Publication details
Nad fikcí výpovědi (odvolání) plné moci a restrikcí počtu zmocněnců v civilním procesu
| Title in English | About the fiction of withdrawal from a power of attorney and restriction of number of representatives in civil procedure |
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| Authors | |
| Year of publication | 2009 |
| Type | Article in Periodical |
| Magazine / Source | Časopis pro právní vědu a praxi |
| MU Faculty or unit | |
| Citation | |
| Field | Law sciences |
| Keywords | power of attorney; representation in civil procedure; fiction |
| Description | According to § 24 par. 1 and § 28 par. 3 of the Civil Procedural Code (CPC) can each party be simultaneously represented only by one elected representative; if a party, which already has a representative, elects another one, then CPC stipulates that this party withdraws from a present power of attorney. This article deals with both provisions and concludes that § 28 par. 3 is a legal fiction, because a party did not withdraw from a present power of attorney; it only elected a new representative. At the same time it is not possible to treat election of a new representative as an intention to finish existing representation by another representative; we can as well say that a party wants to be represented by both representatives. Therefore the article explores reasons for restriction of number of elected representatives in the Czech civil procedure. The reason is according to some older literature the principle of a (procedural) economy; it probably contains effort to avoid problems with servicing of documents to several representatives and to beware of situations, when a procedural act of one representative is in contrariety to a procedural act of another representative of the same party. This aim is legitimate, but there exists least restrictive means to reach it (a party may be obliged to choose one representative for receiving documents or service of a document to only one representative may be sufficient; contradictory acts can a court deliberate within his discretionary powers etc.). Hence the restriction of number of representatives under § 24 par. 1 CPC fails in the test of proportionality. |