Aspecte particulare privind realizarea principiului contradictorialităţii în procesul civil

Abstract

During the last years in the civil procedural law there were made a lot of changes for the purpose to make more efficient the judicial process that is why we appreciate as particularly actual a theoretical study on the way in which the leading role of judge has changed in the civil suit through the light of audi alteram partem. The purpose of this work is to show the role of judge in the new judicial context which has configured in the judicial system of the RM as the result of the judicial system and civil procedural law reformation. Methodological support of study constituted the general methods of scientific research both on the empirical level and on the theoretical level: analysis and synthesis, induction and deduction, abstraction, comparison – they creating opportunities to examine deeply the taped problem about the leading role which has the judge in the civil suit and about the peculiarities of audi alteram partem principles application in correlation with the active role of the judge. Achieved results: good faith exercitation of procedural rights supposes that between the court and parties exists a collaboration relation: the party cannot invoke in all the situations the diligence obligation of the court based on the audi alteram partem principle for covering its own omission and for pre-constituting in this way a reason for appeal. The court is not always in all the situations the living memory or the respiratory document of the case, the parties at their turn having a diligence obligation toward the petitions and defenses which they have invoked. Before these arguments it seems that is more favorable for the party to be absent at the hearing when the discussions about the merits, especially when it was requested the judgement by default, formulating all the petitions and defenses in written form, because in this situation the judge is obliged to pronounce on his/her petitions, exceptions and defenses irrespective of the fact whether his/her truth is present or not, omission of pronouncing signifying in this situation the violence of audi alteram partem principle. In fact, it is not of the interest of the party to be absent from the hearing when it is discussed the merits of the case, this is for avoiding the situation in which the other party or the court invokes new proofs or exceptions and last and not least because implicitly renounces to the possibility to formulate verbal conclusions which can have a decisive influence over the final decision.