Nobody's perfect : comparative essays on appeals and other means of recourse against judicial decisions in civil matters
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Bibliographic Information
Nobody's perfect : comparative essays on appeals and other means of recourse against judicial decisions in civil matters
（Ius commune, 129）
Intersentia, c2014
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"METRO"
"The seventh Public and Private Justice Course and Conference ... held at the Inter-University Centre in Dubrovnik from 28 to 31 May 2012."--Acknowledgements
Includes bibliographical references
"NUR 822"--T.p. verso
Description and Table of Contents
Description
Nobody's perfect. Nevertheless, public confidence in the justice system depends on the belief that decisions made in the judicial processes are reasonably correct and accurate. Since no one has a monopoly on ultimate correctness, a large part of trust in the correct and objective nature of outcomes of the judicial process is rooted in the trust in the mechanisms of quality control. However, the specific nature of the judicial process, encapsulated in the principle of judicial independence and in the right to fair and swift adjudication, requires specific control mechanisms that have to achieve a sensitive balance between various aims and goals. Based on these observations, the present book focuses on the systems of appellate control of court judgments. The intention of the editors is to explore the relationship between the different approaches to appeals in national civil justice systems and their impact on the overall efficiency and effectiveness of the legal protection of individual rights.
Recognising that any approach to appeal has to strike a balance between the ideals of correctness, legitimacy and impeccable legal reasoning, on the one hand, and the ideals of legal certainty, effectiveness and efficiency, on the other, the contributors to this book were invited to discuss how contemporary justice systems deal with this issue. This allows an evaluation of whether the issues in debate are rather disparate or whether, on the contrary, the procedural philosophies and approaches to appeal in different legal systems are converging.
Table of Contents
List of Authors List of Abbreviations Acknowledgements INTRODUCTION A. Uzelac and C.H. van Rhee APPEALS AND OTHER MEANS OF RECOURSE AGAINST JUDGMENTS IN THE CONTEXT OF THE EFFECTIVE PROTECTION OF CIVIL RIGHTS AND OBLIGATIONS 1. General introduction 2. Regular Appeals and Effective Legal Protection 3. Recourse to the Highest Judicial Authorities - 'Secondary Appeal' or the Review of Court Judgments at Third Instance 4. Special Issues Regarding Appeals in Specific Sectors: Consumer ADR, International Jurisdiction, Family Law 5. Conclusion DEFINING THE ISSUES: CIVIL APPEAL AND FAIR TRIAL RIGHTS J.T. Johnsen APPEALS AND 'TRIAL WITHIN REASONABLE TIME': A EUROPEAN PERSPECTIVE 1. Introduction 2. European Standards for Time Management. Outline of the Case Law of the ECtHR 3. How Swift are the Appellate Courts in Europe? 