Summary Proceedings: searching for their Roman Origins, applying Problems and Possibilities of Legal Regulation Development
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Abstract
The Code of Civil procedure of Republic of Lithuania establishes a variety of procedural forms. The main forms of summary proceedings are court order and documentary proceedings that are dedicated to reach a higher degree of concentration and economy.
One of the main aims of the article is to present the origins of summary proceedings that can be find in roman civil procedure. According to that, the essence of the rescriptorial litigation is revealed.
It is stated in the article that the forms of litigation mentioned above essentially fulfilled their destination but there are some problems the courts collide while applying the norms of the Code of Civil procedure regulating the handing of procedural documents passed in the summary civil procedure and as well there exist serious disadvantages while regulating the coming into power of preliminary decision.
The author argues the position of the Supreme Court that was developed according to the situation when the copy of a preliminary decision cannot be handed to the defendant because his location is unknown. It is suggested that according to the principle of disposition of parties, the claim should be left not considered meanwhile the right of the decision to apply or not following the ordinary dispute litigation should be given exceptionally to the plaintiff.
The author assumes the order of coming into power of preliminary procedure as one of the principle drawbacks in the legal regulation of defined summary trials. In this case establishing the same order of coming into power as for the court order the essential difference between two forms of defined summary trial has not been taken into mind. The author refers to the examples established in the mid–war Code of Civil procedure and in the Code of Civil procedure of the Republic of Latvia and emphasizes that the preliminary decision is passed on the basis of proof that was presented by the plaintiff, the court evaluates the presented literal proof and thus the possibility to pass an unfair decision is much lesser than in the case of court order. According to that it is suggested to amend the Code of Civil procedure stating that the coming into power of preliminary procedure has nothing in common with the contradictions presented by the defendant and establish the right of the defendant to appeal the preliminary decision following the general rules of appeal.
One of the main aims of the article is to present the origins of summary proceedings that can be find in roman civil procedure. According to that, the essence of the rescriptorial litigation is revealed.
It is stated in the article that the forms of litigation mentioned above essentially fulfilled their destination but there are some problems the courts collide while applying the norms of the Code of Civil procedure regulating the handing of procedural documents passed in the summary civil procedure and as well there exist serious disadvantages while regulating the coming into power of preliminary decision.
The author argues the position of the Supreme Court that was developed according to the situation when the copy of a preliminary decision cannot be handed to the defendant because his location is unknown. It is suggested that according to the principle of disposition of parties, the claim should be left not considered meanwhile the right of the decision to apply or not following the ordinary dispute litigation should be given exceptionally to the plaintiff.
The author assumes the order of coming into power of preliminary procedure as one of the principle drawbacks in the legal regulation of defined summary trials. In this case establishing the same order of coming into power as for the court order the essential difference between two forms of defined summary trial has not been taken into mind. The author refers to the examples established in the mid–war Code of Civil procedure and in the Code of Civil procedure of the Republic of Latvia and emphasizes that the preliminary decision is passed on the basis of proof that was presented by the plaintiff, the court evaluates the presented literal proof and thus the possibility to pass an unfair decision is much lesser than in the case of court order. According to that it is suggested to amend the Code of Civil procedure stating that the coming into power of preliminary procedure has nothing in common with the contradictions presented by the defendant and establish the right of the defendant to appeal the preliminary decision following the general rules of appeal.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
