Electronic Technology and Civil Procedure: New Paths to Justice from Around the World

331 Pages·2012·5.097 MB·English

by  Masanori Kawano (auth.), Miklós Kengyel, Zoltán Nemessányi (eds.)

Electronic Technology and Civil Procedure
IUS GENTIUM
comparative perspectives on law and justice
VOLUME 15
Series Editors
Mortimer N.S. Sellers
University of Baltimore
James Maxeiner
University of Baltimore
Board of Editors
Myroslava Antonovych, Kyiv-Mohyla Academy
Nadia de Araújo, Ponti fi cal Catholic University of Rio de Janeiro
Jasna Bakšic-Muftic, University of Sarajevo
David L. Carey Miller, University of Aberdeen
Loussia P. Musse Félix, University of Brasilia
Emanuel Gross, University of Haifa
James E. Hickey, Jr., Hofstra University
Jan Klabbers, University of Helsinki
Cláudia Lima Marques, Federal University of Rio Grande do Sul
Aniceto Masferrer, Univeristy of Valencia
Eric Millard, West Paris University
Gabriël Moens, Murdoch University
Raul C. Pangalangan, University of the Philippines
Ricardo Leite Pinto, Lusíada University of Lisbon
Mizanur Rahman, University of Dhaka
Keita Sato, Chuo University
Poonam Saxena, University of Delhi
Gerry Simpson, London School of Economics
Eduard Somers, University of Ghent
Xinqiang Sun, Shandong University
Tadeusz Tomaszewski, Warsaw University
Jaap de Zwaan, Erasmus University Rotterdam
For further volumes:
http://www.springer.com/series/7888
Miklós Kengyel (cid:129) Zoltán Nemessányi
Editors
Electronic Technology
and Civil Procedure
New Paths to Justice from Around the World
Editors
Miklós Kengyel Zoltán Nemessányi
Department of Civil Procedure Department of Civil Procedure
and Law Sociologie and Law Sociologie
University of Pécs University of Pécs
Pécs, Baranya, Hungary Pécs, Baranya, Hungary
ISBN 978-94-007-4071-6 ISBN 978-94-007-4072-3 (eBook)
DOI 10.1007/978-94-007-4072-3
Springer Dordrecht Heidelberg New York London
Library of Congress Control Number: 2012942329
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Contents
Part I Adapting Systems of Civil Procedure to Electronic Technology
1 Electronic Technology and Civil Procedure – Applicability
of Electronic Technology in the Course of Civil Procedure ................ 3
Masanori Kawano
2 The Impact of Digital Information on American
Evidence-Gathering and Trial – The Straw
That Breaks the Camel’s Back? ............................................................. 29
Richard L. Marcus
3 Technology and Civil Litigation in the United States
in the Twenty-First Century................................................................... 49
Paul D. Carrington
4 The Future of the Traditional Civil Procedure .................................... 67
Petrônio Calmon
5 Electronification of Civil Litigation and Civil
Justice – The Future of the Traditional Civil
Procedure Facing the Electronification ................................................. 89
Nikolaj Fischer
6 Proceedings on the Web .......................................................................... 101
José Eduardo de Resende Chaves Júnior
7 Digital Technology and the Character of Civil Procedure .................. 125
Viktória Harsági
vii
viii Contents
Part II Speci fi c Applications of Electronic Technology Applications
to Court Proceedings: Service and Other Applications
of Communications Technology Issues
8 Electronic Service of Documents National
and International Aspects ...................................................................... 137
Fernando Gascón Inchausti
9 Enforcement of a Claim with the Support of the New
Information Technology. Protection of the Creditor
and the Debtor ......................................................................................... 181
Michele Angelo Lupoi
10 Remarks on the Polish Electronic Proceedings
by Writ of Payment ................................................................................. 211
Robert Kulski
11 Enforcement of a Claim with the Support of the New
Information Technology in the European Union,
Romanian Case Study............................................................................. 221
Pantilimon Rikhárd-Árpád
Part III Speci fi c Applications of Electronic Technology Applications
to Court Proceedings: Documentary Evidence
and Other Applications of Information Technology
12 Electronic Documents. Security and Authenticity ............................... 233
Helmut Rüßmann
13 Modern Communications and Information Technology
and the Taking of Evidence .................................................................... 261
Georg E. Kodek
14 Some Remarks Concerning the Probative
Weight of Electronic Documents ........................................................... 279
Dimitris Maniotis
15 Applied Technology in Litigation Proceedings
(The Electronic Discovery Reference Model) ....................................... 285
Zoltán Ambrus
16 DNA Databases: Methodological Approach, Family
Searches and DNA Data Protection System in the EU ........................ 295
María José Cabezudo
17 Applications and Trends of Digital/Electronic
Evidence in Chinese Litigation .............................................................. 305
