Within the legal system, sanctions play an essential role in ensuring compliance with the law and maintaining the rule of law. Among these sanctions is the judicial fine, a coercive measure applied by the courts to sanction behaviors that obstruct the proper conduct of justice.
Its main purpose is to discourage inappropriate attitudes during trials, such as unjustified absences, refusal to fulfill certain procedural obligations or lack of respect for the court.
In civil proceedings, both parties and third parties have obligations established by law or by the court in relation to its conduct.
The judicial fine is established by law to ensure guarantees for the conduct of a fair trial, to prevent its delay or to contribute to the judicial process of finding the truth through the appropriate and timely administration of evidence.
Thus, the judicial fine has a preventive function, consisting of an inhibitory effect exerted on the subjects of law, determining them to comply with the rules of the civil process, as well as a sanctioning function, the fine being a pecuniary burden imposed on the sanctioned party, to the extent that the first function has not proven its efficiency.
The judicial nature of the fine arises from the fact that such a measure is ordered by the court.
In law, according to the provisions of art. 187 para. (1) pt. 1 letter a) C. proc. civ., unless the law provides otherwise, the court, according to the provisions of this article, will be able to sanction the following acts committed in connection with the process, as follows: 1. with a judicial fine from 100 lei to 1,000 lei: a) introducing, in bad faith, some main, accessory, additional or incidental requests, as well as for exercising a clearly unfounded appeal.
Then, according to the provisions of art. 191 paragraph (1) of the Code of Civil Procedure, against the decision ordering the fine, the person liable to pay the fine (…) will only be able to file a request for review, requesting, with justification, that the fine (…) be reversed or that its reduction be ordered.
The legal basis as the basis of the solution to apply the judicial fine becomes an incident in the event of the cumulative fulfillment of two conditions, namely that the request must be: 1) introduced in bad faith and 2) be manifestly unfounded.
As for the first condition, it is noted that according to the provisions of art. 12 of the Code of Civil Procedure, procedural rights must be exercised in good faith, according to the purpose for which they were recognized by law and without violating the procedural rights of another party. (2) The party that exercises its procedural rights abusively is liable for the material and moral damages caused. It may also be required, according to the law, to pay a judicial fine. (3) Also, the party that does not fulfill its procedural obligations in good faith shall be liable according to paragraph (2).
In order to be held to have committed an abuse of rights, it is necessary to meet two elements, namely the subjective element, materialized in the bad faith exercise of procedural law, without being able to justify a legitimate interest, but with the intention of infringing the rights of the opposing party, and an objective element, characterized by the diversion of the law from the purpose for which it was established.
In the following, we will present two recent civil decisions issued by the Cluj-Napoca Court through which the requests for examination formulated by the team of lawyers within the Civil Law Firm Costaș, Negru & Asociații were admitted.
In the first case, we requested the court, pursuant to art. 78 para. (2) and (5) of the Code of Civil Procedure. civ., in conjunction with art. 22 in relation to art. 724 paragraph (2) sentence II of the C. proc. civ., the introduction of third parties into the case, proving that the report submitted to the court requires the introduction of third parties acquiring the goods into the case, so that the decision can also have effects in relation to them, if applicable, or that a criminal complaint has been filed against them.
We also indicated that we filed the request in order to clarify the state of affairs and respect the right to defense and a fair trial, even if one of the third parties was only a participant in the auction shown to be illegal and not an adjudicator, considering that his possible testimony will lead to the discovery of the real state of affairs.
In relation to the defenses formulated, relating to the illicit nature of the auction regarding the adjudication of the property and considering the subject of the request in the substantive file, namely the return of the execution, the court concluded that it cannot be unequivocally held that the petitioner exercised his right with the intention of infringing the rights of the opposing party, by diverting the right from the purpose for which it was established.
Moreover, the Cluj-Napoca Court held that the failure to meet the requirement of passive procedural quality in the person of the person summoned to court, in this case in the person of the person against whom the request for introduction into the case was made under art. 78 of the Code of Civil Procedure, which regulates the forced introduction, ex officio, therefore by the court, of other persons, cannot per se lead to the conclusion that the request in question was made in bad faith, it being necessary to meet the conditions shown above regarding the existence of abuse of rights, a circumstance that can be unequivocally held, namely that there is a certain intention to prejudice the rights of the opposing party, without a legitimate interest.
