Unit:
Department of LawLibrary of the School of Law
Dissertation committee:
Γεώργιος Ορφανίδης,Καθηγητής,Τμήμα Νομικής,ΕΚΠΑ
Δημήτριος Τσικρικάς,Καθηγητής,Τμήμα Νομικής,ΕΚΠΑ
Στέφανος-Σπυρίδων Πανταζόπουλος,Καθηγητής,Τμήμα Νομικής,ΕΚΠΑ
Χρυσαφώ Τσούκα, Αναπληρώτρια Καθηγήτρια, Τμήμα Νομικής,ΕΚΠΑ
Φλώρα Αλμπανίδου-Τριανταφύλλου,Επίκουρη Καθηγήτρια,Τμήμα Νομικής,ΕΚΠΑ
Νικόλαος Κατηφόρης,Επίκουρος Καθηγητής,Τμήμα Νομικής,ΕΚΠΑ
Ιωάννης Δεληκοστόπουλος, Επίκουρος Καθηγητής,Τμήμα Νομικής,ΕΚΠΑ
Original Title:
Η αναγνώριση των έννομων συνεπειών αλλοδαπών δικαστικών αποφάσεων, ιδίως υπό το πρίσμα των υποκειμενικών και αντικειμενικών ορίων τους
Translated title:
'The recognition of a foreign judgment in relation to the diverse objective and subjective scope of res judicata as far as the international recognition and enforcement is concerned.
Summary:
The comparison of res judicata as the main consequence of judicial judgments among union member states depicts not only the different origins of its evolution and its regulation but also the common objective to assure an efficient and stable judicial system.
The goal of this thesis is to show that, despite the different boundaries of res judicata’s objective and subjective scope, judgments can be recognized and enforced in a simple way through the restrictive interpretation of the series of safeguards set out in Article 45 of the Regulation.
The thesis is structured in two parts. The first part draws the comparison of the national regulation for res judicata in English, French, German and Greek law where the technique of macro- and micro-comparison are adjourned to achieve a double goal, from one hand to compare similarities and differences as far as the scope res judicata is concerned and from the other to compare the structure and particularities in the functionality and history of the judicial law systems in order to conclude the causes that led the national legislator to regulate in a wide or restrictive way the objective and subjective scope of res judicata. The role of tertium comparationis, of the common element that all the national regulations for res judicata are ought to apply to, despite their differences, is attributed to the objective for free circulation of judgments in civil and commercial matters set by the Eu Regulation 1215/2012 on jurisdiction and recognition and enforcement of foreign judgments.
Our scientific interest and critical points are drawn to the binding effect of res judicata for third parties, the preclusive effect of the judgments and the relation between cause of action and objective boundaries of res judicata.
The second part is dedicated in the brief analysis of art.45 of Eu Regulation 1215/2012 and therefore the grounds for refusal of recognition are examined under the objective of free circulation of judgments as rendered by the courts of member States of the EU. Also the Gothaer/Samskip C-456/11 decision is mentioned and criticized because it is as if the CJEU develops a definition of res judicata that includes not only the operative part of the judgment but also the ratio decidendi and as a consequence it is as if the boundaries of res judicata conferred by national courts’ judgments are being ostracized or should it be considered as an autonomous approach of the res judicata similar to the logic the Court applies to autonomous interpretation of cause of action in Gumbish/Palumbo case for lis pendens according to European procedural law.
In this particular point, the results of the comparison offer a valuable guide for the practical implementation of the grounds of non-recognition, how for example an English res judicata with broad objective boundaries can be recognized in a member State such as in Germany France or Greece, whose procedural law regulates in a narrower way the res judicata effect of the judgments. Is the foreign res judicata able to justify a possible contradiction to the public policy of the member state addressed or how will be determined if this foreign res judicata is irreconcilable with an earlier judgment given in the member state addressed? Are the criteria for irreconcilable judgments set in Hoffman/Krieg case in accordance with the restrictive interpretation of the grounds for non-recognition and with the objective for free circulation of the judgments?
In order to obviate problems that occur from national differences the thesis comments on the insecurity of justice that the case law approach brings, the difficulty to justify when and if a foreign res judicata is contrary to public policy, insists on the preservation of res judicata as judged and rendered by the court of lex fori in the way that the autonomous interpretation of recognition is implemented, proposes the restrictive analysis of a.29 and 45 of the Regulation 1215/2012 and recognizes the need for an autonomous interpretation in order to determine the irreconcilable decisions with regards to the provisions made in a.45.1d of the Regulation under the objective of restrictive interpretation of the grounds for non-recognition.
Main subject category:
Law and Legislation
Number of references:
506
