A felek és a bíróság viszonyában érvényesülő egyes alapelvek Románia új Polgári eljárásjogi törvénykönyvében

A far reaching reform of Romanian civil procedure resulted in Act no. 134/2010, now called the „New‟ Code of Civil Procedure. This piece of legislation, in force beginning with the 15th of February 2013, among other innovations, for the first time in Romanian legal history in its introductory part lays down the basic principles of civil procedure in a coherent and systematized manner. This study aims to elicit some of these principles, which find their application in the complex interaction between parties and court during a civil trial. The principles linked with or resulting from the right to a fair trial are given special consideration. Among these celerity of the civil process is enshrined as the right to trial with an “optimal and predictable” duration. The source and meaning of this legislative language, as well as some of its consequences are explored, from the new procedural steps introduced to aid celerity (written exchange between the parties prior to trial, the right of the judge to annul the complaint if any formal requirements are not met, and do so without effective remedy, etc.) to their consequences in practice. Other principles subject to deeper analysis are those of good faith in procedures and the obligation of the parties to cooperate with the court. I attempt to present the interaction and interference of the definitions of good faith in material law as applicable to procedural law, and some consequences of the application of these principles, including the possibility for the party to be sanctioned for appealing a decision knowing that it is founded. I ask whether the new interpretation of procedural good faith may lead to sanctions similar to that of estoppels in common law settings. Finally I study the active role of the judge as enshrined into a principle of civil procedure, concluding that the new interpretation of this active role creates a schizophrenic outcome whereby the court is compelled to discover the material truth, but the parties who for some reason fail to invoke a certain aspect of the case may not criticize the failure of the court in examining these aspects. In my conclusions I show that Romanian civil procedure in its principles departs from previous norms and attitudes, yet this departure is not complete, and the application to practice of some noble principles such as celerity or the active role of the judge lead to practical deficiencies in the fair trial they were intended to ensure