. This is because the two conditions are analyzed both in the presence of the documents presented by the plaintiff, the defendant and the third parties who intervene within the trial.

2. The Locus Standi of Parties

Regarding the use and the exercise of the procedural rights by the parties, within a civil action, NCCP establishes a number of provisions (article 56-58) on the locus standi of parties (the legal competence and the right to stand under the law), and the procedural rules regarding the special guardianship.

The institution of locus standi is basically a transposition of the rules (3) of common law relating to the civil capacity of natural or legal persons, governed by the new Civil Code.

The doctrine (4) emphasizes the civil capacity as an expression denoting the capacity in civil law; in other words, the ability to hold civil rights and civil obligations. The elements that make up the civil capacity of natural or legal persons are: the legal competence and the standing under the law.

Therefore, the condition regarding the locus standi of the parties, provided for the first time in article 32 of the NCCP, regards the possibility of the author of a claim to hold rights and procedural obligations, in civil and commercial judicial activities. Therefore, NCPC determines and regulates (article 56 and 57) the elements of the locus standi, such as: the legal competence and the standing under the law. However, if the individual lacks the legal competence regarding his/her civil rights and has no legal representative, NCCP establishes several rules (article 58) on special guardianship.

In the following, we will make a brief presentation of these elements of the locus standi, considered as essential conditions of the civil action, elements presented by NCCP in a clear and judicious way.

2.1. Standing under the Law

NCCP regulates, for the first time, the procedural rules governing the parties' stranding under the law. The clarification of this condition is given by paragraph (1) of article 56 of the NCCP, which states that: "Any person enjoying civil rights may be party to a trial."

In connection to the NCCP provisions, lato sensu, this standing under the law (enjoying civil rights) concerns both natural (5) and the legal (6) persons; instead, the procedural legislator omits the fact that the standing under the law institution relates to the ability of the individual to hold rights and civil obligations.

In this critical sense, in our opinion, this type of standing under the law should not be limited, in terminis, by the legislator, in article 56 of the NCCP, only to the use of civil rights because the judicial activity, as we know it, involves a multitude of obligations (of the parties) such as:

--the exercise of rights in good faith;

--the duty to follow, under the law, the evolution and completion of the trial;

--the obligation to prove claims and defenses, etc.

Even if the obligations of the parties in the civil trial are listed separately in article 10, Chapter II, The Fundamentals of the civil trial, of the Preliminary Title of NCCP, in our opinion, the legislator could have included these procedural obligations of the parties in article 56 of NCCP, in order to cover the entire institution regarding the standing under the law. Curiously, these requirements were pretty comprehensively materialized by article 129 of the former Code of Civil Procedure.

Following the provisions of article 56 of the NCCP, it specifies in paragraph (2) that associations, companies or other entities that do not have a legal capacity may stand in trial if they are established by law. By this regulation, the law recognizes, a priori, the exercise of civil and procedural rights of these parties.

The penalty for the lack of standing under the law will be invoked at any stage of the trial and the procedural documents of the one who does not stand under the law will be null and void [paragraph (3), article 56 of the New Code of Civil Procedure].

2.2. The Legal Competence

Similarly to the standing under the law, the legislator, in article 57 of the NCCP, makes reference to the exercise of the procedural rights of the party (natural or legal person), forgetting about its obligations. However, as evidenced by both the doctrine (7) and NCC, the legal competence is the ability of a person to exercise his/her rights and obligations by concluding civil legal acts. In our opinion, by analogy, this ability should have been at least broadly stated by article 57 of the NCPC.

Thus, paragraph (1) of the text lays down that "parties may exercise his/her procedural rights in their own names or through a representative, unless otherwise provided by law." However, the exercise of procedural rights must be performed by persons who can stand to sue, in other words by persons who have (8) legal competence.

If the party holds legal competence, paragraph (2) of the same text will decide that this party cannot stand to sue unless it is represented, assisted or authorized as provided by law or, where appropriate, by the statutes governing its capacity or its organization.

The lack of legal competence may be invoked at any stage of the trial (paragraph 3).

In paragraph 4, the legislator further provides for the penalty of nullity for the procedural acts done by the one who does legal competence; however, his/her legal representative or legal guardian will be able to confirm all or some of these acts.

If the court finds that the procedural act was done by a party who lacks legal competence, a deadline will be given for his confirmation, and if the act is not confirmed, the court will order its cancellation (paragraph 5).

At the end of the text, article 57 of the NCCP stipulates that all the provisions of these procedural rules "shall also apply accordingly to persons with limited legal competence" (paragraph 6).

