Recurs. Controlul averii. Încălcarea principiului contradictorialității. Nemotivarea hotărârii. Casare. Trimitere spre rejudecare
Appeal. Control of assets. Violation of the contradictory principle. Non-motivation of the decision. Cassation. Referral back

Summary/Abstract: The principle of contradictoriality is one of the fundamental principles of the civil process, contained in the Art. 14 of the Civil procedure Code according to Art. 14 para. (4) of the Civil procedure Code, the parties having the right to discuss and argue any fact or question of law invoked during the trial, by any participant in the trial, including the court ex officio. Article 14 para. (5) of the Civil procedure Code, regarging any process, binds the court to examine or present to the parties, all the invoked requests, exceptions, circumstances or law facts. According to the Art. 14 para. (6) of the Civil procedure Code, the court will base its judgment only on factual and legal grounds, explanations or means of evidence that have been subjected to the contradictory debate beforehand. Adversity occurs both between the parties and between the parties and the court. The principle of adversity was violated, as the judge on the merits totally removed the expertise performed by the expert appointed by the court itself and replaced the calculations made by him regarding the costs of the price/calculation work published on a web page, without this circumstance being either brought to the discussion of the parties until the closing of the debates. Therefore, the judgment was based on factual reasons, explanations/evidence that had not previously been subject to a contradictory debate. According to the Art. 174 para. (1) and (2) of the Civil procedure Code, the non-observance of the fundamental principles of the civil process is sanctioned with the absolute nullity of the procedural act performed, the nullity being in this case total. The court decision can be quashed also when the lack of considerations is equivalent to the non-judgment on the merits.

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