The national report of civil procedure in Latvia is based on review of the Latvian Civil Procedure Law, court practice, feedback by the Ministry of Justice on cooperation with the EU states as well as with third countries in various matters of jurisdiction as well as on legal science. Civil procedure includes all legal principles like disposition, right to be present and to be heard, competition of parties in gaining all necessary evidence and similar concepts to be found in almost every modern civil procedure system. However, there are certain specific features due to which Latvian process stands out. For instance, there is still a system of legal presumptions which apparently is inherited from Roman law, yet still prescribed by the Latvian Civil law (Civil code). Also certain degree of formal attitude remains as a characteristic feature of the Latvian civil procedure.
Like in all jurisdictions of the Member States of the European Union the Slovak civil procedure is governed by the range of principles that were developed in Europe since 19th century. The thesis summarizes the main principles and their application by the judges when taking the evidence in the course of civil proceedings. It is evident that the observance of principles is vital not only in the drafting of legislation, but also in its implementation and claiming rights of the parties before the court. The combination of competing principles, such as free disposition principle and the officiality principle, as well as the adversarial and inquisitorial principles helps to achieve the situation in both positive law and the decision making practice of the courts, where it is possible to decide the civil cases in a fair and objective way enabling parties to use procedural tools at their disposal. The thesis further elaborates on role of principles in taking evidence at the court and it also describes the kinds and means of evidence according to the Slovak Code of Civil Procedure.
Since Estonia regained its independence on 20 August 1991 Estonian civil procedure has been gradually developed from the civil procedure of Estonian SSR to the modern civil procedure rules in force today. The current code of civil procedure was adopted on 20 April 2005 and came into force in 1 January 2006. Since coming into force several changes have been made to the current code with significant changes coming into force on 1 January 2009. Estonian civil procedure is mainly based on the adversarial principle, except for some specific cases and proceedings on petition where the inquisitorial principle is used. Deriving from this the parties are in most cases free to decide on what evidence to submit and whether to submit evidence at all. While the court may ask the parties to submit evidence, they are not required to do so. The situation is different in cases based on the inquisitorial principle. Estonian civil procedure does not impose many restrictions as to the kind of evidence that can be submitted. Virtually anything that can be reproduced in some way may be submitted as documentary evidence and any person who has knowledge about the facts of the case may be heard as a witness. Even the parties may be heard under oath. The Estonian Code of Civil Procedure does not set out many rules on how to evaluate the evidence submitted. The basic rule is that the court has to assess the evidence impartially and as a whole and not give any preference to any particular piece of evidence.
Under the Article 22 of the Slovenian Constitution the right to equal protection of rights guarantees the right to state the facts and submit evidence, the right to be present at the taking of evidence and to be informed on the results of the taking of evidence. The principle of free assessment is a fundamental principle in Slovenian civil procedure included in Article 8 of the CPA. In the system of free assessment the judge is the one to evaluate the evidence without being bound by any formal rules on probative value of certain evidence. Probative value depends only on individual belief or conviction of the trial judge in each matter separately. The free assessment of evidence is the right and duty of the court to assess each piece of evidence separately and collectively. In the evidence-taking stage the CPA includes the special rules for each type of evidence, meant as a minimum guarantee for the right free assessment of the taken evidence and the free assessment of evidence presupposes that the evidence were taken by this rules. Even though, court decides which evidence will be produced for determination of the ultimate facts, the court is bound by the parties' right to propose evidence – with their procedural burden of proof. If the court rejects the proposal of a certain piece of evidence this rejections must be explained. In the following book the author discusses the key principles of the law of evidence in Slovenian civil procedure. The book provides analysis of the law of evidence, while placing the subject within its theoretical context. The subject is presented in a logical structure following on from the introduction of the basic principles through the rules for burden of proof, types of evidence, costs of evidence, the question of unlawful evidence, and the cross-border taking of evidence.
