Some problems concerning the application of special procedural rules for small claims litigations

Abstract

The Serbian 2011 Civil Procedure Code has widened the scope of small claims litigations substantially. According to the Article 468 all monetary claims not exceeding the amount of 3.000 euros shall be treated as small claims. This also applies to the lawsuits where claim is not money but the plaintiff stated that he/she would accept to be paid an amount of money not exceeding the amount of 3.000 euros. Finally, small claims shall also include lawsuits where claim is not money but the value of claim stated by the plaintiff doesn't exceed the amount of 3.000 euros. This means that proceedings started by declaratory or constitutive lawsuits can also be treated as small claims under the Article 468 Civil Procedure Code. In this way the legislator tried to expand the application of small claims provisions to more disputes that would now have to be resolved in summary proceedings. However, the Article 471 of Civil Procedure Code has to be taken into account as well. According to the provision of Article 471 small claims litigations shall be conducted only before lower (basic) courts. This rule would mean that no claim that falls into jurisdiction of higher court can be treated as small claim, regardless of the claim value. The colision between the value criteria and the criteria of subject matter jurisdiction leads to legal uncertainty. The parties to the proceedings have to know in advance whether their claim is going to be adjudicated as small claim or pursuant to the provisions governing regular proceedings. Furthermore, the wrong choice of procedural rules made by the first instance court is still not properly sanctioned by the provisions of Civil Procedure Code.