Evidence in Civil Law - Croatia

Front matter

No

LOCALIS

Evidence in Civil Law - Croatia

Foreword

National civil justice systems are deeply rooted in national legal traditions and culture. However, in the past few decades with the development of economic and political integration process in Europe and the world, they are increasingly under influence of uniformisation and unification processes. In an attempt to create a 'genuine area of justice', new unified procedures are being developed. They operate in parallel with the national civil procedures, and sometimes even strive to replace them. The situation is the same in the field of the (European) law of evidence.

The question is whether there exists a common core of European law of evidence (and taking of evidence in particular). As a reaction to the forces that endeavour to harmonise and unify procedural laws and practices, an opposite trend is gaining momentum — a trend that insists on diversity and pluralism of national civil procedures. In the context of this debate, this volume aims to present evidence and evidence taking in the current Croatian law of evidence and practice.

This book is a result of the Dimensions of Evidence in European Civil Procedure research project commissioned by European Commission, Directorate-General Justice. The goal of this project was to research the taking of evidence practice and evidence law in all EU Member States, with the aim of developing a better understanding of national and unified requirements, of bridging language and other obstacles and thus building trust among Member States. Therefore this volume contains the report about the Council Regulation (EC) No 1206/2001 and the multilateral and bilateral legal assistance treaties to which Croatia is a party.

The author hopes that this book which provides a systematic and holistic analysis into the Croatian law of evidence will evoke an interest of those dealing with law in research and in teaching purposes, as well as those in immediate practice of implementation of the (European) law of evidence.

Slađana Aras Kramar

LEX.

Evidence in Civil Law — Croatia

Slađana Aras Kramar LO CALIS Contents Part I cesvaivacasecuctaiesacec cain aaa sai gada das da dasa E daa Kasa 1 1 Introduction: vase cs sts cies sirinin eretan dd ade daj dišu 1 2.2 Principle of Free Disposition of the Parties and Officiality Principle seias: Sarino saonenn sea eaae a a A e dili adja teases 3 2.4 Hearing of Both Parties Principle (audiatur et alter pars) — 2.5 Principle of Orality — Right to Oral Stage of Procedure and 4 Evidence:in General... seed lines dij dea eecesedes caste ee kita 17 41 General RemarksS:... oec oa daa isai sida šišati kina dava aiaiša tajiti 4.2 Minimum Standard of Proof 4:3 “Means Of Proof c.ccssccscscisviendasesscesstdnicasstesvonsstnnsunssteicatsaverinadecsdoencsaarteunaeses 4.4 Hierarchy of Proof 51 Main DO CHING issenensis niaii 23 5.4 Active Case Management and Principle of Providing Assistance to the Ignorant Parties... aaa naa 5.5 Collection of Evidence ex officio 6 Written EVIdenCe +... sees ini ovak iii dvo ip na a iaddaka vidovi ti 26 6.1 Documents: General Remarks «0.00.0... csesecseesecseeeeceseeeceseceeeseeneeseenaeeees 26 6.3 Submission of Written Evidence 0.0... ce eeeeesecsceeeceseeeceseceeeseeseeeeeaeeess 27 7 MoJ ram mmm. m m mm ne e ea 28 ii | Contents

12 Table of Authorities According to the Regulation No 1206/2001,

1 Synoptic Tableš::.. 0:3: e lea leša lianas DE EA GE i e 41 1.3 Functional Comparison between National Regulation, Bilateral

Legal Assistance Treaties, Multilateral Treaties, and Regulation

1.3.1 Croatia as a Requesting Country in a Process of Taking of

Evidence: neinir sons aan odd aaa ada is jana a ado 49 1.3.2 Croatia as a Requested Country in a Process of Taking of

Evidence:..,..200 0 seine a ida EEA EE EEN a 51

Evidence in Civil Law — Croatia ] EX m

Slađana Aras Kramar LO CALIS

Part I 1 Introduction

National civil justice systems are deeply rooted in national legal traditions and culture. However, in the past few decades with the development of economic and political integration process in Europe and the world, they are increasingly under influence of uniformisation and unification processes. In an attempt to create a 'genuine area of justice', new unified procedures are being developed. They operate in parallel with the national civil procedures, and sometimes even strive to replace them. The situation is the same in the field of the (European) law of evidence.

