Revision for Contradictory Judgments, in Light of the Amendments Introduced (or Not) by Law No. 310/2018

1. Purpose of the Study

1. Much has been written about revision for contradictory judgments, written extensively and from different perspectives, so we do not intend to restate at length the opinions previously expressed. Instead, we bring into discussion a few new arguments (so we say), which either have not appeared in legal doctrine so far or have not been sufficiently addressed and deserve consideration, especially given the amendment introduced by Law No. 310/2018 in this area.

2. The arguments below are particularly relevant for revisions in cases initiated between the entry into force of the New Civil Procedure Code (hereinafter “CPC”) on 15 February 2013 and the entry into force of Law No. 310/2018 on 21 December 2018.

1. Divergent Opinions

3. The issue of revision for contradictory judgments is both old and new at the same time, and for a long time it was not sufficiently clear what the legislator intended through Article 509(1)(8) of Law No. 134/2010 regarding the Civil Procedure Code: ”Revision of a judgment rendered on the merits, or one that refers to the merits, may be requested if: there are conflicting final judgments issued by courts of the same or different levels, which violate the res judicata authority of the first judgment.”

4. It suffices to say that, before the entry into force of Law No. 310/2018, there were two schools of thought. On the one hand, Judge Adina Nicolae of the High Court of Cassation and Justice maintained that, under the New CPC, by virtue of ground no. 8 for revision, judgments could be revised even if the res judicata authority is violated only in terms of the positive effect (violation of the authority of the reasoning), whereas, on the other hand, Prof. Dr. Traian Cornel Briciu and other eminent authors argued that revision of contradictory judgments remains reserved solely for violation of the negative effect of res judicata (in which case the potential contradiction was analyzed exclusively at the dispositive level, requiring the triple identity of parties, object, and cause).

5. Above these schools of thought came Law No. 310/2018 for amending and supplementing Law No. 134/2010 on the Civil Procedure Code and other normative acts, which provided, via Art. I(61), the amendment of Article 513(4) CPC as follows: ” (4) If the court grants the revision request, it shall modify, in whole or in part, the contested judgment, and in the case of conflicting judgments, it shall annul the latter judgment and, where applicable, remit the case for re-examination if the positive effect of the res judicata authority has been violated.”

6. This latest provision, allowing the revising court “where applicable, to remit the case for re-examination if the positive effect of the res judicata authority has been violated,” on the one hand, resolved the divergence of opinions by unanimously recognizing the possibility of revision for violation of the positive effect in cases initiated after the entry into force of Law No. 310/2018.

7. On the other hand, the same provision (Article 513(4)) appears to have increased, or at least maintained, divergence regarding revision of judgments with contradictory reasoning in cases initiated after the CPC entered into force but before Law No. 310/2018.

8. Thus, even if it is accepted that by indicating the solution that the revising court will pronounce in case of violation of the positive effect of res judicata, the legislator indirectly recognized the possibility of revision on this ground, some authors and practitioners still consider that revision for violation of the positive effect of res judicata is prohibited for cases initiated prior to the entry into force of Law No. 310/2018.

1. Revision of Judgments for Violation of the Positive Effect of Res Judicata in Cases Initiated Between the Entry into Force of the New CPC (15.02.2013) and Law No. 310/2018 (21.12.2018)

9. As noted at the outset, we will not revisit prior writings on revision of contradictory judgments, but will focus on what we call new arguments in support of the possibility of revising judgments for violation of the positive effect of res judicata, even prior to the entry into force of Law No. 310/2018:

(I) Law No. 310/2018 did not introduce a new ground for revision nor modify any existing ground;
(II) The legal principle of terminological unity obliges interpretation of the phrase “res judicata authority” in Article 509(1)(8) CPC in accordance with the legal definition and content of this notion in Articles 430 and 431 CPC;

(III) Interpretation of the content of a ground for revision cannot primarily be made through the prism of the solution the judge may impose, whether regulated by the CPC or not.

