Principle legal opinion of the supreme court of the Republic of North Macedonia - court settlement
09.11.2023
The
Supreme Court of the Republic of North Macedonia in a general session adopts
principled positions - principled legal opinions that are mandatory for all the
councils of the Supreme Court.
In the specific case, at the held general session, he adopted a principled position - a principled legal opinion regarding the court settlement.
At the general session, the Supreme Court of the Republic of North Macedonia adopted the following principled position - principled legal opinion:
I.The parties can conclude a settlement on the subject of the dispute (judicial settlement) both before the civil court of the first instance and before the civil court of the second instance; ІІ. Judicial settlement before the court of first instance, the parties can conclude until the final conclusion of the dispute, that is, until the adoption of a final decision; ІІІ. The parties can enter into a judicial settlement before the second-instance court only when the second-instance court makes a decision at a hearing, scheduled on the occasion of the submitted appeal; IV. The second instance court cannot administratively return the case to the first instance court, on the occasion of the appellant's proposal to enter into a court settlement, if the conclusion of the court settlement is unilaterally proposed; V. When the parties proposed to enter into a court settlement after the adoption of a first-instance judgment, against which an appeal was filed, in the minutes of court settlement, data on the first-instance judgment, the submitted appeal, the statements of the parties, the manner in which relations are regulated should be indicated. (fully or partially).When the parties settle the relationship only partially with the court settlement, the remaining disputed part of the civil-legal relationship will be decided upon the appeal against the first-instance judgment; VI. If a court settlement is concluded before the court of first instance, and the case is sent on appeal to the court of second instance, in that case the court of first instance is obliged to notify the court of second instance about the court settlement concluded, and the parties can do this as well.
Such a principled position of the Supreme Court only explains what is not decisively stated in these provisions of the ZPP for judicial settlement. It especially refers to when it is possible to conclude a court settlement before a second instance court
Court settlement in the law on civil procedure is provided for in articles 307 to 310 of this law:
(1)During the entire procedure before the civil court, the parties can conclude a settlement for the subject of the dispute (court settlement). (2) The settlement may refer to the entire claim or to one of its parts. (3) During the procedure, the court will indicate to the parties the possibility of court settlement and will help them conclude a settlement. (4) A settlement cannot be concluded before the court regarding the claim that the parties cannot dispose of (Article 3 paragraph 3). (5) When the court in the first instance makes a decision that does not allow settlement of the parties, it will stop the procedure until this decision becomes final. According to these legal provisions, the parties during the entire procedure, which means from the filing of the lawsuit until the second instance court makes a decision on the appeal, can conclude a court settlement for the subject of the dispute.
With the settlement agreement, the persons between whom there is a dispute regarding a legal relationship, with the help of a mutual concession, terminate the dispute, that is, remove the uncertainty and determine their mutual rights and obligations, as provided for in Article 1128 paragraph 1 of the ZOO.
According to its material-legal effect, the court settlement is equated with a final judgment, because if a lawsuit is initiated for a case for which a court settlement was previously concluded, the court will reject the lawsuit in accordance with Article 322 of the ZPP. When the settlement pertains to the entire formal request, the lawsuit is terminated, and the court, being aware of the settlement recorded in the minutes of the hearing reached, archives the case.
The settlement should be an expression of the free will of the parties and the president of the council should point out to them the advantage that it entails, which is the avoidance of long-term litigation, high costs of the procedure, uncertainty of the outcome of the dispute, etc. In the folk wisdom, there is a saying that a thin settlement is better than a thick litigation.
The subject of settlement cannot be relations that can be resolved only by a judgment, such as divorce, determination of the existence of marriage, nullity of marriage or disputed relations for the resolution of which the court is not competent.
In that sense is the judgment of the Supreme Court of Macedonia, GZZ. No. 56/77 of 31.08.1977 where it is stated that in disputes to establish the existence of marriage, the court cannot allow a settlement in connection with the existence or non-existence of marriage.
The refutation of the court settlement when there are assumptions that make it invalid, and especially when it was concluded in error or under the influence of fraud, is carried out by a lawsuit in a separate dispute like any other civil law contract. If the court settlement is annulled, the litigation court before which the court settlement was concluded should continue the litigation. In that case, the mutual benefits that the parties concluded to each other on the basis of the concluded settlement should be returned in accordance with the provisions of the ZOO.
The parties can conclude a court settlement when the case is on appeal to the second-instance court, as referred to in the provision of paragraph 1 of article 307 of the ZPP. It states that such a settlement can be concluded during the entire procedure. Accordingly, the parties are given the opportunity to conclude a judicial settlement before the higher court.
The provisions under Art. 353 of ZPP, which refer to a hearing before the first instance court, are also applied to a hearing before a second instance court, so it is logical that when a court settlement can be concluded at a hearing before a first instance court, it can also be done at a hearing before a second instance court.
