German Civil Procedure Law Essays

Author: (German) Michael Stierner
Publisher:
Publication Date: 2005-10-01
Features: This translated collection of essays reflects the development of German procedural law from the mid-1960s to the present. These articles representatively embody the systematic and academic theoretical penetration of the civil procedure system—few countries in the world have promoted such development as Germany. Notably, the focus of attention has shifted: by the 1980s, academic literature primarily explored the relationship between the German Civil Procedure Code and other legal systems, especially constitutional law. In the last two decades of the 20th century—particularly influenced by European legal integration—more attention was paid to the impact of inter-state norms on domestic procedural law. Interested readers will find that in this collection of 7 themes and 22 essays, the stance of the German academic community in observing the core issues of German procedural law is clearly outlined. Some works have become classics today, others have had significant impacts on legislation in the past, and some clearly recount the development of specific procedural fields. The selection of essays was inevitably influenced by subjective preferences, but the decisive factor was the conviction that each article is an excellent academic work.
After the entry into force of the German Civil Procedure Code on October 1, 1897, the issue of procedural relationships remained a topic of discussion for scholars of civil procedure for a long time. Although the creators of the code established a law based on the principle of party autonomy, over time, more and more people began to criticize this liberal tendency. In the first half of the 20th century, the obligation to promote litigation by parties was introduced, and subsequently, there was a greater emphasis on strengthening the role of judges to balance social disparities between parties. The relationship between substantive law and procedural law, as well as the issue of procedural objectives in civil litigation, also became long-standing themes. The promulgation of the German Basic Law in 1949 had a significant impact on the development of procedural law. Notably, the constitutional right to a fair hearing led to numerous amendments to the Civil Procedure Code. The latest amendments introduced the so-called "right to demand a fair hearing"—an internal judicial remedy within the appellate system in cases where the constitutional right to a fair hearing is violated. Its primary purpose is to reduce the burden on the Federal Constitutional Court, as in the past, a large number of constitutional complaints were filed with the court due to violations of this fundamental right.
In the field of trial procedures, the main issues of discussion focused on the subject of the action, evidence, and the parties' duty to provide explanations. In this later area, opinions were divided widely, ranging from those supporting the party without the burden of proof in the Anglo-American legal tradition to those firmly rejecting the idea that parties have an obligation to assist the opposing party in winning the case. During this period, legislation and case law no longer completely rejected the duty to provide explanations.
The relationship between judges and parties is of central significance to understanding the civil litigation system. The liberal civil procedure code initially relied on parties to drive the progress of litigation, but over time, the role of judges has grown increasingly prominent. To put it metaphorically, litigation shifted from a rights struggle under the guidance of an impartial adjudicator (the judge) to a collaborative effort by all participants to resolve disputes harmoniously. However, defining a judge whose primary task is to resolve conflicts as a "social engineer" goes too far. Civil litigation remains an adversarial process, and a legally binding judgment must ultimately be rendered if all efforts at reconciliation fail.
In recent years, the reform of appellate procedures has become a focal point for both academia and practice. The appellate court was initially designed as a second fact-finding level, while the review court was designed as a legal supervision level. The Civil Procedure Code Reform Act of 2002 emphasized the functional differences between appellate levels. The appellate court now plays a greater role in legal supervision, while the review court has taken on more tasks related to legal unification. It is desirable to render final judgments in first instance trials as much as possible to maintain low litigation costs and allow the decisions of first instance courts to constrain the work of higher courts more effectively.
Lastly, I would like to mention two more recent essays on the Europeanization of German civil litigation. The continuous legal integration within the EU is based on the premise that differences in procedural law among member states hinder cross-border trade by increasing transaction costs. Domestic civil litigation norms will gradually lose significance in the medium to long term to achieve unified norms across Europe, which has already become a reality in the fields of jurisdiction and recognition of judgments.
This collection will be beneficial for law in a time of transformation, as it shows different paths and helps avoid going astray. However, these articles primarily provide an overview of a highly developed culture of procedural law. Perhaps readers will form their own views on the role of academia in legal development. Dr. Michael Stierner