Considerații privind procedura asigurării probelor în reglementarea noului Cod de procedură civilă
CONSIDERATIONS REGARDING THE PROCEDURE OF PRESERVING EVIDENCE ACCORDING TO THE NEW CODE OF CIVIL PROCEDURE

Summary/Abstract: : New Code of Civil Procedure brings a number of changes to the procedure of preserving evidences, under the aspect of the powers conferred on the court which considers on the admissibility of the claim, the procedure for resolving it and the legal regime of the dismissal of the claim of preserving evidences. Nevertheless, the new regulations allow, in certain situations, the judicial executor to ascertain the facts without prior consent of the court, making this procedure faster and more efficient. New code provisions leaves room for interpretation regarding the appropriate qualification of non-contentious procedures, as well as in connection with certain court solutions regarding the preserving evidence procedure. The article analyses the new regulations, making interpretations and qualifications on the basis of the subject of the application of preservation of the evidence and reported to the procedure for resolving it, by reference to general provisions covered in what the non-contentious procedure is concerned. Also, it analyzes situations that may arise in practice in connection with this procedure, in particular those which are not directly targeted by the legislator and it proposes reasoned solutions to improve the regulation. In regard to the procedure of urgently ascertainment of facts by the judicial executor, are analyzed both the situations when it is not required the prior approval of the court and those in which this approval is mandatory, as envisaged concrete situations that may arise in practice. Also, there are make a number of de lege ferenda suggestions relating to the regulation of the appeal against the executor`s actions and the probative value of the report prepared by the executor, with reference to the previous legislation, situations in which it is not necessary to prior consent to the court, as well as those in which this consent should be required, as envisaged in concrete situations which may occur in practice.

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