CÂTEVA CONSIDERAŢII REFERITOARE LA OBIECTUL ŞI COMPETENŢA DE SOLUŢIONARE A RECURSULUI ÎN MATERIE CIVILĂ ÎN ACTUALA REGLEMENTARE
SOME CONSIDERATIONS ON THE SUBJECT MATTER AND JURISDICTION OF CIVIL SECOND APPEALS UNDER THE CURRENT RULES

Summary/Abstract: As explicitly mentioned by the Constitutional Court in the recitals of the Decision No 369/2017, the decision has led to a change in the case law, the Constitutional Court's opinion having changed from that resulting from previous decisions, namely those concerning the provisions of the old Code of Civil Procedure, the Constitutional Court concluding that the criterion used by the legislator to file the second appeal - the threshold of more than 1,000,000 lei - leads to the classification of claims in court into important, in terms of monetary value, and less important, which is an artificial and unjustified classification, since the difficulty of a legal issue cannot be determined based on the value of the dispute, but on its nature. Taking into account the fact that the exclusion at this stage of the second appeal based on the value of the subject-matter of the dispute is in practice prohibited by Constitutional Court Decision No 369/2017, it is obvious that the limitation of the situations in which such challenge is excluded can only be made in relation to the nature of the case, this exclusion being in principle considered by the Constitutional Court as exceeding the limits of its review, under the conditions mentioned in its case law, cited above. The legislator did the same in Law no. 310/2018, whereby Article 483 para. (2) and other matters for which the appeal is not admissible, the likelihood that the list of matters for which the appeal is excluded, either by amending the provisions of Art. 483 para. (2) of the Civil Procedure Code or by special laws is relatively large. The consequence of regulating the subject matter of the second appeal in these mandatory benchmarks established by the Constitutional Court is that, at the moment, the appeal is admissible for any kind of claims whose subject matter has a minimum limit of 1 leu, the courts of appeal, in whose favour the jurisdiction to settle appeals in cases whose subject matter has a value of up to 200,000 lei has been established, judging a large number of cases whose subject matter has a value of up to 10,000 lei, in these cases it is admissible to file both the ordinary appeal and the extraordinary second appeal, which probably often entails higher costs than the actual value of the dispute, while disputes with a much higher value, sometimes for millions of lei, are excluded from the appeal as a result of the explicit note on this fact in Article 483 (2) of the Civil Procedure Code (in relation to the subject matter of the case) or as the second appeal is excluded by special laws. There is no doubt that solutions can and should be found to rebalance the system of challenges, as they have been found and applied by other European countries, so as to ensure compliance with all the constitutional principles applicable to this area, but at the same time, to ensure compliance with other fundamental principles governing the civil process, in particular that of speed, which also relates to the right of access to the court, as is explicit in the provisions of Article 21 para. (3) of the Constitution and, last but not least, which should take into account the Constitutional Court's decision no. 369/2017, namely that the role of the High Court of Cassation and Justice is to ensure the uniform interpretation and application of the law by all courts, a role enshrined in art 126 para. (3) of the Constitution, and this role cannot be fulfilled solely by conferring jurisdiction to rule on appeals in the interest of the law.

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