Grupės ieškinys – veiksminga teisės į teisminę gynybą įgyvendinimo priemonė

Abstract

As legal researches of the relation between the institutes of joinder of parties and procedural representation and the institute of group action as well as analysis of legal norms of the classical group action show in the article, the institute of group action cannot be identified with the institute of joinder of parties.
When the joinder of parties is impossible due to a great number of persons, the group action can be a solution to the problem. In the event legal violations affect many persons, only the persons, who are proactive, knowing their rights, and possessing enough time and material resources, can make a use of the institutes of joinder of parties, procedural representation, and joinder of cases. These problems are resolved by the procedure of group action because it makes judicial de- fence available to all persons concerned irrespective of their material standing and other capacities as well as of organizational and other personal characteristics.
As far as the joinder of parties is concerned, each joint party acts in his own name and has a right to conduct a case independently. All joint parties have to be invited to the hearing. They can also commit the case to one of joint parties. In such legal relationships, effectiveness of judicial defence of group interests is conditioned upon a number of joint parties.
If a group is small, the joinder of parties is effective. The greater a number of joint parties is, the lesser effectiveness of the joinder of parties occurs. After a certain number is exceeded, the joinder of parties becomes almost impossible.
When the joinder of parties is impossible due to a great number of persons, the theory and practice of the civil procedure suggest the institute of group action, which overcomes deficiencies and uses advantages of the institute of joinder of parties.
The group action is a rational means to save human and material resources in the judicial system since it affects positively the economy of the proceedings as claims of many persons are tried in one case in the event the use of the joinder of parties is especially difficult or almost impossible. The group action is the major effective procedural means of judicial defence for numerous groups.
The theory of civil procedure considers the institute of group action as a sort of synthesis of two procedural institutes – the joinder of parties and procedural representation. The institute of group action distinguishes for its originality because it includes the institute of joinder of parties without a need to join all parties into the proceedings and the institute of procedural representation without a need of formal authorisations.
Enactment of norms regulating the procedure of group action should not create any material problems or adverse effects in Lithuania since the institutes of joinder of parties and of procedural representation are already functioning here. The party in the group action is a group as a one undivided entity. The plaintiff or defendant representing a group acts on behalf of such group’s members, who do not participate in the proceedings. The representative of a group has no special authorisations to represent a group and non-participating members in the procedure of group action because rights and duties of a member of a group are determined by legal norms of the group action. The model of the institute of classical group action analyzed in this article could be followed in Lithuania because it includes necessary and sufficient conditions for submission and admission of the group action.