Ročište pre odbacivanja tužbe (čl. 294, st. 2 ZPP) – Forma bez smisla ili smisao bez adekvatne forme –

Abstract

In the legal doctrine and practice of the highest court in the country, there is a prevailing opinion that a hearing before the dismissal of the lawsuit realizes and protects the right to be heard. At the same time, the right to be heard is identified with the principle of adversary (audiatur et altera pars), that is, with the right of one party to respond to the requests, statements and proposals of the opponent party. Also, it is understood that the denial of this hearing represents an absolute substantial procedural defect from Art. 374 (2) point 7 of the Law on Civil Procedure (ZPP). However, at the hearing analysed here, the plaintiff does not respond to the legal argumentation of the opposing side, but to the legal reasoning of the court. This paper critically examines the content of the right to be heard, more precisely, the traditional understanding of this right. As a result of the analysis, the right to be heard is equated with the right to a hearing, which allows parties to respond to the procedural actions undertaken by their opponent (relationship: partyparty), but also to the court’s legal reasoning (relationship: courtparty), during the course of the hearing. Given that these two forms of the right to be heard do not serve to achieve the same goals, an interpretation of Art. 374 (2) point 7 ZPP is offered through teleological reduction. It implies that only denying a party to respond to the opponents’ actions and statements leads to an absolute substantial procedural defect. While, on the other hand, denying a party to express opinion regarding the legal reasoning of the court, represents a relative substantial procedural defect.