After a brief historical introduction, the short monograph reviews the system of evidence in Hungarian civil proceedings, approaching the topic from the aspect of the basic principles. Following changes in the role of material truth, it presents alterations in the interpretation of and re-interpretation of the notion of the principle of free disposition of the parties. Then it deals with the following basic principles and their relation to evidence: principle of orality, principle of directness, principle of public hearing, principle of equality of arms, right to be heard, ensuring the use of one's mother tongue, principle of procedural economy, the proper (bona fide) conduct of the lawsuit, principle of adversarial hearing, principle of the freedom of proof. After examining the questions of admissibility of evidence and burden of proof, it discusses particular means of evidence, the taking of evidence, the preliminary taking of evidence, costs of evidence, the question of unlawful evidence, and finally, the cross-border taking of evidence.
This study is offering a review of the most important institutions of the Romanian law of evidence: the fundamental principles of civil procedure, as well as the general principles of evidence taking; an analysis of the various means of evidence, and of the rules regarding the taking of evidence; some specific issues such as the unlawful evidence, the costs, language and translation in the process of the taking of evidence, are also examined.
This book presents a study of modern civil law in the context of philosophical concepts and categories. It considers the dynamics of the correlation between the categories of the internal and the external in civil law, showing that it regulates external behavioral forms represented by acts of exercising civil rights and, at the same time, uses the categories that relate exclusively to the inner world of people. It also explores the categories of the vertical and the horizontal in the analysis of the provisions of civil law. In addition, the book studies the rules of civil law in the context of
The dominant position of the parties with regard to a civil litigation constitutes a major principle of the Greek Code of Civil Procedure (principle of free disposition). Furthermore, The orientation of the Greek Code of Civil Procedure towards the contemporary model of a more active judge, apart from the more or less passive role of the latter, mainly to examine lack of the procedural prerequisites (Art. 73 CCP) and the legal foundation of the action on his own motion, is only sporadically provided for in certain regulations. The right of defence before the courts is explicitly guaranteed by Art. 20 I b of the Greek Constitution explicitly guarantees: "Every person … may plead before them his views concerning his rights or interests as specified by law". Moreover, the Code of Civil Procedure provides for the principle of the need for the summoning of the parties in all hearings of the case (Art. 110 II CCP), notwithstanding the application of special provisions oriented towards the specification of the right of defence. The taking of evidence is in principle administered before the whole panel of the court (= principle of directness). Moreover, witnesses testify before one member of the court's panel, who is appointed as the reporter judge Art. 270 V CCP). In particular, expert reports and viewing of the premises may be orally ordered by the court. The publicity of the courts' sittings (Art. 93 II) and publicity of the pronouncement of the courts' judgments (Art. 93 III) are explicitly guaranteed by the Greek Constitution (Art. 93 II, III). The credibility of the means of proof is in principle freely evaluated by the court, unless otherwise explicitly provided, thus the judge decides in accordance with his inner conviction as regards the truth of the factual allegations. The judgement must include the reasons, which led the judge to the formation of his conviction (Art. 340 CCP). The Greek Code of Civil Procedure requires in principle the full conviction of the court as regards the standard of proof. Eight means of proof are exclusively listed in Art. 339 CCP: confession, direct proof, especially viewing the premises, expert reports, documentary evidence, examination of parties, testimony, presumptions and sworn attestations. The Greek Code of Civil Procedure, under the influence of the German-origin "Norms' Theory" ("Normentheorie"), introduces the rule that "Each party is obliged to prove the facts which are required to support his self-contained claim or counter-claim" (Art. 338 I CCP). Art. 19 III of the Greek Constitution provides for the inadmissibility of the means of evidence obtained in violation of Art. 19, 9 and 9A of the Greek Constitution, as regards the protection of the secrecy of letters and other forms of communication, the protection of every person's home ("asylum"), the inviolability of private and family life and the inviolability of personal data respectively.