2.3. The Special Trusteeship

NCCP also establishes a special rule (article 58) in order to regulate the situations where the natural person lacks legal competence, or, in case of conflict of interests between the legal representative and the represented person, or when a legal person or an entity among those referred to in article 56, paragraph (2) is called to stand in trial, does not have a representative.

These situations have led to the procedural legislator's wish to regulate the institution of "special guardianship."

It is well known that guardianship is a legal institution for the protection of a person who holds a civil capacity, but who, because of old age, illness or physical disability or long absence from home, cannot manage his/her property and defend his/her interests on his/her own.

In these circumstances, the court, at the request of the interested party, shall appoint a special guardian, i.e. a person who can exercise his/her rights and perform the obligations under curatorship.

Thus, paragraph 1 of this text stipulates that, "In case of emergency, if the natural person lacking the capacity to exercise his/her civil rights has no legal representative, the court, at the request of the interested party, shall appoint a special guardian to represent him/her until the appointment of a legal representative under the law. Moreover, the court shall appoint a special guardian in case of a conflict of interests between the legal representative and the represented person or when a legal person or an entity referred to in article 56 paragraph (2) called to sit in judgment does not have a representative".

Furthermore, paragraph (2) of the same rule states that the provisions of paragraph (1) shall apply accordingly to the persons with a limited exercise capacity, i.e. to the minors under the age of 14.

The procedure for the appointment of such guardians shall be made by the court hearing the trial, or by barristers specially appointed for this purpose by the Bar, for each court, and the special guardian shall have all the rights and obligations under the law for the legal representative [paragraph (3), article 58 of the NCCP].

Regarding the remuneration of the appointed guardian, the last paragraph of text (paragraph 4) states that he/she shall be appointed by the court, the conclusion also establishing the manner of payment; also, at the guardian's request, when his/her position as guardian ceases, his/her activity will be taken into account and the remuneration may be increased.

3. The Legal Competence of the Public Ministry in a Civil Trial

In article 45, paragraph (5) of the Code of Civil Procedure, the former procedural provisions provided for the prosecutor's possibility, (9) under the law, to pursue remedies against any decision, and, in the cases provided for by paragraph (1), to ask for the execution of the decisions mentioned in that paragraph.

Even the old enforceable formula provided by the old article 269 of the Code of Civil Procedure emphasized the prosecutor's role in the execution process, especially in the forced execution of the invested executory titles, where they imperatively need to insist on implementing them under the law.

Thus, the prosecutor is an active participant both in promoting the civil action and in its completion, the legislator leaving him/her to decide if it is appropriate or not to engage in any of its phases, but which, in terms of its powers, reveals the public interest shown by the law for all the judicial activity in the matter of private judicial law, but also in the field of execution.

The prosecutor's right to participate in these activities is implicit and even if, in practice, it is rarely used, there are situations involving the public interest that he/she should represent.

NCCP includes several provisions (articles 92, 93, 643, 657, 911, paragraph 2, etc.) regarding both the judicial activity in the matter of civil procedure and the enforcement where the prosecutor may be involved.

Thus, article 92 of the NCCP, in paragraph (1), provides that "The prosecutor can start any civil action whenever it is necessary to protect the legitimate rights and interests of minors, persons under interdiction and disappeared persons, and in other cases expressly provided by law."

Also, regarding the prosecutor's activity before the court, paragraph (2) of the same article highlights its key role in defending the rule of law and the rights and interests of citizens and states that "the Prosecutor may plead in any civil trial, in any phase thereof, if it considers it necessary to safeguard the rule of law, the rights and interests of citizens."

In all cases where the prosecutor participates in the juridical activity, it acquires the status of party. His/her importance as party to a civil lawsuit is revealed by paragraph (3) of article 92 which states that "In cases specifically provided by law, the prosecutor's participation and conclusions are mandatory, under the penalty of nullity of the decree". We think that this text recognizes the prosecutor as the main party in the civil trial, which exceeds the current practical situation where the prosecutor presents his/her conclusions after the main parties. By analogy, we might anticipate that this intervention of the prosecutor might occur even if the party were a person without legal competence or with limited legal competence, and unless until the end of the trial there has been named a special guardian according to article 58 of the NCCP.

The prosecutor's right to exercise the remedies at law is provided for by paragraph (4) of article 92 of the NCCP. Thus, the prosecutor may pursue remedies at law against the decisions where there is necessary to protect the rights and interests of minors, persons under interdiction and disappeared persons, and in other cases provided by law. This intervention is recognized to the prosecutor by the already mentioned rule, even if he/she was the one who started the civil action, as well as when he/she attended the trial, under the law.

As we have already mentioned, the prosecutor's activity in the civil action does not stop only to his/her intervention in the course of the trial but also regards the enforcement. Paragraph (5) of article 92 states that "The prosecutor may ask for the enforcement of any enforceable title issued to persons referred to in paragraph (1)."

