3484 Romania Final c

7/29/2019 3484 Romania Final c

1/38

1

BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAWPROJECT REFERENCE: JLS/2006/FPC/21 30-CE-00914760055

THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIALMATTERS: RECOGNITION, RES JUDICATA AND ABUSE OF PROCESS

Project Advisory Board:The Rt Hon Sir Francis Jacobs KCMG QC (chair); Lord Mance; Mr David Anderson QC; DrPeter Barnett; Mr Peter Beaton; Professor Adrian Briggs; Professor Burkhard Hess; Mr AdamJohnson; Mr Alex Layton QC; Professor Paul Oberhammer; Professor Rolf Strner; Ms MonaVaswani; Professor Rhonda Wasserman; Professor Mathijs ten Wolde

Project National Rapporteurs:

Professor Alegra Borrs (Spain); Mr Andrew Dickinson (England and Wales); Ms Esther Rivera(Spain Assistant Rapporteur); Mr Christian Heinze (Germany); Professor Lars Heuman(Sweden); Mr Urs Hoffmann-Nowotny (Switzerland Assistant Rapporteur); ProfessorEmmanuel Jeuland (France); Professor Paul Oberhammer (Switzerland); Mr Jonas Olsson(Sweden Assistant Rapporteur); Mr Mikael Pauli (Sweden Assistant Rapporteur); Dr NorelRosner (Romania); Ms Justine Stefanelli (United States); Mr Jacob van de Velden (Netherlands)Project Director:Jacob van de Velden

Project Research Fellow:Justine Stefanelli

Project Consultant:Andrew Dickinson

Project Research Assistants:Edward HoAniket MandeviaFloor RombachDaniel Vasbeck


2/38

2

REPORT

The Effect in the European Community of Judgments in Civil and

Commercial Matters: Recognition, Res Judicata and Abuse of Process

Romania

Dr Norel Rosner

Levantplein 80

1019 MB Amsterdam


3/38

3

I. Judgments .............................................................................................................5

A. The concept, form, structure and terminology of judgments................................................. 5

B. The final determination and findings on issues of fact and law............................................. 9

C. The binding character of a judgment.................................................................................... 10

D. Judgments that are capable of having preclusive effects ..................................................... 11

II. Preclusive effects ...........................................................................................13

A. Claim preclusion ............................................................................................................... 13

1. Existence and nature of claim preclusive effects......................................................................................132. Policies underlying claim preclusive effects ............................................................................................133. Conditions for claim preclusive effects ....................................................................................................144. Invoking claim preclusive effects.............................................................................................................155. Exceptions to claim preclusive effects......................................................................................................156. Claimant and Defendant ...........................................................................................................................177. Other participants .....................................................................................................................................188. Represented persons .................................................................................................................................189. Persons connected to the Claimant, Defendant, and other participants ....................................................1910. Strangers ..............................................................................................................................................19

B. Issue preclusion................................................................................................................. 20

1. The existence and nature of issue preclusive effects ................................................................................202. Policies underlying issue preclusive effects .............................................................................................213. Conditions for issue preclusive effects .....................................................................................................214. Invoking issue preclusive effects..............................................................................................................215. Exceptions to issue preclusive effects ......................................................................................................216. Claimant and Defendant ...........................................................................................................................227. Other participants .....................................................................................................................................228. Represented persons .................................................................................................................................229. Persons connected to the Claimant, Defendant, and other participants ....................................................2210. Strangers ..............................................................................................................................................22

C. Wider preclusive effects ................................................................................................... 23

1. The existence and nature of wider preclusive effects ...............................................................................232. Policies underlying wider preclusive effects ............................................................................................243. Conditions for wider preclusive effects....................................................................................................244. Invoking wider preclusive effects.............................................................................................................245. Exceptions to wider preclusive effects .....................................................................................................246. Claimant and Defendant ...........................................................................................................................257. Other participants .....................................................................................................................................258. Represented persons .................................................................................................................................259. Persons connected to the Claimant, Defendant, and other participants ....................................................2510. Strangers ..............................................................................................................................................25

III. Preclusive effects of judgments within the Brussels/Lugano Regime ..........27

A. Recognition....................................................................................................................... 27

1. Judgments recognised...............................................................................................................................272. Procedural aspects of recognition.............................................................................................................283. Exceptions to the rule (grounds for non-recognition)...............................................................................294. Effects of recognition ...............................................................................................................................29


4/38

4

B. Claim preclusion within the Brussels/Lugano Regime..................................................... 30

1. Existence and nature of claim preclusive effects......................................................................................302. Policies underlying claim preclusive effects ............................................................................................303. Law applicable to claim preclusive effects...............................................................................................304. Conditions for claim preclusive effects ....................................................................................................305. The identity of claims in the Brussels/Lugano Regime ............................................................................316. The identity of parties in the Brussels/Lugano Regime............................................................................317. Invoking claim preclusive effects under the Brussels/Lugano Regime ....................................................318. Exceptions to claim preclusive effects under the Brussels/Lugano Regime.............................................319. Persons affected by claim preclusive effects ............................................................................................32

C. Issue preclusion................................................................................................................. 32

1. Existence and nature of issue preclusive effects.......................................................................................322. Policies underlying issue preclusive effects .............................................................................................333. Law applicable to issue preclusive effects................................................................................................334. Conditions for issue preclusive effects .....................................................................................................335. Invoking issue preclusive effects..............................................................................................................336. Exceptions to issue preclusive effects ......................................................................................................347. Persons affected by issue preclusive effects .............................................................................................34

D. Wider preclusion (abuse of process/claims and issues that could or should have beenraised)........................................................................................................................................ 34

1. The existence and nature of wider preclusive effects ...............................................................................342. Policies underlying wider preclusive effects ............................................................................................353. The law applicable to wider preclusive effects.........................................................................................354. Conditions for wider preclusive effects....................................................................................................355. Invoking wider preclusive effects.............................................................................................................356. Exceptions to wider preclusive effects .....................................................................................................357. Persons affected by wider preclusive effects............................................................................................35

E. Authentic instruments/court approved settlements........................................................... 36

IV. Preclusive effects of third state judgments....................................................37


5/38

5

I. Judgments

A. The concept, form, structure and terminology of judgments

Please describe the typical concept, form, structure and terminology of judgments in your legal system.

Summary:

There are three types of Romanian judgment: Sentinta, a judgment on the merits at first instance,Decizie, a

judgment rendered on appeal, andIncheiere , a term which coversany other type of judgment.The term hotarare judecatoreasca is synonymous with the English term judgment i.e. a final determination ofthe dispute with res judicata effects. It is an umbrella term coveringsentinta and decizie.

A Romanian judgment consists of three main parts:Practica, whichincludes administrative details, as well asinformation as to the object of claim and the arguments and evidence used by the parties, Considerente, thereasoning of the Court, and Dispozitiv , the decision of the Court. Judgments must also contain the ways to appealand the term in which an appeal may be lodged.

Full Response:

As a matter of legal terminology, there are three types of judgments that Romanian courts can render in civil andcommercial matters, depending on the nature of the court and the matter settled through such judgment1.

Accordingly, judgments on the merits rendered by courts of first instance (Judecatorie orTribunal) are namedsentinta or sentinte (plural). It should be noted that the reference in the Code of Civil Procedure to judgmentson the merits includes any judgements rendered in first instance whereby the court will no longer try the respectivecase (eg: declination of jurisdiction, inadmissibility of the claim, annulment of the complaint)2.

Judgments rendered in appeal or as a result of an appeal in cassation (recurs), as well as judgments rendered as aresult of a request for revision in the interest of the law (recurs in interesul legii) are named decizie or decizii(plural)3.

Finally, any other judgments rendered by court are generically named incheiere or incheieri (plural)4.

In literature, the general term used to describe any legal acts issued by courts in Romania is hotararejudecatoreasca, which means literally judicial decision5. Alternatively, the same term is used in a narrower sense,to describe only the final and imperative act issued by courts which resolves the litigation between parties and which

has res judicata effects6, in fact comparable with the English term judgment. In other words, the term is used todescribe the first two types of judgments mentioned above, namely sentinte and decizii. The same conclusionmay be drawn if one takes into consideration the language of article 255 of the Code of Civil Procedure.

This would be the sense in which this terminology will be used in the present chapter. As a consequence, whenreference is being made to judgment(s) or its Romanian equivalent of hotarare judecatoreasca, one has in minda court's final determination of the rights and obligations of the parties in a case, in other words sentinte anddecizii. Separate reference will be made when other types of judicial acts (incheiere) will be mentioned.

