Įrodinėjimo proceso teisinis reglamentavimas romėnų teisėje ir jo įtaka Lietuvos ir Švedijos civiliniam procesui

Abstract

In this article will be considered genesis of evidentiary procedure in continental law system: origins in Roman law, fundamental concepts, ideas and principles, stated by Roman law of judicial procedure, its reception in Western Europe and expression in modern civil procedure. For the comparative analysis have been elected Lithuanias and Swedens law, because of relatively recent reforme of civile procedure these two countries have undergone. In the first part of this paper will be analised balance of power of judge and the parties in evidentiary procedure. In the early Roman legis actio and per formulas judicial procedure prevailed the principle of parties competition, which meant, that it lay upon the parties to look after evidence, while the judge could influence evidentiary procedure just indirectly, for instance, through the refusing decision under the ground of lack of evidence. Later on, in cognitio procedure the judge is much more activ, has more power, whereas the role of judge of postclassic procedure is near inquisitory, the judge investigate circumstances of the case himself.