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WITHOUT FAIRNESS IN CIVIL PROCEDURE CODE-2007

  • The Civil Procedure Code of 2007 (CPC-2007) doe not contain the word “fairness”. It or its related verbal units have not been mentionefd even once among the 57332 words of the Code- by approx. 7000 words longer than the repealed CPC-1952 where at least art. 4 (1) ruled that “In the absence of a law the court should ground its decisions by the custom, the basic principles of law and fairness”. The acting Criminal Procedure Code of 2006 (art.348) requires at least the imposed punishment to be fair while CPC-2007 does not demand fair court decisions. Instead art.5 CPC-2007 finds it sufficient in the absence of a law the court decision to be grounded “on the basic principles of law, custom and moral”. I.e. morale instead of fairness? In both codes (old and new) fairness or moral have been referred to beyond and separately from the basic principles of law which logically means that legal principles do not include fairness and morale.
  • The question of fairness in civil justice is a question of supremacy of values. Here the silence of CPC-2007 is extremely eloquent. It cannot be substituted by the equality of parties under art.9 because the equal attitude to unequal things is also unfair. Was Roman civilization naïve claiming that Ius est ars aequi et boni, that the prescription of law are Honeste vivere, alterum non laedere, suum cuique tribuere and introducing Actio in bonum et aequum concepta ?
  • Every obscurant law relies on a court which would implement it automatically without the correcting conscience and sense of fairness by the judge-human being. The subordination only to law –whatever it is- is an attempt to immunize the conscience of the judge against the evil embodied in that law and to refer his conscience to the endless cascade of responsibility. Every democratically disguised despotism creates for the obedient court conditions for weightlessness of conscience- in the vacuum camera of exclusive subordination to law. The above mentioned art.9 for equality of parties in another horrible age could read like this- our inserts in Italic brackets: “The court provides to the parties (the Jews) equal possibility to exercise their granted (Nurnberg) rights. It applies the (Nurnberg) law equally to all (Jews).”
  • CPC-2007 significantly extends the number and volume of special litigation procedures by adding to the existing three new ones: fast track, commercial claims and class/collective actions. If we count them together with the cases under the Tax-Insurance Procedure Code and under the Public Procurement Act it will turn out that in absolute nominal size of the material interest the huge amount of property disputes shall be decided by the exceptions from the general claims procedure. This is not the justice of a normal state but the internal order of a steppe horde galloping without direction.
  • It would be a sign of professional courage if every printed edition of CPC-2007 contains the names of its actual authors-legal experts. They do not feel ashamed of anything, don’t they? Just in the way we know by names the fathers of Code Civil, ABGB, Codice Civile, BGB etc. CPC-2007 should not remain with unknown parents as a legislative orphan conceived on the street by the ruling crowd. In some parts the Code gives the smell of a parvenu self-confidence.
  • When the New Testament apostles pronounce the blessing “Peace be with you!” they address it to people who may not be fighting. Is it then a useless Peace blessing? The answer is in the Christian concept for Peace which includes not only the lack of violence but the availability of justice. Peace can only be just and fair. Justice is the path to peace. The sum of many small quiet and non-violent wars between individuals does not equal Peace. Peace is first a state of spirit and after that- behavior. The ordinary man, exhausted and ruined by complex and insidious court procedures, does not get peace even if he wins the case. If from the Palace of Justice come out people who hate each other stronger than when going in and who curse their own state- it means they have not found fairness and justice to reach peace. November 2007 Valentin Braykov

November 2007

Valentin Braykov