О ДИСКРЕПАНЦИ ИЗМЕЂУ СТВАРНЕ И ПРОЦЕСНЕ ЛЕГИТИМАЦИЈЕ КОД ОРГАНИЗАЦИОНИХ ТУЖБИ
ON DISCREPANCY BETWEEN SUBSTANTIVE LEGITIMATION AND LOCUS STANDI IN ORGANIZATIONAL CLAIMS

Summary/Abstract: Subject of our analysis is discrepancy between substantive legitimation and locus standi in civil procedure. Both issues are traditionally part of Serbian civil procedure. However, particular aspects of those issues are displayed in the modern law when applying rules on organizational claim, in international litigation and from the aspect of right to the fair trial (Art.6 (1) ECHR). Aim of this paper is to identify and analyze those particularities using comparative method. By analyzing comparative law, we better understand Serbian law, easier identify problems in legislation and case law. Having in mind that Serbian civil procedure shares its tradition with the German law, our analysis started from the German legislation and legal doctrine. The problem of discrepancy between substantive legitimation and locus standi was analyzed in German legal doctrine. The results of that analysis led us to the conclusion that organizations have locus standi and not the substantive legitimation when they are entitled to file organizational claim. Furthermore, result of our research is the conclusion that there are difficulties to even identify persons who have substantive legitimation. In the international litigation, locus standi is determined by lex fori. However, between the EU countries locus standi is sometimes recognized in one member state when provided for in another. Serbian law does not contain provisions by which foreign locus standi will be recognized in the litigation proceedings in Serbia. On the other hand, this is possible in the bankruptcy proceedings, which is understandable having in mind the aim of bankruptcy proceedings. The analysis of the Serbian legislation led us to the conclusion that the Law on gender equality and Law on prohibition of discrimination contain provision on locus standi to file organizational claim for which legislative changes are necessary. By the way those provisions are drafted, the protection of discriminated persons and effective course of litigation proceedings could not be guaranteed.

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