Recourse against court dispositions of the Courts of Appeal.
Chapter XXXVIII. Recourse proceedings.
Title III. Ways of challenging judicial decisions.
Civil Procedure Code of the Republic of Moldova
Summary: Recourse against court dispositions of the Courts of Appeal
Excerpt:
Article 429. Dispositional acts that can be recoursed
(1) Non-final decisions issued by the Courts of Appeal in their capacity as appellate courts, as well as decisions issued by the Courts of appeal, may be recoursed.
(2) Non-final decisions made during the examination of a case in appellate proceedings may be challenged in recourse proceedings only simultaneously with the contested non-final decision that concluded the examination of the case on the merits, except in cases where, in accordance with the law, they may be challenged in recourse proceedings separately, as well as in cases where such a non-final decision makes further progress in the case impossible.
(3) A recourse application filed against a non-final decision that concluded the consideration of the case on the merits, or against a decision, shall be deemed to have been filed against a non-final decision made during the consideration of the case in appellate proceedings, even if it was made after the announcement of the contested non-final decision or decision.
(4) Recourse proceedings do not apply to the following:
a) non-final decisions to refer the case for retrial that are not subject to any recourse;
b) non-final decisions in respect of which the appeal has been withdrawn in the manner provided for in art. 374;
c) non-final decisions issued by the appellate court, without the right of recourse.
(5) Decisions in respect of which the persons indicated in art. 430 letter a) did not use the appeal path provided for by law may not be recoursed. Persons who did not use the appeal to challenge the decision of the appellate court by which their situation was worsened, as well as the persons referred to in art. 430 letter b), may submit recourse application.
(6) A decision susceptible to appeal and recourse (cassation) may be challenged, within two months, directly by recource if the parties expressly consent before the first instance to waive the appeal by authentic document or by verbal declaration recorded in the minutes.
Article 430. Persons entitled to file a recourse application
The following are entitled to file a recourse:
a) the parties and other participants in the process;
b) persons who were not involved in the process, but whose rights are harmed by the court decision.
Article 431. Judicial authorities competent to examine the recourse
(1) The examination of recourse against non-final decisions of appelate courts falls within the competence of the Supreme Court of Justice.
(2) A panel of 3 judges shall decide on the admissibility of the recourse.
(3) An recourse deemed admissible shall be examined by a panel of 3, 5 or 9 judges of the Supreme Court of Justice.
(4) The judges who examined the admissibility of the recourse may also participate in the examination of the recourse that is deemed admissible.
Article 432. Grounds for recourse
(1) The recourse shall be admitted if:
a) the interpretation of the law in the contested decision is contrary to the uniform case law of the Supreme Court of Justice;
b) by admitting the recourse, the case law of the Supreme Court of Justice is changed or consolidated;
c) an recourse lodged late was unfoundedly admitted or an recourse lodged within the time limit was rejected as being late;
d) the judgment or decision concerns the rights of a person who was not involved in the proceedings;
e) the judgment or decision is arbitrary or is based decisively on a manifestly unreasonable assessment of the evidence;
f) the court was not composed according to the law or the judgment was pronounced in violation of jurisdictional competence.
(2) The grounds referred to in paragraph (1) letters d)–f) may be invoked in an recourse only if they were invoked in the appeal or if the violation occurred in the appellate court.
Article 433. Grounds for inadmissibility of a recourse
(1) The application for a recourse shall be considered inadmissible if:
a) the recourse does not fall within the grounds provided for in art. 432 paragraph (1);
a1) the recourse is filed against an act that is not subject to recourse, except for the cases provided for in art. 429 paragraph (5);
b) the recourse application is filed with the omission of the declaration term provided for in art. 434;
c) the person who filed the recourse application is not entitled to file it;
d) the recourse is filed repeatedly after it has been examined;
e) the legal issue raised in the recourse is not of fundamental importance for the development of jurisprudence;
f) the recourse is manifestly unfounded.
(2) The recourse filed pursuant to Article 432, paragraph (1), letter e) may not be declared inadmissible pursuant to paragraph (1), letter e) of this Article.
Article 434. Time limit for filing a recourse
(1) The recourse application shall be filed within 2 months from the date of notification of the judgment or non-final decision as a whole, unless otherwise provided by law.
(2) The 2-month period is a time limit and cannot be restored.
Article 435. Suspensive effect of the recourse
(1) The recourse suspends the execution of the decision in the case of the relocation of the border, the destruction of plantations and crops, the demolition of buildings or any immovable property, the indisputable decommissioning of funds from the budgets of the national public budget and from the budget authorities/institutions, as well as in other cases provided for by law.
