Work on the white paper for a new code of civil justice is complete. There is still a long way to go before this work will be transformed into the final shape of a law, but given the fundamental character and magnitude of the proposed changes, it seems appropriate that we familiarize ourselves with them even at this early stage.
The Code of Civil Justice currently in force was passed in 1963, at a time of wildly different social and political circumstances. Many shortcomings have since been successfully removed from the law, but it continues to suffer from the excessive complexity, inconsistencies, and often a lack of clarity of individual provisions. Instead of patching up the law with additional amendments, the ministry of justice decided in favor of a radical solution: replacing the current law with an all-new Code of Civil Justice. The primary source of inspiration in drafting the white paper, especially with respect to the stipulation of individual basic rules, was the Austrian Zivilprozessordnung.
In November 2017, the consultation paper, or white paper, for a new Code of Civil Justice was unveiled to the public. Of course, there is still a long way to go before we will hold a definite code for judicial procedures in our hands: only this year does the ministry intend to tackle the task of prepare a draft bill, divided into sections. However, given the importance of this code, we would like to familiarize you even now with the basic principles, and the largest changes, which the new Code of Civil Justice will entail.
Above all, the courts will be required to strictly observe what is known as the principle of free disposition. The white paper for the new Code of Civil Justice essentially puts civil judicial proceedings into the hands of the participants. The court is merely to formally conduct and oversee the procedure.
On the other hand, and in the interest of bringing the truth to light, the courts will likely be given the power to actively get involved in the procedural stage which serves to establish the factual state of affairs, i.e., certain elements of the inquisitorial principle will be adopted (which otherwise has its place in non-adversarial procedures).
The white paper also expects the draft bill to put a greater stress on the economy of proceedings. The court decision must not only be correct, but must also be handed down in a timely fashion. Because of this, the white paper contains a number of institutions which are aimed at expediting civil court procedures and, where feasible, bring down the associated expenses.
Aside from these conceptual issues, we ought to at least mention what amounts to probably the two most fundamental differences between the white paper for the new Code of Civil Justice and the existing Code of Civil Justice in force today. The first of them concerns litigation with mandatory representation (by a professional), and the second concerns the appeal on a point of law, which is intended to become an ordinary legal remedy.
Stay tuned for future editions of our newsletter to learn more about the proposed changes.