ASPECTE CONTROVERSATE PRIVIND REGULARIZAREA CERERII DE CHEMARE ÎN JUDECATĂ

This paper tries to achieve the exposure of the elements that have aroused controversies in the judicial practice, in regards to the regularization of the demand for judgment summoning, the identified case-law orientations, as well as the author’s opinion on each of them. Considering that this written prior procedure was an unknown mechanism in the Romanian legal system before the enforcement of the New Code of civil procedure, although from this moment it has been almost five years, in the case-law of many courts there are still seised contradictory opinions regarding some aspects. These are the subject for presentation in this article, namely: the cancellation of the sue petition if the documents attached are not certified as true copies, of the sue petition if the applicant does not mention the evidence, of the sue petition if the applicant does not mention the point of law on which his request is based, the possibility of granting a second deadline to fulfill the irregularities of the application, the possibility of constitutional challenging and the possibility of the applicant to drop the case. Along with a presentation of the case-law of the European Court of Human Rights and the Constitutional Court of Romania regarding this procedure, this article exposes the author`s opinion on each of the assumptions stated above. There are given detailed arguments for the opinion according to which the penalty of cancellation of the sue petition if the documents attached are not certified as true copies appears to be proportionate to the objective consisting in the proper administration of justice, given the procedural consequences that would be produced in the absence of a such penalty. The same conclusion applies in the case of the applicant’s failure to fulfill the obligation to indicate the evidence intended to be used in the trial, taking into account the type of the evidence and also the references exposed through the application. Regarding the possibility of cancelling the sue petition for failure to indicate the point of law, the paper is exposing the indissoluble link between this penalty and the need to respect the judge's active role principle in the legal classification of the acts or facts related to the case, imposing that the action will be annulled only if the legal reasons given are contradictory, so that the judge cannot proceed to determine the cause for judicial action. In addition, it was identified a situation in which the complete coverag