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COMPARATIVE LAW APPROACHES REGARDING THE REMEDY OF REEXAMINATION IN ROMANIAN AND FRENCH CIVIL PROCEDURES

M. C. Mocanu

Abstract

Reexamination is an extraordinary remedy rooted in a long tradition of the Romanian procedural law, being acknowledged even before the issue of the 1865 Civil Procedure Code. This procedure was inspired from the Genovese and French laws, where reexamination was known under the name requete civile since 1667. This means of appeal is not specific to Romanian legislation, being used in other procedural rules, but it may be compared mostly to the French procedure. The paper focuses on how the procedure is regulated in both systems, French and Romanian, using a comparative approach. The goal was to underline similar and divergent elements in these judicial institutions. The study demonstrates that the two systems lay down the same special, extraordinary and subsidiary character for the reexamination in terms of ordinary alternative remedies exhaustion. The sphere of revision object is analyzed and compared in terms of new procedural provisions recently adopted in Romanian legislation, highlighting the clear position taken by the French legislator in reference to the judgments likely to be appealed by means of reexamination. The subsidiarity of the reexamination in both legislations is revealed upon the analysis of statutory provisions. Further, the study argues that, in terms of subjects that may file appeals, the two legal systems have similar approach, accepting the reexamination only for people who took part to the trial, regarding this aspect, the reexamination being fundamentally different from another means of appeal of withdrawal, tierce opposition , subject only to foreign third parties, who did not participate to the trial but were harmed by the judgment. The confronted analysis highlights procedural differences between the two analyzed legal systems as well. The first divergent aspect consists of the imposed conditions in French law for introducing the remedy of revision; the requirement of determined feature of the legal ground for the revision is not imposed as a general condition in Romanian law. The view upon which the role of the review is to change the decision, and not to make it clear that the party that won used less sensitive means to win the case, is not embraced by the Romanian legislator. The ruling of the term as well as of the procedure as such is different; the instruction by incidental means of the ground for reexamination is not possible under the Romanian civil procedure. The analysis of each legal ground for reexamination highlights a number of similarities but also differences between the two regulations.

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DOI resolver: doi.org/10.5593/sgemsocial2014/b21/s5.071

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