Incidente relative la înscrisurile probatorii în procesul civil (II). Procedura falsului din perspectiva Codului de procedură civilă român și a Codului de procedură civilă francez
Incidents relative to the written evidence in the civil trial (II). Procedure of forgery from the perspective of the Romanian Civil Procedure Code and of the French Civil Procedure Code

Summary/Abstract: The procedure of registration of forgery is a procedural incident regarding the evidence by written documents, which can usually have as its object an authentic written document or a written document registered under private signature.In the case of authentic written documents, the procedure of forgery may be used when the authenticity of the findings made personally by the person who authenticated the document is contested, according to the law.In the case of the written documents under private signature, the procedure of forgery can be used when it is claimed that they have been fabricated, being admissible also in the assumption that such a document has been recognized by its author or has been verified in court, if it is proved that the recognition was the result of an actually excusable error.The investigation and establishment of forgery shall be carried out by the criminal prosecution bodies and criminal examination body or by the civil court, by incidental way, in the event that the criminal action cannot be initiated or cannot continue.The procedure of registration of forgery is applicable regardless of the nature of the forgery (material or intellectual) and false written document is also the one whose content is not real, even if there has not been committed by the operation of altering the reality.The provisions of Articles 304-308 of the Civil Procedure Code regulate the procedure applicable in the assumption of registration of forgery against a written document produced in a pending litigation, in which case the provisions of Article 315, of Article 5491 and of Article 580 of the Criminal Procedure Code must be complied with.The investigation of the forgery by the civil court, by incidental way, can be done in the cases expressly and limitatively provided by Article 308 of the Civil Procedure Code, by any means of evidence. However, regardless of the existence of a civil trial, the party concerned may file a criminal complaint against the alleged perpetrator of the forgery.In case the criminal action cannot be initiated or cannot continue, the forgery can be investigated by the civil court, by principal way, resorting in this regard to the declaratory action, if the requirements of Article 35 of the Civil Procedure Code are met. The promotion of such an action is not, de plano, inadmissible, even if the legislator does not regulate it in terminis.In the French law, the legislator of the Civil Procedure Code distinctly regulates the procedure of forgery applicable to the written documents under private signature from the procedure of forgery applicable to the authentic written documents. At the same time, the French legislator establishes provisions applicable to the registration of forgery by incidental way and provisions applicable to the registration of forgery by principal way.

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