Res judicata, finality and legal effect of the judgment: interrelation between concepts

Abstract

The article focuses on making distinction between the concepts of res judicata, finality and legal effect of judgments, as these terms are often used in legal literature and case law as interchangeable categories, sometimes as components of each other, sometimes as necessary conditions or consequences of each other.
 The article points out that the concept of ‘finality’ is often used in two contexts. The first one focuses on the properties of a court decision as an act of judiciary, which completes the resolution of a particular cause of action or determination of a particular issue in a specific proceeding, i.e. it is a matter of finality of the judgment in the same proceeding in which it was issued. Thus, finality is one of the preconditions for res judicata to be applied as the principle in subsequent court proceedings, but not the principle itself. The second context of use of ‘finality’ concerns the effect of a judgment in other proceedings and with this meaning ‘respect for finality’ is synonymous with ‘respect for res judicata’. The author also draws attention to the fact that the term ‘res judicata’ is used in two ways: either to denote the known principle which takes effect in the rules on legal consequences of a final judgment taken in one proceeding, in subsequent proceedings; or to indicate the final judgment, which affects the relationships of the parties beyond the court case in which it was adopted, i.e. establishes legal certainty for the parties in their relationships and, accordingly, may create the above-mentioned preclusive effect in other court proceedings. The article also substantiates the thesis that the category of ‘legal effect’ with respect to a judgment, although inherited from Soviet doctrine, still remains practically useful. It does not confront or compete with res judicata, and therefore remains appropriate to be used, above all, in order to specify a moment in time when the judgment becomes final and binding and, in some cases becomes res judicata.