PARTS (IN JUDGMENT). - Parties are natural or juridical persons who bring a claim or against whom a claim is brought for the application of the law 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) sets out in practical form the concepts elaborated by doctrine. By the name of parties are commonly understood the passive subjects (as opposed to the judge, the active subject) of the process, and precisely those who defend interests or rights in the process. But this is not yet sufficient to clarify the concept of party. According to can. 1648, for example, the representative acts in the process, but the party is instead the person represented.
The quality of party is determined by the judicial claim. From can. 1648 it follows that in every process there must necessarily be two parties: the one who claims and the one against whom the claim is made: plaintiff and defendant. The one who acts, that is, who introduces the case (in canon law by an introductory libellus [v.]; in Italian law by a summons) must also indicate the substantive right on which the claim is founded and the violation or the danger of imminent violation of his own right. These elements, contained in the claim, confer on the plaintiff the quality of party and confer on the defendant the quality of resisting party. It must be noted, as mentioned above, that one who claims in another's name is not a party in the process, but the party is the person represented, who will derive from the judge's pronouncement any advantages or disadvantages. A typical example are the organs of juridical persons, which have the capacity to stand in judgment, but not the ownership of the substantive right in dispute, which instead belongs to the juridical person, to which the status of party also pertains. For the purposes of procedural law the determination of the party in the judgment is of the greatest importance; as a first effect there arise the rights and obligations of procedural law and participation in the procedural juridical relationship.
The status of party is furthermore absolutely necessary in order to establish active or passive legitimation ad causam or ad processum, the competent forum ratione domicilii et contracti, the right to free legal aid, and so on. From one who is a party certain activities are barred, while others are exclusively reserved. The party, for example, cannot be a witness or an expert in his own case, and cannot perform any indirect or mediated procedural activity, such as intervening as a third party or filing a third-party opposition against the judgment. To the party, on the other hand, belong all those activities that lead to the pronouncement of the Tribunal and the bringing of appeals against the judgment. In one and the same process several actions may be joined and several parties may be present, but the positions are substantially two, plaintiff and defendant, even when the parties assume other nomina iuris (appellant and respondent, opponent and opposed, creditor and debtor). In the canonical process, which has as its object the declaration of nullity of the Sacred Bond, besides the spouses, the Defender of the Bond is a party to the process, who must oppose the claim and therefore assumes the role of defendant. In criminal proceedings, whether canonical or secular, the one who acts is the public accuser (promoter of justice, public prosecutor), and the defendant is the accused. The parties in the process are in a formally equal position, enjoying identical rights and obligations, but substantially different: the plaintiff is in fact not compelled to act (except for the promoter of justice in the cases provided by law - cann. 1955, 1971 - or anyone else bound to act by particular provisions of law), but if he acts he must prove the fact submitted in judgment, the right that is violated by that fact, and the ownership of that right; the defendant, on the other hand, is always bound to respond and his condition is more favorable, because he is brought before the judge without the concurrence of his will and does not have to prove anything, but only to raise exceptions. The famous brocard: actore non probante, reus absolvitur, is clearly indicative. The CIC, in the above-mentioned title, regulates the capacity to stand in judgment, attributing this capacity to some and denying it to others. In the second chapter of tit. IV, the CIC lays down the rules that must be followed by persons who act in the process nomine alieno ad adiuvandum, that is, procurators and advocates.
Bibliography4 works
Giorgio Franco