This book portrays evidence and gathering of evidence under the current Croatian regulation relating to evidence and in practice. In this context, the author first analyses the fundamental principles of Croatian civil procedure and law of evidence. Then, the general principles of evidence and gathering of evidence are discussed, as well as the general rule on the burden of proof. The question of gathering of evidence through modern technology (videoconferencing, etc.) in the Croatian law and practice is also discussed. Separate parts of this book contain the analysis of means of proof regulated by the Croatian Civil Procedure Act: inspection of object ('view'), documents, witness testimony, expert testimony, and party testimony. The rules on costs caused by gathering of evidence, including the costs for translation are analysed, as well as the rules on language. The concepts of illegally obtained evidence and illegal evidence in the Croatian law and practice are discussed. This volume contains the report about the Council Regulation (EC) No 1206/2001 and the multilateral and bilateral legal assistance treaties to which Croatia is a party. There are several appendices to this book: a table of authorities according to the Regulation No 1206/2001, and relevant sources of Croatian civil procedure, table of case law on evidence, table portraying a ordinary/common civil procedure timeline, table referring to legal interpretation in the Croatian legal system, and comparative tables focusing on functional differences between national regulation, bilateral legal assistance treaties, multilateral treaties, and Council Regulation (EC) No 1206/2001 on taking of evidence by hearing of witnesses. This book is a result of the Dimensions of Evidence in European Civil Procedure research project commissioned by European Commission, Directorate-General Justice.
This publication is based on the Swedish report to the project Dimensions of Evidence in Civil Procedure. The major objective of the project has been to explore whether there exists a common core of European Law of Evidence, and if it does, to describe its content and its most important points of discord among the national legal systems. By providing a clear picture of common core principles, the project can serve as a starting point for further harmonisation or unification processes in this field. A basic assumption of the project is that there can be no trust without a clear picture what courts do in matters of evidence, and how they discover the facts. This publication presents the relevant aspects of the Swedish legal system. The Swedish system for adjunction seldom takes its ground in firmly defined principles, but principles appear in decisions ad hoc. The Swedish application of the principle of free production of evidence and the principle of free assessment of evidence are far-reaching.
The French Law of evidence is at the crossroad between procedural law and civil law. As part of the procedural law, it is governed by general principles set out by the Code de procédure civile, such as the contradictory principle, the principle of public hearing or the free disposition principle, which means that the parties define the framework of the proceeding and that the judge cannot base his decision on facts that were not put forward by the parties themselves. It is also the Code de procédure civile that organises the respective roles of the judge and the parties for the taking of evidence: since 1976, it imposes a – rather complex – balance between adversarial and inquisitorial principles. Other general principles were set by case law, e.g. the principle that no one can pre-constitute evidence in his own favour or the principle of fair evidence. On the other hand, more substantive rules are to be found in the Code civil. These rules mix two systems, the system of the preuve morale, applicable in some specific litigation, and the system of the preuve légale, which is clearly dominant in civil litigation. In the first system, evidence is in principle free, which means not only that any mode of proof is admissible, but also that assessment of evidence by the judges is free. In the second one, only determined means of evidence are admissible and their probative force is often set out by law. A majority of evidence rules derive more or less directly from this summa divisio. In fact, the predominance of the preuve légale system has made the French system of evidence rather rigid, in particular regarding the exaggerated importance of written evidence.
This report outlines the rules on the taking and using of evidence in Austrian civil procedure law. On the basis of principles such as the free disposition of parties, the attenuated inquisitorial principle or the principles of orality and directness, the judge and the parties form a "working group" when investigating the matter in dispute. The Austrian concept of an active judge, however, goes along with the judge's duty to do case-management and especially to induce a truthful fact-finding using judicial discretion. While only five means of proof (documents, witnesses, expert opinions, evidence by inspection and the examination of parties) are explicitly listed the Austrian civil procedure code, there is no numerus clausus regarding the means of evidence. Evidence may be freely assessed by the judge.
The text presents legal issues concerning evidence and evidence taking in Polish civil proceedings. General principles of Polish civil proceedings are discussed, as well as the principles concerning evidence. The evolution of Polish proceedings is obvious: it is getting more and more formal. The provisions about preclusion are presented in this context and the contradictory model of the proceedings is expressed strongly. There are some doubts if the evolution of Polish Code of Civil Proceedings goes in right direction. The problem of possible adoption of pre-trial regulations is also mentioned.
This work presumes to be an introduction for the foreign reader to Spanish regulations in regard to evidence. It has been structured following a classic design in the Spanish academic literature with the aim to approach the reader to the Spanish legal way of thinking. With the same goal it a starting Chapter that analyzes the different principles that lead Spanish Civil Procedure has been included.
