4. The power of attorney on behalf of a legal entity shall be issued by the head [...]
Experience of Germany
Civil and Administrative Process
In the civil proceedings, the representative acts on the basis of a power of attorney, which, as a general rule, gives him the right to perform all procedural actions provided by law to the party represented to him, including conducting of a settlement agreement, waiver of a claim or recognition of a claim as well as the right to appoint another representative for higher authorities, Art. 81 of CPC.
The power of attorney may be limited, but with respect to the other party, the limitations of the legal scope of the power of attorney are valid only if they relate to the right to enter into a settlement agreement, to refuse a claim or to recognize a claim, Part 1, Art. 83 of CPC. If the party has appointed more than one representative, they are entitled to represent the party both jointly and individually.
All documents intended for the party are sent by the court to the representative, Art. 172 of CPC.
Procedural actions committed by a representative are for the party as binding as the party's own actions. This applies equally to the recognition of facts and other circumstances, if they do not respond or are corrected by the party immediately, Part 1 of Art. 85 of CPC. The fault of the representative is equated with the fault of the party, part 2 of Art. 85 of CPC, i. e., for example, a deadline missed by the fault of the representative is considered to be a missed party.
In civil cases dealt with by specialized courts, as well as in public cases dealt with by administrative and specialized courts, similar rules are established either in the relevant procedural law or acting by reference to the rules established in the CPC.
The experience of Latvia
The Civil Procedure Law provides that the representation of individuals must be issued with a materially authorized authorization.
Empowerment of a representative can be expressed by oral representation in court whose person is represented and should be recorded in the record of the court session.
Representation of legal entities must be formalized by written authorization or by a document confirming the right of official representation of a legal entity without special authorization.
Empowerment of an advocate to represent legal assistance must be confirmed by an order. If the lawyer acts as an authorized person of the party, endowing his authority should be confirmed by a written form.
Article 60. Powers of the Representative
Proposed option
2. A professional representative [...] has the right to request certificates or other documents from state bodies, public associations, legal entities, as well as to perform other actions to provide legal assistance in accordance with the procedure established by the legislation of the Republic of Kazakhstan [..].
Civil servants and heads of non-governmental organizations are obliged to give a written response to a professional representative's appeal related to providing legal assistance in a particular case within ten working days.
Experience of Germany
Civil Process and Administrative Process
The procedural authority (judicial power of attorney) will delegate the representative the right to complete all procedural actions concerning the case. In addition, a representative may, on the basis of a power of attorney, request information from third parties for his client. This applies to both government agencies and individuals.
The notion of procedural action encompasses all actions that are aimed at promoting and completing a litigation or for the execution of a ruling. The representative is authorized in particular to file, change or revoke the claim or to refuse it, has the right to appeal the court's decision, then he can approve the facts, challenge and recognize them, petition, give orders for the delivery and execution of the decision and accept procedural documents. In addition, he can definitely conclude an amicable agreement, as well as file an application for recognition of the claim or for refusal of the claim. Also, taking into account the peculiarities of a single case for the benefit of achieving the procedural goal, actions of a substantive nature fall under this notion, such as appealing, reciprocal repayment of claims, withdrawal of a contract, termination or authorization. However, transactions with third parties do not extend to the authority of the representative, if it is a matter of purely subsidiary transactions. In this regard, a representative has no right to demand from a person who has, for example, a genuine right to receive a monetary claim, recovered in court, for the plaintiff (i. e., for his client). The power of attorney also does not apply to the actions of the representative regarding the request for information / document from the admin-organ, the operation of which depends on the availability of an officially certified power of attorney.
Experience of Latvia
Advocates of the law provides for similar rights for lawyers. That is, in the provision of legal assistance, a sworn advocate is entitled to collect evidence, also to request all documents necessary to provide legal assistance from the state and local government agencies, as well as from other institutions, organizations and companies (enterprises) that must submit these documents or their authentic copies in accordance with the procedures and cases specified by law and should provide the lawyer with the opportunity to review them, as well as to obtain conclusions experts on issues requiring specific knowledge, in accordance with the procedures relating to the provisions of legal aid described by the law.
State and local government agencies, as well as other institutions, must issue the above-mentioned documents and their authentic copies at the request of a sworn advocate within a month's period, unless otherwise provided by law.
However, it is important to mention that the right to request information from state institutions and the right to receive such information is provided for all equally. And the state institution must provide such information to all within one month, unless the law provides for a special case for a shorter period (or longer). There is no differentiation in the subjects requesting information.
1 Под термином «полный юрист» подразумевается наличие высшего юридического образования в одном из немецких высших учебных заведений, сдача т. н. первого юридического государственного экзамена, прохождение двухгодичной подготовительной службы и сдача т. н. второго юридического государственного экзамена.
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