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Power or Obligation of the Parties to Argue Before the Court

Author(s): Arsen Janevski, Milka Rakočević
Subject(s): Civil Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Civil procedure;Hearing of the parties;Passivity;Default judgement;Preclusion;
Summary/Abstract: The subject of interest of this paper is the matter concerning the position of the parties and the manner of their conduct (active or passive) in the civil procedure. Are the parties obliged to argue before the court and actively participate in the court proceedings, or do they decide themselves what their attitude would be, which suggests that they may be completely passive without the need to turn to the procedural activities undertaken by other parties in the proceedings? The adversarial principle in the contemporary civil procedure is designed in a way that the principle itself means a power of the litigants to be heard in the proceedings, without imposing an obligation of referring to the allegations presented by the adversarial party. The lack of obligation of having an active posture in the proceedings doesn’t mean that the party could act arbitrarily and obstruct the speedy and efficient adjudication on the merits. Having this in mind, the procedural regimes, while proclaiming the power of the parties to adversarial proceedings, at the same time are proclaiming negative legal consequences for the passivity of the parties.