The question is whether there exists a common core of European law of evidence (and gathering of evidence in particular). As a reaction to the forces that endeavour to harmonise and unify procedural laws and practices, an opposite trend is gaining momentum — a trend that insists on diversity and pluralism of national civil procedures. In the context of this debate, this volume aims to present evidence and gathering of evidence under the current Croatian regulation relating to evidence and in practice.

This book is a result of the Dimensions of Evidence in European Civil Procedure research project commissioned by European Commission, Directorate-General Justice. The goal of this project was to research the gathering of evidence practice and evidence law in all EU Member States, with the aim of developing a better understanding of national and unified requirements, of bridging language and other obstacles and thus building trust among Member States.

The book's structure consists of ten parts. The second part of this book, following the introduction, provides for an analysis of the fundamental principles of Croatian civil procedure and law of evidence. The subject of the third, fourth and fifth part is a discussion on the general principles of evidence and gathering of evidence, as well as the general rule on the burden of proof. The question of gathering of evidence through modern technology (videoconferencing, etc.) in the Croatian law and practice is also discussed. Separate parts of this book contain the analysis of means of proof regulated by the Croatian Civil Procedure Act: inspection of object ('view'), documents, witness testimony, expert testimony and party testimony. The rules on costs caused by gathering of evidence, including the costs for translation are analysed, as well as the rules on language. The concepts of illegally obtained evidence and illegal evidence in the Croatian law and practice are discussed in the tenth part of this book.

This volume contains the report about the Council Regulation (EC) No 1206/2001 and the multilateral and bilateral legal assistance treaties to which Croatia is a party. There are several appendices to this book: a table of authorities according to the Regulation No 1206/2001, and relevant sources of Croatian civil procedure, table of case law on evidence, table portraying a ordinary/common civil procedure timeline, table referring to legal interpretation in the Croatian legal system, and comparative tables focusing on functional differences between national regulation, bilateral legal assistance treaties, multilateral treaties, and Council Regulation (EC) No 1206/2001 on taking of evidence by hearing of witnesses.

In the preparation of this book due consideration was given to the relevant Croatian (and former Yugoslavia, as well as post-Yugoslavia) doctrine and case law.

2 Fundamental Principles of Civil Procedure 2.1 General Remarks

As any field of law, the Croatian law of evidence is based on several underlying principles. It is impossible to analyse and evaluate the rules of evidence properly without understanding the aims which they are intended to achieve. A proper understanding of the fundamentals principles of the law of evidence is therefore essential for any arguments about what kind of evidence should be admitted in civil procedure, or about how the legislator should reform the law of evidence, or about where the boundaries of particular rules of evidence should be fixed.

Various fundamental principles of civil justice can be divided into two groups — those which are aimed at promoting the accurate fact-finding and those which accept compromise about fact-finding in order to achieve other important aims.

Among the principle of the Croatian Civil Procedure, the scholars highlight the principle of free disposition of the parties and the officiality principle, the adversarial and the inquisitorial principle, the hearing of both parties principle (audiatur et altera pars) and the active case management principle, the seeking for the truth principle and the free assessment of evidence, the principle of orality and written form, the principle of directness and the principle of public hearing as principles that underline also the law of evidence. Some impacts on determination of the evidence-taking procedure have also the principle of economy which accepts compromise in order to achieve other important aims of civil justice. The principle of providing assistance to the ignorant parties and the principle of prudent use of the procedural actions have also impact to the evidence-taking procedure and fact-finding in the Croatian Civil Procedure.“

? For the fundamental principles of the Croatian Civil Procedure see more Triva & Dika (2004), p. 113-208.

Part I | 3 2.2 Principle of Free Disposition of the Parties and Officiality Principle

The principle of free disposition of the parties and the officiality principle determine who initiates proceedings, guides their progress and termination of proceedings, and initiates the appellate proceedings. If all this is in the hands of the parties, the principle of free disposition of the parties has absolute primacy. On the contrary, if courts have this initiative, there is the officiality principle (the ex offo principle) primary. ?

According to the Croatian Civil Procedure Act (hereinafter: CCPA),* in civil contentious proceedings courts decide within the limits of the claims put forward in the proceedings.” The parties may freely dispose of the claims put forward by them in the proceedings.“ They may waive their claims, admit their adversary's claims and reach a settlement.

