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NICOLAE-HORIA ȚIȚ, Particular situations regarding the exercise of the active role...

Abstract: The active role of the judge has many components, one of them referring to the clarification of the procedural framework. Even if the judge cannot exceed the limits of the judgment, set by the parties through their applications and defenses, the court has the obligation to set these limits correctly, in cases where the parties' requests are ambiguous in this regard. The article analyzes, starting from Decision no. 28/2015 of the High Court of Cassation and Justice, the implications of identifying by the appellate court an implicit claim that the first court did not take into account when it verified its competence and solved the case. The interpretative approach is determined by the recent modification of the provisions of art. 130 paragraph (2) and art. 131 C. pr. civ. regarding the time to which, in the first instance, the lack of public order competence can be invoked, respectively at which the first court is obliged to verify, ex officio, its jurisdiction.

Keywords: judge, active role, implicit claim, competence, appeal


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