Civil Procedure Research Articles

Another ‘Bleak House’—the decision of the German Federal Supreme Court on the inadmissibility of intra-EU ICSID arbitrations

Abstract The decision of the German Federal Supreme Court of 27 July 2023 has sparked intense discussions. Unexpectedly, the Court granted a declaration of inadmissibility of intra-EU ICSID proceedings under section 1032(2) of the German Code of Civil Procedure. The decision is of significant practical relevance and yet another push against intra-EU Investor–State Dispute Resolution. After a short introduction (i), we will describe the legal and factual background of the decision (ii) and summarize the Court’s reasoning (iii). Thereafter, we will comment on the decision (iv) and conclude by pointing out possible implications for future intra-EU ICSID proceedings (v).

Civil Procedure and Digital Technology: The Digitalization of the Judiciary and Civil Court Proceedings in the Czech Republic and Associated Problems

Summary The article deals with the issue of digitalization of the judiciary and civil court proceedings. It clearly divides digitalization into institutional digitalization related to the judiciary as a whole and procedural digitalization, i.e., digitalisation within the framework of court proceedings. In its introduction, it focuses on institutional forms such as electronic systems and registers, in the second part it defines specific forms of digitalization within the current regulation of civil court proceedings, i.e., service via the public data network, electronic case management, recording of hearings, use of video-conferencing and finally also decision-making in the form of electronic payment orders. The paper highlights the problematic aspects of digitalization.

The legal status of the class members during the group litigation

The study discusses certain rules of group litigation in the civil procedure in the context of the legal status of class members in procedural relations. Attention is paid to the rights and obligations of the person who applies to court with a request to protect the rights and legitimate interests of a group of members. Participants in a class action include the person conducting the case (plaintiff-representative) and group members who joined the collective claim. The comparative legal method and teleological interpretation allow to conclude that there are active procedural relations only between the court and the claimant-representative, which predetermines the possibility of performing administrative actions, proving and appealing judicial acts only by the plaintiff, but not by the other claimants. The extremely curtailed scope of powers of the group members is justified by their voluntary joining a class action lawsuit. Relations within a group of persons are substantive in nature; this allows to highlight the necessity of appropriate private material mechanisms to satisfy the interests of the majority of participants under the rules on decisions in meetings. In view of the possibility of consolidating in a class homogeneous but different in size substantive claims of the group members we believe it is essential to establish the majority criterion, regardless of the price of the claim of each member. The research also reveals the contradiction in legal regulation in the event of a refusal to certify a group of persons after the initiation of proceedings on a class action in civil, arbitration and administrative litigation, substantiates the inexpediency of leaving a class action without consideration, and the need to consider personal claims of group members and allocate relevant cases in a separate production, as provided for in the Arbitration (Commercial) Procedure Code of the Russian Federation. Attention is drawn to the gaps in the legal regulation of group proceedings in terms of establishing the amount and procedure for paying the state fee.

Abuse of right in the enforcement procedure

Abuse of right is a subtle and difficult-to-detect enemy of good faith in the enforcement process. The Enforcement Code does not contain explicit regulations on it, nor dedicated remedies. However, by supplementing its provisions with those of the Civil Procedure Code, certain procedural antidotes are identified, which will discourage the abusive behavior of the parties to the enforcement procedure. The article also presents an analysis of the vulnerability and openness to abusive use/interpretation of certain norms in the Enforcement Code, as well as a list of sanctioning or compensatory measures directed towards certain bad faith behaviors of the debtor or creditor in the enforcement procedure.

Analysis of the situation in the field of the institution procedure of judicial protection measures

In this article we propose to make an analysis and evaluation of some aspects related to the application of legislation regarding the establishment of judicial protection measures, the grounds, forms and principles of judicial protection, in order to protect the rights and legitimate interests of the persons placed under protection. We will pay particular attention to the principle of respecting the wishes and feelings of the person concerned when establishing and implementing measures to protect, in this case, the incapacitated adult, the concerns of the international community in terms of protection based on the past and present wishes and feelings of the person concerned. The regulation of the procedure for the establishment of protective measures is the internal competence of the state, so that each state has its own treatment of this aspect. We will make recommendations for further research in the field of civil procedure for the establishment of judicial protection measures.

