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Miklós Kengyel - Electronic Technology and Civil Procedure: New Paths to Justice from Around the World

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Book:
Electronic Technology and Civil Procedure: New Paths to Justice from Around the World
Author:
Mikls Kengyel / Zoltn Nemessnyi
Publisher:
Springer
Genre:
Books / Politics
Year:
2012
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The effect of modern and communication technology on civil procedure first appeared on the agenda of the conference organized by the International Association of Procedural Law in 1999, verifying Lord Woolfs statement from the 90s, that IT will not only assist in streamlining and improving our existing systems and process; it is also likely, in due course, itself to be catalyst for radical change as well....

At the conference in Pecs in the autumn of 2010 participants from three continents and twenty-five countries examined all aspects of the impact of modern information technology on civil procedure beginning with the electronic submission of the application, ranging from electronic service of documents and electronic means of proof supported by modern information technology. In addition to the practical issues they discussed the possible impact of electronic procedures on traditional principles of civil procedure. The conference book contains seven main reports and eleven correferates, the foreword was written by Prof. Peter Gottwald, the President of the International Association of Procedural Law.

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Mikls Kengyel and Zoltn Nemessnyi (eds.) Ius Gentium: Comparative Perspectives on Law and Justice Electronic Technology and Civil Procedure 2012 New Paths to Justice from Around the World 10.1007/978-94-007-4072-3 Springer Netherlands 2012

Introduction

In the past decades, modern means of electronic communication, data processing and data transmission have had a considerable impact both on the business world and on private life. These technological developments now are increasingly affecting courts and civil proceedings. E-commerce inevitably entails e-justice.

The IAPL realised the consequences of electronic communication for court proceedings early on. In 1999, at the Vienna World Congress on procedural law Helmut Rmann and Wouter de Vos reported on the Challenge of Information Society to civil litigation. In Salvador/Bahia, Brazil 2007, Janet Walker, Garry Watson, Emmanuel Jeuland and Angel Landoni Sosa reported on new information technologies in civil procedure. These were excellent reports that have outlined all basic problems. Yet there is a need for more detailed discussion, not least because of the continuing technological development and the practical experience already gained in some countries.

For politicians, electronic justice relates primarily to the creation of information systems for the organisation of enormous amounts of legal questions and data. Such systems are considered a competitive advantage within the global economy.

The German website www.justiz.de , for instance, provides online information services ranging from alternative dispute resolution to dates of compulsory auctions of real estate. It offers information on federal law and the law of the Lnder , and access to the commercial register and the insolvency register. More than 1.4 million inquiries into the commercial register are handled online every day. Simply by using a personal computer, notary publics can browse the land register online and can obtain copies of entries with full probative value. Regarding the European Union, in March 2009 the European Council accepted an e-justice action plan for the period from 2009 to 2013. Part of this plan is the creation of a uniform European e-Justice Portal to simplify the use of information and communication technologies in the field of justice at European level. On 17th July 2010, the European portals website was launched. The first version already contains more than 12,000 pages with information and links relating of the law and legal practice of EU Member States.

As an example from outside of Europe the civil branch of the New York State Supreme Court has introduced mandatory e-filing in 24 May 2010 for certain commercial cases. At the same time, very detailed state wide rules for filing were enacted.

In Germany, the only widely used e-filing system to date is that for online applications for national payment orders. Lawyers have been required to use this electronic device since December 2008. In addition, briefs may be filed electronically with all Federal Supreme Courts.

With regard to ordinary claims only Bremen, Brandenburg, Baden-Wrttemberg and Hesse have introduced an e-filing with all or at least some civil courts, all other German Lnder are hesitant to introduce a e-filing system. They are not content to introduce merely a closed system between courts and lawyers by way of a so-called Elektronisches Gericht und Verwaltungspostfach (electronic court and administration mailbox). Instead, they want to prescribe the use of claim forms in order to drastically reduce the work load of court registries. The publicly available papers on the preparations do not openly state this, but the officials in charge speak of the introduction of xJustiz-Datenstze (xJustice data sets). These would be used to automatically fill in the first page of court files, the addresses of information letters to the opposing party and their lawyers and so on. But it is obvious that this could happen only if claims, defences and further replies were to be filed in a strictly formalized manner, at least on the front page.

On a global level, UNCITRAL is working to create an online dispute resolution system relating to electronic cross-border commercial transactions. It is designed for both business-to-business as well as for business-to-consumer transactions.

All these developments of electronic communication will impact on classic civil proceedings and could be a challenge for the overall quality of justice.

This volume contains the submissions for the IAPL colloquium on Electronic Justice Present and Future, which took place during September 23rd25th 2010 in Pcs, Hungary. For this publication, the submissions have been arranged differently and more systematically.

The first part of this book deals with general questions: does the increased or even general use of electronic communication have an impact on the traditional procedural principles? Is it, without more, reconcilable with the right to a fair trial? Will IT help the judge in finding a just decision or is there the danger that judges become just subsumtion machines by applying preformulated text components?

(a)

While Masanori Kawano worries about drawbacks if the immediacy of a court proceeding with the personal presence of the participants were to be abandoned, Paul Carrington believes rather in the emergence of a new and better procedural culture; he suggests the use of electronic communication allows for a cooperative and permanent dialogue. Carrington views the comprehensively electronically captured truth as a dream goal, though he does not address the limits posed by legitimate data protection measures. Nikolaj Fischer believes that comprehensive e-justice must primarily lead towards a modification of court organisation (presumably the concentration of court locations; dissolution of smaller courts). He criticizes excessive formal requirements for electronic briefs. Fischer, too, considers the oral proceeding with personally present participants old-fashioned and outdated, though on the other hand for him a public proceeding is absolutely required. Fischer speaks out against the duty of electronic submission of briefs and for the development of social electronic justice. The oral proceeding, he says, ought to be intensified on the basis of electronically exchanged information.

(b)

J.E. de Resende Chaves Jr. describes the vision of a future court proceeding on the web. This process, he suggests, is no longer just a mere paperless image of the classic file proceeding; as a result of the integration into the global information networks it would have a higher quality than hitherto. The author develops a vision of a strongly inquisitive proceeding because the court seems to have access to the entire knowledge stored on the web and because the parties and the court are permanently connected by way of interactive memoranda which allow them to mutually influence the proceeding. These virtual proceedings online and on network, the author suggests, would lead to a hyper-reality and thus in his view to a higher quality of legal protection.

(c)

Concluding the first part, Viktria Harsgi examines whether the traditional procedural principles also retain their validity under the circumstances of electronic communication or whether they must by modified. In her view, the duty to submit briefs electronically violates the right to free access to justice because not every natural person has a computer and internet access. Therefore, she argues, free choice between electronic and traditional methods must remain available at least to natural persons without a lawyer. To Harsgi, the possibility of video conferencing is merely a replacement of personal and direct contact so that witnesses should only exceptionally be questioned in this way. Harsgi sees more room for this in regard to party hearings. In regard to online service of documents and electronic access to records, too, Harsgi attempts to highlight practicable boundaries for the use of electronic communication technology.

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