The principle of free disposition of the parties is limited by regulation that was inspired by the officiality principle. According to the officiality principle the court will not admit parties’ dispositions which are contrary to ius cogens and the rules of public morality.“

Civil proceedings are initiated by claim.° Of the plaintiff depends whether to initiate litigation, when, and what will be the subject of discussion and decision-making in the procedure. The action must contain a specified relief or remedy claimed in respect of the cause of action, the lateral claims, the statement of facts constituting the cause of action and the statement of evidence proving these facts. ® Thus, it is obligatory for the claimant to state a concise and concrete claim already in the initial statement of the claim. The court is not authorised to file a lawsuit ex offo (nemo iudex sine actore; ne procedat iudex ex offo).''

Once started, the civil contentious proceeding is conducted ex offo until the adoption a final decision before the first instance court. In the Croatian civil procedural system is prominent active role of the court in the management of court proceedings initiated by the claim of the party. Parties have not legal interest to decide on the type of procedure that should be carried out. Therefore the parties must be subjected to the process regime prescribed by law that in the most appropriate way can lead to achieving process aims. '*

3 See Triva & Dika (2004), p. 127 et seq.

4 Zakon o parničnom postupku Republike Hrvatske (Croatian Civil Procedure Act) (Službeni list SFRJ (Official Gazette of the SFRY) 4/77 — 35/91; Narodne novine RH (Official Gazette of the RC) 26/91, 53/91, 91/92, 112/99, 88/01, 117/03, 88/05, 2/07, 84/08, 96/08, 123/08, 57/11, 148/11 — consolidated text, 25/13, 43/13, 89/14).

u Arg. ex Art. 185 CCPA.

Further procedural actions, following the final decision in the first instance procedure, again depend on the initiative of the parties — the appeal procedure, '* the procedure on 'revision''* (appeal on points of law)” and the reopening of procedure (rehearing).'*

The plaintiff who is authorised to initiate civil contentious proceeding is also authorised to terminate it by unilateral procedural action (withdrawal of claim).'’ The parties may also terminate the procedure with their dispositive procedural actions by concluding the court settlement * or the party may admit the claim of opposing party” and waiver the claim.” So there is a possibility of delivering a judgment on the basis of a confession and a judgement on the basis of a waiver.“' The court is not authorised to prevent parties from the mentioned acts of disposition with the claim, except if the court finds out that they are conducted in a field where the principle of free disposition is revoked also in substantive law” or if it finds out that the parties use these acts of disposition in

14 In the Croatian procedural system ‘ordinary revision’ against the second instance decision is allowed if the value of the dispute exceeds a certain amount (Art. 382, para. 1, pt. 1 CCPA), or in case of the judgment against which the law always allows it (Art. 382, para. 1, pt. 2 CCPA), or with respect to the procedure that preceded the second instance decision — that is, if the appellate courts hold an hearing before delivering the second instance decision (Art. 382, para. 1, pt. 3 CCPA). If the 'ordinary revision’ would not be allowed under any of the above criteria, the parties could lodge ‘extraordinary revision' against the second instance decision if the decision in dispute depends on the resolution of a substantive or a procedural issue important to ensure uniform application of the law and equality of all in its application (Art. 382, para. 2 CCPA). ‘Ordinary’ and ‘extraordinary revisions' are extraordinary recourse against the second instance decision that acquired the status of res iudicata. For these recourses in Croatian law see more Dika (2010a), p. 258 et seq.

'S Art. 382, para. 1 CCPA.

16 Art. 421, para. 1 CCPA. Reopening of procedure (rehearing) is extraordinary recourse against the procedure and decision that acquired the status of res iudicata. For this recourse in Croatian law see more Dika (2010a), p. 350 et seq.

17 Art. 193, para. 1 CCPA. This however does not have an effect of ne bis in idem. In order to protect the legitimate interests of the defendant, their consent is necessary for the late withdrawal of a claim (see Art. 193 CCPA). After the 2011 Amendments to the CCPA (Narodne novine RH (Official Gazette of the RC) 57/11; hereinafter: ACCPA 2011), the party may withdraw the claim during the hearing before the appellate court since this is possible until the decision acquires the status of res iudicata (Art. 193, para. 3 CCPA).

After the ACCPA 2011, the possibility of the conclusion of a court settlement was extended to the appeal proceedings. Therefore, the parties may conclude the court settlement at the hearing before the appellate court (Art. 321, para. 1 CCPA).