III.1. Law No. 310/2018 Did Not Introduce or Modify a Ground for Revision

10. As noted, it is argued that revision for contradictory reasoning is possible only in cases initiated after the entry into force of Law No. 310/2018. In other words, it is suggested that the amendment to Article 513(4) CPC expanded the content of the revision ground in Article 509(1)(8) CPC.
11. However, as an extraordinary remedy exercisable only for expressly and limitatively provided grounds, any legislative intervention regarding revision grounds should have been made by amending or supplementing the content of Article 509(1) CPC.

12. Since the legislator did not amend Article 509(1) CPC, the conclusion is that the grounds for revision remain the same both before and after Law No. 310/2018 entered into force.

13. This argument is supported by Law No. 24/2000 on legislative technique, which regulates the method of amending and supplementing normative acts. From its provisions, it clearly follows that modification or supplementation of a revision ground should have been done through Article 509(1) CPC:

– Article 59(1) Law No. 24/2000: “Amending a normative act consists in expressly changing the text of one or more articles or paragraphs and presenting them in a new formulation.”

– Article 60 Law No. 24/2000: “Supplementing a normative act consists in introducing new provisions, including legislative solutions and additional hypotheses, expressed in texts added to the existing structural elements (…).”

14. Therefore, the thesis that the amendment of solutions in Article 513(4) CPC modified the structure of the revision grounds in Article 509(1) CPC cannot be accepted. If the legislator had intended to provide new hypotheses for Article 509(1)(8) CPC, it should have expressly amended or supplemented that provision.

15. Since Article 509(1)(8) CPC was not amended, this ground for revision could be exercised under the same conditions both before and after Law No. 310/2018. Consequently, if one admits that after the entry into force of Law No. 310/2018, violation of the positive effect of res judicata constitutes a ground for revision, in the absence of modification to Article 509(1)(8) CPC, one must also admit that the same violation was a ground for revision prior to the entry into force of Law No. 310/2018.

16. Against this argument, the need for systematic interpretation may be raised, which implies clarifying the meaning of a legal norm by considering its connections with other legal norms, thereby interpreting Article 509(1)(8) CPC through the lens of Article 513(4) CPC.

17. In what follows, we will examine to what extent Article 509(1)(8) CPC must be interpreted systematically in relation to Article 513(4) CPC, but it must be stated at the outset that systematic interpretation is secondary to grammatical interpretation: a legal norm is generally interpreted systematically only if it is unclear grammatically or terminologically.

III.2. The Principle of Terminological Unity Requires Interpretation of “Res Judicata Authority” in Article 509(1)(8) CPC According to Its Definition in Articles 430 and 431 CPC

18. The entire dispute over Article 509(1)(8) CPC stems from divergent opinions regarding the scope of this revision ground and the extent to which the legislator intended to sanction violation of the positive effect of res judicata.

19. The conclusion below, namely that the meaning of res judicata authority in Article 509(1)(8) CPC derives from Articles 430–431 CPC, has been reached on other occasions; here we aim to reinforce it, particularly invoking the principle of terminological unity, a cornerstone of grammatical interpretation.

20. The primary method of interpreting legal norms is grammatical, which “consists in clarifying the content of a legal norm based on grammatical rules, using morphological and syntactic analysis of the legal text, taking into account the meaning of the terms used, their connections, sentence structure, particles employed, and punctuation.”

21. Grammatical interpretation prioritizes establishing the meaning of terms used, as codified in Articles 37(1) and (2) of Law No. 24/2000 on legislative technique:

Art. 37 Law No. 24/2000:

(1) In normative language, the same notions are expressed only by the same terms.
(2) If a notion or term is not established or may have different meanings, its significance in context is determined by the normative act establishing it, within general provisions or in an annex intended for the relevant lexicon, and becomes binding for normative acts in the same field.

22. Applying this, since the legislator uses the same phrase “res judicata authority” in Article 509(1)(8) as in Articles 430–431 CPC, it follows that interpretation of the term in Article 509(1)(8) CPC can only be made by reference to Articles 430 and 431 CPC.

