Some General Conditions of the Right to apply to Court
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Abstract
The article is devoted to the analysis of conditions of the right to apply to court. Possibility of judicial protection and the right to apply to court is interconnected with certain legal conditions that in the doctrine of civil procedural law are usually called preconditions to apply to court and conditions of proper realisation of the right to apply to court.
Classification of the conditions of the right to apply to court was firstly analysed and reasoned already in 1969. However, when analysing conditions of the right to apply to court, it was never tried to answer which of the mentioned conditions are general, applicable to both types of civil proceedings (contentious and non-contentious), and which are special, applicable only to the one of the mentioned types of proceedings. The legislator in turn has also intercepted such a resumptive attitude. The mentioned position of the legislator and merely general references in the legal doctrine about the possibility to apply rules of contentious proceedings to non-contentious proceedings is unable to solve all the uncertainty and arising practical problems. Although comprehensive and exhaustive analysis of all the conditions of the right to apply to court would be undoubtedly valuable and purposeful, limited volume of this article makes this task impossible. Thus the authors of the article confine themselves to the analysis of several of the mentioned conditions (general conditions of the right to apply to court). Analysis of the conditions of the right to apply to court that are not covered by this article is left for the subject of forthcoming articles. Referring to the aims of the legislator, doctrine of civil procedural law and practice of the Supreme Court of Lithuania, the authors try to disclose the essence of some of the general conditions of the right to apply to court as well as influence of those conditions on the right to judicial protection and possibility of further hearing of a case. The authors are also seeking for an answer to the question which of the legal conditions listed in the Article 137 of the Lithuanian Code of Civil Procedure should be regarded as general conditions of the right to apply to court, applicable to both contentious and non-contentious proceedings. Answer to this question, which is at first sight entirely theoretical, bears a significant practical meaning, as application to the court may cause positive legal consequences to the applicant only if a lawsuit was commenced legitimately, in other words – if the right to apply to court was realised pursuant to the conditions and procedure listed by laws.
The authors also offer some suggestions what should be the criteria characterizing the identity of noncontentious cases, as application of the same criteria as in contentious cases is impossible because of essential differences between those two types of civil proceedings.
Classification of the conditions of the right to apply to court was firstly analysed and reasoned already in 1969. However, when analysing conditions of the right to apply to court, it was never tried to answer which of the mentioned conditions are general, applicable to both types of civil proceedings (contentious and non-contentious), and which are special, applicable only to the one of the mentioned types of proceedings. The legislator in turn has also intercepted such a resumptive attitude. The mentioned position of the legislator and merely general references in the legal doctrine about the possibility to apply rules of contentious proceedings to non-contentious proceedings is unable to solve all the uncertainty and arising practical problems. Although comprehensive and exhaustive analysis of all the conditions of the right to apply to court would be undoubtedly valuable and purposeful, limited volume of this article makes this task impossible. Thus the authors of the article confine themselves to the analysis of several of the mentioned conditions (general conditions of the right to apply to court). Analysis of the conditions of the right to apply to court that are not covered by this article is left for the subject of forthcoming articles. Referring to the aims of the legislator, doctrine of civil procedural law and practice of the Supreme Court of Lithuania, the authors try to disclose the essence of some of the general conditions of the right to apply to court as well as influence of those conditions on the right to judicial protection and possibility of further hearing of a case. The authors are also seeking for an answer to the question which of the legal conditions listed in the Article 137 of the Lithuanian Code of Civil Procedure should be regarded as general conditions of the right to apply to court, applicable to both contentious and non-contentious proceedings. Answer to this question, which is at first sight entirely theoretical, bears a significant practical meaning, as application to the court may cause positive legal consequences to the applicant only if a lawsuit was commenced legitimately, in other words – if the right to apply to court was realised pursuant to the conditions and procedure listed by laws.
The authors also offer some suggestions what should be the criteria characterizing the identity of noncontentious cases, as application of the same criteria as in contentious cases is impossible because of essential differences between those two types of civil proceedings.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
