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IN MEMORIAM OF THE BULGARIAN CIVIL PROCEDURE CODE (1952 – 2006?)

  • The Bulgarian parliament has just voted on first reading the Bill for the new Civil Procedure Code (CPC-2006). When and if voted on second reading CPC-2006 is to replace CPC-1952. The move has shocked the Bulgarian litigation community which recalled the EU pressure for such a new code in the European Commission report on Bulgaria of 26.09.2006:

p.10 To ensure a more transparent and efficient judicial process by adopting and implementing a new judicial system act and the new civil procedure code.
p.15 There are major delays in the adoption of the new Civil Procedure Code.
p.23 There has been limited progress in the following areas. The draft civil procedure code has been submitted to Parliament in May

  • If the Commission is to teach us in transparency it should be mutual and we should be first told how it was concluded that CPC-1952 was not working well. We have been litigating civil law in this country for exactly 30 (thirty) years and are anxious to learn what exactly is wrong with CPC-1952 and who exactly advised the Commission of that wrong. Is it for the sake of Bg justice or for the sake of spending consultancy fees assigned to such a new code?
  • The backbone of the Bulgarian civil law system are four laws: Law on Inheritance, Law of Property, Law on Obligations and Contracts and The Civil Procedure Code. They have all been adopted between 1949-1952 i.e. the climax of Stalinism though they have been drafted by old law professors from before World War II. This time reference is painfully frustrating for modern democratic legislators who are anxious to invade, to rebuild and to finger-print the core of Bulgarian civil law with the quality hallmark of their other interventions in the last 15 years.
  • To replace the civil procedure because civil justice is not satisfactory is just like replacing a car engine with another/different one when the technician is ignorant of what causes the current malfunction. And the unprecedented problems to the Bulgarian civil procedure engine come from three major directions:

First, Bad legal education. We still have more than five law faculties all over the country pumping out legal militia because the country has an academic teaching capacity (professors) for just one faculty as it used to be.

Second, Poorly drafted and ever-changing material laws which the courts have to apply. It is like putting bad fuel into an engine or unfit software into a computer.

Third, The 1991 Constitution switched from a two instance court system to a three instance bringing in the cassation appeal. Cassation option added two years to the duration of a civil law dispute. And it was voted by MPs whose only idea of cassation was the memory of a river boat cruise on the Seine in Paris where they saw on the bank the majestic building of Cour de Cassation. So let us be French too!

  • None of the above deficiencies comes from or depends on the civil procedure code of 1952. If you want to abolish cassation you have to first amend the constitution and then the CPC-1952. A three instance court system is an unaffordable luxury to present Bulgaria. Let alone the bad legal education and the poor material laws. If these three tumors are not removed they will reappear like cancer after any operation.
  • Even if we are to get a heavenly civil procedure the system will simply be overwhelmed and stopped. It cannot digest the constantly changing domestic legislation trying to fulfil the EU Acquis and the avalanche of EU provisions gaining direct relevance in Bulgaria after 01.01.2007. And at the same time to change the procedure rules under which justice is delivered on these new material laws. It is humanly impossible for magistrates, prosecution, lawyers, civil service etc. to learn to handle and master all that waterfall of new provisions. You do not only change the song but the instrument on which it is played. It would take not less than 10-15 years for litigation dust to settle around the new civil procedure. That would be a window of highly imperfect civil law justice. So if justice is the ally of the weak against the strong, imperfect justice will benefit most the socially strong i.e. the rich and the ruling. Common sense would advise that a new civil procedure code be considered only after the shock and stress of the first five years following EU accession. Which other new-comer has changed its civil procedure at the EU door step? Transplantation of a foreign model cannot be for its own sake but only for the better functioning of the whole judicial organism. The patriarch of Bulgarian civil procedure law-professor Jivko Stalev (aged 95)-has publicly urged that civil courts need most stability and continuity rather than a new code.
  • Bulgarian MPs would go to any length to earn a complimentary pat on the back for their Acquis zeal and would easily vote on second reading any CPC-2006 to balance deficiencies in other crucial fields like organized crime and corruption. The reference to “pressure from EU” is their universal absolution for any common sense blunder. In fact they are delighted to be EU pressed for tax increases from which the government benefits- they like very much to be pressed by the excise tax. And this shows that the ultimate responsibility for adopting or suspending a new Bulgarian civil procedure code lies with those who press and pay for it from abroad- they should not stay anonymous and should publicly concede how much money has been assigned to its draft and whether that money has created its own momentum for the bill’s adoption. Thousands of litigating Bulgarian practitioners should not be treated like speechless patients of a few procedure doctors.
  • However if CPC-2006 gets completely passed by parliament we appeal to those who share our views to light a candle in memoriam of CPC-1952 and to quietly say: ”Lord, this sin is not mine.”

October 2006

Braykov’s Legal Office