With regard to its form and structure, a Romanian judgment will typically consist of three main parts7:

A first part, called practica will include (i) details of the court and of the judges that tried the case, (ii)the name, domicile or habitual residence of the parties, their procedural role, as well as the names of theirlegal representatives and of their attorneys, (iii) the object of the claim, as well as briefly the parties

contentions and the evidence provided, and (iv) the statement(s) submitted by the public prosecutor(procuror), where it participates in the trail8;

1Codul de Procedura Civila 1865 (Code of Civil Procedure of Romania, as amended up to and including 2006), art 255.2 See Mihaela Tabarca and Gheorghe Buta, Codul de Procedura Civila Comentat si adnotat cu legislatie, jurisprudenta si doctrina (UniversulJuridic, Bucharest 2007) 683.3Codul de Procedura Civila (n1) art 255.4 ibid.5 Maria Fodor,Drept Procesual Civil, (2nd vol Universul Juridic, Bucharest 2007) 381.6 ibid.7 ibid, Tabarca and Buta (n2) 702.8Codul de Procedura Civila (n1) art 261.


6/38

6

A second part, called considerente or motivare would essentially consist of the factual and legalreasons that led to the courts decision, including the decision related to the rejection of the claim(s)9. Lackof reasoning or improper reasoning may trigger the nullity of the judgment10. A brief and confusingreasoning was considered to be improper by the Romanian Supreme Court of Justice11 (currently the HighCourt of Cassation and Justice). The judge(s) is bound to explain in writing the reasons why a certainsolution has been chosen, its attitude towards parties contentions and the evidence submitted or the reasonswhy a certain legal norm has been applied or a certain interpretation has been preferred12. However, there isno obligation to address all the arguments invoked by the parties. It is sufficient that such arguments have

been implicitly addressed by the judgment in its entirety13.

Finally, the decision/dictum (dispozitiv) arrived at by the court; In addition, Romanian judgments have to contain two additional elements, namely the ways pf appeal and

the term in which an appeal may be lodged, as well as reference to the fact that the judgment has beenpronounced in public session and the signatures of the judges and of the courts registrar.

Example of judgment issued by the High Court of Cassation and Justice14:

Motivarea hotrrii judectoreti. Rspunsul judectorului la fiecare argument invocat de pri poate fii

implicit.

Codul de procedur civil, art. 261 alin. (1) pct.5

n conformitate cu dispoziiile art. 261 alin.(1) pct. 5 din Codul de procedur civil, hotrrea se d n numele

legiii va cuprinde motivele de fapti de drept care au format convingerea instanei, cum i cele pentru care s-au

nlturat cererile prilor. Condiiile procedurale privind motivarea hotrrii sunt ndeplinite chiar dac nu s-a

rspuns expres fiecrui argument invocat de pri, fiind suficient ca din ntregul hotrrii s rezulte c s-a

rspuns tuturor argumentelor n mod implicit, prin raionamente logice.

.C.C.J., Secia de contencios administrativi fiscal,

Decizia nr. 2522 din 29 iunie 2006

Curtea de Apel Bucureti - Secia a VIII-a Contencios Administrativ i Fiscal judecnd cauza n fond dup

casare, prin sentina civil nr.2013 din 30 noiembrie 2005, a admis aciunea formulat de reclamanta S.C.

MTC S.R.L., a anulat punctul nr.2 din dispozitivul deciziei nr.408/17 iulie 2002, emis de Ministerul FinanelorPublice, privind obligarea reclamantei la plata sumei de 54.794.848 ROL, reprezentnd majorri de ntrziere i a

anulat procesul verbal de control nr.981/20 mai 2002.

9 ibid.10 Tabarca and Buta (n2) 702.11 CSJ,sectia de contencios administrativ, decizia no. 723/2000, 3 Dreptul 2001, 162 (Romanian Supreme Court of Justice).12 Tabarca and Buta (n2) 702-703.13 ICCJ,sectia de contencios administrative si fiscal, decizia no. 2522/2006, 4 Dreptul 2007, 244 (Romanian High Court of Cassation andJustice).14 ibid.


7/38

7

Pentru a pronuna aceast soluie, instana a reinut n esen, c reclamanta nu a procedat la recalcularea

impozitului pe profit, datorat pentru contractul de leasing nr. Mal 04015 iunie 1999 i nici nu a nregistrat n luna

februarie 2002 n contul contabil 602, diferene de rectificare /stornare de cheltuieli aferente acestui contract de

leasing, aa cum au artat autoritile fiscale n actele administrative contestate.

Considerentele reinute de instan au rezultat din balana contabil ntocmit de reclamant la 28 februarie

2002 i din concluziile raportului de expertiz efectuat n cauz, potrivit art.315 alin.1 Cod procedur civil,

conform celor stabilite prin decizia nr.353/25 ianuarie 2005 a naltei Curi de Casaie i Justiie Secia contencios

administrativ i fiscal.

mpotriva acestei hotrri au declarat recurs prii, criticnd-o pentru nelegalitate i netemeinicie.

n motivarea recursului su, recurenta-prt Garda Financiar Comisariatul General a artat c sentina

atacat a fost pronunat cu nclcarea prevederilor art.261 alin.5, n sensul c instana de fond nu a menionat

motivele de fapt i de drept care i-au format convingerea i nu s-a pronunat asupra unor dovezi hotrtoare, situaie

care face imposibil exercitarea controlului judiciar.

De asemenea, recurenta-prt a artat c sentina a fost pronunat cu aplicarea i interpretarea greit a

legii i a probelor administrate n cauz.

n acest sens, recurenta-prt a artat c n faza procedurii administrative prevzute de O.U.G. 13/2001,intimata-reclamant nu a invocat argumente de fond privind nelegalitatea stabilirii majorrilor de ntrziere n sum

de 54.794.848 ROL, singurul motiv de anulare a procesului-verbal de control fiind nclcarea art.19 alin.2 din O.G.

70/1997 de ctre organul de control. Susinerile fcute pentru prima dat n faa primei instane nu puteau fi luate n

considerare, ntruct legalitatea deciziei de respingere a contestaiei se analizeaz numai n funcie de motivele i

argumentele prezentate n baza procedurii administrative prealabile.

n fapt, a artat recurenta-prt, intimata-reclamat a nregistrat eronat pe cheltuieli deductibile la calculul

profitului impozabil contravaloarea ratelor de leasing aferente contractului nr. MAL nr. 040/15 iunie 1999,

considerndu-l leasing operaional, iar n luna februarie 2002 a procedat la recalcularea impozitului pe profit, prin

reconsiderarea contractului ca fiind de leasing financiar.Pentru suma de 29. 509.478 lei, rezultat n plus ca urmare a recalculrii impozitului pe profit n luna

februarie 2002, intimatareclamant a depus la organul fiscal teritorial cererea de compensare cu TVA de

rambursat nr.1080/30 aprilie 2002, iar majorrile de ntrziere n sum de 54.794.848 ROL au fost calculate pentru

perioada n care impozitul pe profit a fost diminuat.

Recurenta-prt a mai artat c instana trebuia s nlture concluziile raportului de expertiz contabil,

ntruct expertul a avut n vedere date consemnate n evidena financiar-contabil dup data ncheierii procesului-

verbal de control din 20 mai 2002, ceea ce duce la concluzia c la data efecturii controlului, evidena financiar-

contabil nu era ntocmit la zi.

n ceea ce privete constatarea instanei, c procesul-verbal de control a fost ncheiat cu nclcarea art.19alin.2 din O.G. 70/1997, n sensul c perioada n care s-a derulat contractul de leasing a mai fost verificat de

Administraia Finanelor Publice Sector 3, recurenta-prt a artat c este eronat, ntruct controlul Grzii

Financiare a vizat o alt perioad de timp dect cea consemnat n actul de control al organului fiscal teritorial i

anume dac n luna februarie 2002 a fost calculat corect impozitul pe profit.

n motivarea recursului pe care l-a formulat, recurenta-prt Agenia Naional de Administrare Fiscal a

invocat prevederile art.304 pct.9 Cod procedur civil, artnd c n temeiul prevederilor O.G. nr.51/28.august 1997,

republicat, privind operaiunile de leasing i societile de leasing, aprobat prin Legea nr.90/1999 i ale O.M.F.


8/38

8

nr.686/1999, pentru aprobarea normelor privind nregistrrile operaiunilor de leasing, n cazul leasingului financiar,

astfel cum a fost calificat contractul nr. MAL 040/1999, reprezint cheltuieli deductibile la stabilirea impozitului pe

profit doar cota de amortizare calculat conform prevederilor legale i dobnda aferent derulrii contractului de

leasing.