23. The principle of terminological unity was also affirmed by the High Court of Cassation and Justice when the court had to determine the meaning of a term. Thus, in a decision clarifying certain legal issues, the High Court held that: “The provisions inserted in Title VI of the Criminal Code (…) do not attribute an independent meaning to the notion of ‘legal person’ under criminal law. Therefore, in the context of the terminological unity requirements imposed by the provisions of Art. 37 (1) and (2) of Law no. 24/2000 regarding legislative drafting norms for the elaboration of normative acts, and in the absence of such autonomous recognition in criminal law, the meaning of the analyzed expression is determined in accordance with the meaning assigned by the normative act that establishes it. In the present case, this normative act is currently the Civil Code (…)”

24. In another decision, the Supreme Court pointed out that: “In accordance with Art. 37 of Law no. 24/2000 regarding legislative drafting norms for the elaboration of normative acts, ‘in normative language, the same notions are expressed only by the same terms,’ and ‘the meaning of a concept in context is established by the normative act that creates it,’ becoming binding for normative acts in the same field”.

25. In another decision, the High Court held that: “The fact that the meaning of the terms used in Art. 88 para. (1) corresponds to that in the regulation of copyright, namely Arts. 13–15 of the Law, (…) does not contradict the previous finding. The interpretation of Art. 88 para. (1) in conjunction with the aforementioned norms is explained by the need for a unified approach to the terminology specific to the provisions of the same law, pursuant to Art. 37 of Law no. 24/2000 (…)”

26. Therefore, the notion of res judicata authority protected by Article 509(1)(8) CPC cannot have any other meaning than that established in Articles 430(1)–(2) CPC, namely:
    (1) A judgment resolving, in whole or in part, the merits of a case or ruling on any procedural exception or incident has, from pronouncement, res judicata authority regarding the matter decided;(2) Res judicata authority concerns both the dispositive and the reasoning supporting it, including those resolving a litigated issue.

27. Hence, even if we interpret Article 509(1)(8) CPC systematically, reference must primarily be made to Articles 430–431 CPC, not Article 513(4) CPC, which only outlines solutions the revising court may impose.

28. The separate regulation of res judicata as an effect of the judicial decision represented a novelty in the New Civil Procedure Code. The new definition of res judicata, which was extended to include the reasoning, procedural exceptions, and procedural incidents, also led to a change in the configuration of the ground for revision based on conflicting decisions.

29. Under the previous regulation, res judicata was provided only as a procedural exception in the former Civil Procedure Code (art. 166) and as a means of evidence in the Civil Code of 1865 (art. 1200, art. 1202). Consequently, the former ground for revision set out in art. 322 point 7 of the Former Civil Procedure Code (“FCPC”) had a much narrower scope.

30. Thus, according to art. 322 (7) FCPC, revision was possible only if the conflicting judgments were rendered “in one and the same case, between the same parties, in the same capacity.” Therefore, the statute expressly required the condition of triple identity, which is no longer the case today, since the legislator abandoned this requirement and opted instead to protect the entire institution of res judicata, as defined by art. 430–431 of the CPC.

31. To argue the opposite—that is, to maintain the necessity of identity of cause, subject matter, and parties for the revision of a judgment under art. 509(1)(8) of the CPC—would mean, on the one hand, to violate the principle of terminological unity developed earlier, and on the other hand, to deny the legislative evolution.

32. The same conclusion results from the historical-teleological interpretation of art. 509(1)(8) CPC. In its initial form, the draft of the New Civil Procedure Code provided that revision was possible “where there are final conflicting judgments rendered by courts of the same or different levels, in one and the same case, between the same persons, in the same capacity,” thus essentially preserving the wording of the former Civil Procedure Code.

33. However, this approach changed during the legislative process that led to the adoption of the final version of the Code. Specifically, following the amendments proposed within the Joint Special Committee for the urgent debate of the Criminal Code, the Criminal Procedure Code, the Civil Code, and the Civil Procedure Code, the eighth ground for revision was modified and adopted in its current form: “where there are final conflicting judgments rendered by courts of the same or different levels, which infringe the res judicata authority of the first judgment.”

34. It is evident that such an amendment would not have been made if the legislator had intended to preserve the same regime for the revision of conflicting judgments as under the former Civil Procedure Code.

