By Evangelia Petsa,
The existence of representative power in the party’s legal representative is a procedural condition of the trial and is therefore investigated ex officio by the court. The representation of the party in the trial takes place either on the basis of a provision of the law, in which case the will of the represented is replaced by a legislative mandate, or by his will, in which case it is the so-called judicial attorney, whose authority derives from his will represented.
However, the difference between a legal representative and a judicial attorney mainly comes down to the field of action of each of them, because the legal representative is the person who appears in the procedure instead of the party, whose appearance is passive, since the judicial attorney undertakes the individual procedural acts on his behalf.
In practice, the legal representative makes up for the lack of legal capacity in the litigant. The capacity to litigate must be distinguished from the capacity to appear in court and conduct the trial in the name of the party, which is a parallel concept of substantive law capacity for legal action, just as the capacity to be a party is the parallel concept of under civil law legal capacity. The capacity to litigate can be defined as the capacity to conduct legal proceedings before a certain court, in the capacity of a party or its representative. Where a party does not have the capacity to litigate, but has the capacity to appear in court and conduct the trial in his own name, he likewise has the right to appoint a competent legal representative to represent him in court.
First of all, we must distinguish the power of attorney from the mandate. The first gives third parties the power of representation and, in particular, in the context of the trial, the power to carry out procedural acts, while the second entails the duty of representation. The broader term delegation has a meaning different from power of attorney and command. By this is meant the legal act, by which someone is given the authority for his own interest and in his name to draw up a legal act that is an intervention in the property sphere of the one providing the authority.
A concept also different from that of a judicial attorney is the concept of an agent / address for service, which accepts the performance of documents addressed to a certain person. The main difference between the power of attorney and an address for service lies in the fact that the attorney has the power to perform procedural acts, while an agent only accepts documents addressed to a certain person. For the above reason, the legal power of attorney is also considered to be irrevocable. A judicial attorney is subpoenaed only for the receipt of court documents of the trial in which he was an attorney, including the service of the final decision issued in the specific trial and it is not permissible to serve him with appeals against said final decision, since the authority of the judicial representative as an address for service has already ended with the issuance of the final decision and its service.
Finally, different from the concept of judicial power of attorney is the power of the representative bodies of legal entities. Because, by defining these bodies and their authority, the organic representation of legal entities is implemented, which is different from the relationships provided for in articles 94 et seq. of the Code of Civil Procedure, since the proxy does not express the will of the legal entity , but acts as a simple representative acts already decided by the competent bodies thereof.
The presentation to the audience by virtue of power of attorney therefore also strengthens the preparatory acts, if during their previous execution no power of attorney had yet been given. The party is entitled to subsequently approve the previous, without a power of attorney, acts that preceded them. Approval can be either express or implied. If the person appearing as an attorney does not prove the existence of a power of attorney, the court may set a short deadline for completing the deficiency and allow the person who proves his power of attorney to participate in the trial temporarily. If the lack of power of attorney is not finally completed, the acts that the attorney was allowed to attempt are declared invalid. The party for whom the lawyer appeared without a power of attorney is tried in absentia, as long as it appears in the specific case that he had legally assumed the status of a party.
The obligation to appear with a lawyer is mandatory. The rule of the mandatory representation of the party with an attorney before the civil courts and in the trials of interim measures is provided for in paragraph 1 of article 94 of the Code of Civil Procedure. If the party is not represented by a lawyer, where his appearance is mandatory, or he appears with a lawyer and the existence of his express power of attorney, which is required during the discussion of the case and which the court investigates ex officio, is not proven, the party is considered procedurally absent. And it is understood, of course, that a litigant cannot appear in a superior court with an attorney appointed in an inferior one. A lawyer who is appointed to the Court of First Instance cannot attend and perform procedural acts in the Court of Appeal or the Supreme Court, even if it is a personal case. However, he is entitled to appear there with the support of a lawyer,legally present in said courts.
Paragraph 2 of article 94 of the Code of Civil Procedure provides for the exceptions to the above rule. Now the party can appear without a lawyer: a) before a district court, if it is a small dispute, b) to prevent imminent danger. The last exception is not identical to the corresponding concept of imminent risk as a prerequisite for the admissibility of the application for injunctive measures, but is interpreted narrowly and means that not immediately finding a lawyer and postponing the operation of the specific procedural act would endanger the interests of the party, which does not apply in principle to a discussion of an application for injunctive measures that has been determined some time ago and has been served on the opposing party.
Finally, the judicial power of attorney is given by a notarial document or by an oral statement recorded in the minutes or in the report and the private document is added as a constituent type of power of attorney, as long as the “genuineness” of the signature is certified by a public, municipal or other authority, or even by a lawyer and may relate to some or all of the trials of the person providing it and the power of attorney must include the names of the attorneys.
References
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Κώδικας Πολιτικής Δικονομίας, Όπως κωδικοποιήθηκε με το Προεδρικό Διάταγμα 503/1985. lawspot.gr. Available here