3.1. Questions and Data 3.2. Comparisons of Disposition Time at Different Instances 3.3. DT and People's Use of the Civil Appeal System 3.4. DT in Civil Appeals Compared to DT in Criminal Appeals 4. Systemic Demands on Time Management by the ECtHR Bibliography G.E. Kodek APPELLATE PROCEEDINGS IN CIVIL CASES - TRADITIONAL REMEDIES IN LIGHT OF CONTEMPORARY PROBLEMS 1. Introduction 2. The Purpose of Appeals 3. Some Terminological Observations 4. The ECHR and Appeals 5. Some Statistics 6. Scope of Review 7. The Composition of the Court 8. Some Comparative Tendencies 9. Technical Developments 10. Conclusion Bibliography L. van der Baaren, J. Huijts, L. Molenaars and F. Fernhout WEALTH SHIFT AS A CRITERION TO ASSESS THE IMPACT OF APPELLATE PROCEEDINGS . APPLIED TO DUCH CIVIL APPEAL 1. Introduction 2. Civil Appeal in the Netherlands 2.1. General Remarks 2.2. Court System 2.3. Procedure in Appeal 3. Wealth Shift as Indicator of the Impact of Appeal 3.1. Wealth Shift 3.2. Advantages 3.3. Methodology 4. Research 4.1. Source of the Sample 4.2. Representativeness of the Sample 4.3. Coding 5. Results 5.1. Unus iudex Cases and Full Court Cases 5.2. Cantonal Sector and Civil Sector 5.3. The Courts of Appeal 5.4. Wealth Shift and Costs of the Administration of Justice 6. To Conclude Bibliography LESS APPEAL, MORE EFFICIENCY N. Andrews RESTRICTIONS ON APPEALS IN ENGLISH LAW 1. Introduction 2. Time Limits for Filing a Notice of Appeal 3. Permission to Appeal 4. Permission for a Second Appeal 5. Security for the Costs of an Appeal 6. No Automatic Suspension ('Stay') of Judgment when Appeal is Brought 7. Criteria for Allowing an Appeal 8. Questions of Fact 9. Questions of Fact and Inadequately Reasoned Decisions 10. Questions of Discretion 11. Case Management Appeals: A 'Light Touch' Approach 12. New Points of Law Raised on Appeal 13. Prospective Overruling 14. Issues which have ceased to be 'Live' Disputes 15. Exceptional Possibility to Re-open an Appeal 16. Re-opening Cases on Ground of Alleged Fraud 17. Abuse of Process and Collateral Attack 18. Concluding Summary Bibliography A. Saltzman APPELLATE REVIEW IN CALIFORNIA: LIMITS ON THE RIGHT TO RECOURSE 1. The Structure of the California Courts 2. The Right to Appellate Review 3. Limits on the Right to Appellate Review 4. Limits on the Scope of Appellate Review 5. Conclusion R.L. Marcus APPELLATE REVIEW IN THE REACTIVE MODEL: THE EXAMPLE OF THE AMERICAN FEDERAL COURTS 1. The Idealized Extreme Arrangements 2. Reflections on Realities Outside US 3. General Arrangement of the US Judicial System 4. Debatable Status of Appellate Review in the US System 5. Timing of Appellate Review 6. Exceptions to the 'Final Judgment' Rule 7. Content of Appellate Review 8. Composite Effect Bibliography C.H. van Rhee APPEAL IN CIVIL AND ADMINISTRATIVE CASES IN THE NETHERLANDS 1. General Part 1.1. Court System in the Netherlands 1.2. Civil Litigation in General 1.3. Appeal in Civil Litigation 1.3.1. Accessibility of Civil Appeal 1.3.2. Examination of Civil Appeals 1.4. Administrative Litigation in General 1.5. Judicial Review (Administrative Litigation) 1.5.1. Accessibility of Judicial Review 1.5.2. Examination in Judicial Review Proceedings 1.6. Cassation Proceedings 1.6.1. Cassation in Civil litigation 1.6.1.1. Accessibility of Cassation Proceedings 1.6.1.2. Examination in Cassation Proceedings 1.6.2. Cassation in Administrative Litigation 2. Specific Part 3. Final Remarks Bibliography MORE APPEAL, LESS EFFICIENCY P.C.H. Chan CIVIL APPEALS AND OTHER MEANS OF RECOURSE AGAINST JUDGMENTS IN CHINA: A CRITICAL REVIEW OF THE PROCEDURAL ISSUES 1. Introduction 1.1. Key Legislations and Judicial Interpretations 1.2. The Position of the Courts within the Chinese Constitutional Structure and the Bureaucratic Hierarchy of the Chinese Judiciary 1.3. The Lack of Adjudicatory Independence and its Impact on Appellate Review 2. Civil Appeals in China 2.1. An Outline of the Appellate Procedures 2.2. The Nature of Chinese Appellate Review - Real Appeal or de novo Hearing? 