20 Art. 331.a, para. 1 CCPA.

“Art. 331 and Art. 331.a CCPA.

*2 In some matters are disposition of the parties limited, e.g. family matters (see Art. 270 Obiteljskog zakona Republike Hrvatske (Croatian Family Act) from 2003 (Narodne novine RH (Official Gazette of the RC) 116/03, 17/04, 136/04, 107/07, 57/11, 61/11, 25/13, 5/15; hereinafter: CFA)).

Part I | 5 an abusive way with a goal to fraudulently avoid certain compulsory norms of substantive law (ius cogens) and the rules of public morality.“

The termination of litigation can occur regardless of the disposition of the parties in case of death or dissolution of the parties in the proceedings on the rights which are not inherited by his/her heirs or legal successors;“* or when the final court decision on the merits acquires the status of res iudicata.”

The parties may withdraw the legal remedy and this disposition of the parties will lead to the termination of the appeal proceedings.“ They are also authorised to waiver of the right to ordinary legal remedies and thus accelerate the acquiring of the status res iudicata to first instance decision.“

The party from whose disposition depends the initiation of litigation is authorised to determine the subject of discussion and decision-making — so called the matter of dispute.” The court decides within the limits of the claims put forward in the proceedings — ne eat iudex ultra et extra petita partium.” The court is not empowered to adjudicate any more than what is claimed or something else which is not claimed, even when the results of the hearing lead to the conclusion that the plaintiff has the right to more than he/she claimed for, or that he/she, indeed, does not have the right to what is claimed for, but that he/she is entitled to something else according to substantive law.” If the claim is not modified in such case, the court must dismiss the claim.*’ The exceeding of the claim is the reason for absolute nullity of the court decision.”

According to the 2013 Amendments to the CCPA (hereinafter: ACCPA 2013), the plaintiff may only modify the claim until the conclusion of preliminary proceedings™ — therefore, the parties may present new facts and propose new evidence (beneficium novorum) only until that moment. On the appeal is not allowed to present new facts and propose new evidence;* this applies also to the hearing before the appellate court.

*4 Art. 215.b CCPA.

2 Art, 185 and Art. 186, para. 1 CCPA.

30 There are exceptions in some matters in which are disposition of the parties limited, e.g. family matters (see Art. 294 and Art. 297 CFA).

31 Art. 2, para. 1 and Art. 190 CCPA.

33 Narodne novine RH (Official Gazette of the RC) 25/13.

The first instance procedure is consisted of a preliminary procedure, within which it is necessary to set a preparatory hearing at which the judge will decide which evidence is to be heard, and a (main) hearing at which evidence will be taken (Art. 277 CCPA).

38 Arg. ex Art. 352, para. 1 CCPA. See Aras Kramar (2015).

In some indirect way the parties determine the content of legal protection by their disposition arising out of their authority to present new facts and propose new evidence,” and of their authority to recognise, explicitly or implicitly, the truthfulness of factual statements of his/her opponent that are unfavourable for him/her. As long as the parties’ dispositions are within the borders of legally permissible and these dispositions do not jeopardise the achievement of the legal order, the court is bound by them. The court is not permitted to introduce new facts and take evidence not previously advanced by the parties. >

But the disposition of the parties does not necessarily have to be according to the legal order. So the court is authorised to establish facts which the parties have not presented and take evidence which the parties have not proposed only if it suspects that the parties intend to dispose with the claims which they may not dispose of — that is, the parties’ dispositions are contrary to the compulsory norms of substantive law (ius cogens) and the rules of public morality.“°

On the other hand, it is the responsibility of the court to determine the issues of law. The iura novit curia principle applies.*' Parties may present their contentions of law but they are not obliged to. If they present their contentions of law, the court is not bound by them and it is responsible to find and apply the norms of substantive law which correspond to the factual situation.”

2.3 The Adversarial and Inquisitorial Principles

Procedural rules that are derived from adversarial and inquisitorial principles determine initiative (rights and duties) for the gathering of facts and evidence on the basis of which the court delivers a decision on the claim. If the gathering of facts and evidence is in the hands of the parties, the adversarial principle has absolute primacy. On the contrary, if courts have this initiative, there is the inquisitorial principle primary.“

In the Croatian procedural system the adversarial method is a basic and dominant in relation to the assertions of facts. After the 2003 Amendments to the CCPA (hereinafter: ACCPA 2003)“ this method became dominant also in the field of presenting means of evidence. Thus the new Croatian system became dominant

4° Art. 7, para. 2 and Art. 3, para. 3 CCPA.