Pe de alt parte, recurenta-prt a artat c n spe nu sunt incidente prevederile art.19 alin.2 din O.U.G.

nr.70/1997 privind controlul fiscal, pentru c intimata-reclamant nu a adus nici un argument din care s rezulte c

impozitul pe profit aferent lunii februarie 2002 a fost verificat anterior, iar alte motive de nelegalitate nu au fost

invocate n contestaie, conform art.3 alin.1 lit.c din O.U.G. 13/2001.

Examinnd cauza n raport de motivele de recurs invocate i de prevederile art.3041 Cod procedur civil,

innd seama de nscrisurile depuse la dosarul de fond i de prevederile legale aplicabile n cauz, Curtea constat c

recursurile nu sunt fondate.

Sentina atacat cuprinde motivele de fapt i de drept care au format convingerea instanei, precum i cele

pentru care s-au nlturat argumentele prtelor, conform art.261 alin.1 pct.5 Cod procedur civil.

Judectorul nu este obligat s rspund n mod expres fiecrui argument invocat de pri, fiind suficient ca

din ntregul hotrrii s rezulte c a rspuns tuturor argumentelor n mod implicit, prin raionamente logice.

n consecin, Curtea constat nentemeiat critica viznd nemotivarea sentinei, ncadrat n prevederileart.304 pct.7 Cod procedur civil, cuprins n recursul Grzii Financiare Comisariatul General.

Potrivit art.315 alin.1 Cod procedur civil, n caz de casare, hotrrile instanei de recurs asupra

problemelor de drept dezlegate, precum i asupra necesitii administrrii unor probe sunt obligatorii pentru

judectorii fondului.

Obiectivele expertizei contabile efectuate n cauz au fost stabilite conform indicaiilor cuprinse n decizia de

casare nr.353/25 iunie 2005 a naltei Curi de Casaie i Justiie Secia de Contencios Administrativ i Fiscal, iar la

soluionarea cauzei a fost avut n vedere i rspunsul la obieciunile formulate de intimata-prt Garda Financiar

Central.

n procesul-verbal nr.991 ncheiat la data de 20 mai 2002, organul de control a reinut c n luna februarie2002, societatea reclamant a reconsiderat contractul de leasing nr. MAL 040, procednd la recalcularea

impozitului pe profit, dar aceast afirmaie, reluati n cererile de recurs, nu este susinut de nici unul dintre

nscrisurile depuse la dosari este infirmat de concluziile raportului de expertiz contabil ntocmit pe baza

verificrii documentelori evidenelor de specialitate, conform art.201 alin.1 Cod procedur civil.

Recurenteleprte au fcut referire la o cerere de compensare a impozitului pe profit stabilit n plus cu TVA

de rambursat (cererea nr.1080/30 aprilie 2002 ), dar nu au depus aceast cerere la dosar, pentru a se verifica dac

exist vreo legtur ntre suma pentru care s-ar fi solicitat compensarea i pretinsa sum stabilit n plus cu titlu de

impozit pe profit n urma unei reconsiderri a contractului de leasing nr.MAL 040/15 iunie 1999, reconsiderare care

s-ar fi fcut din iniiativa intimatei-reclamante i care ar fi putut fi interpretat drept o mprejurare nou care sjustifice controlul.

Potrivit art.19 alin.1 din O.G. 70/1997, aprobat prin Legea 64/1999, privind controlul fiscal, n vigoare n

perioada supus analizei, controlul fiscal se efectua o singur dat, pentru fiecare impozit i pentru fiecare perioad

supus impozitrii.

Alineatul 2 al aceluiai articol prevedea, prin excepie de la alineatul 1, c reverificarea unei anumite

perioade era permis dac de la data ncheierii controlului fiscal i pn la mplinirea termenului de prescripie


9/38

9

apreau date suplimentare, necunoscute organului de control fiscal la data efecturii controlului, de natur s

influeneze sau s modifice rezultatele acestuia.

n procesul verbal nr.991/20 mai 2002 se prevede expres c obiectivul controlului l constituie verificarea

derulrii, evidenierii i nregistrrii n contabilitate a contractelor de leasing nr. AFIVPRO/112/1998 i MAL

040/15 iunie 1999 i nicidecum verificarea impozitului pe profit pe luna februarie 2002, aa cum se susine n

cererile de recurs, majorrile de ntrziere fiind calculate pentru perioada derulrii contractului.

Modul de calcul al impozitului pe profit i legalitatea nregistrrilor efectuate n contabilitate cu privire la

contractul de leasing n discuie mai fuseser ns verificate, prin procesele verbale depuse la dosarul de fond, astfel

nct organul de control fiscal nu mai putea proceda, din oficiu, la recalificarea naturii contractului de leasing.

n aceste condiii, instana de fond a reinut n mod corect nclcarea prevederilor art.19 din O.G. 70/1997,

ntruct nu s-a fcut dovada existenei unor date suplimentare pentru perioada deja controlat.

Susinerile reclamantei, privind inexistena unei recalculri a impozitului pe profit n luna februarie 2002, ca

efect al reconsiderrii contractului de leasing nr. MAL nr.040/15 iunie 1999, nu sunt motive noi de nelegalitate cu

privire la actele administrativ fiscale, neinvocate n contestaia administrativ, ci argumente n sprijinul ideii c

procesul-verbal de control atacat a fost ntocmit fr s existe date suplimentare ulterioare controalelor deja

efectuate, n sensul art.19 alin.2 din O.G. 70/1997.n raport de aceste considerente, Curtea constat c sentina instanei de fond a fost pronunat cu

interpretarea corect a probelor administrative n cauzi cu aplicarea corespunztoare a prevederilor legale

invocate, neexistnd motive de modificare sau casare a hotrrii, conform art.304 pct.9 sau 3041 Cod procedur

civil, astfel nct recursurile au fost respinse ca nefondate.

B. The final determination and findings on issues of fact and law

How does the court's determination of a matter in your legal system relate to the findings on issues of fact and law

on which this determination is based?Summary:

Determinations must be supported by legal/factual reasoning. Where this is not the case or where the reasoningcontradicts the decision reached, the decision can be annulled. Appeal Courts can review the findings of fact and lawof lower Courts.

Full Response:

As stated under question A above, a judgment issued by a Romanian court will essentially contain three parts:general information which will enable the identification of a case, the reasoning and, finally, the decision itself. Thereasoning will contain findings of fact and law that will allow the court to reach a certain decision, admitting certainclaim(s) and rejecting others15.

Under the Romanian legal system, this distinction is based on law (article 261 Code of Civil Procedure). Suchfindings of fact and law, as included in the reasoning of the court, are strictly related to the decision arrived at in thethird part of the judgment (dictum)16. Accordingly, a logical flow has to exist between the findings of fact and lawenshrined in the reasoning and the decision rendered by the court. If the dictum is not based on the reasoning or, aneven more serious flaw, the dictum contradicts the reasoning, than such judgment can be considered withoutreasoning and, as a result, be annulled17.

15Codul de Procedura Civila (n1) art 261.16 Fodor (n5) 387.17 ICCJ,sectia comerciala, decizia no. 963/2005, cited on http://www.scj.roaccessed 11 December 2007 (Romanian High Court of Cassation andJustice).


10/38

10

Appeal courts may review such findings of fact and law as established by the lower court18. This, however, will bedone only within the limits of the request of appeal. On the other hand, appeals in cassation may be directed onlyagainst the dictum of the judgment19. Nevertheless, in trying such requests the court may review the findings of factand law in order to interpret the dictum20.

C. The binding character of a judgment

Please describe the prerequisites for a judgment to have binding character so as to be capable of having preclusiveeffects in your legal system.

Summary:

For a Romanian judgment to have binding effect it must contain the four required elements, the court issuing it musthave subject matter and territorial jurisdiction over the dispute and have tried the case on the merits.

In the event of an appeal, the judgment retains its binding character until it is set aside. If the same issue is re-litigated between the same parties and res judicata is not raised, then an expedited appeal process is engaged toenable a higher court to annul the second judgment.

Full Response:

A judgment issued by a Romanian court has to contain all the elements mentioned above under question A. Failureto contain one or more of such elements may trigger the nullity of the judgment in question21. In other words, in

order to have binding effects, a Romanian judgment has to comply with the formal legal requirements. However, itshould be mentioned that if a judgment does not comply with such requirement its nullity is not ex officio and maybe pronounced if the judgment in question has caused a procedural prejudice to a party that may be remedied onlyby declaring such judgment null22.