Refusal of a court settlement is possible only if it was entered into by fraud, misrepresentation or under duress. The party that believes that when concluding the court agreement did not freely express its will can request the annulment of the agreement in a lawsuit.
Verdict: VSM, Gz 27/67 of 19.04 1967.
When the court settlement is annulled by a final judgment, it is considered that the process in which the settlement was reached has not yet been completed and the court will continue the procedure in which the settlement was reached. In this sense, the decision of the Supreme Court of the Republic of Macedonia GZZ no. 70/95 of 11.01.1996.
If the annulment of the court agreement is carried out by a lawsuit in a separate dispute, then the disputed case has not yet been completed and the court will continue the procedure in the case in which the settlement was concluded. In this sense, if the principle position of the Supreme Court is interpreted when a settlement was concluded before a second-instance court at a hearing, then if such a settlement is annulled, the hearing before the second-instance court should continue to what is foreseen in the first-instance court. The court procedure for annulment of the agreement will most likely not end quickly, so after the finality of the decision it follows that the second instance court should also schedule a hearing and continue with the hearing on the appellant's complaint.
According to Article 308 paragraph 4 of ZPP, the parties can conclude an agreement in a mediation procedure and are obliged to submit it to the court within 8 days from the day of its conclusion. The court schedules a hearing at which it notes on the minutes the concluded agreement, which acquires the status of a court settlement if the conditions for concluding a court settlement are met in accordance with Article 307 of ZPP.In the record, the content of the settlement must be included, and it is not sufficient to simply state that the parties have reached a settlement, as this does not constitute an enforceable document, nor can it be considered a final resolution without specifying which party undertakes what obligations regarding the subject of the dispute, the deadline by which these obligations are to be fulfilled, or the rights recognized by the opposing party.
The former judicial settlement, according to the published legal practice, is not a reason for repeating the procedure under Article 392.7, as that provision only applies to a legally binding court decision. However, such an interpretation is debatable and should be questioned because the entire provision of Article 392.7 is the same, whether it concerns a court decision and a dispute resolved on the merits or when it is done through a judicial settlement.
Based on the information provided, it can be inferred that the parties can enter into a judicial settlement during the entire proceeding before the trial court, as long as the second-instance has not issued a decision on the appeal, unlike the previous court decision, which could only be made before first-instance court. If the provisions of the Law on Civil Procedure (ZPP) regarding the hearing before the first-instance court are taken into account, then, given that such a settlement can be reached during the entire proceeding when the second-instance court decides on the hearing scheduled in relation to the submitted appeal. Article 353 of the Civil Procedure Code states that, unless otherwise specified, the provisions for the main hearing before the first-instance court (Articles 279 to 306) are also applied to the hearing before the second-instance court. Difficulties may arise if the judicial settlement is invalidated through a lawsuit in another dispute, and the subject matter is considered concluded and archived for the same. In such a case, according to legal provisions, the matter should continue before the second-instance court, and a decision should be made regarding the appeal.
Paragraph 4 of the principle paragraph states that the court of second instance cannot administratively return the case to the court of first instance on the occasion of the proposal if it is unilaterally proposed by the complainant. Paragraph 5 of the principle paragraph talks about a proposal for concluding a court settlement submitted by the parties and talks about minutes of court settlement.
This means that we are talking about when there was a proposal for a court settlement from the appellant and from both parties.The preposition for reaching a judicial settlement as a preposition is still in the "previous phase," while the concluded judicial settlement made in a protocol is already concluded with all the details required for settlement, and as such, it is completed.
Since the settlement can be concluded during the entire procedure, and according to Article 308 paragraph 4 of ZPP and the agreement concluded in a mediation procedure with a mediator and it acquires the character of a court settlement, the question arises whether and what if the parties during the entire procedure conclude a settlement with a notary with their own signatures. In this case, the question arises whether an analogy can be applied such as the conclusion of an agreement with a mediator and what about that valid agreement with a notary.
Article 351 of ZPP, the second-instance court decides on an appeal as a rule without a hearing, and a hearing is scheduled as an exception when the council finds it necessary to repeat the evidence already presented. In such a case, the question arises as to whether the rights of the parties to settlement are limited because the law states that during the entire procedure, from the filing of the lawsuit to the decision of the second-instance court on the appeal, a judicial settlement can be concluded.If the second-instance court decides according to the rule without hearing and as an exception in a public session, then the question arises as to how the exception has priority over the rule. The conclusion of the court settlement is an expression of the will of both parties when they achieve it and agree, and therefore the law says that this settlement can be concluded during the entire procedure before the civil court for the subject of the dispute.
In this paragraph 3 of the principle paragraph, the Supreme Court probably started from the fact that the parties, their legal representatives or proxies are called to a hearing before a second-instance court in accordance with Article 352 paragraph 1 of ZPP, so that at the hearing they could propose the conclusion of a court settlement.
