On substitution right of respondent in civil procedure

Abstract

The paper examines set of problems regarding respondent's right to offer alternative performance (substitution right) in present Serbian civil procedure. It is evident that this institute has not caused greater interest of theory, although plenty of complex problems arises. Present conception of procedural substitution right which was introduced some ten years ago could be regarded as successful, as it is widens up disponsible rights of litigants. The possibility of establishing procedural substitution right is not attached to in rem claims any more. Statement could be made regarding any non pecuniary claim. Substitution right is also broadened, because respondent could be entitled on any performance, not just payment. However, solution which limits establishing procedural substitution right only in first instance procedure is retained without of particular justification. Paper examines also execution procedure regarding enforcement of judgment consisting the substitution right, as it is fundamentally different in contrast to regulation in contract law and civil procedure, especially in matter of determination of time frame in which debtor can exercise his substitution right This solution could not be regarded as successful, as it open door to abuse of procedural rights harming debtor. Questions regarding court s duty to clarify nature of claimant s statement is also examined. Delivery of goods and payment could be regarded as joinder of claims, but it could also mean in rem claim and statement of substitution right. When needed, court is obliged to clarify statements. At the end, other issues beside quoted are discussed.