Baosheng Zhang and Huangxun Chen
About the Contributors .................................................................................. 325
Introduction
Peter Gottwald
I
In the past decades, modern means of electronic communication, data processing
and data transmission have had a considerable impact both on the business world
and on private life. These technological developments now are increasingly affecting
courts and civil proceedings. E-commerce inevitably entails e-justice.
1. The IAPL realised the consequences of electronic communication for court
proceedings early on. In 1999, at the Vienna World Congress on procedural law
Helmut Rüßmann and W outer de Vos reported on the “Challenge of Information
Society” to civil litigation. In Salvador/Bahia, Brazil 2007, J anet Walker, Garry
Watson, Emmanuel Jeuland and A ngel Landoni Sosa reported on new information
technologies in civil procedure. These were excellent reports that have outlined
all basic problems. Yet there is a need for more detailed discussion, not least
because of the continuing technological development and the practical experience
already gained in some countries.
2. For politicians, electronic justice relates primarily to the creation of information
systems for the organisation of enormous amounts of legal questions and data.
Such systems are considered a competitive advantage within the global economy.
The German website w ww.justiz.de , for instance, provides online informa-
tion services ranging from alternative dispute resolution to dates of compulsory
auctions of real estate. It offers information on federal law and the law of the
Länder , and access to the commercial register and the insolvency register. More
than 1.4 million inquiries into the commercial register are handled online every
day. Simply by using a personal computer, notary publics can browse the land
register online and can obtain copies of entries with full probative value.
Regarding the European Union, in March 2009 the European Council accepted
an e-justice action plan for the period from 2009 to 2013. Part of this plan is the
creation of a uniform “European e-Justice Portal” to simplify the use of informa-
tion and communication technologies in the fi eld of justice at European level. On
17th July 2010, the European portal’s website was launched. The fi rst version
ix
x Introduction
already contains more than 12,000 pages with information and links relating of
the law and legal practice of EU Member States.
3. As an example from outside of Europe the civil branch of the New York State
Supreme Court has introduced mandatory e- fi ling in 24 May 2010 for certain
commercial cases. At the same time, very detailed state wide rules for fi ling were
enacted.
In Germany, the only widely used e- fi ling system to date is that for online
applications for national payment orders. Lawyers have been required to use this
electronic device since December 2008. In addition, briefs may be fi led elec-
tronically with all Federal Supreme Courts.
With regard to ordinary claims only Bremen, Brandenburg, Baden-
Württemberg and Hesse have introduced an e- fi ling with all or at least some civil
courts, all other German L änder are hesitant to introduce a e- fi ling system. They
are not content to introduce merely a closed system between courts and lawyers
by way of a so-called E lektronisches Gericht und Verwaltungspostfach (“elec-
tronic court and administration mailbox”). Instead, they want to prescribe the use
of claim forms in order to drastically reduce the work load of court registries.
The publicly available papers on the preparations do not openly state this, but the
of fi cials in charge speak of the introduction of “x Justiz-Datensätze ” (xJustice
data sets). These would be used to automatically fi ll in the fi rst page of court
fi les, the addresses of information letters to the opposing party and their lawyers
and so on. But it is obvious that this could happen only if claims, defences and
further replies were to be fi led in a strictly formalized manner, at least on the
front page.
4. On a global level, UNCITRAL is working to create an online dispute resolution
system relating to electronic cross-border commercial transactions. It is designed
for both business-to-business as well as for business-to-consumer transactions.
All these developments of electronic communication will impact on classic
civil proceedings and could be a challenge for the overall quality of justice.
II
This volume contains the submissions for the IAPL colloquium on “Electronic
Justice – Present and Future”, which took place during September 23rd–25th 2010 in
Pécs, Hungary. For this publication, the submissions have been arranged differently
and more systematically.
1. The fi rst part of this book deals with general questions: does the increased or
even general use of electronic communication have an impact on the traditional
procedural principles? Is it, without more, reconcilable with the right to a fair trial?
Will IT help the judge in fi nding a just decision or is there the danger that judges
become just subsumtion machines by applying preformulated text components?