(2) At the request of the recoursator (applicant of the recourse), the court entrusted with the adjudication of the recourse shall order the suspension of the execution of the decision appealed against if the recoursator has lodged a bail (security deposit).
(3) Bail shall be provided in property matters, decisions on which have not been executed, in the amount established in Article 81 of the Executive Code (Enforcement Code).
(4) Bail shall be deposited into the bailiff's account in accordance with the provisions of Article 80 of the Executive Code. The confirmation issued by the bailiff to the recoursator shall be attached to the application for suspension of the enforcement of the contested decision.
(5) If the recourse is admitted with the adoption of a new decision by which the action is dismissed, the amount deposited shall be returned pursuant to this decision.
(6) If the recourse is admitted with the annulment of the decision and the remand of the case for retrial, the security deposit shall remain, until the adoption of a new irrevocable decision, in the account in which it is deposited.
(7) If the court of recourse upholds the contested decisions, the respective amount shall be used for the execution of the decision, in the manner provided by law.
(8) In non-pecuniary cases, the execution of the decision shall be suspended upon the reasoned request of the cassator (recoursator).
Article 436. Filing of the recource application
(1) The recourse application shall be filed by the persons mentioned in art. 430, in compliance with the conditions provided by art. 437.
(2) The cassator shall file the recourse apllication with the Supreme Court of Justice, accompanied by as many copies as there are participants in the trial, paying state fee and/or stamp duty in the cases provided by law.
(3) The recourse application with all attached documents may be submitted in electronic format through the Integrated File Management Program, with advanced qualified electronic signature.
Article 437. Content of the recourse request
(1) The recourse request must include:
a) the name of the court to which the recourse is filed;
b) the name, title, procedural capacity of the appellant or the person whose interests they represent, their address;
c) the name or title, address of the respondent;
e) the name of the court that issued the non-final decision on appelate, the date of the pronouncement and the operative part of the decision, the arguments for admitting or rejecting the appeal;
f) the grounds provided for in art. 432 and the arguments regarding the merits of the recourse;
g) the date of the recource and the signature of the recoursator.
(2) The recourse must be accompanied by proof of payment of the state fee, if the recourse application is subject to a fee, and/or of the stamp duty.
(3) In the event that the recourse is filed through a representative, the document, legalized in the established manner, certifying the representative's powers of attorney shall be attached to the recourse application, if such power of attorney is absent in the file.
Article 438. Return of the recourse application
(1) The recourse request shall be registered with the registry of the Supreme Court of Justice.
(2) If the recourse request contains the grounds for the recourse, but some of the data provided for in art. 437 para. (1) letters a)–c), e), para. (2) and (3) are missing, the reporting judge shall issue a non-final decision, which shall not be subject to any appeal, not to grant the appeal application and shall grant the recoursator a reasonable term to remedy the deficiencies. If the recoursator eliminates the deficiencies within the granted term, the recourse is considered filed on the date of the initial submission. If the recourse request is not signed, does not contain the grounds for the recourse or the recoursator does not eliminate the deficiencies in the recourse request within the granted term, the reporting judge returns it within 10 days from the date of registration or from the date of expiry of the term granted for eliminating the deficiencies.
(21) In the event that exemption, postponement or installment of the payment of the state fee is requested (with the presentation of supporting documents), the recourse application is not returned, the panel of three judges will rule, by a non-final decision that is not subject to recourse, on the submitted request.
(22) If the request for exemption from paying the state fee has been rejected, the panel of 3 judges shall, by a ruling not subject to recourse, order not to grant the recourse, granting the appellant a reasonable term for paying the state fee. If the recoursator complies with the instructions in the court ruling within the term, the recourse shall be deemed to have been filed on the date of the initial submission. Otherwise, the panel of 3 judges shall return the recourse application by a ruling not subject to any appeal.
(23) If a suspension of the execution of the contested decision is requested, the recourse shall not be returned, the panel of three judges shall rule on the submitted request, by a ruling not subject to recourse, within 10 days at the latest from the filing of the request accompanied by the confirmation issued by the bailiff regarding the deposit of the bail. The suspension order shall be sent immediately to the recoursator.
(3) The return of the recourse shall not prevent the repeated filing of the recourse after the deficiencies have been eliminated and the other rules established by law for its filing have been observed.
Article 439. Preparatory procedural acts
After receiving the recourse, the court:
a) appoints a judge rapporteur, who prepares the case for trial and sets the date for examining the admissibility of the recourse;
b) verifies whether the recourse meets the requirements set out in art. 437;
c) sends the recourse deemed admissible and the questions to which they should answer to the parties, requesting them to submit, within a period of up to one month, the reference;
d) requests the file from the respective court.
