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In order for a person to be able to lead a lawsuit as a party, it is necessary that they are capable of being a party, capable of being a litigant and of being postulated.
The capacity of a person to be a party in a legal proceeding is given if they are determined to have legal capacity according to Art. 66 of the Swiss Code of Civil Procedure. According to Art. 11 CC, every person has legal capacity. Thus, not only adults are capable of being parties, but also children.
The capacity to litigate describes the right according to which one is permitted to conduct court proceedings either independently or to have them conducted by third parties on one’s behalf. The legal capacity is given if the requirements of the capacity to act, according to Art. 67 CCP, are also given. I.e. if a natural person is capable of judgment and of age, according to Art. 13 CC.
If a natural person has the capacity to judge but has not yet reached the age of 18, i.e. if they have not yet come of age, they can exercise the rights that are closely linked to personality, such as paternity. For all other rights they need the consent of the legal representation. These are, for example, the parents or a guardian.
A legal entity is capable of acting and therefore also capable of litigation as soon as it has appointed its necessary organs. In principle, substantive law allows the organs to conduct a lawsuit on behalf of the company. If a legal entity is not capable of acting as a party to legal proceedings, it is also not capable of litigation.
If a person has the capacity to postulate, it is possible for him or her to file motions and present the case to the court. In principle, the ability to postulate is given if a person has the capacity to stand trial.
If you require further information regarding party status in civil proceedings or have any questions in this regard, our legal experts in St. Gallen, Zurich and Frauenfeld can consult you accordingly.