In addition, in order to be valid (i.e. able to withstand an attack in the form of a request for relief from judgment) thecourt rendering such judgment in first instance has to have subject-matter and territorial jurisdiction, has to try thecase on its merits and, in case of a judgment rendered in default of appearance, to have issued proper notice to thedefaulting defendant. While the first two requirements would trigger the annulment of the judgment in appeal, thelatter would lead to its setting aside23.

As long as no appeal has been lodged, a judgment issued by a Romanian court, even if not yet final (i.e. which maybe subject to appeal proceedings), has res judicata effects (putere de lucru judecat) and, hence, binding character24.One of the consequences of lodging an appeal is suspension of execution of the challenged judgment25. However,until such time as the judgment is reversed, it maintains its binding character. If, as a result of an attack on the

judgment in the form of an appeal, it is being set aside or annulled, the judgment in question will loose its resjudicata effects and, hence, its binding character. As a consequence, it can be contended that Romanian judgmentson the merits have temporary res judicata effects as soon as they are rendered, status which can be consolidated or,on the contrary, reversed after possible appeal proceedings.

In the situation where a party fails to invoke the res judicata exception in a subsequent procedure on the same causeof action and between the same parties, or even if invoked such exception has not been debated during trail, then therisk exists that inconsistent judgments will be rendered. In such cases Romanian law26 allows for an extraordinaryway of appeal called motion to alter (revizuire) whereby the higher court will be seized with this matter. This wayof appeal may succeed only if the request for annulment concerns the second rendered judgment in time27.

Where a judgment is based on the binding character of another judgment and the latter has been either annulled oraltered, a motion to alter the second judgment may be lodged with the Romanian court that rendered such

18Codul de Procedura Civila (n1) art 295.19 There is an exception to this rule, where the appeal in cassation is grounded on the lack of or inconsistent reasoning. Codul de Procedura Civila(n1) art 304(7).20 Fodor (n5) 467.21 Tabarca and Buta (n2) 702.22Codul de Procedura Civila (n1) art 105(2).23 ibid, art 297.24 Fodor (n5) 400.25 The literatures agrees that as long as the term for lodging an appeal has not expired the execution of the judgment is suspended (Fodor (n5)436, Tabarca and Buta (n2) 1209). An appeal in cassation has such effects only in exceptional circumstances.26Codul de Procedura Civila (n1) art 322(7).27 Fodor (n5) 580.


11/38

11

judgment28. The motion to alter has to be lodged within one month after the first judgment has been either annulledor altered and may result either in the annulment or modification of the second judgment.

D. Judgments that are capable of having preclusive effects

Please identify and describe (1) the types and characteristics of judgments in your legal system that are capable ofhaving preclusive effect and (2) any types of judgments that are not capable of having preclusive effects.

Summary:

Judgments rendered at first instance (sentinta) have preclusive effect. This effect is temporary till either thejudgment is confirmed on appeal or the period for lodging an appeal elapses. Final judgments (decizie) have fullpreclusive effect as soon as they are rendered.Incheieri have preclusive effect as to the matter settled by the Court insuch acts. Provisional judgments, in contrast to definitive judgments which resolve the merits of a case, do not have

preclusive effects.

Full Response:

In addition to the distinction made above under question A, between judgments issued by courts of first instance onthe merits (sentinte), those issued in appeal or appeal in cassation (decizii) and other types of judgments, such asfor instance procedural orders (incheieri), there are a number of categories of judgments that should be mentionedin this context. With regard to sentinte, they would entail preclusive effects when they are rendered. However,such effects are temporary and could be either reversed in appeal or consolidated should appeal proceedings be not

successful or in case the term for lodging an appeal has expired. Decizii are final judgments that have preclusiveeffects. Finally, incheieri would have preclusive effects as to the matter settled by the court in such acts, forinstance where a party is ordered to submit certain documents.

Another distinction relevant in this context is that between provisional and definitive judgments29. While the formerare temporary measures taken in urgent situations, the latter are judgments on the merits of the case. Definitive

judgments will have preclusive effects even if an appeal can still be lodged. As stated above, in this case thepreclusive effects have a temporary character, and may be consolidated if no appeal is lodged within the legal termor if the initial judgment is upheld as a result of such appeal. Provisional judgments, such as presidential ordinances(ordonanta prezidentiala) rendered base on article 581 Code of Civil Procedure do not have preclusive effectswith regard to the trial on the merits of the case or with regard to another provisional judgment, in case the factualsituation that justified such a measure has been changed30.

A further distinction is being made in the Code of Civil Procedure between partial and entire judgments.

Accordingly, based on article 270 of the Code of Civil Procedure, if the defendant accepts part of the claim(s), thecourts may render a partial judgment recording such acceptance. Such partial judgments cannot be challenged inappeal proceedings31. They can be attacked only with an appeal in cassation. However, this detail does not influencetheir preclusive effects, which begins to run for both types of judgments from the moment they are rendered.

Yet another distinction may be made between final and not final judgments, as well as judgments that areirrevocable32. Final judgments are those rendered in appeal or those rendered by the courts of first instance againstwhich no appeal has been lodged or such has not been successful. Judgments rendered by courts of first instance arenot yet final, unless no appeal is open for such judgments. Irrevocable judgments are those rendered either by courtsof first instance or in appeal for which an appeal in cassation is no longer available, as well as judgments given as aresult of an appeal in cassation. This distinction, however, does not have an influence on the res judicata status ofsuch judgment. As stated above under question C, Romanian judgments on the merits will have res judicata status,and hence preclusive effects, from the moment they are rendered. If such a judgment is not yet final, this status willeither be consolidated after appeal proceedings or in case such appeal has not been lodged and the term has expired,

or reversed if the appeal is successful.

Finally, in the Romanian legal literature a further distinction is being made between condemnatory judgments,where the defendant is ordered to do something, declaratory judgments, confirming or denying a legal status andconstitutive judgments, creating, altering or ending a certain legal status33. While this distinction has influence onwhether a judgment is feasible for execution or not (declaratory judgments being feasible only for recognition), or

28Codul de Procedura Civila (n1) art 322(5).29 Fodor (n5) 382.30 Tabarca and Buta (n2) 1421.31 ibid, 721.32 Fodor (n5) 383, Codul de Procedura Civila (n1) art 377.33 A Nicolae, Aspecte privind efectele substantiale ale hotararii judecatoresti 2Revista romana de drept privat2007,99.


12/38

12

on whether a judgment has retroactive effects (constitutive judgments having effects only for the future)34, all suchjudgments are capable of having preclusive effects.

34 Fodor (n5) 400.


13/38

13

II.Preclusive effects

This part of the questionnaire is concerned with the effects of a judgment (including, for this purpose, any

statement of the reasons given for a judgment) insofar as it restricts the ability of the participants in the

proceedings in which it was given, or related or non-related persons, to bring or conduct later proceedings

(whether or not forming part of the same action) as they would wish. In particular, this section is concerned

with so-called rules of "res judicata" or their equivalent. References to "Claimant" are to the person seekinga remedy from the court, and references to "Defendant" are to the person against whom a remedy is

sought.35

The terminology used in this intended for guidance only and is not intended to exclude or restrict

discussion of the legal concepts and terms which are relevant to your legal system. This section is not

concerned with the evidential status of the record of judgment, nor with the value of judgments as a legal

precedent for future cases (stare decisis), both of which fall outside the scope of this Project. For the purpose

of drafting the questionnaire, a distinction has been drawn between "claim preclusive effects" (see Part II.A)

and "issue preclusive effects" (see Part II.B). These are intended to be descriptive categories, the former

(which might also be described as "same claim preclusion") embracing rules of preclusion affecting the

raising of claims which a legal system considers to have been determined in earlier proceedings and the latter

embracing rules of preclusion affecting attempts to re-open issues of law or fact which a legal system regards

as having already been determined in earlier proceedings. A third category of "wider preclusive effects" has

been used (see Part II.C) to accommodate rules of preclusion which are considered to fall into neither of these

categories. Those co-ordinating the Project recognise, however, that different legal systems will approach the

categorisation differently depending on how they define the concepts of claim and issue, and thatterminology will vary (e.g. in England, reference is made to "cause of action estoppel", "issue estoppel" and

to various other rules, including "abuse of process"). Rapporteurs are thus encouraged to be flexible and to

fit their description of the law and practice of their legal system into the framework established below as they

think most appropriate.

A.Claim preclusion

1. Existence and nature of claim preclusive effects

Are judgments in your legal system capable of having claim preclusive effects?

