Academic journal article Contemporary Readings in Law and Social Justice

The Prerequisites of Parties for Bringing a Civil Action under the New Code of Civil Procedure

Academic journal article Contemporary Readings in Law and Social Justice

The Prerequisites of Parties for Bringing a Civil Action under the New Code of Civil Procedure

Article excerpt

ABSTRACT.

Bringing a civil action in court, at the first glance, can be a relatively formal activity because it may be exercised by any person who considers that he/she has suffered a damage because his/her rights or legitimate interest have not been respected. The innovative regulations of the New Code of Civil Procedure contain a number of procedural rules concerning the conditions for the exercise of this action, and also provide for the rules that compose the locus standi items of the parties. Although these rules provide guidance on the bringing a civil action, they have already triggered some controversy. Therefore, this study attempts to clarify a small number of issues regarding these rules and to provide a small contribution to the doctrine on this topic.

Keywords: trial activity; civil action; interest; legal capacity; locus standi

1. Preliminary Specifications

The civil action encompasses a set of complex procedural means, regulated by law, aiming at providing the protection of a subjective right claimed by one of the parties, in other legal situations, or at defending the parties in a lawsuit. Therefore, in order to participate in judicial activities, the parties to a lawsuit are required to meet certain prerequisites.

Therefore, the New1 Code of Civil Procedure, in article 32, provides for the general condition regarding the parties' locus standi. The formula used within the text regards the possibility for the author of a claim "to stand to sue." Such a formula is used more frequently in procedural law, in other democratic countries, such as Italy (article 75 of the Code of Civil Procedure), in order to express the capacity to pursue the proceedings. In our opinion, NCCP, in article 32, makes reference to this requirement universally recognized within the doctrine and jurisprudence. Moreover, a similar formula was also used in article 42 of the former Code of Civil Procedure.

One of the most controversial conditions of a civil action regards the locus standi. Our doctrine disputes were fought especially on the contents of this condition for the pursuance of civil proceedings.2 We believe that the doctrine discussions will not cease, since the NCCP does not offer decisive reference points about the procedural meaning of the concept of "quality." However, we note that, according to article 38 of the NCCP, "The quality of party can be legally or conventionally transmitted as a result of the transmission, under the law, of the rights or legal situations sent to trial." The legislator establishes a solution constantly promoted both in the doctrine and jurisprudence. Thus, at a cursory analysis, such a legal statement does not seem to raise special problems.

Nevertheless, this provision stirs several reflections regarding the provisions of article 39 of the NCCP. According to the first paragraph of the text: "If during the trial the litigious right is transmitted by inter vivos acts, in a particular way, the trial will continue among the original parties. However, if the transfer is made, under the law, by way of particular documents, upon the cause of death, the trial will continue with the author's universal successor or with his/her successor under the universal title, where applicable." The final part of this text harmonizes folly with the provisions of article 38 of the same law, representing only a particular application of the principle enshrined by law (article 38). However, the text creates an exception to the rule of locus standi transmission, i.e. for a single hypothesis - that of the transmission of the conflicting right by "inter vivos acts under a particular title." We can legitimately ask: why did not the legislator pass a similar exception regarding the inter vivos transmissions under a universal title?

In our opinion, the procedural provisions that can cause serious controversies are those enshrined in article 39, paragraph (2) of the NCCP. According to the text: "In all cases, the successor under a particular title is obliged to intervene into the question if he/she knows about the process, or if he/she can be called into question, upon request or ex officio. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.