Article 440. Procedure for examining the admissibility of the recourse
(1) If it is found that one of the grounds provided for in art. 433 exists, the panel of 3 judges, by an irrevocable decision adopted in the absence of the parties, declares the recourse inadmissible.
(2) The decision on the inadmissibility of the recourse, which contains a summary of the facts of the case, the reasons and the basis for inadmissibility, shall be published on the official website of the Supreme Court of Justice and shall be sent to the parties.
(3) If it is considered admissible, the panel shall examine the recourse on the merits.
(4) In order to standardize judicial practice, the panel of 3 judges may decide, by unanimous vote, that the recourse considered admissible shall be examined by a panel of 5 judges, and the panel of 5 judges may decide, by unanimous vote, that the recourse considered admissible shall be examined by a panel of 9 judges.
Article 442. Limits of the adjudication of the recourse
(1) When adjudicating the recourse filed against the decision given in the appeal, the court shall verify, within the limits invoked in the recourse, the legality of the contested decision in light of the grounds provided for in art. 432. The court shall invoke, ex officio, the failure to involve in the trial the persons whose rights are infringed by the decision.
(2) No new evidence may be introduced in the recourse, except for that which proves the costs and damages referred to in art. 372 para. (3). The assessment of the evidence given by the first instance and the appellate court is binding on the appeal court, except in the case where art. 432 para. (1) letter e) is properly invoked or where the Supreme Court of Justice examines the case after referral for retrial. When examining the recourse, the provisions of art. 372 shall apply accordingly.
(3) The recourse court is obliged to rule on all essential grounds invoked in the recourse.
Article 443. Withdrawal of the recourse
(1) Until the decision is delivered, the recoursator has the right to withdraw his recourse by means of a written request. The request for withdrawal of the recourse shall be submitted to the court that was entrusted with the adjudication of the recourse.
(2) In the event of withdrawal of the recourse, the competent court shall order, by an irrevocable ruling, the termination of the recourse procedure.
Article 444. Procedure for adjudication of the recourse
The recourse considered admissible shall be examined without notifying and hearing the participants in the process, with the exception of the recourse in which art. 432 para. (1) lett. e is well-founded. The panel may also decide in other cases to invite the participants to the hearing in order to rule on the recourse considered admissible.
Article 445. Powers and dispositions of the court
(1) The court, after judging the recourse, is entitled:
a) to reject the recourse and uphold the non-final decision of the apellate court and, where appropriate, the decision of the first instance, as well as the resolutions recoruse against;
b) to admit the recourse and fully or partially quash the non-final decision of the apellate court and the decision of the first instance, pronouncing a new decision;
c) to admit the recourse, fully quash the non-final decision of the apellate court and send the case for retrial to the court of appeal only once if the judicial error cannot be corrected by the court of recourse;
c1) to admit the recourse and to quash the non-final decision of the apellate court and the decision of the first instance in full, sending the case for retrial in the first instance, if it has established that the persons whose rights are infringed by the decision were not involved in the process;
d) to admit the recourse and to quash the non-final decision of the apellate court and the decision of the first instance, ordering the termination of the process or the removal of the application from the list if the grounds provided for in articles 265 and 267 exist;
e) to admit the recourse and to amend the non-final decision of the apellate court and/or the decision of the first instance;
f) to admit the recourse, to quash the non-final decision of the apelalte court and to uphold the decision of the first instance;
g) to admit the recourse, to quash the non-final decision of the apellate court, with the pronouncement of a non-final decision to return the appeal application if the grounds provided for in art.369 exist.
(11) If the recourse is admitted under art.432 paragraph (1) letter e), the panel may issue an interlocutory ruling, which it shall send to the judicial inspection.
(2) The quashed judgment or non-final decision shall have no legal force. The security or enforcement acts made on the basis of such a judgment or decision shall lose their legal force unless the court of recouce orders otherwise.
(3) Following the examination of the recource, the court of recource shall issue a non-final decision that shall remain irrevocable from the moment of issuance. The non-final decision shall be deemed to have been issued from the moment of its posting on the website of the Supreme Court of Justice.
(4) A copy of the non-fial decision of the court of recource shall be sent to the parties within 5 days from the date of issuance.
Article 4451. Termination of the recource procedure
The court of recource shall order, by a ruling that is not subject to any recource, the termination of the recourse procedure, ex officio or upon request, if, after declaring the recourse admissible, one of the grounds provided for in art. 433 is found to exist.
