Calificarea juridică a acţiunii, determinată de situaţia factuală prezentată. Limitele de aplicare a principiului rolului activ al instanţei

Legal qualification of the action, determined by the factual situation presented. Limits to the application of the principle of the active role of the court

Abstract

The active role of the judge must be understood in the context of ensuring a balance with the principle of availability, framed as a fundamental principle governing civil proceedings, according to which the parties have the right to dispose of the subject-matter of the proceedings (the subjective right or interest arising from the legal relationship at issue) and of the procedural means granted by law for this purpose; therefore, the parties can determine not only the existence of the proceedings by initiating legal proceedings. The active role of the judge must not affect the party's right of availability, but must be in harmony with the initiative of the parties, in order to establish...