Navigating the New Era: the emergence of China’s international commercial courts

ABSTRACT Alongside China’s increasing efforts to update its legal regime facilitating the ‘One Belt and One Road Initiative’ and strengthening foreign-related rule of law, China’s Supreme People’s Court (SPC) and some lower courts are playing a vital role in modernizing international commercial litigation. The SPC, leading lower Chinese courts, has been zealous in reforming international commercial litigation, and piece-meal measures were adopted over the years. The most salient step is the establishment of international commercial courts (CICCs), accompanied by the use of such mechanisms as anti-suit injunctions, forum non conveniens, and de jure reciprocity favouring foreign judgments recognition in China. These judicial efforts and the expected moves alike will definitely contribute a lot to internationalization of China’s international civil procedure towards the global mainstream. However, the systemic deep judicial and legislative reforms are both needed for China’s international commercial litigation to go global and moreover, the process shall be conducted with an eye towards keeping it current and enhancing its relevance to the realities of today’s dispute resolution world.

Legal Study of the Validity of Electronic Signatures (Digital Signatures) in Business Contracts

Problems in the civil sector because electronic transactions for business through electronic systems (e-commerce) have become part of domestic and international business. This shows that the correlation between the fields of informatics, media and informatics (telematics) continues to develop. Formulation of the status and legal strength of electronic signatures in commercial contracts and the validity of electronic signatures as evidence in the Indonesian Civil Procedure Law. Using this type of library research to collect scientific knowledge and information in the form of theories, methods or approaches that are developed and documented in the form of books, journals, manuscripts, notes, historical documents and other documents. An electronic contract is only valid if it can be ensured that all components of the electronic system can be trusted and/or function as they should

부동산의 처분과 사해행위 취소의 효력

The title of this thesis is ‘Real estate disposition and the Effect of the Revocation of Fraudulent-Subject Case: The Supreme Court of Korea Decision 2015Da217980 on March 09, 2017-’. The obligor will be free to dispose of his own property at his will, and no obligee will be able to dispute it, but our civil law allows the obligee to interfere with the obligor’s liability in special cases in order to preserve the substantial value of the bond. Under the Korean civil law, the Obligee's Right of Subrogation to Obligor(the Subrogation Claim of a Creditor) and the Obligee’s Right of Revocation(the Revocation of Fraudulent Act) are in place. The Subrogation Claim of a Creditor allows the obligee to exercise the obligor's property rights on behalf of the obligor in the event that the debtor does not exercise his or her rights, thereby preserving the liability property. The Revocation of Fraudulent Act is the right that entitles the obligee to revoke fraudulent transaction and to claim restitution of its original status, in case an obligor prejudices and does harm to the obligee(s) by transferring his property to a third party and increasing debt and obligations over assets resulting in insolvency. The Revocation of Fraudulent Act under the Korean Civil Law was introduced by the Japanese Civil Law which was enacted following French models, and in the process, the concept of reinstatement was added along with cancellation. For this reason, a unique form of the Revocation of Fraudulent Act was developed which is basically similar to but different from that of France and Japan. On the basis of the relative nullification theory, the debtor cannot be a defendant in a suit to cancel the fraudulent act and considering the subjective scope of the judgment power in a suit to cancel an act of harm (article 218 of the Civil Procedure Act), in which only the beneficiary or the former beneficiary can be a defendant, the debtor is neither party or subject to a lawsuit (article 84 of the Civil Procedure Act) seems to be able to be regarded as having difficulty in settling the grounds for cancellation of the liability. This paper will examine the significance and limitation of the above decision, and also suggest the effective application of creditor’s revocation based on the relative effect of the revocation of fraudulent and the Article 407 of the Civil Act.

