The limits of the judge's active role and the qualification of the legal basis of the claim

JURISPRUDENȚĂ COMENTATĂ ŞI ADNOTATĂ

Abstract

The legislator has regulated the active role of the judge, as a fundamental principle of the civil process, which is reflected not only in the obligation to establish correctly and completely the state of facts, but also in the correct qualification of the legal basis of the claim.

In the first case, the judgment of the court of first instance dismissed the application as inadmissible because, in bringing an action for rescission before the court, it raised as a legal basis issues relating to the validity of the legal act, namely the lack of subject-matter and cause of action, but the factual reasoning was circumscribed to the grounds of invalidity. The Court of Appeal upheld the appeal and remitted the case for retrial, finding that the first instance did not play an active role in establishing the correct legal basis for the claim.

On the other hand, in the second case, the first court dismissed the application for a declaration of enforceability, since the party had an action for enforcement. The appeal was dismissed and the second appeal court dismissed the second appeal, stating that it could not be considered that the appellant had not played an active role in the appeal in order to correctly qualify the legal basis of the claim, since there was a correspondence between the basis invoked by the plaintiff, namely Article 35 of the Civil Code (action for a declaration) and the grounds developed in support of the claim.