Grounds of the judgment by reference to the parties' arguments. The adversarial principle

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

The fact that the Court of Appeal did not refer explicitly to each of the parties' submissions does not invalidate the conclusion of the thoroughly analysis of the decision of the first instance, since the judgment under appeal contains a statement of the factual and legal arguments capable of providing a concrete basis for the decision rejecting the appeal, which is not an exhaustive response to all the arguments put forward by the party, nor does it mean ignoring them, but a response to the arguments which are capable, by their content, of influencing the decision of the first instance and of allowing an appropriate judicial review.

Nor is the complaint that the principle of adversarial proceedings, which is also covered by the hypothesis laid down in Article 488(1), para. 5 of the Civil Procedure Code, on the ground that the parties did not raise the objection of inadmissibility of the application for rectification of the operative part of the judgment under appeal, which arises from the reasoning of the decision to dismiss the appeal. According to Article 14 of the Civil Procedure Code, one of the principles governing civil proceedings is the principle of adversarial proceedings, defined as the possibility conferred by law to the parties to discuss and fight any factual or legal element of the civil proceedings. The fundamental requirement of adversarial proceedings requires that no measure should be ordered by the court before it has been put to the parties in adversarial proceedings.

From this point of view, the High Court holds that the Court of Appeal, validating the reasoning of the first instance, held that the petitioner's request, set out in the application before the Court, does not fall within the notion of a material error that can be remedied by means of the institution of rectification, but only through the procedure governed by Article 444 of the Civil Procedure Code, argument which does not amount to a procedural exception within the meaning of Articles 245-248 of the same act, and it follows that there can be no breach of the principle of adversarial proceedings, since the court of appeal did not rule on matters which were not submitted for debate by the parties, and the arguments put forward relate to the actual analysis of the criticisms raised in the grounds of appeal.