Theoretical and practical aspects of invalidation of a transaction in civil proceedings in Ukraine and foreign countries

The paper examines the doctrinal foundations and legal grounds for invalidation of transactions under the civil law of Ukraine and foreign countries. The author highlights the main problems of national and foreign judicial practice in challenging typical transactions. The author establishes that valid transactions play a primary role in establishing, modifying and terminating legal relations between subjects of civil turnover. Invalidity is a specific result of assessing a transaction for compliance with applicable civil law, and the place of the institution of transaction invalidity in the system of civil procedure law of Ukraine is determined by the need to protect the violated rights of bona fide persons in cases where the requirements of civil law regarding a transaction are not met. The author analyzes and establishes that a transaction is void if its invalidity is established by law (voidable transaction), and no court invalidation is required. In contrast to a voidable transaction, a transaction is disputed if one of the parties denies its validity and tries to prove such a legal fact in a court proceeding. The study has determined that in domestic civil law, the rule that a disputed transaction can be invalidated only through the involvement of a court is mandatory. However, as practice shows, the judicial process in Ukraine has a number of drawbacks, in particular, due to the length of the proceedings. In view of this, many European countries have an out-of-court procedure for invalidating transactions, which is implemented by filing a statement of challenge. Such a mechanism has at least one obvious advantage - the speed of resolving the issue of invalidity of a transaction. The prospect of introducing an out-of-court procedure for challenging typical transactions will allow Ukraine to reduce the burden on the judicial system and speed up the process of considering other, equally important, civil cases.

Implementing artificial intelligence in civil procedure and legal education: challenges and perspectives

Implementing artificial intelligence in civil procedure and legal education: challenges and perspectives

Discussion on the Teaching Method of Civil Procedure Law

Discussion on the Teaching Method of Civil Procedure Law

STUDI TENTANG PENERAPAN ASAS VERHANDLUNGS MAXIME DALAM PEMERIKSAAN PERKARA PERDATA

In civil procedural law there are principles that must be met, one of which is fulfilling the legal principle, the Verhandlungs Maxime principle has the understanding that the scope or main area of the dispute submitted to the judge for examination is basically determined by the parties to the case and not by the judge. In practice, if the Verhandlungs Maxime principle is applied absolutely in trying cases, it can cause the principle of justice or the principle of expediency not to be fulfilled. There is a need for research related to the application of the Verhandlungs Maxime principle in the examination of civil cases to determine the scope of this principle. The research method used in the preparation of this study is a normative juridical method. Judges in deciding a case must pay attention to the Verhandlungs Maxime principle so that the resulting decision is not considered Ultra Petita, but the judge has the freedom to decide outside the subject of the dispute submitted by the parties based on the theory of legal objectives by Gustav Radbruch, Law Number 48 of 2009 concerning Power Judiciary, and Supreme Court Jurisprudence. An understanding is needed regarding the arrangement and application of the Verhandlungs Maxime principle in the Civil Procedure Code, other regulations related to the verhandlungs maxime principle, and the development of the application of the principle so that there is a uniform understanding of the verhandlungs maxime principle. Keywords: Civil Case, Legal Principles, Verhandlungs Maxime.

Extraterritorial (Automated) Jurisdiction in Writ and Summary Proceedings in the Conditions of the Digital Transformation of the Civil Procedure

Extraterritorial (Automated) Jurisdiction in Writ and Summary Proceedings in the Conditions of the Digital Transformation of the Civil Procedure

A Prosecutor as a Subject of Civil Procedure Relations and Forms of Their Involvement in Civil Proceedings

A Prosecutor as a Subject of Civil Procedure Relations and Forms of Their Involvement in Civil Proceedings

Requirements for a judicial decision in the Soviet civil procedure

The article analyzes the requirements for a judicial decision in the Soviet civil procedure. The norms of procedural law that were in force in various historical periods are considered. The provisions of legislation and law enforcement practice regarding the existence and implementation of the requirements of legality, validity and motivation of court decisions are analyzed. Particular attention is paid to understanding the requirement of the fairness of the judgment, which was enshrined in the norms of law at certain stages of the development of the Soviet civil process, while in other periods it was criticized. Based on the historical experience of legal regulation and law enforcement, it is proposed to amend the norms of procedural legislation concerning the requirements for a judicial decision in terms of the requirement of its fairness.