4 Art. 186, para. 3 CCPA. The court is responsible to find and apply the norms of substantive law and this applies not only to domestic but also to foreign law. See Triva & Dika (2004), p. 182- 183.

“4 Narodne novine RH (Official Gazette of the RC) 117/03.

Part I | 7 adversarial; once powerful element of the inquisitorial principle, after the ACCPA 2003, have significantly reduced and suppressed in favour of the adversarial.

According to the current Croatian CPA, the parties are obliged to present the facts on which their claims are based and propose the evidence to finding these facts. On the other hand, the court is authorised to finding the facts which the parties have not presented and to take the evidence which the parties have not proposed only if it suspects that the parties are intending to dispose of claims which they may not dispose of.

Therefore, the initiative of the parties prevails in the field of assertions of facts and evidence. It is a responsibility of the parties to assert facts and present means of evidence.“ The court is not permitted (in principle) to introduce new facts and take evidence not previously advanced by the parties.“ Such system would indicate that the court — bound by factual assertions and evidence offered by the parties — retains a passive role. On the contrary, in Croatian law the court has a right and a duty to stimulate the parties to amend and clarify their assertions of facts. The judge must ask questions and shall in other appropriate manner see that all ultimate facts be stated during the hearing, that incomplete statements concerning important facts be supplemented, that means of evidence relating to the parties’ statements be adduced or supplemented, and that all necessary explanations be given in order to establish the facts and legal relation in dispute.“ Furthermore, after the party has proposed certain evidence, it is the court, rather than the parties and their lawyers, who have the main responsibility for achieving and taking it. It is the judge who takes the active role at, for example, the examination of witnesses and who always poses the questions to witnesses and experts first. Only afterwards, the attorneys and parties may also ask questions.” It is not obligatory for the parties to be present during the evidence taking. Besides, it is the court’s task to gather the proposed evidence. However, after the court has taken the evidence, the parties must be given the opportunity to comment.”

But the duty of material procedural guidance (in Croatian: materijalno vodenje parnice) covers just one part of a broader notion of case management — the substantive part of adjudication. On the other hand, Croatian law determines the broad framework for providing legal protection without binding — neither the court nor the parties — with strictly prescribed list and order of the procedural action to be taken. The choice of some procedural methods and their specific time sequence depends from the initiative of the parties and of the discretion of the court. The court determines what procedural action will take, when and in what way these action will be taken. This all depends on the nature of the claim, the procedural posture of the parties, the results of previous

46 Art. 7, para. 1 and 2, Art. 3, para. 3 CCPA.

49 Art. 219, para. 2 and Art. 288.a, para. 2 CCPA. 50 Art, 244 and Art. 259 CCPA.

discussion and on understanding of the most effective methods to achieve the final procedural goal in certain case.”

2.4 Hearing of Both Parties Principle (audiatur et alter pars) — Contradictory Principle

In its basic provisions, the Croatian CPA declares the principle according to which the court must provide to each party an opportunity to state on the claims and statements of the opposing party.” This provision manifests the classic principle of hearing of both parties — audiatur et altera pars.

The principle of hearing both parties is essentially reduced to the rule that every party has the right to take all those procedural activities that it is authorised to take the opposing party. This primarily relates to the procedural actions through which the parties express their claims, opinions, suggestions, factual statements, statements of relevant issues and their reactions to claims, opinions, suggestions, and statements of the opposing party. This principle includes the right of the parties to be heard as witnesses sui generis.

A party may present new facts and propose new evidence until the conclusion of preliminary proceeding.” They may discuss all the issues, participate in the evidence-taking procedure and discuss the results of this procedure. ”°

In certain situations, however, the reasons of economy, the need of confidence in the legal system, the reasons of fairness, the need to ensure public order and security or the conservation of evidence take precedence over the request for the unconditional realization of the principle of hearing of both parties. But the exceptions of this principle must be reduced to a minimum, as much as possible, and only when they are expressly provided by law.” So the party who was temporarily deprived of their basic constitutional right to be heard must have the opportunity (ex post facto) to state on all relevant issues of the dispute until the termination of procedure.

