Grounds for appeal aiming at the unlawful composition of the panel filed omisso medio. Consequences

DREPT CIVIL ŞI DREPT PROCESUAL CIVIL

Abstract

The unlawful composition or setting up of the panel shall determine, according to Articles 174 and 176 of the Code of civil procedure, the sanction of absolute and unconditional nullity of the procedural act, and this circumstance may be relied on during any status of the judgment pursuant to Article 178 para. 1 of the same code, unless otherwise provided for by law. However, according to Article 488 para, 2 of the Code of civil procedure, the grounds provided for under para. 1 – among which the ground governed by item 2 of Article 488 of the code, relating to the unlawful composition of the panel – can only be received unless they could be relied on by means of appeal or during the judgment of appeal however, even if they were relied on within the time-limit, these were rejected or the court failed to rule on them. Therefore, the criticisms aiming at the breach of the principle of continuity and of the principle of randomized assignment cannot be received for examination by means of second appeal, since they are filed omisso medio, as long as these procedural irregularities known by the parties since the trial stage of the appeal have not been relied on before the panel at the following hearing date.