Previous rules of the non-contentious procedure

It is somewhat incredible that in the Croatian legislation, which is often perceived as excessively regulated (at times this perception is accurate, while at others, it is entirely mistaken), the enactment of the Law on non-contentious procedure (Official Gazette Nr. 59/2023; hereinafter: the "NCP Law") took as long as 32 years from the proclamation of the independence of the Republic of Croatia. 

Until 2023, the subject matter was regulated by the Law on non-contentious procedure of the Kingdom of Yugoslavia of July 24^th 1934 ("Official Gazette of the Kingdom of Yugoslavia" Nr. 45/34). It is needless to mention that this law is not adapted to the modern legislation in its normative part, nor in its language. Nevertheless, the courts regularly applied it in the non-contentious procedure in such a way that it was interpreted in the spirit of modern legislation.

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Types of non-contentious procedure

Non-contentious procedure is a very important type procedure that is carried out in a number of legal areas such as: 

• Family law (deprivation of legal capacity, declaration of presumed death of missing persons etc.)
• Inheritance law (inheritance proceedings)
• Property law matters (regulation of the boundaries, termination of co-ownership etc.)
• Commercial law (a large number of procedures in accordance with the Companies Act)

Following the above, it is clear that specific situations of significant life importance are addressed in this type of procedure (which can also significantly interfere with the individual's personality), and therefore there is a clear need for this procedure to be regulated in a more modern way that it has been so far. 

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Key provisions of the new NCP Law 

The new NCP Law contains 123 Articles and is divided into two main parts: (A) General provisions and (B) Specific procedures.

1. Jurisdiction 
   

The NCP Law stipulates that municipal courts act pursuant to the provisions of this law, but it should also be applied by notaries public in legal matters for which its application is prescribed. In this regard and taking into account the tendency of transferring the jurisdiction from the courts to the notaries public, we are of the opinion that in the future the legislator will "transfer" a certain number of non-contentious procedures on the notaries public and that the NCP Law will be of their great interest. 

2. Appropriate application of litigation rules
   

The new NCP Law also contains a provision stating that all matters not covered by that law are to be governed by the rules of the litigation procedure. 

Since the rules of litigation procedure are much more detailed than the rules of non-contentious procedure, it is to be assumed that the courts will it is to be assumed that the courts will apply the rules of civil procedure to a significant extent.

3. Initiating a non-contentious procedure
   

A non-contentious procedure con be initiated either (A) by a proposal of the party or (B) ex officio if prescribed by law.

The proposal does not have to contain a claim, but it must be formulated in such a way that clearly indicates which kind of a decision is requested from the court and the factual basis on which the claim is based. Since this is a very broad provision which could be interpreted by the courts in different ways, it is crucial to adequately argue why the procedure is being initiated and to present all legally relevant facts. Failure to do so could result in the court rejecting the proposal as irregular. 

The proposal may be withdrawn at any time without the consent of the counterparty. 

4. Court's procedure and actions
   

The court has a very important role in this type of procedure since it is obliged to gather the basis for making a decision and to provide the parties with an opportunity to respond to all allegations made by the opposing party.

Furthermore, the court is authorised to request a written statement from the party or summon the party for an oral hearing. 

The court is obliged to carry out all the evidence that it believes can be used to establish important facts. However, if a dispute arises in a procedure involving two or more parties regarding a right whose resolution depends on determining the disputed facts, the court will suspend the non-contentious procedure and direct the proposing party to a litigation or another procedure before the competent court or another competent authority. However, the important novelty of the NCP Law is the possibility for all parties to agree that the court can resolve the dispute in a non-contentious procedure by determining the disputed facts. 

If there is no dispute between the parties regarding the essential facts, but about the right based on these facts the court will decide on the disputed law in a non-contentious procedure. 

5. Decision of the court and procedure costs
   

In a non-contentious procedure, the court makes a decision on the main matter through a resolution, and in procedures that can only be initiated by a proposal, the resolution is made within the limits of the proposal. This is precisely why the proposal must be thoroughly prepared, encompassing exactly what the party aims to achieve in that procedure.

One of the most significant issues that has emerged in practice is the matter of costs in non-contentious procedures. The new NCP Law stipulates that the court will decide on cost reimbursement based on specific requests from the parties, considering all circumstances of the case.

In cases where parties with opposing interests have participated, the court will decide on cost reimbursement by applying relevant provisions of the law governing litigation procedure, unless reasons of fairness dictate otherwise.

So, when awarding costs, the court will generally adhere to the rules of litigation procedure, but the law also provides the court with the possibility to decide differently, which is certainly a beneficial legal provision.

Moreover, concerning cases involving multiple parties' interests, the court will decide on the reimbursement of costs related to pursuing the collective interests of all parties proportionally according to their shares in the subject matter of the procedure. If such shares cannot be determined, the costs will be divided equally.

6. Legal remedies 
   

An appeal against a resolution in a non-contentious procedure can be submitted within 15 days.

Additionally, a revision can be filed if permitted according to the provisions of litigation procedure. Furthermore, a proposal for amendment or annulment of a legally binding resolution can be submitted for the same reasons as those for requesting the repetition of litigation procedure

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Conclusion

The non-contentious procedure (jurisdictio non contentiosa) is typically defined negatively as the procedure that is not litigious. It is also referred to as non-disputable, in contrast to the litigious procedure which is disputable.

Given that this is a very significant procedural law in which legal issues with potentially substantial impact on individual rights are resolved, the introduction of a new law to modernize its regulation and provide clearer guidance to the court regarding specific procedural actions is undoubtedly good news. However, if any contentious issue arises during the procedure, the court will direct the proposer to a litigation procedure, and that issue will be resolved in a new court procedure.