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The use and exercise of procedural rights

What does the use capacity to pursue the proceedings refer to during a Romanian civil proceedings?

According to art. 56 of the Civil Procedure Code, any person who has usage over their civil rights can take part in civil proceedings.

Regarding legal persons, the same article regulates in par. (2) that associations, companies or other entities without legal personality can stand trial so long as they are established in accordance with the law.

The lack of the use capacity to pursue the proceedings can be invoked in any stage of the process, while the procedural documents which were performed by one who is incapable of use will be sanctioned by absolute nullity.

What are the effects that the procedural capacity to act or the lack thereof can produce in Romanian civil proceedings?

The person who is a party in civil proceedings may exercise their procedural rights in their own name or by proxy, unless otherwise required by law. The party that does not exercise their procedural rights can not stand in judgment unless they are represented, assisted or authorized under the terms of laws or statutes that govern their capacity or the method or organization.

The incapacity to exercise the procedural rights can be invoked at any stage of the process, while the procedural acts which were performed by a person who can not exercise their procedural rights are cancellable. The representative or legal guardian of the person in cause can however confirm all or some of these acts.

When the court finds that the act of procedure was performed by a party without legal capacity or by a party with limited capacity, will offer a period of time for its confirmation. If the act is not confirmed, the court will order its cancellation.

What is the special guardianship and in which cases can be its establishment be ordered?

According to art. 58, in an emergency, if the individual who lacks the capacity to exercise civil rights or who has limited exercise capacity does not have a legal representative, the court will appoint a special guardian to represent them until the appointment of the legal representative, at the request of the interested party.

The court will also appoint a special guardian in case of conflict of interest between the legal representative and the represented or where a legal person called upon to sit in judgment does not have a representative.

The appointment of these curators will be made by the court hearing the process, from the lawyers designated for that purpose by the bar for each court. The special curator has all the rights and obligations provided by law for the legal representative.

The remuneration of the special curator shall be fixed by the court, while also establishing the method of payment. However, the law regulates the possibility of increasing the remuneration at the request of the curator, with the cessation of its quality, taking into account the exerted work.

The team of lawyers from the law firm Darie, Manea & associates have a rich experience in the field of civil law and civil procedure. Our lawyers can provide expert legal advice based on extensive knowledge in the field, as well as the latest legislative changes on the matter of the use and exercise of procedural rights, but also legal representation before the competent authorities, when necessary. Do not hesitate to contact us!

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