2.2.1. Fact-finding at the Appellate Level 2.2.2. Power of the Appellate Court to Review beyond the Remit of the Request for Appeal 2.2.3. Entertaining New Evidence at the Appellate Level 2.2.4. Entertaining New Points of Law at the Appellate Level 2.2.5. A Complete Review System with Chinese Characteristics 3. The Adjudication Supervision Procedure 3.1. The Nature of Adjudication Supervision and its Underlying Policy Considerations 3.2. Adjudication Supervision: A Critical Review of the Procedural Issues 3.2.1. Adjudication Supervision through Party Application 3.2.2. Adjudication Supervision: Ex officio Power of the Court to Re-open Final Judgments 3.2.3. Procuratorial Supervision: Enhancing Accountability or Violation of Adjudicatory Autonomy? 3.2.3.1. Procuratorial Protest 3.2.3.2. Procuratorial Recommendation 3.2.4. Adjudication Supervision through Non-party Application 3.3. Issues with Enforcement of an Effective Judgment Challenged under the Adjudication Supervision Procedure 3.4. Critical Examination of the New Powers of the Chinese Procuratorate 3.5. Interference from other Institutions 3.6. Recent Statistics on Civil Appeals and Re-adjudication 3.6.1. 2012 Statistics: from 1 January to 30 September 2012 3.6.2. Statistics in 2011 3.6.3. Statistics in 2010 3.6.4. Statistics in 2009 4. The Absence of Finality in Chinese Civil Justice 4.1. The Importance of Finality 4.2. The Pre-eminence of Substantive Justice - When True Finality Becomes an Obstacle 5. The Role of Court Mediation in Civil Appeal 5.1. Court Mediation at the Appellate Stage 5.2. Why is Court Mediation Popular among Judges? 5.3. Distorted Court Mediation: Subtle Coercion 6. Concluding Remarks Bibliography J. Sladic APPEALS IN CIVIL PROCEDURE IN SLOVENIA: WHY THE RECENT REFORMS OF CIVIL PROCEDURE DID NOT MANAGE TO AVOID THE ENDLESS CYCLE OF REMITTALS 1. The State of Legislation and Jurisprudence (de iure condito) 1.1. Principle of Two Levels of Jurisdiction 1.2. Appellate Proceedings as a Mere Review of the Challenged Decision of the First Instance 2. Reform of Appellate Proceedings in Labour and Social Security Courts in 2004 as an Experiment in Appellate Proceedings 3. The Reasons for the 2008 Reform of Appellate Proceedings 4. The Reformed Appellate Proceedings 5. Plus que ca change, ... 6. Appellate Proceedings under Influence of the ECHR - How the Common Law Approach to Fair Trial Produces Unexpected Mutations in Civil Law Jurisdictions (Slovenian Experience) 7. Not Considered an Option - Second Appeal Closes the Case 8. Conclusion Bibliography A. Uzelac FEATURES AND SHORTCOMINGS OF APPELLATE REVIEW IN CIVIL AND ADMINISTRATIVE CASES IN CROATIA 1. Introduction - An Overview of the National Court System 2. Legal Sources Regulating Appellate Procedure in Civil, Commercial and Administrative Courts 3. Typology of Legal Remedies in National Law and Doctrine 3.1. Means of Review of Judicial Decisions in Civil and Commercial Cases 3.2. Means of review of decisions in administrative suits 3.3. Theory of legal remedies: general notion and classifications 4. Main Features of Appeals in Civil and Commercial Cases 4.1. Regular Appeal as a Universal, Fundamental Right? 4.2. The Object of Recourse: Which Decisions may be Appealed? 