Romanian judgments, even if not yet final (i.e. may be subject to appeal) have res judicata status. According toarticle 1201 Civil Code, the status of res judicata presupposes that a second claim based on the same cause of action,having the same object and between the same parties would be precluded. In other words, Romanian judgments havesubstantive claim preclusive effects. Such effects are produced when the judgment is rendered36. As stated above,finality is not a condition for such.

2. Policies underlying claim preclusive effects

What are the policy considerations for the claim preclusive effect of judgments in your legal system?

Summary:

Two policy considerations operate to justify giving judgments preclusive effect: first that a claim can only be finallysettled once and second the need to avoid irreconcilable judgments.

Full Response:

The res judicata effects of judgments under the Romanian legal system are not expressly regulated by law37.However, based on two legislative provisions dealing with the definition of res judicata(art. 1201 Civil Code) and

35 Thus, for example, a person named as Defendant in legal proceedings who advances a counterclaim should be treated as "Defendant" for thepurposes of the main claim against him (including, for example, any true defence of set-off) and "Claimant" for the purposes of the counterclaim.36 Fodor (n5) 400.37 ibid, 401.


14/38

14

the res judicata exception of article 166 Code of Civil Procedure, the opinion expressed in the literature38 is that thepolicy considerations for granting res judicata effects to judgments are in fact that a claim can be finally settled onlyonce (bis de eadem re ne sit actio) and the solution contained in a judgment is presumed to express the truth andshould not be contradicted in another judgment (res judicata pro veritate habetur).

In this context, these legislative provisions should be cited. Accordingly, article 1201 Civil Code39 reads asfollowing:

Este lucru judecat atunci cand a doua cerere in judecata are acelasi obiect, este intemeiata pe acceasi cauza sieste intre aceleasi parti, facuta de ele si in contra lor in aceeasi calitate.

Res judicata is where the second claim has the same object, is based on the same cause of action and is betweenthe same parties, done by them and against them in the same capacity. (translation by the author)

Article 166 Code of Civil Procedure reads as following:

Exceptia puterii lucrului judecat se poate ridica, de parti sau de judecator, chiar inaintea instantelor de recurs.

The res judicata exception may be raised by the parties or by the judge, even before the appeal courts.(translation by the author)

3. Conditions for claim preclusive effectsWhat are the conditions for the claim preclusive effects of a judgment?Summary:

To engage the preclusive effect of a judgment it must be shown that litigation has the same object (the court looks tothe substance and not the form of the action), is based on the same cause of action, that is the same legal basis, and is

between the same parties as in the original litigation (who need not have the same roles in the second claim as in thefirst).

Full response:

Under Romanian law, three distinct elements are required in order to invoke the preclusive effects of a previousjudgments40:

Same object (obiect);

Same cause of action (cauza);

Same parties (parti).

On the first element, the need for a similar object (claim),Inalta Curte de Casatie si Justitie (the High Court ofCassation and Justice) was of the opinion that for the res judicata exception to be successful it is sufficient that theclaims have similarin concreto objective41. It is therefore not necessary that the claims should be similarlyformulated42.

As to the second element, the same cause of action, it is necessary that both claims have the same legal basis.Accordingly, the Court of Appeal Iasi43 rejected the res judicata exception since the first claim was based on astatutory provision (Law 18/1991 on the restitution of land), while the second claim was based on a contractual

provision.

38 See Viorel Mihai Ciobanu, Tratat teoretic si practic de procedura civila. Teorie generala,,(2nd vol National, Bucharest 1997), 270-271,Mihaela Tabarca, Drept Procesual Civil, (Global Lex, Bucharest 2005), 703.39Codul Civil1865 (Civil Code of Romania, as amended up to and including 2006), art 1201.40 CA Craiova, decizia no. 141/2007, < http://porta.just.ro> accessed 18 December 2007 (Court of Appeal Craiova).41 CA Tomisoara, decizia no. 289/2007, < http://porta.just.ro> accessed 18 December 2007 (Court of Appeal Timisoara).42 ICCJ,sectia civila si de proprietate intelectuala, decizia no. 4525/2005,Jurisprudenta Sectiei civile pe anul2005, 533 (Romanian High Courtof Cassation and Justice).43 CA Iasi, decizie civila no. 1960/1999,Jurisprudenta pe anul 1999, 187 (Court of Appeal Iasi).


15/38

15

With regard to the identity of parties, the exception would succeed if here is legal identity of the parties. Thiselement is therefore not concerning the physical identity of parties. In other words, if a party participated in legal

proceedings on its own name but through representative, it will be prevented from litigating again by the resjudicata exception, even if it did not physically participate in such proceedings.44 Even though some authors are ofthe opinion that such identity exists as long as the parties have the same procedural role (Claimant or Defendant) theICCJ45 was of the opinion that such identity exists even where the parties exchange their procedural roles in thesecond proceedings.

It could be therefore concluded that, perhaps with the exception of the cause of action element, the Romanianjudiciary chooses for a rather broad interpretation of these elements, being willing to grant such preclusive effects

even where the claims are not similarly formulated or when the parties have different procedural roles.Under Romanian law the res judicata exception is considered a substantive exception, having a pre-emptory nature

because it generally leads to the rejection of the claim. It is also an absolute exception since it is regulated bymandatory law46. Claiming such exception and thus the preclusive effects of a previous judgment can occur at anystage during proceedings, even in appeal or appeal in cassation, without regard to the grounds for appeal.

4. Invoking claim preclusive effects

Please describe how the claim preclusive effects of a judgment are invoked in your legal system.

Summary:

Res judicata can be raised at any stage during the proceedings, including in an appeal hearing. The burden of prooflies with the party alleging the doctrine applies. If successful the action will be rejected by a formal judgment of the

court.

Full Response:

If the case is that the unsuccessful Claimant in a former trial will bring fresh proceedings having essentially the sameclaim, based on the same cause of action and against the same Defendant, either the judge ex officio or the interested

party may raise the res judicata exception at any stage during proceedings, even during appeal proceedings47. Suchexception may be brought in the form of an interlocutory motion for relief. The party raising such exception willalso bear the burden of proof to show that the elements mentioned above under the previous question have been met.

If justified, the exception will lead to the rejection of the claim. Such rejection will be made in the form a judgment.In such cases, where the claim is rejected because of the preclusive effects of a previous judgment, the court will notrequire evidence on the substantive validity of the second claim and is not even required to analyse the evidence

submitted on the merits48. Finally, depending on the court issuing such judgment, it may be subject to appeal or to anappeal in cassation.

5. Exceptions to claim preclusive effects

Please verify whether the claim preclusive effect of judgments in your legal system is subject to generally acceptedexceptions.

Summary:

Two exceptions to the preclusive effects of judgments exist. First, an annulment of a final judgment is permittedwhere either one of the parties was not adequately served with process or where the Courts rules on exclusive

jurisdiction have been infringed. This exception is only available if ground for annulment was not raised on appealnor could have been raised on appeal. Second a final judgment can be revised or annulled where new information,

unavailable at the trial, or evidence of fraud emerges.

44 CA Bucharest,sectia a IV-a civila, decizia no. 1056/2001, not published, as cited in Tabarca and Buta (n2) 532 (Court of Appeal Bucharest).45 ICCJ,sectia civila si de proprietate intelectuala, decizia no. 4525/2005,Jurisprudenta Sectiei civile pe anul2005, 533 (Romanian High Courtof Cassation and Justice). .46 Tabarca and Buta (n2) 533.47Codul de Procedura Civila (n1) art 166.48 CA Cluj,sectia civila, decizia no. 361/1999,Buletinul Jurisprudentei 1999, 198 (Court of Appeal Cluj).


16/38

16

Full Response:

Under certain specific circumstances, expressly stipulated by law49, judgments entailing preclusive effects may bechallenged. Accordingly, the Code of Civil Procedure contains in article 317 rules with regard to the motion forannulment of judgment (contestatia in anulare) as an extraordinary way of appeal against final and irrevocable

judgments. The parties to the initial litigation, including the interveners, or the legal successors of such, may lodgesuch a motion with the court that rendered the irrevocable judgment based on one of the following grounds: (i)where one of the parties has not been adequately served with process; (ii) where the public policy rules on courts

jurisdiction, in other words the rules on exclusive jurisdiction, have been infringed upon50.

It should be mentioned that this extraordinary way of appeal may be used only if these matters have not been raisedin appeal or in appeal in cassation. Moreover, if the party that raised such grounds for annulment could have done soin one of the ordinary ways of appeal and failed to do so the motion will be rejected. In other words, this proceduralescape under Romanian law does not allow parties to choose between ordinary and extraordinary ways ofappeal51. However, article 317(2) Code of Civil Procedure contains an exception to this requirement, where eventhough one or both these grounds have been raised in appeal proceedings, the court was not in the position toanalyse them because it needed a factual analysis or where the appeal in cassation has been rejected without a trialon the merits.

