Changes in the civil procedural law under the Civil Dispute Code

On May 21, 2015 the National Council of the SlovakRepublicadopted (among others) the proposal of the Civil Dispute Code (hereinafter referred to as the “CDC”), which shall become effective on July 01,2016. In this article we will focus on brief description of some changes to be implemented by the CDC.

I. Penalty for unreasonable prejudice objection (provision of Section 58 of CDC)

A novelty implemented by the CDC is an option of the court to impose a disciplinary penalty up to EUR 500, should the superior court not acquit a bullying or obviously unreasonable prejudice objection. It is a facultative institute and in relation to the objection’s reasonability and amount of the disciplinary penalty, the judge’s discretion shall be applied.

II. Personal delivery of documents (provisions of Sections 111, 114 and 116 of CDC)

In terms of CDC, in case the document cannot be delivered to the natural entity’s address registered in the registry of citizens of the Slovak Republic, the address of the foreigner’s residence location in the Slovak Republic and in case the document is to be delivered to a legal entity, to the address of its registered office registered in the Commercial Register or other public register, the document is deemed to be delivered on the day of return of the undelivered shipment to the court, even if the addressee is not aware thereof. The mechanism of personal delivery of documents (whether to natural persons or legal entities), should they not be reached at the place of delivery, even though they reside thereat, according to which the deliverer is obliged to notify the addressee that it will come to deliver the shipment again on a day and at the time specified in the notification and in case the new delivery attempt is unsuccessful, the deliverer shall deposit the document at the post office or the municipal authority (at which the addressee is entitled to collect the shipment within the collecting period), is not included in CDC.

The newly adopted legal regulation is supposed to unify the personal delivery and make it more effective by introduction of the proclaimed principle of strict responsibility for correctness of data registered in the public registers and liability for due course of proceedings.

Similar delivery fiction is included in the currently effective Civil Procedure Code, but only in relation to legal entities and natural persons - entrepreneurs. Regarding the natural persons - non-entrepreneurs, permanent or temporary residence address at which the documents are impossible to be delivered to, the act states the obligation to deliver the documents to them by their deposition in a judicial file, but only in case the place, where they take over the documents cannot be ascertained and they cannot be represented by a guardian.

However, CDC simultaneously states that in cases the document is deemed to be delivered on the day of return of an undelivered shipment to the court and a period, passage of which began as of the delivery of the shipment, was missed by the addressee because it had not come to its knowledge, the court shall remit such default, provided that the addressee had not been present at the delivery address (resulting from the public registers) for an excusable reason and it had not breached any legal obligation in relation thereto. This is a special legal regulation in relation to the general default remission and it moderates the influence of the strict objective responsibility for correctness of data in public registers in justified cases.

As far as the delivery of actions to natural persons is concerned, CDC contains special provisions regulating this issue. Should the court fail to deliver an action to a natural person to its delivery address (resulting from the public registers), the court is obliged to perform all the steps necessary for defendant’s real residence ascertaining. In case the court fails to deliver the action to the address ascertained by the procedure according to the previous sentence, it shall publicize the announcement on action filing on court’s official board and on its website. The action shall be deemed delivered after lapse of 15 days as of the publication of this announcement, even if the addressee is not aware thereof. It is reflecting the requirement of the constant case law of the Court of Justice of the European Union.

III. Securing the presence of a witness at judicial proceedings (provision of Section 197 of CDC)

According to the new legal regulation, the presence of proposed witness shall be primarily secured by a dispute party and secondarily by the court. Provided that the party proposing the witness is not able to secure the presence of the witness, it shall ask the court for its summons. The party securing the presence of the witness at the judicial proceedings shall notify the court and the opposite party thereof to enable the opposite party the preparation for witness’s examination. The purpose of the mentioned change is to consistently apply the negotiation principle, which governs the contradictory dispute proceedings.

IV. Material reasoning of the protest against a payment order (provision of Section 267 par. 1 of CDC)

CDC elaborates the obligation to materially justify the protest against the payment order. In the reasoning, the defendant shall be obliged to describe the decisive facts, which its defence against the alleged claim depends on. The defendant shall affix the documents, which it refers to, to the protest and/or identify the evidence in order to prove its statements. In terms of the explanatory report to the CDC, the institute of material reasoning shall be interpreted as the protest filed with reasoning on the merit itself, i.e. fulfilment of the obligation of statement and the evidentiary obligation. The long-term problems related to uncertainty how to judge the protest, the reasoning of which consists of only one sentence claiming that the defendant does not agree with the payment order, shall be solved by the mentioned regulation.

