Why should we follow the initiated from and against us cases?

Hristo Hristov
Hristo Hristov

Or what are the features of the default judgment?

The default judgment is a legal institution, known to Roman law and it is used in the contemporary legislations. The Civil Procedure Code (CPC) (effective as of March 1, 2008) introduced the institution of the so-called default judgment. This kind of decisions are stated most often under claims with submitted money claims arising from contracts between merchants and/or natural persons and entities for sale, delivery and other transactions. Such decisions could be stated against both the claimant and the defendant in the case.

The most common hypothesis is statement of a default decision against the defendant, i.e. the individual against whom the particular case is formed. A specific request by the claimant is necessary in order such decision to be stated. In order such a court’s decision to be stated, the law requires the defendant not to have submitted (filed) a response to the filed against him statement of claim, not to appear in the first hearing in the case, not to have made an explicit request for its hearing in his absence.

In addition to the mentioned prerequisites, the court has to examine whether the statement of claim is probably justified in view of the specified in it circumstances and statements, and in view of the presented evidences. With other words, there must be a complete disinterest and inaction on the part of the defendant. The statement of the default judgment is a sort of penalty for the defendant, based on the assumption that once not having taken any actions on the case, the defendant admits the statements of the claimant in the statement of claim.

Protection of the legal interests

The statement of a default judgment does not imply the respect of the submitted statement of claim by the court as a result of a full and comprehensive clarification of the case from the factual and legal site. The reason is that the case cannot be completed with the necessary evidences to clarify the dispute due to failure of one of the parties’ participation in the proceedings. Therefore, the court does not rule on the merits of the particular dispute, but only insofar as the put forward factual and legal statements of the claimant are supported by the presented with the statement of claim evidences. For this reason, upon receipt of a court summons, notice or other judicial document for a formed case, it is advisable to take actions in order to protect our legal rights and interests.

Mirror and rare hypothesis is the statement of a default judgment against the claimant, i.e. the person, on whose statement of claim the case was initiated. In this case, the defendant could request the termination of the case and the award of costs or statement of a default judgment against the claimant, if the claimant is not presented at the first hearing, has not given an opinion on the answer of the statement of claim and has not requested a hearing within their absence. The court examines whether the statement of claim filed is likely unfounded in view of the made objections and the supporting evidences on the part of the defendant.

In order to schedule the case for hearing, the court shall summon the parties, as in the summon it is necessarily to be indicated that the failure to submit a written response and the failure to appear in court hearing without a request for hearing the case in the absence of the party, could lead to that the opposing party could request the statement of a default judgment or termination of the case, as well as award of the costs. The aim of the legislator is to inform the parties for the consequences of their lack of interest on the occasion of formed by or against them cases, as well as for the possibility of statement of a default judgment.

Exceptions and specifics

It should be noted that it is not possible for the court to state a default judgment in all types of cases. The law expressly prohibits stating such a decision to cases of civil status (e.g. cases for establishing paternity or maternity, contesting paternity, termination of adoption), matrimonial claims, as well as to proceedings for putting under interdiction. The reason for this is that subject of these cases are rights with purely personal character. One of the most important features of the default judgment is that it is not motivated. The court points that the decision is stated on the basis of the legal conditions for its statement. The court also states why it considers the statement of claim as probably founded or unfounded.

It should be mentioned that there is a possibility the party against whom the default judgment is stated not to know about it. This happens most often when the addresses of the parties are outdated, which makes the service of court papers difficult. Furthermore, these decisions cannot be appealed. This is the most severe consequence of the inaction and lack of interest of the party.

It is possible, however, the party against whom the default judgment is stated, to have been deprived of the opportunity to participate in the case in the following cases: 1) unduly service of a copy of the statement of claim or summons for the hearing; 2) failure to learn about timely service of a copy of the statement of claim or summons for the court hearing due to unforeseen circumstances; 3) failure to participate personally or by attorney because of unforeseen circumstances which could not be overcome.

In those cases, the party against whom the decision was stated, could submit within one month of its receipt a request for its cancellation to the higher court. The same, however, should provide their claims, that they have been deprived of the opportunity to participate in the case.

The law provides also another opportunity for the party against whom the default judgment was stated, namely, when the party has found new circumstances or new written evidences, which are essential to the case and which the party could not have obtained timely, the same could ask for cancellation of the decision again through court action, as the law provides specific deadlines for the implementation of this protection.

Statement of a default judgment represents a warning to the parties that their failure to appear and their lack of interest to the case cannot be unpunished. The party that was negligent, regarding initiated from and against them cases should bear the consequences of such a decision.

The article has been published in Bulgarian, in Capital Daily.