Yet another way of extraordinary appeal that may affect the preclusive effect of judgments is the motion to alter thejudgment (revizuirea)52. Accordingly, the parties to the litigation or the public prosecutor may initiate theseproceedings against final or irrevocable judgments. Such proceedings may lead to either the revision of thechallenged judgment or to its annulment, thereby affecting its preclusive effects.

If, after the initial judgment has become final or irrevocable, new circumstances appear or certain important

circumstances unknown at the date of judgment are brought to the knowledge of the parties or of the publicprosecutor, such a motion may be lodged with the competent court. In addition, if the initial judgment involvedcertain elements of fraud which altered judges opinion on certain factual elements53, then such a motion may belodged. Article 322 Code of Civil Procedure contains an exhaustive list of nine reasons that can justify such

procedure:

Where the dictum of the judgment contains contradictory provisions or provisions that cannot beexecuted;

Where the judgment is ultra orinfra petita;

Where the object of the claim does not exist;

Where a judge, witness or expert that participated in the initial proceedings has committed a felonyrelated to the judgement in question for which he or she has been convicted through a final judgment, or

if the judge has fulfilled his duties in such case with bad faith or gross negligence;

Where written evidence not available during the initial trial has come to light or where the judgmentbased on which the judgment which is subject to the motion to alter has been rendered has been, in itsturn, modified or annulled;

Where the state or a public entity, as well as persons that have been declared disappeared or are underguardianship have not had a proper defence during trail;

Where inconsistent final judgments have been rendered in one or more matters, between the samepersons acting in the same procedural role;

Where a party has been prevented to appear before the court and to inform the court of suchcircumstances;

Where the European Court of Human Rights has identified an infringement of human right orfundamental freedoms as a result of a judgment and such grave consequences continue to occur and canonly be remedied through amendment of such judgment.

It should be noted that while the motion for annulment or the motion to alter are pending the initial judgment retainsits res judicata effects (article 379 Code of Civil procedure).

49Codul de Procedura Civila (n1) art 317.50 Tabarca and Buta (n2) 911, Fodor (n5) 543.51 Tabarca and Buta (n2) 912.52Codul de Procedura Civila (n1) art 322-328.53 Fodor (n5) 562.


17/38

17

In the previous section, the Questionnaire addressed general aspects of claim preclusive effects of judgments.

The following numbered points address particular questions that may arise in relation to the operation of the

claim preclusive effects of judgments in particular circumstances which may be subject to specific rules and

conditions. It is appreciated that some of the issues you have addressed in the more general answers in the

previous section will be involved when you consider these specific situations. Therefore, it is important that

you provide an insight in this section into the particularities, if any, of the application of claim preclusion in

the circumstances as described.

6. Claimant and DefendantMay a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from bringing ordefending fresh proceedings against the Defendant or Claimant based on what is considered in your legal system to

be the same claim?

Summary:

Even though the Romanian Legal system does not expressly regulate the res judicata effects of judgments, it isgenerally recognized that judgments entail such effects by inference from thedefinition of res judicata and theexceptions to res judicata. However in theory a party could relitigate the same issue against the same parties again,should no interested party or the judge ex officio raise the res judicata principle. On raising the principle the secondclaim is automatically rejected.

Full Response:

As specified above under question II.A.2, based on two legislative provisions dealing with the definition of resjudicata(putere delucru judecat - art. 1201 Civil Code) and the procedural character of the res judicata exception(exceptia puterii lucrului judecat) article 166 Code of Civil Procedure) the opinion expressed in the literature54 isthat granting res judicata effects to judgments means in fact that a claim can be finally settled only once and thesolution contained in a judgment is presumed to express the truth and should not be contradicted in another

judgment.

Based on the above, the following may be inferred: even though under the Romanian legal system the res judicataeffects of judgments are not expressly regulated by law, it is generally recognized that judgments entail such effects.However, the successful or unsuccessful Claimant, as well as the unsuccessful Defendant may, in principle, bring

fresh proceedings on the same claim against the same Defendant (Claimant). In the framework of such newproceedings either the judge ex officio or the interested party may raise the res judicata exception at any stage duringthe process, even during appeal proceedings. If justified, the exception will lead to the rejection of the claim. UnderRomanian law the res judicata exception is considered a substantive exception, having a pre-emptory nature becauseit normally leads to the rejection of the claim. It is also an absolute exception since it is regulated by mandatorylaw55. The application of the preclusive effect towards Claimant or Defendant is subject to the exception listedabove under question II.A.5.

As explained in detail above under question II.A.3, in order for this exception to be successful, three elements haveto be present: same object, same cause of action and same parties.

In other words, in principle it is possible for Claimant or Defendant to open new proceedings against the same partyon the same cause of action. However, at any point during proceedings, even in appeal, either the judge ex officio orthe interested party may raise the exception of res judicata. Provided that the object (claim) is similar, that it is based

on the same cause of action and that the same parties are involved in the proceedings, even in a different proceduralrole, the second claim will be rejected.

As a consequence, if the Claimant were to bring fresh proceedings against the same Defendant on the same claimand on a similar legal ground (cause of action), while in the first proceedings an appeal is pending, either the judgeof its own motion or the interested party (in this case the Defendant) may raise the res judicata exception and thesecond claim will most probably be rejected. It would be recalled that under Romanian law even judgments that arenot final (i.e. are subject to appeal) have preclusive (res judicata) effects. However, if the second claim were to havea different object (for instance where the first claim regards lost wages from January to June while the second covers

54 Ciobanu (n38) 270-271,Tabarca(n38) 703.55 Tabarca and Buta (n2) 533.


18/38

18

the period July-December), then raising the res judicata exception in the second proceedings will most probably beunsuccessful since there is no identity of the three elements needed for such to succeed: object, cause of action and

parties.

7. Other participants

To what extent, if at all, do the claim preclusive effects of judgments extend to other participants in the litigation?

Summary:

Preclusive effects extend to any person with a close connection between the object of the claim and the cause ofaction of the original claim. As such this covers co-claimants/defendants and third parties and interveners in theoriginal proceedings.

Full Response:

In addition to having preclusive effects towards the Claimant or Defendant, Romanian judgments are capable ofhaving such effects towards other procedural parties as well. Accordingly, similar substantive preclusive effectsextend to the co-claimants or co-defendants56. While the law (article 47 Code of Civil Procedure) stipulates that inorder for such procedural co-participation to exist there needs to be identity of either the object of the claim or itslegal ground (cause of action), the doctrine57 interprets this requirement broadly, so as to make such participation

possible even where there is a close connection between the object of the claims and their legal grounds (cause ofaction). The manner in which the substantive preclusive effects in such situations may be invoked, as well as the

exception to which such effects may be subject are similar to the ones invoked under the previous answer.Furthermore, such effects extend to third parties or interveners in the proceedings. Romanian law regulates twotypes of interveners in legal proceedings, namely voluntary interveners (i.e. at the initiative of the third party,regulated in articles 49-56 Code of Civil Procedure) and mandatory interveners. The latter consist of three situationsexpressly regulated by law58: introducing another party that might have similar claims as the claimant (articles 57-59Code of Civil Procedure), introducing another party against whom a warranty or a guarantee may be asserted (article60-63 Code of Civil Procedure) and where the defendant introduces the holder of the right in rem in the proceedings(articles 64-66 Code of Civil Procedure). Judgments pronounced in such case will have preclusive effects towardsthe interveners as well59, under the same conditions and exceptions as against the main parties.

8. Represented persons

Does your legal system provide for group/representative actions (including, for example, US-style class actions)? To

what extent, if at all, do the claim preclusive effects of judgments in such actions extend to the other members of thegroup/persons represented in the action?

Summary:

The Court is provided with the power to order multiple co-claimants/defendants to be represented at trial. Anyensuing judgment has substantive preclusive effects towards each represented party.

Full Response:

Where in a trial there are several co-claimants or co-defendants, as made possible by article 47 Code of CivilProcedure, the president of the court where the proceedings are pending may order, in the interest of a good andefficient administration of justice, that parties be represented during trial (article 114(5) Code of Civil Procedure).The co-claimants may choose their own representative and failure to do so may trigger the suspension of the trial.On the other hand, if the co-defendants do not choose their own representative then the president of the court maychoose a special representative.

