Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

By Adrian A. S. Zuckerman; Sergio Chiarloni et al. | Go to book overview

6
Civil Justice Reform: Access, Cost, and Expedition. The German Perspective

Peter Gottwald

The German Code of Civil Procedure (Zivilprozeßordnung) of 1877 was inspired by the French Code de Procédure Civil of 1806. Following the French example,1 the German Code was geared towards the principles of orality and immediacy, and, at the same time, gave wide scope to liberal moral concepts. Party control over litigation extended not simply to procedural materials and the subject matter of the proceedings, but also to the course of the proceedings themselves, The judge was largely passive. Almost no precautions were taken to prevent the parties from drawing out cases over an unreasonably long period of time.

However, towards the end of the nineteenth century, and in association with the Austrian Code of Civil Procedure of 1898, the view that proceedings are not purely the private business of the disputing parties, but a social duty of the state, began to be increasingly asserted in Germany.2 The relationship between the judge's power and party freedom was altered accordingly. This social conception of procedure (soziale Prozeßauffassung), as it is called, has arisen alongside the pre-existing liberal conception of procedure, without completely relegating the liberal conception to a secondary role. As well as this change, civil proceedings now increasingly appear to be a mass phenomenon. The legislature repeatedly tries to accelerate the judicial process and to relieve the courts of superfluous work, so that the increasing number of pending proceedings can be dealt with within a reasonable time.


1. ORGANIZATION OF CIVIL JURISDICTION IN GERMANY

For a party who wishes to assert a liquid pecuniary claim of any size, a popular and extremely simple procedure available in Germany is the so-called 'dunning procedure'. This is a summary procedure for an order to pay debts, called Mahnverfahren. The creditor submits an application for a court order for payment of a debt (gerichtlicher Mahnbescheid) by filling out a form at the local court

____________________
1
See "Begrundung des Entwurfs einer Deutschere Civilprozeßordnung" ( Berlin, 1872), 9 ff. (§§ 3-6), notwithstanding the fact that, according to the French system, written pleadings have always been of high importance.
2
See R. Wassermann, "Der soziale Zivilprozeß" ( 1978), 27 ff., 49 ff.

-207-

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