Admissibility of the review based on the provisions of Article 322(4) of the Civil Procedure Code of 1865. Conviction of the expert who participated in the trial for the crime of perjury and disqualification of the technical expert report
JURISPRUDENŢĂ COMENTATĂ ŞI ADNOTATĂ
Abstract
Admitting the claim for revision on the grounds set out in Article 322(4) of the Code of Civil Procedure of 1865 entails a partial reversal of the contested decision, i.e. the appeal is admitted, quashing the judgment in part and remanding the case for retrial of both the main claim to establish a right of way and the main request for intervention on the same subject.
This is necessary because both the contested decision and the judgment of the first instance were based on the expert's report drawn up by expert I. N., which was annulled in its entirety by criminal decision no. [...]/11.11.2017 delivered by the Pitesti Court of Appeal.
None of the hypotheses provided for in Article 312 para. 5 of the Civil Procedure Code in which cases could be sent back to the trial court (the court whose decision is being appealed settled the case without entering into the investigation of the merits or the trial was held in the absence of the party who was not regularly summoned both to the taking of evidence and to the debate on the merits). On the contrary, we are in the hypothesis covered by Article 315 para. 31 of the old Civil Procedure Code, according to which, in case of quashing with holding the case for retrial, any evidence provided for by law is admissible, including technical expert evidence.
In addition, it should be pointed out that, in view of the annulment of the expert's report on which the determination of the right of way was based by the first court and the existence of a common road for both the applicants and the intervener, the first court should also resume the proceedings on the motion for leave to intervene, even if the judgment on appeal and the judgment on review do not directly concern that request. The solution is required in application of the provisions of Article 48 Civil Procedure Code of 1865. On the other hand, the retrial cannot concern the decision in the counterclaim, which has become final and irrevocable and which was not the subject of the claim for revision.
