Representation Of A Person That Receives Assistance In Accordance With Article 78 Of Civil Code Of Ukraine In Judicial Proceedings

  • O.V. Makarenko
Keywords: representation; judicial representation; representative; assistant; rendering help to a capable person with exercising her rights and performing her duties.

Abstract

Rendering help to a capable physical person with exercising her rights and performing her duties is considered to be a civil-law instrument, by means of which a person can compensate for some lacking abilities that are needed for independent participation in civil transactions. Legal rules on rendering help to a capable physical person are considered to constitute a separate sub-institute of civil law as well as tutorship and curatorship. The main duties and powers of assistant are enumerated in the article 78 of Civil Code of Ukraine. However the list of those duties and powers is not exhaustive.

The article addresses some procedural issues concerning rendering help to a capable physical person with exercising her rights and performing her duties. Especially the problem of representation of a person that receives assistance is the focus of attention.

The author compares representative status of an assistant with representative status of tutors and curators. It is concluded that an assistant eo ipso does not have an authority to represent a person in judicial proceedings. That is why the authority to represent a person in judicial proceedings should be expressly granted to the assistant by a person that receives assistance. The authority of assistant to act in court on behalf of the person is based on special agreement and should be proved by a letter of authorization.

Also the author deliberates the question of how the notion of “judicial proceedings” should be treated. In this regard the author analyses the relevant case-law of European Court of Human Rights. According to the jurisprudence of European Court of Human Rights the execution of court decisions constitutes a part of judicial proceedings. On that ground the author states that assistant needs a special letter of authorization not only for representation in court, but also for representation in proceedings related to the execution of court decisions.

The author also analyses the problem of multiple judicial representatives acting on behalf of a person that receives assistance. This is the case when the person that receives assistance wants both the assistant and professional attorney to represent him or her in court. Some issues related to receiving pro-bono legal support are also discussed. Finally the author deals with some special cases (envisaged in Family Code of Ukraine) when relatives can represent a person in judicial proceedings.

Published
2020-01-18