In such case, the ensuing judgment has substantive preclusive effects towards each represented party, subject to thesame conditions and exceptions as stipulated for co-claimants and co-defendants, which in turn have been listed inthe answer to question II.A.6 above.

56 Ioan Les, Codul de Procedura Civila, (All Beck, Bucharest 2005), 169.57 Tabarca and Buta (n2) 223, Fodor (n5) 201.58 Fodor (n5) 227.59 ibid, 211.


19/38

19

9. Persons connected to the Claimant, Defendant, and other participants

To what extent, if at all, do the claim preclusive effects of judgments extend to persons who have not directlyparticipated in the proceedings giving rise to judgment but who are connected in a legally relevant way to theClaimant, Defendant or another participant in the proceedings?

Summary:

Since there must be identity of parties for a judgment to have preclusive effect, generally judgments have nopreclusive effect against non-parties. If however a non-party is deemed to share the legal identity of a party, thenthey will be bound by the judgment. As such, successors, co-debtors and spouses (where the judgment relates to

common property acquired during marriage) will be bound by judgments even if they were not parties to theproceedings. Indeed it is suggested that whenever there is a substantial connection between the non-party and a partyto proceedings, preclusive effects may follow.

Full Response:

As stated above, in order to have preclusive effect and thus to bar subsequent proceedings, there needs to be a tripleidentity between the object of the claim, the cause of action and the parties. This is the rule. Whether other persons,non-parties in the initial proceedings, might be bound by such judgment and thus barred from raising the same claimin subsequent proceedings is a complex question that, in many cases, does not receive a clear cut answer in thelegislation. As a result, in order to provide an answer to this question, one has to turn to case law in order to analysethe way courts deal with the specifics of this matter.

The complexity of this question has to do with the fact that one of the requirements for such preclusive effect is theidentity of the parties. In the factual situation portrayed under this question such identity is missing, and thus onewould tend to conclude that no such preclusive effects can be produced towards non-parties to the initial

proceedings, even if connected in one way or another to the parties.

However, this rule has exceptions. As mentioned above under question II.A.3, the requirement for parties identityhas been interpreted by courts broadly60. It does not concern the physical identity of the parties, but rather theirlegal identity. As a consequence, a successor in interest to one of the parties is barred from re-litigating the sameclaim on the same cause of action61. In the case at hand the successor in interest was an heir of the party to the trial,thus one can speak in this case of a substantial connection.

Another example of a substantial connection when a non-party is bound by a judgment is where a non-participatingco-debtor may benefit from a judgment rendered for the benefit of a co-debtor in another proceeding62.

Finally, since under Romanian law goods acquired by spouses during marriage form their common property, theaction undertaken by one spouse to realize the rights related to such goods is presumed to have the tacit support ofthe other spouse. As a result, judgments pronounced against or for the benefit of one spouse have preclusive effectstowards the other spouse as well63.

One can infer from the above mentioned case law that where there is a substantial connection between the non-partyand the Claimant or the Defendant, such preclusive effects towards non-participants may be envisaged. The case lawhas expressly dealt with the situation of heirs, co-debtors and family members. While one cannot foresee thereaction of Romanian courts in other cases of substantial connections (members of the same corporate group,members of the same association, members of a partnership, etc.), the extension of these effects in other situationcannot be excluded.

10.Strangers

To what extent, if at all, do the claim preclusive effects extend to persons who have not directly participated in theproceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendantor another participant in the proceedings or the subject matter of the action?

Under Romanian law, claim preclusive effects do not extend to persons not connected in a legally relevant way tothe parties in the proceedings.

60 CA Bucharest,sectia a IV-a civila, decizia no. 1056/2001, not published, as cited in Tabarca and Buta (n2) 532 (Court of Appeal Bucharest).61 ibid.62 TS, colegiul civil, decizia no. 1094/1963, 3Justitie noua 1964, 134 (Supreme Tribunal), as cited in Tabarca and Buta (n2) 531.63 G. Kovcs and B. Diamant, note to TJ Sibiu, decizie civila no. 1028/29 September 1973, 1Revista Romana de Drept1975, 42-44 (CountyTribunal Sibiu), as cited in Tabarca and Buta (n2) 530.


20/38

20

B. Issue preclusion

1. The existence and nature of issue preclusive effects

Are judgments in your legal system capable of having issue preclusive effects?

Summary:

Formally previous judgments have issue preclusive effect with regard to issues of law only. But in practice since theoperative part of a judgment is presumed to be true, the judge in the second action is bound not to contradict this

reasoning and is to that extent there may be limited issue preclusive effects.

Full Response:

The Romanian rules of res judicata extend, as specified above, to claim preclusive effects. For a judgment to havesuch effects and thus to bar subsequent litigation, three cumulative elements have to be present: object, parties andcause of action (legal grounds). Subsequent proceedings among different parties and/or which have a differentobject, even if based on the same cause of action, are not precluded. Insofar as a subsequent litigation between thesame parties and having the same object is based on the same legal ground (cause of action), the previous judgmentmay be said to have issue preclusive effect with regard to the issues of law only. However, since such effects occuronly where the two other elements (object and parties) are present, it is clear that such are strictly related to claim

preclusive effects and may not be looked at independently, as a distinct set of effects which judgments entail.

The preclusive effects extend only to the solution

64

arrived at in a matter and not to the issues of fact contained inthe reasoning to such solution. This means in practice that what has been stated in the operative part of a judgment ispresumed to be true and, while not precluding raising the issue again in subsequent proceedings, has the power offorcing the judge in the second action not to contradict the solution arrived at in the dictum of the previous judgment(prezumtia lucrului judecat)65. In practice, this would mean that if in the first judgment the court ruled that theunderstanding arrived at between the parties does not constitute a valid sale, the second action where the receipt ofthe due price and, implicitly, the conclusion of the sale contact is requested would be dismissed based on this

principle (prezumtia lucrului judecat)66.

However, as mentioned above under part I.A, between the solution arrived at in the dictum and the reasoning of thejudgment, which contains the legal and factual findings, there has to be a logical flow. As a result, even though theres judicata effects extend only to the solution, courts may look also at the reasoning in the judgment whose bindingcharacter is being invoked, either to interpret the dictum or to establish if all the three elements for claim preclusiveeffect are present. Indeed, since the cause of action (legal ground) of a judgment is contained in its reasoning, in

assessing the claim preclusive effects of a previous judgment the court will analyse its findings of law, as containedin the reasoning, in order to arrive at a well based decision on the res judicata effects of such judgment.

As a consequence, it can be stated that under Romanian law judgments have limited issue preclusive effects. Factualor legal issues which have been settled in previous proceedings may in principle be raised again in a new

proceeding. However, if the issues have been settled in the operative part of the previous judgment (dictum), thecourt trying the second judgment has to uphold the solution arrived at in the initial judgment. At the same time, ifthe new proceedings are between the same parties and have the same object the claim will be precluded. By thesame token, where a claim between the same parties and having the same object is raised again, the second time

based on a different legal ground, the claim will not be rejected67.

Such limited issue preclusive effects have to do with the fact that the effects are confined to the determination ofissues of law or fact included in the dictum of the previous judgment. While such issues may be raised again insubsequent proceedings, they are in most likelihood to be rejected since the decision arrived at in the previous

judgment is presumed to contain the truth. Even though this presumption is nor regulated by law but rather inferredfrom doctrine68 and case law69, since it is part of the res judicata effects that a judgment entails it is too to beconsidered a substantive exception. Such limited issue preclusive effects will be effective as of the date the

judgment is rendered. Finality is not a requirement for such effects.

64 Fodor (n5) 401, I. Deleanu and V. Margineanu,Prezumtiile in drept,( Dacia,Cluj-Napoca 1981) 147-148.65 CA Brasov, decizia no. 1073/R/2002,Buletinul Jurisprudentei. Culegere de practica judiciara 2004, 287-288 (Court of Appeal Brasov), ascited in Fodor (n5) 402.66 CA Craiova, decizia no. 40/2006, < http://porta.just.ro> accessed 18 December 2007 (Court of Appeal Craiova).67 CA Iasi, decizie civila no. 1960/1999,Jurisprudenta pe anul 1999, 187 (Court of Appeal Iasi).68 Fodor (n5) 401-402, Deleanu and Margineanu (n64) 147-148.69 CA Brasov, decizia no. 1073/R/2002,Buletinul Jurisprudentei. Culegere de practica judiciara 2004, 287-288 (Court of Appeal Brasov), ascited in Fodor (n5) 402, CA Craiova, decizia no. 40/2006, < http://porta.just.ro> accessed 18 December 2007 (Court of Appeal Craiova).


