Challenging a court settlement: Concept, legal nature and methods of challenging in domestic and comparative law

Abstract

In this paper the author offers analysis of rules regulating the challenging of a court settlement in light of the evolution and legal nature of the court settlement in domestic and comparative law (Austrian, German, and Hungarian laws). The method of the procedural challenge depended on the understanding whether the settlement is an agreement (contract) between parties before the court or it is a decision of the court (on acceptance or rejection of the proposal of the parties to reach a settlement). In the earlier instance the method of challenge is by filing of an action, and in the latter instance it represents a form of a legal remedy, most often extraordinary legal remedy - request for repetition of a trial, against final and binding decision of the court by which the settlement was either accepted or rejected. Theoretical dilemma about the legal nature of the court settlement, had an effect on normative regulations, as well as on court practice. In the Serbian law, this dilemma was resolved by enactment of the Civil Procedure Code which explicitly regulates that court settlement is challenged by an action before the court. As a result of this, the idea of a court settlement, as a form of an agreement, prevailed in the legal system. However, considerable procedural effects of the court settlement cannot be ignored. The principal procedural effect is that the litigation is terminated. Further, the court settlement represents a form of an executive title.