35. Therefore, given the new scope of res judicata—now covering the reasoning, procedural exceptions, and procedural incidents—the legislator also amended the rules governing the revision appeal, thereby introducing an additional protective mechanism. Without this amendment, the res judicata effect extended to reasoning, exceptions, and incidents would have risked becoming devoid of substance. Clearly, the res judicata attached to such elements would have been merely formal if it could be violated by a later judgment without the possibility of revision.

36. The change in terminology within the grounds for revision—and the significance of this change—was also noted by Judge Aurelian-Marian Murgoci-Luca, President of the 5th District Court of Bucharest, who, while moderating a discussion on the topic at the JURIDICE.ro “Litigators” Conference, suggested that the shift from the formula in art. 322 point 7 FCPC—“final conflicting judgments rendered by courts of the same or different levels, in one and the same case, between the same persons, in the same capacity”—to the current formula in art. 509(1)(8) NCPC—“final conflicting judgments rendered by courts of the same or different levels, which infringe the res judicata authority of the first judgment”—was by no means accidental.

37. In conclusion, the principle of terminological unity requires us to interpret the notion of res judicata in art. 509(1)(8) CPC in accordance with the definition laid down in art. 430–431 CPC.

III.3. Interpretation of a Ground for Revision Cannot Be Based Primarily on the Solution Provided by the Court

• As shown above, systematic interpretation is secondary to grammatical and terminological interpretation, and as a rule, it may be applied only insofar as the legal provision is unclear from a grammatical or terminological standpoint. Moreover, even if one were to resort to a systematic interpretation of art. 509(1)(8) CPC, the relevant provisions to which reference must primarily be made are those set out in art. 430 and art. 431 CPC, which define and explain res judicata as an effect of judicial decisions.

• In addition to these arguments, there are, however, several further “inconveniences” in interpreting art. 509(1)(8) through the lens of the solutions indicated by art. 513(4) CPC.

III.3.1. The Different Addressees of the Provisions. The Inquisitorial (Active) Role of the Judge

• The two provisions—art. 509(1)(8) and art. 513(4) of the Civil Procedure Code—have different addressees. Thus, on the one hand, the regulation of the grounds for revision is mainly addressed to the parties, as reflected in art. 509(1) CPC, which provides that: “The revision of a judgment on the merits or which concerns the merits may be requested if: (…)”.

• On the other hand, art. 513(4) CPC sets out the rules for the review court when ruling on the revision. In its current form, art. 513(4) CPC states: “If the court admits the revision, it shall amend, in whole or in part, the challenged judgment, and in the case of conflicting judgments, it shall annul the latter judgment and, where appropriate, remit the case for retrial when the positive effect of res judicata has been violated.”

• Therefore, art. 509(1) CPC grants the party the right to request the revision of a judgment, while art. 513(4) CPC merely indicates the types of solutions available to the court.

• However, the solutions available to the review court cannot restrict the party’s right to exercise a remedy, for several reasons. First, under art. 457(1) CPC, remedies may be exercised only under the conditions and within the time limits established by law, and not depending on what solutions a court might ultimately pronounce.

• Second, the solutions that a court may render in appeal proceedings in general—and in revision proceedings in particular—cannot be limited exclusively to those expressly stated by statute. Such a restrictive view would contradict the inquisitorial nature of Romanian civil procedure, in which the judge is the central actor and holds a wide range of instruments for resolving the case, even when certain tools are not expressly provided for in positive law.

“This system is inspired by the idea that justice is a public service whose role is not only to settle disputes between private parties, but also to restore legality and public order in society.”

• Among the instruments available to the court are its fundamental duties regarding the resolution of claims, as regulated by art. 5 CPC. According to art. 5(2) CPC, “no judge may refuse to adjudicate on the grounds that the law does not provide for, is unclear, or incomplete,” and under art. 5(3) CPC, “where a case cannot be resolved on the basis of the law, nor of custom, nor by analogy, it shall be adjudicated on the basis of the general principles of law, taking into consideration the circumstances of the case and the requirements of equity.”

• Therefore, even if we were to interpret art. 513(4) CPC strictly, the solutions of the review court must still be read in conjunction with art. 5 CPC, which establishes the court’s fundamental duties regarding the adjudication of claims.