Court-Mediator Interaction in Civil Conciliation Procedures

The article highlights key aspects of research-to-practice project “Conciliation in civil and administrative procedure” conducted by the Chair of civil and administrative procedure. Professors of the Chair analyse results of the projects, identify challenges and assign goals for a future reference period. The authors of the article analyse the work on the organization of the mediators’ interaction with the courts and the practice of applying the mediation procedure in court cases in face-to-face and online formats. The advantages of the model, in which the mediator’s duty is organized in the courts on a permanent basis, are revealed. The article analyzes the powers of the court to initiate conciliation procedures in court proceedings, analyzes the right of a judge to appoint a conciliation procedure on his own initiative. The regularities that allow to identify the relationship between the activity of judges in offering mediation procedures to the parties and the successful decision-making by the parties in favor of conducting a conciliation procedure are revealed. The article analyzes the problems of judicial mediation. Proposals have been made to create and legislate an algorithm for the interaction of the mediator and the court during the conciliation procedure after the initiation of proceedings in the case. The authors of the article consider the possibility of using the institution of suspension of proceedings in connection with the use of conciliation procedure. The problem of the mediator’s lack of a special procedural status is analyzed, which deprives him of the opportunity to participate in the proceedings on the case and complicates the process of interaction with the judge. The authors formulated the main tasks set for the implementation of research-to-practice project “Conciliation in civil and administrative procedure” in the next reporting period.

Behavioural Genetics in the Context of Proof Within Civil Procedure

Since being established as a separate branch of scientific knowledge, behavioural genetics has raised many ethical, legal and social questions. The identification of the genetic origins of behaviour is expanding beyond the scientific field into socially relevant areas such as justice, education and health care. The development of new techniques and analytical approaches, including genome sequencing, non-invasive prenatal testing and optogenetics, has clearly changed the direction of further development of behavioural genetics. This has also transformed the legal and social contexts of biomedical research analysed in this article. The author discusses the expanded scope of behavioural genetics which has become prominent in many countries. The author further focuses on the ethical, legal, social and political issues raised by the potential application of behavioural genetics used for evidentiary purposes in legal proceedings. The author draws the conclusion that behavioural genetics and behavioural genetic evidence are of significant value in determining circumstances relevant to a given case, thus assisting the court in coming to a legitimate and well-reasoned decision. By examining specific categories of cases (civil torts and guardianship cases), the author shows how the application of behavioural genetics can ensure that the rights of certain vulnerable groups (juveniles and persons with mental health problems) are adequately protected.

Analysis and Comparison of Limitation Interests in Civil Procedure Law in the Context of Information Technology

Abstract This paper first discusses the application of text mining techniques in public security, with the research focus on case classification, feature extraction, and collusion analysis in civil litigation. A plain Bayesian-based first-level classifier is proposed to accurately classify first-level case texts. For all second-level case category document sets, keyword cooccurrence mapping is used to replace word frequency as a metric for feature selection, and a second-level classifier is constructed using a simple vector distance algorithm. Finally, the impact of time-barred benefit abandonment and time-barred benefit loss on the evolutionary system in civil litigation is investigated in depth using the pilot water tax reform in Hunan Province as a case study. The results show that when one of the subjects chooses to discard the statute of limitations benefits, x and y show a trend of steadily increasing convergence to 1 from the initial point, and the final stabilization point tends to (1,1). This paper aims to provide references and suggestions for reforming information and optimizing civil litigation.

Values in Civil Procedure

Values in Civil Procedure

Comparative Analysis of Evidence Law Within the Civil Process Comparative-Legal Research

Abstract The article discusses the types of evidence used in the civil law process. Comparative-legal research includes a list of types of evidence used in the civil law process in different countries of the world, their description, and legal significance based on local law. The Code of Civil Procedure is a legal means of protecting the civil rights and freedom of a person. Proceedings are conducted in compliance with the principles of disposition and competition, which allows disputing parties, under equal conditions, to determine the essence of the dispute on their initiative and to present relevant different types of evidence to determine the truth in the case. In general, asserting one’s position, truth, or justice and obtaining, collecting and presenting relevant evidence for the purpose is related to the legal awareness, good faith and sound logic developed by the party (its representative or third parties). In the process of development of a democratic state, much attention is paid to the pursuit of perfection of individual disciplines of private law, which mainly includes the objective protection of human rights and legal interests. In this process, it is of the utmost importance that the relevant norms of the law allow the interested person to present appropriate evidence to confirm the violation of the right and request the restoration of the violated rights in the justice implementing Agency. The Code of Civil Procedure is a legal means of protecting the civil rights and freedom of a person. Proceedings are conducted in compliance with the principles of disposition and competition, which allows disputing parties, under equal conditions, to determine the essence of the dispute on their initiative and to present relevant different types of evidence to determine the truth in the case.