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On Relationship Between Substantial and Procedural Law in Civil Disputes – The Viewpoint of Private (Civil) Law

Nikola Gavella ; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska

Puni tekst: hrvatski pdf 559 Kb

str. 537-567

preuzimanja: 6.371



The relationship between so-called substantive law (in particular, civil and private law) on one side, and civil procedural law on the other side, was subject to various understanding and long standing disputes in academic writings and professional papers. This, of course, had its impact on legislation and case-law. Gradually, the prevailing opinion on this subject became the view according to which substantive civil law and civil procedural law are two independent segments of legal system, but interconnected by their respective roles and functions within the legal system. The role of substantive civil law within legal system is to regulate by its provisions mutual relationships among free and equal individuals – those who enter into relationships of civil (private) law. While fulfilling this role, substantive law establishes legal causation, according to which certain effects of civil law nature occur – creation, transformation and termination of subjective civil-law (private law) rights (as well as of respective obligations, which are in the law of obligations only the reverse side of rights). Legal norms and the rights of individuals that stem from them exist in a non-material world, and their purpose is to have an impact on the relationships between individuals in the real world. In order to achieve this purpose, the norms have to be respected and obeyed in the real world. Since some persons on some occasions do not wish to obey the norms voluntarily, it is necessary to secure the support of public authorities, so that the rights inherent in substantive law would become effective also in respect of such individuals. This function is given to courts, and the way of their operation is determined by the organizational and functional norms of civil procedural law. Insofar, through administration of justice, substantive civil law meets civil procedural law. In judicial area, substantive civil law and civil procedural law collaborate in the manner required and defined by their role in the legal system. In spite of the fact that both have separate areas of operation, separate methods, and separate, rather different legal nature, in the cases where their areas of operation overlap, substantive and procedural civil law live in a specific symbiosis. Substantive civil law gives to procedural law its sense and existential purpose, while procedural law enables substantive law to be effective in social interaction in all cases where power and intervention of the public authority – the court – is needed. While aspiring to achieve common goals, they support each other, but at the same time they limit somewhat each other.
Mutual relationship between substantive and procedural civil law in contemporary Croatian legal order may at best be discussed from the perspective of the role of substantive civil law in court litigation proceedings. It may be revealed that civil litigation has its procedural and substantive components; procedural side secures dynamics, while substantive provides goals and social purpose. Both are intertwined – they collaborate on the journey towards the common objective – final and binding decision on the merits of the dispute. The disputes that happen among individuals regarding their participation in legal relationships are the disputes on their rights or legal status, or the disputes regarding obligations that are the flip side of the rights in these relationships. When any of the parties in dispute commences civil proceedings, and the disagreement escalates into court litigation, the right or legal status claimed and enforced by the claimant against the defendant is the private law foundation of this judicial dispute.
It is of utmost importance for the conduct and continuation of civil litigation to obtain clear picture of the alleged rights or legal status, ie to realize what alleged rights or legal status the claimant wishes to enforce (or to protect). This is important for both the court and the defendant, as well as for the other participants in the litigation proceedings (eg for the third intervening parties), so that they can direct their actions within the litigation proceedings on allegations and evidence-taking of only those facts that are really essential for the outcome of the case. If such clear picture is lacking, the court will find itself in the position in which its (otherwise very demanding and difficult) task will be even more precarious as it would be able only to speculate on the substantive law foundations of the dispute. This may further lead to inappropriate, inefficient and ineffective conduct of the proceedings. A clear picture of the legal foundations of the claim is not less important for the parties to a dispute, so that they may act in the dispute as conscious and conscientious participants that freely dispose of and enforce their rights, and assume liability for their actions.
Due to this dual nature - substantive and procedural - of judicial disputes, it is essential to consider their legal foundations when evaluating the identity of a judicial dispute. Both components of a judicial dispute determine its identity, which is of crucial importance when some other issues occur, eg the issue of merger of claims; amendments to statement of claim, as well as the operation of lis pendet and res iudicata principles. In a rather simplified form: in order to conclude that one judicial dispute is identical with another one, so that the later dispute has to be dismissed because the earlier is pending or is finally adjudicated, it is not sufficient to have identical parties, identical facts and that in both disputes the same relief is claimed. In addition, it is necessary to pay attention to the substantive law foundation of the legal dispute. If such foundation is not taken into consideration, one can arrive to conclusion that a dispute is identical although this is not the case. From such an error, further procedural actions that negatively affect the rights, the status and the obligations of the involved persons can be derived.

Ključne riječi

substantive law, civil (private) law, civil procedural law, rights, legal foundation, dispute, court litigation

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Podaci na drugim jezicima: hrvatski

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