• The necessity of applying this fundamental principle even in the procedure for the revision of conflicting judgments has already been highlighted in legal doctrine, where it has been noted that: “To argue that the authority of res judicata, in the form established by the legislator, should be disregarded merely because art. 513(4) CPC does not specify how the court should proceed after annulling the judgment that violated the positive effect of res judicata, would be to deprive this effect of much of its substance. It would mean, moreover, that the judge—although acknowledging the breach—refuses to sanction it and validates the judgment solely because the law does not expressly indicate the next procedural step.”

• It has also been observed that: “Any other approach—such as allowing the court to find that res judicata has been breached but to deny the revision on the grounds that the law does not indicate how the court should proceed after annulment—would have consequences for the right to a fair trial under art. 6 ECHR, undermining legal certainty and access to a court (art. 13), since the party would be left without any procedural remedy to eliminate a defect that fundamentally affects the effects of a judicial decision.”

III.3.2. The Cognitive Illusion of Understanding

• In addition to the legal arguments set out above, we draw attention to a psychological perspective, derived from a well-known experiment by Baruch Fischhoff. He divided students into five groups and gave them a text about the 1814 war between the British and the Gurkhas of Nepal. Four groups were given different (all false) endings to the story; the fifth group served as control. The students were then asked: “Had you not been given the ending, how would you have thought the war ended based solely on the text?” Most responded that they would have expected the very ending they had been told—although all endings were false.

• This illustrates what psychology calls the illusion of understanding or the hindsight bias: once the outcome is known, people unconsciously alter their reasoning and reinterpret facts to fit a conclusion they already possess.

• Mutatis mutandis, a similar effect may occur in legal interpretation when we analyze parties’ procedural rights only through the lens of the eventual solutions a court may render—although, as shown, art. 5 CPC requires the judge to go beyond rigid statutory limits and resort, where necessary, to analogy or general principles of law.

• Inspired by Fischhoff’s experiment, we should ask ourselves the question the legislator might hypothetically pose: “If art. 513(4) CPC did not exist, and based solely on art. 509(1)(8) CPC, how would you believe the ground for revision of conflicting judgments should operate?”

III.4. Applicable Solutions for Revising Judgments that Breach the Positive Effect of Res Judicata

• It has been argued that because the version of the Civil Procedure Code prior to Law no. 310/2018 provided only for the annulment of the later judgment, revision based on conflicting judgments could sanction only contradictory operative parts, without re-examining the latter decision.

• “In reality, the solution is the annulment of the latter judgment in both scenarios—whether it breaches the negative effect [art. 431(1)] or the positive effect [art. 431(2)] of res judicata. What differs is that, where the positive effect has been breached, annulment must be followed by a retrial of the second case, this time with due regard to what has already been definitively settled.”

• Thus, art. 513(4) CPC, before Law no. 310/2018, did provide the solution of annulling the later judgment; what it lacked was an explicit provision on retrial. This omission was not sufficient to block the revision, since retrial could still be reached by applying the principle in art. 5(3) CPC.

• “Therefore, it is the judge’s duty (emphasis added) to apply legal provisions governing similar situations—such as those where the court of cassation, by quashing a judgment, remits the case for retrial with binding guidance (see art. 497, 498, 501 CPC).”

1. Conclusions

• The legal saga of revising judgments for contradictory reasoning is closer than ever to its conclusion, and Law no. 310/2018 marks an important legislative step toward legal certainty in civil matters. We consider that the law not only opens the door to such revisions in cases filed after its entry into force, but also further clarifies the meaning of the ground for revision in art. 509(1)(8) CPC.

• The arguments advanced—especially the imperative of terminological unity, the fact that the grounds for revision remained unchanged after Law no. 310/2018, and the impossibility of limiting procedural rights of parties to the explicit text of art. 513(4)—support the conclusion that revision of judgments breaching the positive effect of res judicata has been possible from the very entry into force of Law no. 134/2010.

“The connection between law and morality is so strong that wherever legislation leads in practice to immorality, we can be certain that we are facing a legal error—one that must be corrected, legislatively or judicially, where correction remains possible.”