21/38

21

With the exception of questions 3, 6 and 10 below, the answers provided under part II.A of this questionnaire willapply mutatis mutandis to this part.

2. Policies underlying issue preclusive effects

What are the policy considerations for the issue preclusive effect of judgments in your legal system?

Please refer to question II.B.1 above.

3. Conditions for issue preclusive effects

What are the conditions for the issue preclusive effects of a judgment?

Summary:

Since the preclusive effect of judgments is inferred from doctrine and case law, it is not clear what specificconditions must be met to invoke issue preclusive effects, only that a party must have an interest in litigating thedisputed right.

Full Response:

The res judicata presumption (prezumtia lucrului judecat), the principle that lies at the basis of issue preclusioneffects under Romanian law, presupposes simply that courts cannot contradict the determination of fact or lawcontained in a dictum of a previous judgment. It does not extend to preliminary or interlocutory issues.

This principle is not regulated in law, but rather inferred from doctrine and case law. Accordingly, while it is clearthat the three cumulative elements needed for claim preclusive effect are not relevant in this context, it is not entirelyclear whether certain specific conditions are needed in order to invoke issue preclusive effects. However, the partyraising this matter before the court has to have an interest in litigating the disputed right, a general condition in orderto engage in litigation before Romanian courts70.

4. Invoking issue preclusive effects

Please describe how the issue preclusive effects of a judgment are invoked in your legal system.

Please refer to question II.A.4 above (of course here the existence of the three elements, similar parties, object and

cause of action need not be proven).

5. Exceptions to issue preclusive effects

Please verify whether the issue preclusive effect of judgments in your legal system is subject to generally acceptedexceptions.


In the previous section, the Questionnaire addressed general aspects of issue preclusive effects of judgments.

The following numbered points address particular questions that may arise in relation to the operation of the

issue preclusive effects of judgments in particular circumstances which may be subject to specific rules and

conditions. It is appreciated that some of the issues you have addressed in the more general answers in theprevious section will be involved when you consider these specific situations. Therefore, it is important that

you provide an insight in this section into the particularities, if any, of the application of issue preclusion in

the circumstances as described.

70 Fodor (n5) 200.


22/38

22

6. Claimant and Defendant

May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from challengingin the same or subsequent proceedings against the same party any finding (whether adverse or otherwise) on an issueof fact or law which the court may have determined in giving judgment on a particular claim?

Summary:

Even though the Romanian Legal system does not expressly regulate the res judicata effects of judgments, it isgenerally recognized that judgments entail such effects by inference from the definition of res judicata and theexceptions to res judicata. However in theory a party could relitigate the same issue against the same parties again,

should no interested party or the judge ex officio raise the res judicata principle. On raising the principle the secondclaim is automatically rejected.

Full Response:

Both Claimant and Defendant may invoke an issue of fact or law which has been determined in the dictum of aprevious judgment. The procedure to invoke the issue preclusive effects of a previous judgment is similar to thatdescribed under question II.A.6. The main difference with the situation where the parties invoke claim preclusiveeffects is that under this heading parties need not prove the existence of the three elements (same parties, sameobject and same cause of action).

It is not entirely clear how a Romanian court will react if the first judgment is subject to appeal proceedings. Whileunder Romanian law judgments which are not final have (temporary) res judicata effects, and as a consequence issue

preclusive effects, one recent judgment of the Court of Appeal Craiova71 would seem to suggest that such effectswould extend only to final judgments. In my view, since the dictum of a judgment, be it in first instance or afterappeal proceedings, is presumed to contain the truth, issue preclusive effects will extend to all judgments, includingif such are not final. If the judgment is altered after appeal proceedings then the second judgment may be altered aswell, in appeal or after submitting a motion to alter the judgment (revizuire). After all, a similar solution is appliedeven if the first judgment was final but was subsequently altered in appeal in cassation.

7. Other participants

To what extent, if at all, do the issue preclusive effects of judgments extend to other participants in the litigation?


8. Represented personsIf your legal system provides for group/representative actions (including, for example, US-style class actions), towhat extent, if at all, do the issue preclusive effects of judgments in such actions extend to the other members of thegroup/persons represented in the action?


9. Persons connected to the Claimant, Defendant, and other participants

To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directlyparticipated in the proceedings giving rise to judgment but who are connected in some way to the Claimant,Defendant or another participant in the proceedings or to the subject matter of the action?


10.Strangers

To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directlyparticipated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to theClaimant, Defendant or another participant in the proceedings or the subject matter of the action?

Summary:

71 CA Craiova, decizia no. 40/2006, < http://porta.just.ro> accessed 18 December 2007 (Court of Appeal Craiova).


23/38

23

Issue preclusive effects of judgments can be envisaged to extend to non-parties where the legal issue they litigate ismaterially the same as in an earlier decision.

Full Response:

Under certain circumstance, where issues of fact or law have been determined in a previous judgment, the preclusiveeffects of such may extend to subsequent litigation between parties who have not been directly involved in the first

proceedings and who are not connected to the parties in such proceedings. For instance, one may envisage thesituation whereby in a first judgment between an insurance company and an insured person a legal provision is

interpreted in a certain manner, while second proceedings are opened between two unrelated parties, again aninsurance company and a person insured. The interpretation of the law upheld by the court in the dictum of the firstjudgment might be presumed to be the truth and thus subsequent litigation on the same legal issue will be barred.

C. Wider preclusive effects

This section is concerned with the wider preclusive effects of judgments, that is to say any preclusive effect

which does not fall into either section A (claim preclusive effects) or section B (issue preclusive effects) above.

It is thus concerned with rules which preclude the raising of claims or re-litigation of issues which are not

considered by your legal system to have been determined by an earlier judgment, e.g. on the basis of

procedural fairness or abuse of process), but which are in some sense related to determined claims or issues.

1. The existence and nature of wider preclusive effectsDoes your system attribute wider preclusive effects to judgments on the basis of, for example, a doctrine of abuse of

process or procedural unfairness?

Summary:

A party cannot act in bad faith by harassing another party by claiming a right without a legitimate interest. Showingthat a previous related claim has been resolved can be an important aspect of establishing bad faith.

Full Response:

The free access to justice is a right upheld in article 21 of the Romanian Constitution. The exercise of this right incivil and commercial matters is governed by the principle of freedom of action (principiul disponibilitatii) during

civil proceedings

72

. However, this freedom to act cannot be exercised abusively, in bad faith. Accordingly, theRomanian Code of Civil Procedure has a general provision on abuse of process in article 723:

(1) Drepturile procedurale trebuie exercitate cu buna-credinta si potrivit scopului in vederea caruia au fostrecunoscute de lege.

(2) Partea care foloseste aceste drepturi in chip abuziv raspunde pentru pagubele pricinuite.

(1) Procedural rights will be exercised in good faith and according to the aim for which such have been upheld bylaw.

(2) The party that uses such rights abusively is responsible for the damages caused. (translation by the author)

Even though this provision on abuse of process may lead in practice to wider preclusive effects of judgments,subsequent claims will not be rejected simply because they relate to an earlier resolved claim. As it is shown belowunder question II.C.3, for the abuse of process to exist there has to be an element of bad faith, where one party is setto harass the other party by claiming a right without a legitimate interest73. In proving this element of harassment,showing that a previous related claim has been resolved one way or another may be an important aspect of proving

72 Fodor (n5) 92-100, Tabarca and Buta (n2) 1613.73 I. Stoenescu and S. Zilberstein,Drept procesual civil. Teoria generala. Judecata la prima instanta. Hotararea, (2nd edition, Didactica siPedagogica, Bucharest 1983), 275.


24/38

24

abuse of process. This is even more so if the previous claim has been admitted or dismissed based also on abuse ofprocess.

2. Policies underlying wider preclusive effects

What are the policy considerations for the wider preclusive effect of judgments in your legal system?

The law recognises subjective legal rights for natural or legal persons. The aim of such rights, as they are upheld bylaw, is the protection of those that can claim a legitimate interest. Procedural rights form no exception to this rule.Such rights are being conferred by law for the benefit of the parties in civil or commercial litigation and should be

exercised in accordance with their aim, in other words by parties that may claim a legitimate interest.The provisions of article 723 Code of Civil Procedure on abuse of process aim at upholding this policyconsideration. Their aim is to ensure that subjective procedural rights are exercised within the scope conferred uponthem by law74.

3. Conditions for wider preclusive effects

What are the conditions for the application of wider preclusive effects of a judgment?

Article 723

3484 Romania Final c

Documents

Transcript of 3484 Romania Final c