The court may order the measures for the conservation of evidence without enabling the opponent to make a statement about the proposal and implement these measures without

5? See Triva & Dika (2004), p. 192-195, 353-354. The CCPA does not define the term procedural guidance of proceedings (in Croatian: formalno vođenje parnice). Of such importance are all various activities of the court that substantially combines common goal — to collect procedural materials for delivering a decision on the merits.

55 Art. 7, para. 1 and Art. 299, para. 1 CCPA.

The first instance procedure is consisted of a preliminary procedure, within which it is necessary to set a preparatory hearing at which the judge will decide which evidence is to be heard, and a (main) hearing at which evidence will be taken (Art. 277 CCPA).

56 Art, 5, para. 1., Art. 219., Art. 260, para. 3 et seq. CCPA.

Part I | 9 calling opponents, and without waiting for delivering of summons. However, the court should appoint to such opponent a temporary representative, and the opponent will have a later opportunity to criticise the results of the conservation of evidence.”

In the procedure for trespassing a temporary measure may be determined without enabling the opposing party to be heard. Payment orders are issued based only on the statements and evidence of the plaintiff, but the opposing party has the right to complaint against payment order and to return the case to the stage of hearing before the first instance court.*' An appeal against the court order will be sent to the opponent for answer only if the appeal is lodged against the court order by which the proceeding before the first instance court was concluded.”

If, because of unlawful actions, and especially because of failure to make delivery of the summonses, one of the parties was not given opportunity to be heard by the court, the court made a procedural violation which the second instance court takes into account ex officio in the appeal procedure.“ An appeal on points of law (‘revision’) against the second instance judgment may be lodged because of the violation of the hearing of both parties principle only if the applicant because of this violation challenged the first instance judgment, or if it is done only in the appeal procedure.“ The reopening of procedure (rehearing) may be required because of the violation of the hearing of both parties principle if this reason has not already been presented without success in previous proceedings.”

A violation of the right to be heard is also a ground for a constitutional complaint. Namely, the fundamental principle of hearing of both parties is stipulated in the Constitution of the Republic of Croatia (hereinafter: CC)® and the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: EC) from 1950.

According to the CC, all persons in the Republic of Croatia enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other conviction, national or social origin, property, birth, education, social status or other characteristics. All persons are equal before the law.“ All citizens of the Republic of

63 Art, 354, para. 2, pt. 6 and Art. 365 CCPA.

5 Art, 421, para. 1, pt. 2 and Art. 422, para. 1 CCPA.

°° Narodne novine RH (Official Gazette of the RC) 56/90, 135/97, 8/98 — consolidated text, 113/00, 124/00 — consolidated text, 28/01, 41/01 — consolidated text, 55/01, 76/10, 85/10 — consolidated text, 5/14.

87 Narodne novine RH — Međunarodni ugovori (Official Gazette of the RC — International Treaties) 18/97, 6/99, 8/99, 14/02, 1/06.

Croatia and aliens are equal before the courts, governmental agencies and other bodies vested with pubic authority. 7

The right to appeal is guaranteed against individual legal decisions made in first instance proceedings by courts or other authorised bodies.” By way of exception, the right to appeal may be denied in cases specified by law if other legal protections are ensured.

Everyone is entitled in the determination of his or her civil rights and obligations to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Requests for equality of arms and fair balance in procedure are essential elements of the right to a fair trial. The party will not be placed in the significantly weaker position in procedure than the other.”

The problem of realisation of the principle of hearing of the both parties appears not only in form of enabling the parties to participate in litigation, but also in form of activating the parties to take their actions in the procedure. If the parties fail to undertake procedural actions related to deadlines, hearings or stages in which the actions may as a rule be taken, the CCPA treats these failures in a different ways. But, compared to the passivity of the parties in relation to the requirements and statements of the opposing party, can be concluded that the Croatian procedural system is based essentially on the thesis pursuant to which if the party has taken no action in a dispute, it cannot be known what he or she wants; his or her will is unknown and therefore irrelevant in the procedure.” The exceptions of this principle constitute the rules of complete passivity of the defendant. Although the CCPA does not explicitly determined, these solutions rely on a system in which the passivity of the party means the recognition of the veracity of the statements of the opposing party (which therefore does not need to prove),“ and sometimes the merits of his or her claim (qui tacet consentir videtur principle). On this principle are based a default judgment due to nonresponse” and a default judgment due to non-appearance. 7 ”