PARTIES (IN JUDICIAL PROCEEDINGS). – Parties are natural or juridical persons who request, or against whom the application of the law is requested, and who act in their own name for the protection of their substantive right. Title IV of Book IV of the CIC (De partibus in causa) illustrates in practical form the concepts elaborated by legal scholarship. By the name of parties one commonly means the passive subjects (as opposed to the judge, the active subject) of the proceedings, namely those who defend interests or rights in the proceedings. But this is not yet sufficient to clarify the concept of a party. According to can. 1648, for example, the representative acts in the proceedings, but the party is instead the represented person.
The status of party is determined by the judicial claim. It follows from can. 1648 that every proceeding must necessarily have two parties: the person who claims and the person against whom the claim is made: the plaintiff and the defendant. The person who acts, that is, who institutes the case (in canon law by means of an initiating petition [v.]; in Italian law by means of a summons), must also indicate the substantive right on which the claim is based and the violation or imminent danger of violation of his own right. These elements, contained in the claim, confer on the plaintiff the status of party and on the defendant the status of defending party. It should be noted, as mentioned above, that one who claims in another’s name is not a party to the proceedings; rather, the party is the represented person, who will derive any advantages or disadvantages from the judge’s decision. A typical example is provided by the organs of juridical persons, which have the capacity to appear in court but do not hold title to the substantive right in dispute; that right belongs instead to the juridical person, which likewise possesses the status of party. For the purposes of procedural law, the determination of the parties in the proceedings is of the greatest importance; the first consequence is the emergence of procedural rights and obligations and participation in the procedural juridical relationship.
The status of party is also absolutely necessary in order to establish active or passive standing ad causam or ad processum, the competent forum ratione domicilii et contracti, the right to free legal aid, and so forth. Certain activities are prohibited to a party, while others are reserved exclusively to II. A party, for example, cannot be a witness or expert in his own case, nor can he perform any indirect or mediated procedural activity, such as intervening as a third party or filing third-party opposition against the judgment. On the other hand, the party is entitled to all those activities that lead to the Tribunal’s decision and to the filing of appeals against the judgment. Several actions may be joined in the same proceedings and several parties may be involved, but the positions are essentially two, plaintiff and defendant, even when the parties assume other nomina iuris (appellant and respondent, objector and opposing party, creditor and debtor). In canonical proceedings whose object is the declaration of nullity of the Sacred Bond, in addition to the spouses, the Defender of the Bond is a party to the proceedings; he must oppose the claim and therefore assumes the role of defendant. In criminal proceedings, whether canonical or secular, the person who acts is the public accuser (promoter of justice, public prosecutor), while the defendant is the accused. The parties to proceedings are in a formally equal position, asserting identical rights and obligations, but in substance their positions differ: the plaintiff, in fact, is not compelled to act (except for the promoter of justice in the cases prescribed by law – cann. 1955, 1971 – or anyone else who is required to act by particular legal provisions), but if he acts he must prove the fact alleged in the proceedings, the right violated by that fact, and his ownership of that right; the defendant, on the other hand, is always required to respond, and his position is more favorable, because he is brought before the judge without the concurrence of his will and need prove nothing, but only raise exceptions. The celebrated brocard: actore non probante, vous absolvitur, is clearly indicative. The CIC, in the aforementioned title, regulates the capacity to appear in court, granting this capacity to some and denying it to others. In the second chapter of Title IV, the CIC lays down the rules to be followed by persons who act in the proceedings nomine aliene ad adiuvandum, namely procurators and advocates.
BBL.: F. Roberti, De Procesibus, Roma 1941, p. 319 ff.; G. Olivero, Le p. nel giudizio canonico, Milano 1941; Wernz-Vidal, V. n. 158; F. Della Rocca, Istituzioni di diritto processuale canonico, Torino 1946, p. 156 ff. Giorgio Franco