But the prosecutor's participation (10) to the enforcement can also occur by formulating the enforcement appeal against the enforcement or by drafting several enforcement documents in order to protect the legitimate rights and interests of minors, persons under interdiction and disappeared persons.

However, the prosecutor may exercise the remedies at law, provided by the law against the court decisions pronounced in an enforcement appeal.

By the NCCP provisions, the legislator seeks, sine qua non, the compliance with the principles of legality, contradiction, equality of arms, and the observance of the right of defense of all the parties both in the court and in the case of enforcement.

Compared to the powers of the Public Ministry stipulated in the old regulations of the Code of Civil Procedure, the provisions of the NCCP highlights new powers during its execution, which enable him/her to participate in the following actions:

--supports, (11) under the law, the enforcement of court decisions and of other enforceable titles, and, in certain cases provided by law, he/she is obliged to seek the enforcement of court decisions;

--within the procedure (12) for the enforcement of court decisions relating to minors, when the debtor fails to fulfill his/her obligation within 3 months from the notification of the conclusion by which he/she was ordered to pay civil fines, or when he/she is dishonest or hides the minor, the bailiff will record this and will immediately notify the prosecutor's enforcement office for the initiation of the criminal proceedings for the offense of breaching court decisions.

Regarding the prosecutor's activity in civil actions, whether his/her intervention is incident during the trial or the enforcement, paragraph (6) of article 92 of the NCCP states that "In all cases, the Public Ministry does not owe stamp duty or bail."

Another novelty is brought by the provisions of article 93 of the NCCP. This text recognizes the holder's right to act (on whose behalf the Public[right arrow] Ministry acts); it is about a number of procedural situations covered by the new civil procedural provisions, of which he/she is entitled to stand on from the time he/she is introduced into the trial.

According to the text mentioned, the holder of the right to action may give up to the trial (article 406), to the claimed right (article 408), to the remedies at law (article 409), but he/she will also take note of a transaction (article 438), or can appeal this decision which confirms the transaction (article 440). However, if the prosecutor withdraws the application, this holder may ask for the continuation of the proceedings or of the enforcement.

4. Concluding Remarks

The provisions of article 11 of the Romanian Constitution provide, as a principle, for the Romanian state's obligation to perform exactly and with good faith its duties deriving from the treaties it is party to, and that treaties ratified by the Parliament are part of the national law.

The above mentioned constitutional text refers to the application of one of the principles of trust between the States of the international community, pacta sunt servanda--and expresses, at the same time, the correlation between the international or Community law and the national law, by integrating the rules of international or EU law within the national law system.

Therefore, the integration of the consensual international or Community standards into the national law is achieved through the ratification of the international legal instruments (agreement, convention, protocol, status, pact etc.); by means of this process, they are given binding force by the Parliament; whereas the enactment is achieved by law, the clauses of the ratified international or community instruments are integrated into the system of national rules and will have the legal force of law.

Thus, the evolving nature of the law, due to this conjecture, has led the civil procedural legislator to adopt a number of provisions which, at the first sight, have a covering area regarding the fundamental rights and freedoms of individuals. As an example, the NCCP has overtaken a series of rules that come into line with the previously mentioned constitutional provision and we name, in this case, only the provisions of article 3, with the marginal name of "The priority application of the international treaties on human rights," or the article 4--"The priority application of EU law."

The topic of this study has not been randomly chosen because, as it can be easily observed, we wanted to crystallize certain procedural issues related to the rights of natural or legal persons to initiate a civil action before a court.

This law is synonymous with the right to the free access to justice for the purposes of performing a fair trial, as it has been repeatedly emphasized by the European Court of Human Rights.

It remains to be seen if the essential terms of the parties for the promotion of a civil action under the new civil procedural rules provide for a clearer understanding of the trial activity in Romania and comply with the ECHR jurisprudence. Through this study, we did nothing but to emphasize the procedural reality granted by the content of these rules, even if sometimes, in a critical but constructive way, we have revealed some formalisms or shortcomings.

NOTES

(1.) It was adopted by Law no. 134/2010, published in the Official Gazette no. 485 of 15 July 2010 and republished under article 80 of the Law enforcement no. 76/2012, published in the Official Gazette no. 365 of 30 May 2012. The New Code of Civil Procedure was republished in the Official Gazette no. 545 of 3 August 2012 and will be referred to, as breviatis causa, NCPC. It entered into force by the provisions the Government Emergency Ordinance no. 4/2013 on the amendment of Law no. 76/2012 for the implementation of Law no. 134/2010 on the Code of Civil Procedure, amending and supplementing certain related acts, published in the Official Gazette no. 68 of 31 January 2013.

