Legal standing in civil proceedings


What is standing?

Active and passive standing is one of the conditions imperatively necessary for bringing a civil action.

At a conceptual level, standing is the identity between the parties to the proceedings and the subjects of the legal relationship in dispute as it is being litigated.

More precisely, standing means that only a person who has standing can be a party to the proceedings, i.e., he or she must justify a right or an obligation to participate in the civil proceedings.

The determination of the procedural standing of the parties in a civil lawsuit has multiple procedural implications. It is of particular importance from the very beginning of the process because in order to bring an action, it is important to identify both the person to whom the law grants the right to sue in an active sense (e.g., plaintiff, having an offensive position) and the person against whom the action is directed (e.g., defendant, having a defensive position).

More precisely, in the case of legal situations which enjoy judicial protection, the active procedural quality belongs to the person who can take advantage of that legal situation, and the passive procedural quality is attributed to the person against whom that legal situation can be realized.

The plaintiff assumes the capacity to bring an action through a manifestation of the will, consisting in the initiation of the legal action, by setting out in the application the factual and legal elements justifying both his and the defendant’s capacity.

Thus, the plaintiff will have to indicate based on which of his rights he participates as a party to the proceedings and the obligation which has been breached by the defendant and which is capable of giving rise to passive legal standing.

According to the provisions of the Code of Civil Procedure, the burden of proving passive procedural status, i.e., the person to be tried, lies with the plaintiff.

In any event, after the application has been lodged, the court seised must verify both the active and passive procedural status, a procedure which should not be confused with verification of the existence of the right itself or of the correlative obligation itself, which forms part of the content of the legal relationship at issue, this being a matter of substance.

Transmission of Procedural Quality

Both procedural rights and obligations can be transferred in the course of the proceedings, which is equivalent to a transfer of procedural status, active or passive. This can be done by law or by agreement.

The person who acquires procedural capacity as a result of the transfer is brought into the proceedings in place of his author and takes over the proceedings as they stand at the time of the transfer, all procedural acts performed by his previous author being enforceable against him.

Legal transmission

As far as natural persons are concerned, legal transmission means that, in the event of the death of one of the parties, the heirs of the party accepting the succession take over the procedural position of their legal predecessor unless the action is strictly personal, such as, for example, as plaintiff or defendant in a divorce action.

However, there are also situations in which the action does not pass to the heirs, but if it was brought by the holder, who dies during the proceedings, the civil action might be continued by his successors (e.g., action for annulment of marriage, divorce action based on the fault of the defendant).

For legal persons, the legal transfer takes place through the reorganization of the legal person that is a party to the proceedings. Thus, in relation to the assets acquired, the legal person resulting from the reorganization operation will take over the legal standing held by its predecessor.

Conventional transmission

Conventional transfer takes place as a classic way of changing the active or passive subject of the substantive legal relationship at issue when during the trial, an agreement is reached on a:

  • assignment of a claim whereby a party to a lawsuit transfer to an assignee a claim that is the subject of legal action. In this way, the assignee acquires legal standing vis-à-vis the debtor assigned, and the lawsuit is to be brought between the debtor assigned and the assignee after the assignment.
  • sale (or donation) of the disputed asset involves the transfer of ownership of an asset whose legal status is uncertain. The person who acquires such an asset will take over the status of the active or passive subject held by the seller (donor) in the proceedings.
  • debt assumption, as a mechanism whereby, with the creditor’s consent, the original debtor who has passive quality in a pending lawsuit transfers his debt to another person who is to substitute him in the lawsuit and who will perform the obligation in question towards the plaintiff creditor.

Sanction of Lack of Standing

The plea of lack of standing, either by the parties or by the court of its own motion, is the procedural means by which the lack of standing of one of the parties is raised.

This could translate into a lack of a link between the person sued and the legal relationship of substantive law invoked.

The admission of this substantive, absolute plea has the effect of dismissing the action on the ground that it was brought by a person without standing (in the case of the plaintiff) or against a person without standing (in the case of the defendant).

With regard to the lack of standing, the Code of Civil Procedure provides for some strict remedies, such as the amendment of the action under Article 204 para. (1) and (3), the institution of showing the holder of the right – in the case of actions in rem, under Articles 75-77, or the situation in which the provisions of Article 39 on the situation of the alienator and his successors are applicable.

Otherwise, in the same case, it is not possible to replace the person sued who does not have locus standi with the person who does have locus standi, but after the dismissal of the action brought against the person wrongly named, the plaintiff may bring a new action, with proper justification of the defendant’s locus standi.

You can contact the Romanian Law firm Blaj Law at any time for legal questions.