Producerea sau depunerea de înscrisuri în procesul civil din perspectiva Codului de procedură civilă român și a Codului de procedură civilă francez
Production or submission of documents in civil proceedings in the light of the Romanian Civil Procedure Code and of the French Civil Procedure Code

Summary/Abstract: The administration of evidence necessarily implies that the evidence is first proposed and produced (submitted) by the parties and then approved by the court.The legislator of the Civil Procedure Code instituted a regime of evidence renewed in its spirit and in its formal expression, devoting, in addition to the general provisions on the administration of evidence (Articles 260–263 of the Civil Procedure Code), also some provisions specific to the administration of evidence by written documents (Articles 292–300 of the Civil Procedure Code), as well as to the conduct of the procedures for verification of documents (Articles 301–308 of the Civil Procedure Code).As a rule, the production (submission) of the documents takes place voluntarily, under the terms and conditions set by law. However, in some cases, the documents relating to the pending trial are not produced voluntarily, whereas their presentation in court could have consequences for those who hold them or for their spouse, kin or relatives. The attitude of the person who holds the document not to produce it voluntarily may have different motives: family secret, business secret, confidentiality, strictly personal matters about the dignity or private life of a person, etc. In other cases, bringing written documents to court would be too expensive or the documents would be too voluminous or numerous.In such cases, the justice of the dialogue will prevail. From the correlation of the provisions of the final sentence of Article 22 (2) with those of Article 254 (2), Article 254 (5) of the Civil Procedure Code, it appears that the legislator draws attention to the cooperation which must exist between the judge and the parties, as regards the evidence of facts, without thereby understanding that the judge substitutes the parties, automatically filling the passivity of the party either a claimant, or a defendant. Inspired perhaps by the provisions of the French Civil Procedure Code, the Romanian legislator has introduced provisions regarding the forced submission of the written documents held by the party opposing to the party that intends to use them in the proceedings, by a third person, by a public authority or institution. On the other hand, it establishes as fundamental principle of the civil trial the obligations of the parties in the conduct of the trial, including the obligation to prove their claims and defences (Article 10 of the Civil Procedure Code). At the same time, it incorporates in Article 11 of the Civil Procedure Code the obligation of any person to support the administration of justice, under the sanction of payment of a judicial fine and, where appropriate, of some damages by the person who, without legitimate reason, avoids to fulfil this obligation. The solution is natural, since the administration of justice of quality and with celerity is a matter of general interest.If the document is in the custody of a public authority or institution, Articles 298–299 of the Civil Procedure Code clearly set out the measures the court can take in order to produce the written document. However, the public authority or institution is entitled to refuse to send the document if it relates to national defence, public safety or diplomatic relations, and the normative provisions contained in classified documents can be proved and consulted only under the conditions provided by law. Some professional categories (such as the lawyers, notaries) are bound by the professional secrecy and, therefore, by the provisions of the special laws which govern their activity, it is forbidden to send to the courts or to other authorities the written documents in their archives.

• Details
• Contents