Nad fikcí výpovědi (odvolání) plné moci a restrikcí počtu zmocněnců v civilním procesu
Above the Fiction Notice (Appeals) Proxy Restrictions and the Number of Agents in Civil Procedure

Summary/Abstract: According to § 24 par. 1 and § 28 par. 3 of the Civil Procedural Code (CPC) can each party be simultaneously represented only by one elected representative; if a party, which already has a representative, elects another one, then CPC stipulates that this party withdraws from a present power of attorney. This article deals with both provisions and concludes that § 28 par. 3 is a legal fiction, because the party didn´t withdraw from a present power of attorney; it only elected a new representative. At the same time it is not possible to treat election of a new representative as an intention to finish existing representation by another representative; we can as well say that a party wants to be represented by both representatives. Therefore the article explores reasons for restriction of number of elected representatives in the Czech civil procedure. The reason is according to some older literature the principle of a (procedural) economy; it probably contains effort to avoid problems with servicing of documents to several representatives and to beware of situations, when a procedural act of one representative is in contrariety to a procedural act of another representative of the same party. This aim is legitimate, but there exists least restrictive means to reach it (a party may be obliged to choose one representative for receiving documents or service of a document to only one representative may be sufficient; contradictory acts can a court deliberate within his discretionary powers etc.). Hence the restriction of number of representatives under § 24 par. 1 CPC fails in the test of proportionality.

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