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Procedure for examining the appeal in civil process


Author: Jimbei Ina
Degree:doctor of law
Speciality: 12.00.03 - Private Law (with specification: Civil, Family, Civil Procedure Law, Notary, Business, Informational, Private International, Labour Law, Social Protection Law)
Year:2020
Scientific adviser: Elena Belei
doctor, associate professor (docent), Moldova State University
Institution: Moldova State University

Status

The thesis was presented on the 10 July, 2020 at the meeting of the Scientific Council and now it is under consideration of the National Council.

Abstract

Adobe PDF document0.45 Mb / in romanian

Thesis

CZU 347.956(043.3)

Adobe PDF document 1.43 Mb / in romanian
171 pages


Keywords

appeal, phase, remedy, control procedure, occurring appeal (apel incident), joining the appeal, devolution, execution

Summary

Dissertation structure: introduction, four chapters, general conclusions and recommendations, bibliography of 133 titles, 156 basic text pages. It was published 7 academic articles covering dissertation’s subject.

The scope of the present work: is to examine the origin and essence of the appeal, of the existing concepts in the doctrine of civil procedural law and to identify a certain and unitary concept that will determine the regulation of the examination of the appeal in the national procedural law and, consequently, to establish a procedure, which faithfully reflects the essence of the identified concept.

Researches objectives: the study of the origin and evolution of the appeal, the examination of the concepts of the appeal treated in the civil-procedural doctrine, the determination of a certain and unitary concept of it which will later be the basis for the regulation of the examination of the appeal; determining the place, role and justification of the incidental appeal; arguing the need to exclude the joined appeal; examining the reflection of the principles that determine the limits of the examination of the appeal; examination of the normative provisions regarding the appeal (including all phases of the examination: initiation, preparation, debates) in order to detect the correspondence of the current regulations to the identified concept but also to the international standards and requirements of good judicial practices in the field.

The scientific novelty and originality of the dissertation: it derives primarily from the fact that so far the issue of establishing a definite and unitary concept of the appeal to determine the regulation of the appeal examination procedure has not been raised. Also, the novelty of the thesis is determined by the new amendments made to the Code of Civil Procedure during 2018-2019 years which introduced a new form of appeal in civil procedural law: cross-appeal as well as new regulations related to the limits of the appeal and presenting evidence in the appellate court. The originality is also manifested by the comparative study of the regulations regarding the incidental appeal in Romania and the Republic of Moldova.

Obtained results that contribute to the solution of an important academic problem: the research contributes to solving an important scientific problem, which lies in establishing a certain and unitary concept of appeal as an appeal that aims to correct errors committed by courts, with the basic task of controlling its disposition and as of subsidiary task the retrial of the case, fact that led to the elaboration of some proposals of law ferenda, in order to improve and adjust the civil procedural legislation of the Republic of Moldova to the identified concept but also to the international standards and requirements of good judicial practices in the field. Theoretical significance: the paper highlights the doctrinal approaches of different authors on the concept of the appeal as a judicial remedy and identifies the deficiencies within the regulatory framework governing the procedure on the examination of the appeal.

The practical value of the research: the results and conclusions of this paper may be used by the legislator to enhance the legal framework which may lead to its efficient enforcement by judges, lawyers and other participants to the proceedings. The implementation of the research findings: The results of the investigation are used in the didactic and scientific process at USM, in the training of students and master students. Also, the results of this study were communicated in various national and international conferences, published in specialized journals, which contributed to the enrichment of the national theoretical framework.