Original scientific paper
On procedural law operationalisation of the institute of facultatis alternativae in the Croatian law
Mihajlo Dika
Abstract
The article outlines the legal foundations of the regulation of the institute of facultatis alternativae in Croatian law and points to the need to differentiate between the two categories of this institute – the so-called pre-procedural, substantive law category, and the so-called procedural alternative authorization from the viewpoint of its legal procedural operationalization in civil and distress procedure. Cases are analysed of pre-procedural facultatis alternativae in which the fulfilment of due action can be substituted by fulfilment of another action and those in which alternative authorizations consist of the right of a contractual party to cause the cessation of a legal relationship by undertaking a certain action and those in which a contractual party is authorized to prevent the cessation of a legal relationship by undertaking certain actions. The author points to the need for their different treatment in procedural law and elaborates a methodology for their gradual realization. Within the analysis of the so-called procedural facultatis alternativae the author re-examines the well-foundedness of the so-called classical, civil law conception of the institute and explains its legal nature by developing a new procedural law conception according to which the procedural facultas alternativa would have the significance of a substantive procedural disposition. The contents and categories of alternative authorization are explored, as well as the possibilities of repeal and alterations of the statement of this authorization, the effects of its fulfilment in the course of the proceedings of the first degree, and consequences of non-inclusion into the verdict. From the aspect of both categories of alternative authorization, the problem of the impact of their expiry on the determination of the value of the object of dispute, as well as the procedural legal operationalization of the institute in distress proceedings are discussed. In conclusion, the author points to the need for further legislative development of procedural law aspect of fulfilment of both categories of the institute.
Keywords
facultas alternativa; preprocedural and procedural alternative authority; civil law; civil and enforcement procedure
Hrčak ID:
6461
URI
Publication date:
5.12.2006.
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