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How do you file a lawsuit in court?

How do you file a lawsuit in court?

Do I have to go to court or is there another option?

In some cases, it is better to use the alternative dispute resolution system (see relevant fact sheet).

Is there a time limit for bringing an action in court?

The statute of limitations for filing a lawsuit in court varies depending on the type of case in question. Questions about the statute of limitations can be answered by a lawyer or a consumer advisor.

Should I go to a court in [Member State]?

Can I file a lawsuit myself or do I have to turn to, for example, a lawyer to file a lawsuit?

In principle, the parties must appear in person or be represented by a lawyer (Article 728(1) of the Belgian Code of Procedure ( Gerechtelijk Wetboek / Code judiciaire ) .

The parties may appear in person and bring their own action in all courts except the Court of Cassation ( Hof van Cassatie / Cour de Cassation ) (Articles 478 and 1080 of the Code of Procedure). However, the court may prohibit a party from exercising this right, if it considers that strong emotions or inexperience prevent a party from conducting the case with sufficient tact and sharpness (Article 758 of the Code of Procedure). What Is An Example Of A Procedural Law?

Parties who decide not to bring their case themselves can hire a lawyer.

According to procedural law, the lawyers have in principle exclusive rights as representatives of the parties in court. According to Article 440 of the Code of Procedure, the lawyer's monopoly means a right to sue, to be present, and to be defended by a third party. The members of the Bar Association also have the sole right to sign a unilateral application, unless the law prescribes otherwise (Article 1026.5 of the Procedure Act).

In the court of cassation, only specially authorized lawyers may bring proceedings according to the law. This provision does not apply to civil claims in connection with criminal cases (Article 478 of the Code of Procedure).

However, the law provides for a number of exceptions to the main rule in Article 728 of the Code of Procedure that the parties must appear in person or be represented by a lawyer when the action is brought or later (Articles 728(1) and 728(2) of the Code of Procedure).

The right to represent a party in a case also means the right to bring an action.

Before the justice of the peace, the commercial court, and the labor courts, the parties may be represented not only by a lawyer but also by a spouse, relative, or another person. The representative must have a written power of attorney approved by the court (Article 728.2 of the Procedure Act).

For the labor courts (Article 728.3 of the Procedure Act), the following applies:

  • Employees (workers or civil servants) are represented by a trade union representative with written authorization. The trade union representative can carry out all court documents in the employee's name, file a lawsuit and receive all documents during the proceedings, and be served with the judgment.
  • Self-employed persons can be represented in disputes about rights and obligations as a result of their business or as a disabled persons by a representative from an organization for self-employed persons.
  • In disputes concerning the application of the Act of 7 August 1974 on the subsistence minimum and on the Act of 8 July 1976 on public social offices (opener centra voor maatschappelijk welzijn – OCMW/ Center public d'action sociale – CPAS), the interested party can also be assisted or represented by a representative of an interest organization for the group to which the person belongs according to the legislation.

Legal entities such as companies may only participate in person (ie through an authorized body) or represented by a lawyer. They may not use the exception in Article 728(2) of the Procedure Act, which is described in more detail below.

In addition to the exceptions already mentioned, there are a number of statutory exceptions regarding custody and abduction of children.

They primarily refer to applications based on

  • The Hague Convention of 25 October 1980 on the civil aspects of international child abduction: applications for the return of children, for the exercise of custody and access rights in another state or for the enforcement of access rights granted in another country, and
  • European Convention of 20 May 1980 on the recognition and enforcement of decisions concerning the custody of children and on the restoration of custody of children.

The plaintiff can be represented in such matters by the public prosecutor's office (Article 1322quinquies of the Code of Procedure) if he or she has turned to a central authority.

The procedure for determining whether a person can file a lawsuit himself or whether a lawyer is needed is generally described above. It is also important to distinguish between the different ways of filing a lawsuit.

There are several ways to bring an action to court under Belgian law. Actions can be brought in court by writ of summons, voluntary submission, adversarial application, or unilateral application (see below). The action is considered to have been brought when the application is submitted, i.e. a legal action taken by the party to defend its rights.

As a rule, the legal proceedings are started by the service of the summons by a serviceman (Article 700 of the Procedure Act). As an exception, the action can be brought by voluntary withdrawal, adversarial application, or unilateral application.

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