In relation to the above, as long as the cumulative incidence of the conditions provided for in art. 187 paragraph (1) point 1 letter a) of the Code of Civil Procedure cannot be held in this case civ. for the application of the judicial fine, the court, pursuant to art. 191 para. (3) in relation to art. 191 para. (1) C. proc. civ., admitted the request for re-examination and, consequently, ordered the exemption of the client represented by us from paying it.
In support of our arguments, we also point out that by means of Decision no. 29/2023 regarding the rejection of the exception of unconstitutionality of the provisions of art. 187 para. (1) point 1 letter a) of the Code of Civil Procedure, the Constitutional Court held the following:
Given that the criticized legal provisions refer to the filing of a manifestly unfounded claim in “bad faith”, the phrase “manifestly unfounded” suggests that the claim has no basis whatsoever, an aspect that its author is aware of. Obviously, based on the way the claim was formulated, the reasons invoked, and any repeated requests for summons, the court can form a conviction and assess whether the claimant is filing a summons in bad faith; however, the text of the law does nothing more than legitimize the judge who finds such a situation to sanction it.
The Court also held that the execution of obligations and the exercise of civil rights are based on good faith, the Civil Code, through art. 11 and 14, imposing on any natural or legal person the observance of public order and good morals, as well as good faith in the execution and the exercise of civil obligations and rights. Art. 14 para. (2) of the Civil Code enshrines the concept of “good faith” as a relative legal presumption that is valid until proven otherwise.
In the same sense is art. 12 of the Code of Civil Procedure, according to which procedural rights must be exercised in good faith according to the purpose for which they were regulated and with respect for the rights of the other parties, abusive exercise attracting the party’s liability for the moral and material damages caused and, at the same time, the application of a judicial fine.
The Court also held that the assessment of the abusive exercise of procedural rights lies with the court that determines the cases in which a participant in the process acts contrary to good faith, which must take the form of good intention, diligence and refraining from causing any damage to the other parties, in accordance with respect for public order and good morals that characterize social relations.
As regards the second case, the Cluj-Napoca Court concluded again that in order to establish the incidence of abuse of law, it is necessary to meet two elements, namely the subjective element, materialized in the bad faith exercise of procedural law, without being able to justify a legitimate interest, but with the intention of infringing the rights of the opposing party, and an objective element, characterized by the diversion of the law from the purpose for which it was established.
In this case, the appellant represented by the team of lawyers within the Civil Law Firm Costaș, Negru & Asociații requested the court to return in kind the real estate sold at auction, considering that such an effect of returning the forced execution can be obtained, according to the per a contrario interpretation of art. 724 paragraph (1) of the Civil Procedure Code, when the third-party adjudicators are in bad faith.
Moreover, we invoked in the introductory action the fact that this property was sold during the forced execution for a derisory amount, at less than 50% of the evaluation price, and the two persons who participated in the auction regarding the purchase of the property were in fact in very close relations, the property being awarded due to the agreement between them, at the same time providing evidence of the formulation of a criminal complaint against the two persons regarding whom I requested the prosecution as forced interveners.
In relation to the defenses formulated, relative to the illicit nature of the auction regarding the adjudication of the property and considering the subject of the request in the substantive file, namely the return of the enforced execution, the court concluded that it cannot be unequivocally held that the petitioner would have exercised his right with the intention of infringing the rights of the opposing party, by diverting the right from the purpose for which it was established.
The solution pronounced in the case regarding the request of the appellant to have the real estate adjudged during the enforced execution returned in kind, respectively that of rejecting the claim as unfounded, was considered that it cannot represent in itself a sufficient reason to consider that the respective request was formulated in bad faith.
In relation to the above, as long as the cumulative incidence of the conditions provided for in art. 187 para. (1) pt. 1 lit. a) C.pr.civ. for the application of the judicial fine, the court, pursuant to art. 191 para. (3) in relation to art. 191 para. (1) C.pr.civ., also admitted this request for re-examination and, consequently, ordered the exemption of the petitioner from paying the fine.
Therefore, the court annulled the judicial fines and restored the procedural balance, reaffirming that these sanctions should not be used as automatic punitive instruments, but only when there is clearly proven reprehensible conduct.
This case represents a clear example that the exercise of the right to re-examination can correct excesses of authority and guarantee a fair trial for all parties involved.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by atty. Diana Badiu, from the Cluj Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 16 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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