Provided that the protest is filed without a material reasoning, the court shall reject such protest by its resolution. The payment order shall become valid and effective on the day of validity of the resolution according to the previous sentence, i.e. by the delivery of such resolution. Taking into consideration that in terms of the provision of Section 357 letter c) of CDC, an appeal (odvolanie) is admissible against the resolution of the first-instance court on rejection of a motion on the merit, which is also the protest against the payment order, the defendant is entitled to file an appeal against such resolution. The issue of the payment order’s validity shall depend on decision on such appeal. In case the court of appeal (odvolací súd) confirms the contested resolution, the payment order shall become valid and effective on the day of validity of the decision on such appeal. On the contrary, if the court of appeal abolishes the contested resolution and returns the matter to the first- instance court for further proceeding, the first-stage court will be obliged to suspend the payment order and order the judicial proceeding.

V. Default judgment against the petitioner (provisions of Sections 278-281 of CDC)

The currently applicable Civil Procedure Code enables the court to issue the default judgment as a consequence of the defendant’s process passivity solely. On the contrary, CDC adheres to a principle, according to which the consequences of a contradictory dispute proceeding requires the process activity of both dispute parties in the same extent. Therefore it also sanctions the petitioner’s passive behaviour by loss of dispute in the form of dismissive default judgment. The passive behaviour is thought to be the petitioner’s failure to appear at the hearing on the matter, “even though it was duly and timely subpoenaed and in the summons for the hearing the petitioner was given instructions about the consequences of its failure to appear at, including the possibility to issue the default judgment and the petitioner had not excused its non-presence timely and by serious circumstances.”

The construction of the judgment abolition is the same as in case of the default judgment against the defendant (“should the petitioner miss the hearing in the matter, at which the default judgment was declared, for excusable reason, the court shall suspend this judgment by a resolution upon the petitioner’s proposal and order a new hearing”. The petitioner is entitled to file the proposal within 15 days as of the day the default judgment came to its knowledge.).

VI. Burden of evidence at weaker dispute party’s participation (provisions of Sections 295-296; provisions of Sections 319-320 of CDC)

In consumer disputes, the court shall be entitled to undertake the evidentiary initiative and perform even the evidence not proposed by a consumer, provided that it is necessary for the decision on the merit. Acquirement and securing of such evidence shall be performed by the court without a proposal. Provisions on proceeding’s concentration shall not apply to the consumer disputes, since the consumer shall be entitled to submit or identify all the facts and evidence in order to prove its statements until the announcement of the judgment on the merit at the latest. The abovementioned shall apply also to an employee in relation to individual labour disputes. For the purpose of acquirement or securing the evidence, the employer shall be obliged to provide the court with its cooperation, in case it can be fairly required to do so. In case of breach of this obligation, the court shall be entitled to impose a disciplinary penalty in terms of the provision of Section 102 of CDC (“The court might impose a disciplinary penalty on those, who obstruct the course of the proceedings particularly by failure to fulfil the obligation ordered by the court without excusing such inactivity timely and by serious circumstances.”) of up to EUR 500 and in case of repeated breach of obligation up to EUR 2,000.
Such deviation from the general regulation of the process substantiation in the form of inclination to the investigatory principle is reasoned by increased interference of the court as the law protection body with consumer and individual labour disputes. Simultaneously, the nature of the consumer and individual labour dispute, in which the consumer, as well as the employee, has a position of a weaker party, excludes the application of the strict proceeding’s concentration, which shall apply to the general dispute proceedings.

VII. Penalty for inadmissible or unreasonable appeal (dovolanie) (provision of Section 452 par. 2 of CDC)

CDC introduces a sanction in the form of a disciplinary penalty of up to EUR 500, should the court of appeal (dovolací súd) reject the filed appeal as inadmissible or unreasonable in cases, when it decides on appeal in a matter similar to a matter that had been the subject of proceeding before it on not less than five occasions, based on an earlier appeal filed by the same appellant. The disciplinary penalty shall be imposed by the court on an attorney, who had signed the respective appeal. The attorney shall be entitled to a regress claim against the client only in case the appeal was submitted upon the client’s separate written order.
The abovementioned provision is related to the historical tradition of the Slovak civil process, for example to the civil judicial code of 1911, part of which was the institute of the so called “litigation penalty”. The reason for such regulation implementation is to motivate the attorneys not to file apparently unnecessary appeals burdening the Supreme Court. Attorney as a law specialist is thought to carry out the function of the appeal idea first reduction and it should be able to evaluate bullying proposals of dispute parties for cassation survey.

The author of the article is Lenka Bogárová, associate in Konečná & Zacha's office in Bratislava