Second appeal. Raising of the plea of res judicata of its own motion where it was rejected at first instance and not appealed against by the party concerned

JURISPRUDENȚĂ COMENTATĂ ŞI ADNOTATĂ

Abstract

According to Article 432 of the Civil Procedure Code, the exception of res judicata may be invoked by the court or the parties at any stage of the proceedings, even before the court of appeal. As a result of the admission of the exception, the party may be placed in a worse position in his own appeal than in the judgment under appeal.

In the presence of res judicata, it is necessary to look at how this exception is solved by the first court and on appeal in order to determine whether the appellate court may raise the exception of its own motion. If the first court before which the objection of res judicata was raised rejected it, and neither the party concerned nor the court on appeal raised it, the appellate court invoked res judicata and upheld it.

The attached Critical Commentary states that, since no issue of res judicata has been raised on appeal, the decision of the first court must be considered final in this respect, without the possibility of being called into question on second appeal of its own motion