German law distinguishes between the capacity to be a party (Parteifiihigkeit) and the capacity to conduct proceedings (Prozessfihigkeit).
Parteifiihigkeit means capacity to be a party to a suit, either as plaintiff or as defendant; Prozessfiihigkeit means the capacity to conduct the proceedings in one's own name as a plaintiff or a defendant. Thus a child has capacity to be party, but it cannot itself conduct proceedings; it must be represented in the proceedings by his father or his guardian. Consequently, a child possesses Parteifahigkeit, but not Prozessfihigkeit.
Every natural person and legal entity possesses Parteiftihigkeit. An unincorporated association may be sued in Court; it possesses 'passive Parteifiihigkeit ', but it cannot sue others (section 50, ZPO).
A person may become a party to proceedings by virtue of an office which he occupies. Such a party is called Partei von Amts wegen. The best known example is the trustee in Bankruptcy (Konkursverwalter). In this case-and similarly in other cases of this character-the judgment may be enforced only against the estate which the party in question administers. This institution
SECTION VI - Capacity To Be A Party And To Conduct Proceedings
|Author:||E. J. Cohn and G. Meyer|
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