Appeal declared invalid under Art. 471 para. (1) of the Civil Procedure Code. Conditions for filing the second appeal

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

Extraordinary means of challenge cannot be exercised as long as an appeal can be filed. In the case of judgments subject to appeal, if no appeal has been lodged, the appeal is inadmissible (Article 459(1) and (2) of the Code of Civil Procedure).

There is therefore a hierarchy of means of challenge, i.e. judgments delivered by judges at first instance, which can be appealed, can only be appealed to the next higher court, i.e. the tribunal, whereas judgments by which tribunals decide on appeals can be appealed to the court of appeal. This hierarchy of means of challenge is designed to ensure compliance with the principle of double jurisdiction.

An appeal cannot be exercised omisso medio, i.e. it is not possible to criticize directly on appeal the judgment delivered at first instance by the court – and which is, according to the law, subject to appeal to the court – because, in such a situation, the court of appeal cannot exercise judicial review of the judgment delivered, and to examine, directly at the appeal stage, the grounds of appeal would deprive the party of a degree of jurisdiction and, implicitly, of the principle non omisso medio.