In the specific case, at the held general session, he adopted a principled position - a principled legal opinion regarding the court settlement.
At the general session, the Supreme Court of the Republic of North Macedonia adopted the following principled position - principled legal opinion:
I.The parties can conclude a settlement on the subject of the dispute (judicial settlement) both before the civil court of the first instance and before the civil court of the second instance; ІІ. Judicial settlement before the court of first instance, the parties can conclude until the final conclusion of the dispute, that is, until the adoption of a final decision; ІІІ. The parties can enter into a judicial settlement before the second-instance court only when the second-instance court makes a decision at a hearing, scheduled on the occasion of the submitted appeal; IV. The second instance court cannot administratively return the case to the first instance court, on the occasion of the appellant's proposal to enter into a court settlement, if the conclusion of the court settlement is unilaterally proposed; V. When the parties proposed to enter into a court settlement after the adoption of a first-instance judgment, against which an appeal was filed, in the minutes of court settlement, data on the first-instance judgment, the submitted appeal, the statements of the parties, the manner in which relations are regulated should be indicated. (fully or partially).When the parties settle the relationship only partially with the court settlement, the remaining disputed part of the civil-legal relationship will be decided upon the appeal against the first-instance judgment; VI. If a court settlement is concluded before the court of first instance, and the case is sent on appeal to the court of second instance, in that case the court of first instance is obliged to notify the court of second instance about the court settlement concluded, and the parties can do this as well.
Such a principled position of the Supreme Court only explains what is not decisively stated in these provisions of the ZPP for judicial settlement. It especially refers to when it is possible to conclude a court settlement before a second instance court
Court settlement in the law on civil procedure is provided for in articles 307 to 310 of this law:
(1)During the entire procedure before the civil court, the parties can conclude a settlement for the subject of the dispute (court settlement). (2) The settlement may refer to the entire claim or to one of its parts. (3) During the procedure, the court will indicate to the parties the possibility of court settlement and will help them conclude a settlement. (4) A settlement cannot be concluded before the court regarding the claim that the parties cannot dispose of (Article 3 paragraph 3). (5) When the court in the first instance makes a decision that does not allow settlement of the parties, it will stop the procedure until this decision becomes final. According to these legal provisions, the parties during the entire procedure, which means from the filing of the lawsuit until the second instance court makes a decision on the appeal, can conclude a court settlement for the subject of the dispute.
With the settlement agreement, the persons between whom there is a dispute regarding a legal relationship, with the help of a mutual concession, terminate the dispute, that is, remove the uncertainty and determine their mutual rights and obligations, as provided for in Article 1128 paragraph 1 of the ZOO.
According to its material-legal effect, the court settlement is equated with a final judgment, because if a lawsuit is initiated for a case for which a court settlement was previously concluded, the court will reject the lawsuit in accordance with Article 322 of the ZPP. When the settlement pertains to the entire formal request, the lawsuit is terminated, and the court, being aware of the settlement recorded in the minutes of the hearing reached, archives the case.
The settlement should be an expression of the free will of the parties and the president of the council should point out to them the advantage that it entails, which is the avoidance of long-term litigation, high costs of the procedure, uncertainty of the outcome of the dispute, etc. In the folk wisdom, there is a saying that a thin settlement is better than a thick litigation.
The subject of settlement cannot be relations that can be resolved only by a judgment, such as divorce, determination of the existence of marriage, nullity of marriage or disputed relations for the resolution of which the court is not competent.
In that sense is the judgment of the Supreme Court of Macedonia, GZZ. No. 56/77 of 31.08.1977 where it is stated that in disputes to establish the existence of marriage, the court cannot allow a settlement in connection with the existence or non-existence of marriage.
The refutation of the court settlement when there are assumptions that make it invalid, and especially when it was concluded in error or under the influence of fraud, is carried out by a lawsuit in a separate dispute like any other civil law contract. If the court settlement is annulled, the litigation court before which the court settlement was concluded should continue the litigation. In that case, the mutual benefits that the parties concluded to each other on the basis of the concluded settlement should be returned in accordance with the provisions of the ZOO.
The parties can conclude a court settlement when the case is on appeal to the second-instance court, as referred to in the provision of paragraph 1 of article 307 of the ZPP. It states that such a settlement can be concluded during the entire procedure. Accordingly, the parties are given the opportunity to conclude a judicial settlement before the higher court.
The provisions under Art. 353 of ZPP, which refer to a hearing before the first instance court, are also applied to a hearing before a second instance court, so it is logical that when a court settlement can be concluded at a hearing before a first instance court, it can also be done at a hearing before a second instance court.
