Access to Information and Evidence on the Basis of the Draft Bill on the New Code of Civil Procedure

Abstract

The present study analyses the rules of the new Code of Civil Procedure (hereinafter referred to as CCP) on access to information and evidence on the basis of the provisions of the draft bill submitted to the Parliament (draft bill no. T/11900). The new CCP reiterates that the main objective is the impartial adjudication of cases, which is to be achieved by ensuring the effectiveness of proceedings, strengthening the parties’ obligation to tell the truth within a fair trial, introducing a split system of proceedings and the court’s contributive actions, obliging both parties, as a general rule, to be represented by a legal representative (the high courts’ model), regulating the means of electronic communication and strengthening the parties’ right to dispose of the taking of evidence. During the examination of the topic of the taking of evidence, I had been concerned about the issue of what are the parties’ true expectations from the judicial system and to what extent the legislator is able to live up to them. The parties expect from the courts to reveal the truth in order to provide compensation for the damage suffered by them, and the new CCP seeks to meet this social expectation within the framework of the parties’ factual allegations. The issue of whether the parties’ allegations are true is of essential nature in the proceedings, and based on their assessment the court should deliver a just (true to the facts) judgement. Following the court’s judgement, the case adjudged — on the basis of the legal premise of Ulpian: ‘Res iudicata pro veritate accipitur’ — must be taken for truth. The new regulation aims to ensure the implementation and enforceability of those procedural requirements that are related to the objective of evidence taking (the court has to become convinced of the veracity of the parties’ allegations) and the parties’ interests in the taking of evidence (the parties seek to convince the court).