– Landmarks drawn from the case law of the High Court of Cassation and Justice –

MECANISME DE UNIFICARE A PRACTICII JUDICIARE

Abstract

In the conduct of civil proceedings, the task of ascertaining the truth, as important as it is difficult, has been placed by the legislator exclusively on the shoulders of the judge. Of course, the good faith referred to in Article 12 of the Code of Civil Procedure implicitly implies the obligation of the parties to cooperate with the court in order to find out the truth. However, the only one who has both a legal and a moral obligation to act with all the abnegation, within the limits imposed by law, to discover the objective truth, is the judge. The procedural means at his disposal, in order to achieve this goal, are as broad as they are fluid in application, the attitude that the judge is obliged to adopt differing each time in relation to the multitude of legal nuances that the variety of civil litigation may know.

Thus, in disputes having identical subject-matter and subject to the same provisions of law as regards their resolution, the role to be played by the judge in the case may differ according to factors which, by definition, vary from case to case: the procedural conduct of the parties, the evidence they have at their disposal or propose, the involvement of professional advocates, etc. However, an analysis of the case law of the Supreme Court in this area provides important insights into the limits within which the judge is called upon to act in civil proceedings, and its case law unifying judicial practice provides enlightening solutions in this respect.

In the present study we have therefore proposed a selection – which we hope will be as relevant as possible for the readers – of the solutions pronounced by the Supreme Court, particularly those pronounced recently – on the issue of the role played by the judge in the civil process in order to find the truth.

Keywords: truth, judge, principle of availability, principle of active role, principle of legality