Comentarii pe marginea Deciziei nr. 14/2020, pronunțată de Înalta Curte de Casație și Justiție – Completul pentru soluționarea recursului în interesul legii – referitoare la interpretarea și aplicarea unitară a dispozițiilor art. 472 și art. 491 din
Comments about the Decision No 14/2020, pronounced by the High Court of Cassation and Justice – Panel for the settlement of the appeal in the interest of the law – regarding the unitary interpretation and application of the provisions of Article 472

Summary/Abstract: The article, a continuation of the study with the same title published in the previous issue of „Dreptul” magazine, presents in detail the minority point of view expressed within the civil procedure collective of the Faculty of Law of the West University from Timișoara, according to which the object of the incidental or provoked appeal/review may be the grounds or the solutions contained in the judgment of the court and in the preliminary conclusions, whether they have been challenged or not by means of the main appeal/review. In the same sense, the High Court of Cassation and Justice – the Panel for the settlement of the appeal in the interest of law also has ruled on the unitary interpretation and application of the provisions of Article 472, Article 473 and Article 491 of the Civil Procedure Code, in the sense that the object of the incidental appeal or review, respectively the provoked one, may concern a part of the judgment of the first instance or of the court of appeal that was not challenged with main appeal or review, keeping in mind that the provisions of Article 491 (1), Article 472 (2) and Article 473 of the Civil Procedure Code do not condition the formulation of the incidental appeal/review on the invocation of some grounds of appeal/review that concern only the provisions of the challenged judgment that were criticized by the main appeal/review, considering that the reasons of the incidental or provoked appeal/review may tend to quash the challenged judgment in any aspect that is of interest to the respondent who declares an incidental or provoked appeal/review. The main argument for adopting this interpretation is represented by the premise of regulating the incidental appeal/review, but also the purpose of the regulation from Articles 472, 473 and Article 491 of the Civil Procedure Code. The accessory nature of the incidental appeal or review, respectively the provoked one, does not represent an argument to justify the interpretation that the incidental appeal/review can refer only to that part of the judgment that has already been challenged by the main appeal/review, being impossible for the accessoriality, not expressly proclaimed by the legislator, to be extended beyond the cases restrictively provided in Article 472 (2) of the Civil Procedure Code, because it would bring prejudice to the purpose of the incidental appeal or review, expressly mentioned in Article 471 (1) of the Civil Procedure Code, that of aiming to change the challenged judgment, denying the relation of legal adversity between the person who has formulated the main appeal or review and the respondent. In the opinion of the author of the present study, the incidental appeal or review, respectively the provoked one, should not exclusively concern the provisions of the challenged judgment criticized by the main appeal or review; in the unitary interpretation and application of Article 472, Article 473 and Article 491 of the Civil Procedure Code, the object of the incidental appeal or review, respectively the provoked one, may concern the considerations or the solutions contained in the judgment of the court and in the preliminary conclusions, whether they were challenged or not by the main appeal or review.

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