4.3. The Scope of Appeal 4.4. Authorised Appellants and the Content of Appellate Pleadings 4.5. Time Limits for Launching Appeals 4.6. Grounds for Appeal 4.7. Appeals Procedure 4.8. Methods of Decision-making on the Merits of an Appeal 4.9. Ordering (Sequence) of Different Means of Recourse 4.10. The Powers of the Appellate Court 4.11. Appeals and Enforceability of Decisions 4.12. The Costs of Appeal - Court Fees 5. Means of Recourse in Administrative Disputes - Recent Developments 6. Conclusion: Open Issues for Future Reforms Bibliography F. Ferrari THE RECENT AMENDMENTS TO THE ITALIAN APPEALS SYSTEM 1. The Ever-Changing Procedural Rules on Appeals 2. The Reform of 2011: Law No. 183 of 12 November 2011 3. The Reform of 2012: Law-Decree No. 83 of 22 June 2012 4. The First 'Filter' of Admissibility: The New Requirements for the Contents of an Appeal 5. The Second 'Filter' of Admissibility: The Requirement of a Reasonable Likelihood of Success 6. Appeal against a First Instance Judgment at the Supreme Court 7. A Stricter Prohibition against the Submission of New Evidence on Appeal. Novum judicium or revisio prioris instantiae? 8. An Inadequate Reform Bibliography RECOURSE TO THE HIGHEST JUDICIAL AUTHORITIES: HOW MUCH, AND WHY? T. Domej WHAT IS AN IMPORTANT CASE? ADMISSIBILITY OF APPEALS TO THE SUPREME COURTS IN THE GERMAN-SPEAKING JURISDICTIONS 1. Introduction 2. Development of the Criteria for Filtering Appeals to the Supreme Courts 3. Identifying 'Important' Questions of Law 4. Conclusion Bibliography A. Galic RESHAPING THE ROLE OF SUPREME COURTS IN THE COUNTRIES OF THE FORMER YUGOSLAVIA 1. Introduction 1.1. Revision as a Further Appeal on Points of Law 1.2. What Purpose Does the Supreme Court Serve? 1.3. Attempts at Legislative Reform and a Judicial 'Self Defence' against Excessive Overburdening 2. The Paradigm Shift: The 'Leave to Appeal System' and Guidance and Developing Law as the Prevailing Tasks of the Supreme Court 3. A Welcoming Embrace of the New (Public) Role of the Supreme Courts or only a Half-hearted one? 4. Which Court Should Decide whether to Grant Leave to Appeal and in what Kind of Procedure? 5. Does a Ruling Rejecting a Motion for Leave to Appeal Need to Contain Reasons? 6. Access to the Supreme Court in the Case Law of the European Court of Human Rights 6.1. General Principles 6.2. Obligatory Representation by a Qualified Lawyer 6.3. Uniform Application of Law and Promotion of its Development as a New Role of Supreme Courts 6.4. Omission of Reasons in a Supreme Court's Ruling not to Grant Leave to Appeal 6.5. Respect for the Principle of Res Iudicata 7. Conclusion Bibliography P. Bravo-Hurtado TWO WAYS TO UNIFORMITY: RECOURSE TO THE SUPREME COURT IN THE CIVIL LAW AND THE COMMON LAW WORLD 1. Introduction 2. On Comparison of Supreme Courts 3. Recourse of Last Resort in Comparative Perspective. Goals and Access 4. Two Ways to Uniformity 5. What is the Best Way? The Leap of Faith 6. Historical Option 7. Conclusion Bibliography APPEALS IN SPECIAL CASES C. Hodges CONSUMER ADR AND APPEALS 1. CDR Systems 2. The EU's Adoption of ADR and CDR 3. Issues 4. The Rehearing Issue 5. The Issue of Who Makes the Law 6. Conclusion Bibliography G. Gioia RECOURSE AGAINST JUDGMENTS ON INTERNATIONAL JURISDICTION 1. Introduction 2. Decisions on International Jurisdiction in England 3. Decisions on International Jurisdiction in Germany 4. The French Dystem of contredit 5. Decisions on International Jurisdiction in Italy 6. Conclusions and Questions Bibliography S. Aras THE POWERS OF THE APPELLATE COURT IN THE CONTEXT OF THE EFFECTIVE PROTECTION OF A CHILD'S RIGHT TO MAINTENANCE 1. Introduction 2. Regulation of Procedure in Child Maintenance Cases in Croatia: General Remarks 3. Appellate Procedure in Child Maintenance Cases in Croatia 4. Reformatory (Revision) vs. Cassation Powers of Croatian Appellate Courts: Collected Data 5. Amendments to the Civil Procedure Act of 2008 and 2011 6. Conclusion: Evaluation of the Croatian Legal System and Practice Bibliography
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