(2.) See Les, I. (2010), Tratat de drept procesual civil. 5th ed. Bucharest: C. H. Beck, 201-206.

(3.) The New Civil Code was adopted by Law no. 287/2009, published in the Official Gazette no. 511 of 24 July 2009. The new Civil Code was amended by Law no. 71/2011 and then was subjected to two corrections published in the Official Gazette no. 427 of 17 June 2011 and no. 489 of 8 July 2011, and republished in the Official Gazette no. 505 of 15 July 2011. It will be referred to, brevitatis causa, as NCC. NCC regulates Book I. Persons, Title II, The Natural Person, Chapter I The civil capacity of the natural person (articles 34-57), and Title IV, The Legal Person, Chapter III The civil capacity of the legal person (articles 205-224).

(4.) See, Beleiu, Ghe. (2007), Drept civil roman-Introducere in dreptul civil, Subiectele dreptului civil. 9th ed. reviewed and added by M. Nicolae and P. Trucca. Bucharest: Universul Juridic, 70-72.

(5.) NCC governs the standing under the law of the natural person, in articles 34-36 Sect.1, Chapter I--The civil capacity of the natural person, Title II--The natural person, Book I Persons.

(6.) The standing under the law of the legal person is governed by articles 205-208, Sect.1, Chapter III--The civil capacity of the legal person, Title IV. The Natural Person. Book I Persons, NCC.

(7.) See, Beleiu, Ghe. op. cit., 71; Les, I. Tratat ..., 202-206; Tabarca, M. 2005, Drept procesual civil. Bucharest: Universul Juridic, 122-128.

(8.) For natural persons, the legislator uses three types of legal competence: full, limited and anticipated (articles 38, 39, 40 and 41 of the NCC). Thus, the full legal competence is obtained in the following cases:

--when the natural person becomes major, i.e. at the age of 18;

--by marriage, the minor may acquire full legal capacity.

The anticipated legal competence is granted and recognized by the guardianship court, for solid reasons, to a minor, at the age of 16.

The limited legal competence is considered to be acquired by the minor under the age of 14, who will perform legal acts with the consent of his/her parents or, where applicable, of his/her guardian, and in cases prescribed by law, with the authorization of the guardianship court. The minor with limited legal competence can do conservation acts by himself/herself, acts of administration which does not prejudice him/her and low-value acts of disposition with current nature and which are executed upon their conclusion. With regard to the legal person, the legislator states that "The legal person exercises its rights and fulfills its obligations through its management bodies starting from the date of its creation" [article 209 paragraph (1), NCC]. From the content of this paragraph, it appears that the legal person acquires legal competence since its creation. In contrast to the legal competence of natural persons, the legislator wanted to emphasize, in terminis, that the legal person shall exercise its rights and fulfill its obligations through its administration, from the date of their creation, the text also including the term "obligation" as a recognized capacity of the legal competence granted to legal persons.

(9.) Also, the procedural laws of other European countries allocate a significant number of procedural rules to the work of the public ministry, in promoting civil actions when they involve defending the rule of law, the rights and interests of citizens. Thus, the French procedural law provides in article 421 of the Code of Civil Procedure that "the Public Ministry may act as main or intervening party. It represents the interests of others in cases determined by law." Furthermore, article 422 of the same act states that "The Public Ministry acts ex officio in specific cases provided by law." The same code sets, in article 425, the cases where the prosecutor participates in the civil trial, as an intervening party.

Also, the procedural law of Belgium, Title II, article 138, on the Public Ministry, Book I--Bodies with judicial power, the Judicial Code, states that "In civil matters, the Public Ministry intervenes in the way of action, requisition or review. The Public Ministry acts ex officio in specific cases provided by law, but also in other cases, whenever the public order requires its intervention."

(10.) The obligation of the prosecutor's involvement in enforcement proceedings in France is found in the provisions of article 11 of the Law of 9 July 1991, which amended the Code of Civil Procedure and regulates that "the public prosecutor ensures the enforcement of court decisions and of other enforceable titles." In Belgium, for example, under article 139 of Part II--The Public Ministry, Book I-Bodies with judicial power, the Judicial Code, it states that "The Public Prosecutor Office supervises the execution of court decisions in all the cases in which it has a public order interest; also, regarding individuals, based on the request of an interested party, it can ask the bailiffs to complete their mission, or ask for the support of the public force when necessary."

(11.) See the provisions of article 657, New Civil Procedure Code.

(12.) In the matter of the enforcement of court decisions concerning minors, in article 911 of the NCPC, the legislator provided for the penalty of the debtor's opposition to the enforcement.

ADRIAN CONSTANTIN STOICA

stoica-constantin@xnet.ro

Ovidius University
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Date:Jan 1, 2014
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