Refusal of a court settlement is possible only if it was entered into by fraud, misrepresentation or under duress. The party that believes that when concluding the court agreement did not freely express its will can request the annulment of the agreement in a lawsuit.
Verdict: VSM, Gz 27/67 of 19.04 1967.
When the court settlement is annulled by a final judgment, it is considered that the process in which the settlement was reached has not yet been completed and the court will continue the procedure in which the settlement was reached. In this sense, the decision of the Supreme Court of the Republic of Macedonia GZZ no. 70/95 of 11.01.1996.
If the annulment of the court agreement is carried out by a lawsuit in a separate dispute, then the disputed case has not yet been completed and the court will continue the procedure in the case in which the settlement was concluded. In this sense, if the principle position of the Supreme Court is interpreted when a settlement was concluded before a second-instance court at a hearing, then if such a settlement is annulled, the hearing before the second-instance court should continue to what is foreseen in the first-instance court. The court procedure for annulment of the agreement will most likely not end quickly, so after the finality of the decision it follows that the second instance court should also schedule a hearing and continue with the hearing on the appellant's complaint.
According to Article 308 paragraph 4 of ZPP, the parties can conclude an agreement in a mediation procedure and are obliged to submit it to the court within 8 days from the day of its conclusion. The court schedules a hearing at which it notes on the minutes the concluded agreement, which acquires the status of a court settlement if the conditions for concluding a court settlement are met in accordance with Article 307 of ZPP.In the record, the content of the settlement must be included, and it is not sufficient to simply state that the parties have reached a settlement, as this does not constitute an enforceable document, nor can it be considered a final resolution without specifying which party undertakes what obligations regarding the subject of the dispute, the deadline by which these obligations are to be fulfilled, or the rights recognized by the opposing party.
The former judicial settlement, according to the published legal practice, is not a reason for repeating the procedure under Article 392.7, as that provision only applies to a legally binding court decision. However, such an interpretation is debatable and should be questioned because the entire provision of Article 392.7 is the same, whether it concerns a court decision and a dispute resolved on the merits or when it is done through a judicial settlement.
Based on the information provided, it can be inferred that the parties can enter into a judicial settlement during the entire proceeding before the trial court, as long as the second-instance has not issued a decision on the appeal, unlike the previous court decision, which could only be made before first-instance court. If the provisions of the Law on Civil Procedure (ZPP) regarding the hearing before the first-instance court are taken into account, then, given that such a settlement can be reached during the entire proceeding when the second-instance court decides on the hearing scheduled in relation to the submitted appeal. Article 353 of the Civil Procedure Code states that, unless otherwise specified, the provisions for the main hearing before the first-instance court (Articles 279 to 306) are also applied to the hearing before the second-instance court. Difficulties may arise if the judicial settlement is invalidated through a lawsuit in another dispute, and the subject matter is considered concluded and archived for the same. In such a case, according to legal provisions, the matter should continue before the second-instance court, and a decision should be made regarding the appeal.
Paragraph 4 of the principle paragraph states that the court of second instance cannot administratively return the case to the court of first instance on the occasion of the proposal if it is unilaterally proposed by the complainant. Paragraph 5 of the principle paragraph talks about a proposal for concluding a court settlement submitted by the parties and talks about minutes of court settlement.
This means that we are talking about when there was a proposal for a court settlement from the appellant and from both parties.The preposition for reaching a judicial settlement as a preposition is still in the "previous phase," while the concluded judicial settlement made in a protocol is already concluded with all the details required for settlement, and as such, it is completed.
Since the settlement can be concluded during the entire procedure, and according to Article 308 paragraph 4 of ZPP and the agreement concluded in a mediation procedure with a mediator and it acquires the character of a court settlement, the question arises whether and what if the parties during the entire procedure conclude a settlement with a notary with their own signatures. In this case, the question arises whether an analogy can be applied such as the conclusion of an agreement with a mediator and what about that valid agreement with a notary.
Article 351 of ZPP, the second-instance court decides on an appeal as a rule without a hearing, and a hearing is scheduled as an exception when the council finds it necessary to repeat the evidence already presented. In such a case, the question arises as to whether the rights of the parties to settlement are limited because the law states that during the entire procedure, from the filing of the lawsuit to the decision of the second-instance court on the appeal, a judicial settlement can be concluded.If the second-instance court decides according to the rule without hearing and as an exception in a public session, then the question arises as to how the exception has priority over the rule. The conclusion of the court settlement is an expression of the will of both parties when they achieve it and agree, and therefore the law says that this settlement can be concluded during the entire procedure before the civil court for the subject of the dispute.
In this paragraph 3 of the principle paragraph, the Supreme Court probably started from the fact that the parties, their legal representatives or proxies are called to a hearing before a second-instance court in accordance with Article 352 paragraph 1 of ZPP, so that at the hearing they could propose the conclusion of a court settlement.