Civil procedural succession - Civil procedural law

Civil procedural succession

The change of persons in civil proceedings is carried out either in the order of replacing the improper defendant, as detailed above, or through procedural succession (translatio judici). Article 44 of the Civil Procedural Code provides that in the event of the withdrawal of one of the parties in a legal or legal relationship, the body administering justice shall at any stage of civil proceedings allow the successor to replace this party.

The procedural succession is brought to life by a material succession that happens to be general , generalis, or universal, s the transition of the whole set of rights and obligations, as well as singular (singularis), or partial, in this case from the predecessor only certain subjective rights and obligations are transferred to the legal successor. Such a situation can arise when the following legal facts occur: the death of a person, the reorganization of a legal entity (including when deciding whether to award compensation for violating the right to proceed in a reasonable time), assignment of a claim, transfer of a debt, and others. All these facts lead to the replacement of the plaintiff or the defendant in civil proceedings with the help of the institution of procedural succession, which can only be general (universal). In other words, the whole complex of procedural rights and obligations passes to the legal successor from the predecessor, for example, if the transfer of the claim from the assignor to the assignee occurs during the proceedings (Article 388 CC), or the guarantor dies that does not terminate the contract of guarantee, i.e. the heirs of the guarantor meet within the value of the hereditary property for those obligations of the guarantor that existed at the time of opening the inheritance (see Review of the judicial practice in civil cases related to the resolution of disputes on the performance of loan obligations approved by the Presidium of the Supreme Court on May 22, 2013).

In this case, all the actions committed before entering into the successor's process are binding on him insofar as they were due to the person who had to be replaced, so the proceedings continue, the trial does not start from the very beginning, as happens when replacing an inadequate respondent.

Prior to the determination of the legal successor, civil proceedings are suspended without fixing a specific renewal period, which is a drawback of the design of Art. 217 ГПК and can infringe the rights of the other party, despite the fact that in the decision of the Plenum of the Supreme Court of the USA from 26.06.2008 № 13 it is said: as Art. 217 ГПК connects terms of stay of manufacture on business with circumstances which approach is obliged by court to renew manufacture, the judge should check periodically, whether these circumstances have come. KI Malyshev, analyzing this problem in relation to pre-revolutionary procedural legislation, wrote that the opposing party is not obligated to wait until he (the legal successor) decides to file this petition - she can demand the call of these successors in the order in which the calls are made on the claim petitions; if they do not appear at the appointed time and they do not send an attorney, then the court decides on a decision in absentia; if they appear and enter the business, then the production resumes, beginning with the action on which it was suspended.

The content of art. 44 GIC should not be taken literally, although it is a matter of lawsuits, however, a detailed analysis of the relevant rules of the procedural law shows that the change of persons in the order of succession affects the proceedings in cases arising from public relations (Part 1, Article 246 GIC ) and special production (Part 1, Article 263 of the CCP), and also applies to third parties who declare and do not claim independent claims regarding the subject of the dispute (Article 215 of the CCP).

Civil procedural succession is inadmissible if:

1) the legal fact of substantive law does not give rise to the transfer of rights and obligations (in particular, the liquidation of a legal entity entails the termination of its existence without the transfer of rights and obligations to other persons (Article 61 of the Civil Code))

2) material legal claims are based on such subjective rights and obligations of the subject that are closely related to his personality (for example, with active intransitivity or non-transference of the claim, the deceased plaintiff in the case of reinstatement at work can not be replaced.) The same goes for the contract in which the identity of the creditor is of significant importance to the debtor, and therefore the assignment of the obligation is not allowed without the consent of the latter.In inheritance cases, one must take into account that the inheritance is not included in the inheritance (Article 701 of the Civil Code), instructions (clause 1, article 977 of the Civil Code), commissions (Part 1, Article 1002), the right to maintenance and alimony obligations (Section V UK), rights and obligations arising from contracts of gratuitous use (Article 701 GK), instructions GK), agency contract (Article 1010 GK) Sometimes the active intransitivity of the requirement is difficult to establish, for example, the US Supreme Court in one of the court practice reviews explained that the heirs of the applicant are entitled to receive compensation for violating the right of the deceased relative to execute the court decision within a reasonable time , while they can turn to and compensation before the expiration of a six-month period from the beginning of the enforcement proceedings (p. 3 tbsp. 244.1 ГПК and ч. 8 ст. 3 of the Compensation Act);

3) there is no consent of the person to join the process as the legal successor of the plaintiff; in this case, the proceedings on the case are terminated (the replacement of the predecessor, who was entitled to the status of the defendant, does not need such consent and is exercised imperatively on the basis of the court ruling).

Part 3 of Art. 44 ГПК reads: "A private complaint can be filed with the court's decision to replace or refuse to replace the assignee." The editorial presentation of this part is unsuccessful, because it may seem that the replacement is not a predecessor, but a successor. Therefore, apparently, Part 3 of Art. 44 ГПК it is necessary to interpret so: on the judicial definition about replacement or on refusal in replacement of the left person the assignee can be submitted the private complaint.

Also We Can Offer!

Other services that we offer

If you don’t see the necessary subject, paper type, or topic in our list of available services and examples, don’t worry! We have a number of other academic disciplines to suit the needs of anyone who visits this website looking for help.

How to ...

We made your life easier with putting together a big number of articles and guidelines on how to plan and write different types of assignments (Essay, Research Paper, Dissertation etc)