By Evangelia Petsa,
Joint litigation constitutes a subjective accumulation of lawsuits and means the participation in the trial of several parties either on the part of the plaintiff, in which case it is called active, or on the part of the defendant, in which case it is called passive. The cohabitation is established through the action, in which case it is initial, or it is established later during the trial, in which case it is subsequent.
Joint litigation is divided into simple and compulsory. Simple joint litigation, is the union in a common procedure of several legal relations of litigation, which connect various subjects with the aim of issuing a single decision, not necessarily of the same content, with respect to all joint litigation parties. This combination is of a more procedural nature and mainly serves the economy of the trial.
The conditions of simple joint litigation (active and passive) are provided for in the provisions of Article 74 of the Code of Civil Procedure and concern only three cases. These conditions are not procedural conditions of the trial, but simple conditions for the subjective accumulation of lawsuits. A condition of simple joint litigation applies when a community of right or obligation is invoked between several plaintiffs or defendants, which is judged according to substantive law. The community of rights or obligation includes in particular the community of rights in rem, which includes, for example, co-ownership, the community of tort rights, which includes, for example, (active) joint and several liability, and finally the community of obligations, which includes for example, (passive) joint and several liability.
A condition of simple joint litigation is also a case, where the various rights or obligations of most of the parties are based on the same historical and legal cause. The identity of actual cause is equivalent to the identity of factual basis when, for example, most rights arise from the same contract or the same tortious event. The identity of the real cause of several rights exists when the historical cause of their genesis is made up of the same facts. It is about the identity of the legal basis, when the facts of the historical basis are based on the same rules of law, and arise from the same institution, without requiring the identity of the legal provisions.
The third case of simple joint litigation concerns similar claims or obligations. This condition is met, when the legal consequences from which the claims of several persons derive, although they differ, are similar, that is, they relate to the same type and content of provision. They are also required to rest on a similar historical and legal basis. It is also required that the court has jurisdiction over each defendant.
A basic principle that governs simple joint litigation is the autonomy and independence of simple joint litigation parties, which means that the actions of each simple joint litigation party are self-contained and independent and do not harm or benefit others. The exercise of legal remedies is carried out by each common litigant separately, while the finality of the decision issued in favor of or against a common litigant does not bind the other common litigants.
In contrast to simple joint litigation, mandatory class action occurs when, in a trial with several parties, one or both of the litigants form a solid unity, that is, they participate in a substantial, coherent bond consisting of several people, who, even if they do not share the same or a similar disputed right or obligation they share the same procedural rights and burdens.
The cases of the necessary joint trial are four and are provided for in Article 76 of the Code of Civil Procedure. In particular, compulsory arbitration exists when the dispute can only be settled in a single manner. In this case, lawsuits concerning indivisible rights, such as real or limited personal servitude, are mainly subject. Compulsory arbitration also exists when the subjective limits of the res judicata extend to other persons, who do not participate in the procedure on which the final decision was issued, such as to the successors of the original parties, to the guarantors, to the members of a legal entity.
The substantive or procedural law provides for cases in which the joint legalization of lawyers is mandatory, under penalty of inadmissibility. In these cases, compulsory arbitration is created in principle by the filing of the lawsuit. It is, however, rightly argued that if all co-litigants are not included in the pleadings, the relevant inadmissibility can be covered by invoking non-joinders. It is also about forced co-judgment in cases where the issuance of contradictory decisions is not understood, but according to the rules of the logic of the law, the issuance of a similar decision is required.
A basic principle of the necessary joint trial is the principle of the objective action of acts, according to which every act or omission of the joint defendant benefits or harms others as well. Exceptions are provided in paragraph 2 of Article 76 of the Code of Civil Procedure for compromise, recognition, waiver of the writ, and of the right to sue, and the agreement to arbitrate. In contrast to simple joint litigation, the exercise of remedies by a necessary joint defendant also has an effect on the others, while accordingly the appeal must be directed against all co-judicial parties, who were parties in the first instance or their heirs, otherwise, it is rejected as unacceptable.
If the conditions for simple or forced co-litigation are absent, the petition does not become invalid, but the court orders the separation of the parties ex officio and indeed at every stage of the trial. The separation is preceded by the investigation of the assistance of the procedural conditions of the trial since if any of them are absent, the separation does not make sense. If with the separation there is also a case of substantive jurisdiction, each lawsuit is referred to the competent substantive and territorial court. In simple co-litigation, the separation of the parties can be ordered even when the purposes of the economy of the trial are not achieved. It is noted, that if one of the cases of forced joint trial does not occur, the possibility of saving the joint trial as simple should be considered. If the conditions of simple cohabitation are not met either, then the separation is ordered.
References
- Κώδικας Πολιτικής Δικονομίας. Όπως κωδικοποιήθηκε με το Προεδρικό Διάταγμα 503/1985. lawspot.gr. Available here
