The conception of civil procedure in the Slovak Republic

Author:Marek Stevcek - Marek Ivanco
Position:Department of Civil Law, Faculty of Law, Comenius University in Bratislava - Department of Civil Law, Faculty of Law, Comenius University in Bratislava
Pages:119-135
SUMMARY

This contribution offers a comprehensive analysis of the conception of civil procedure, all the way from the term itself through historical determinants, individual approaches and civil procedure in Europe up to the present. It discusses the need for the unified conception of civil procedure expressed in a consistent legislative form. The subsequent analysis of the specific institutes of the new... (see full summary)

 
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The conception of civil procedure in the Slovak Republic
Professor Marek ŠTEVČEK
1
PhD. student Marek IVANČO
2
Abstract
This contribution offers a comprehensive analysis of the conception of civil
procedure, all the way from the term itself through historical determinants, individual
approaches and civil procedure in Europe up to the present. It discusses the need for the
unified conception of civil procedure expressed in a consistent legislative form. The
subsequent analysis of the specific institutes of the new civil procedura l law in the Slovak
Republic describes the correlation of Slovak civil procedure to the so-called social
conception of civil procedure based on the codification of the Austrian Civil Procedure
Code of 1895.
Keywords: civil procedure, the so cial conception of civil p rocedure, the Code o f
Contentious Civil Procedure
JEL Classification: K40, K41
1. Entering the issue
The civil procedural law and its subject matter, the civil procedure, have at
least one uncontested advantage over other legal sectors. That is an undeniable
existence of the civil procedure conceptions, defined on the basis of relatively
consistent criteria, which have been "tested" in the history of procedural law.
Under the term “conception” we generally understand a clear idea of the examined
phenomenon, the plan of its possible effect in the methodological and social
sphere, or also the basic characteristics of the examined phenomenon.
This basic definition applies also to the civil procedure. The basic
investigated characteristics of the civil procedure, as a social phenomenon, are on
the background of defining its conceptions a degree of interference of the parties
and the court as such in substantiation of factual claims of the dispute, in the
process of collecting and evaluating the evidence, and in the speed and procedural
economy of the trial, while honouring or, on the other hand, resigning to a fair
judicial decision (in terms of the “approximation” to the actual substantive aspects
of the case). The summary of these features (or more precisely, the prevalence of
1
Marek Števček - Department of Civil Law, Faculty of Law, Comenius University in Bratislava,
Slovak Republic, marek.stevcek@flaw.uniba.sk.
2
Marek Ivančo - Department of Civil Law, Faculty of Law, Comenius University in Bratislava,
Slovak Republic marek.ivanco@flaw.uniba.sk.
120 Volume 7, Special Issue, October 2017 Juridical Tribune
their phenomenal aspects, i.e. the manifestations of these features in the normative
legislation) defines the conception of civil procedure.
It is understandable, as well as regards all theoretical constructs, that it is
not quite possible to have totally "pure" manifestations of one or another
conception of civil procedure. Like any objective law, even this area is subject to
cultural, sociological and, in particular, political influence to such an extent that it
is possible to state that the inclusion of certain institutions in the procedural
regulation is "non-conceptual" in almost every law order i.e. the phenomenal
features of this institute are not, in whole or in part, covered with conceptual
doctrinal basis for a particular conception of civil procedure. Objective law, as a
normative system, is often determined more politically than we may wish and,
certainly, such a system resigns to conceptually "clean" solutions in favor of
proclaimed and sometimes even realistically fulfilled goals (such as the
functionality of legislative solutions, the historical traditions of the law, the current
social situation, etc.).
Nonetheless, this does not change the fact that deviation from specific
institutes does not necessarily mean deviation from the conceptual basis of
legislation.
Hence, we try to briefly describe the different conceptions of civil
procedure, compare their functionality and importance, and, through the prism of
the theoretical conclusions, answer the question whether the recast civil procedure
in the Slovak Republic withstands relatively strict criteria for definitional features
of its "conceptuality".
2. A few notes on terminology
The term "conception of civil procedure" is a complex language term. As
we outlined the general meaning of the conception above, it is now necessary to
briefly draw attention to the perception of the term "civil procedure". This is not
always identical with the meaning given by doctrine abroad. Nonetheless, it is no
self-purpose play with words, but the essence of understanding the fact that the
conception of civil procedure is in its nature the conception of contentious
proceedings.
Our doctrine of the civil procedure law traditionally differentiates the civil
procedure between the basic ("first instance")
3
and enforcement (distress)
procedures. Contentious and non-contentious proceedings are then understood as
two types of basic, first instance proceedings, which are relatively equivalent.
3
The term "first instance" is the pendant of the Czech term "first instance proceedings". Simple
translation will not be evaluated from a linguistic point of view, but from the perspective of the
broader context of theoretical discourse, this term can n ot be regarded as correct. Whether a court
has the right to find or seek, or creates or completes is a question much wider than it might seem at
first glance. Since this question goes beyond the scope of this contribution, we refer to a relatively
wide range of legal literature in the d etails. From the most recent ones, cf. Machalová, T. et al.:
Aktuální otázky metodologie právního myšlení (The Current Issues of Methodology of Legal
Thinking). Praha: Leges, 2014, p. 336

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