Varieties of Social Civil Procedure
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Varieties of Social Civil Procedure
The Reform of Civil Procedure Law in Central Europe in the Interwar Period
Editors: Löhnig, Martin
Schriften zur Rechtsgeschichte, Vol. 225
(2025)
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Abstract
After the collapse of the state structure in the centre of Europe as a result of the “Great War”, the new nation states often initially adopted the law that had previously applied on their territory. However, they soon sought to create their own legal order by enacting codifications in the central areas of law. The standardisation of national court constitutions and procedural law played a central role in this. Two very different models were available. On the one hand, there was the liberal German ›Reichszivilprozessordnung‹ of 1877, on the other hand, there was the Austrian ›Zivilprozeßordnung‹ of 1895, which established the model of social civil procedure. It was not intended to be a code for Rudolf Ihering’s »struggle for justice«, but to serve »as a state welfare institution« (Franz Klein) and a means of social policy. All Central European countries have embarked on the path towards a social civil process and have broken with the liberal tradition, albeit in very different ways.After the collapse of the state structure in the centre of Europe as a result of the “Great War”, the new nation states often initially adopted the law that had previously applied on their territory. However, they soon sought to create their own legal order by enacting codifications in the central areas of law. The standardisation of national court constitutions and procedural law played a central role in this. Two very different models were available. On the one hand, there was the liberal German ›Reichszivilprozessordnung‹ of 1877, on the other hand, there was the Austrian ›Zivilprozeßordnung‹ of 1895, which established the model of social civil procedure. It was not intended to be a code for Rudolf Ihering’s »struggle for justice«, but to serve »as a state welfare institution« (Franz Klein) and a means of social policy. All Central European countries have embarked on the path towards a social civil process and have broken with the liberal tradition, albeit in very different ways.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Martin Löhnig: Civil Procedure Law in Central Europe in the Interwar Period | 5 | ||
| I. Liberal vs. Social Civil Procedure | 5 | ||
| II. Drafts and Reforms in the Interwar Period | 5 | ||
| III. Questions and Answers | 6 | ||
| 1. Initial Situation | 6 | ||
| 2. Forces and Arguments | 7 | ||
| 3. Content | 8 | ||
| Table of Contents | 11 | ||
| Martin Löhnig: Battle Rule or Welfare Institution? German Civil Procedure Law in the Interwar Period | 13 | ||
| I. Starting Point: The Imperial Code of Civil Procedure of 1879 | 13 | ||
| II. The Weimar Discourse: Liberal Procedural Law vs. Social Procedural Law | 13 | ||
| III. Reform of German Civil Procedure Law in the Interwar Period | 16 | ||
| 1. 1st Reform Commission of the Reich Ministry of Justice | 16 | ||
| 2. The Prelude: District Court Amendment and Emergency War Law | 17 | ||
| 3. 3rd Emminger Amendment 1924 | 19 | ||
| 4. 4th ZPO Reform 1933 | 22 | ||
| IV. Orality vs. Decision on the Basis of the File | 23 | ||
| 1. Legislation | 23 | ||
| 2. Science | 26 | ||
| V. Conclusion | 29 | ||
| 1. A Constantly Repeating Struggle | 29 | ||
| 2. Guiding Principles | 30 | ||
| Kamila Staudigl-Ciechowicz: Civil Procedure Law in Austria in the Interwar Period | 33 | ||
| I. Initial Situation | 33 | ||
| II. Constitutional Premises | 36 | ||
| III. The CCP 1895 and Further Developments in the Interwar Period | 39 | ||
| 1. The CCP 1895 | 39 | ||
| 2. Trends in the Interwar Period | 41 | ||
| 3. Excursus: Draft of the Law on Acceleration of Proceedings (Prozeßbeschleunigungsgesetz) | 47 | ||
| 4. The CCP 1895: Basic Principles and Selected Characteristics | 49 | ||
| a) Strengthening the Position of the Judge and Social Aspects | 49 | ||
| b) Orality, Immediacy, Publicity | 52 | ||
| c) Procedure versus Settlement | 56 | ||
| d) Compulsory Legal Representation | 56 | ||
| e) Legal Remedy | 58 | ||
| f) Foreclosure | 60 | ||
| IV. Concluding Remarks | 63 | ||
| Eszter Cs. Herger: In the Service of “Truth”. Civil Procedure Law in Hungary in the Interwar Period | 65 | ||
| I. Significance of the Research Topic from a Legal-Theoretical Point of View | 65 | ||
| II. Caesura or Legal Continuity? | 66 | ||
| III. The Sources of Traditional Hungarian Procedural Law in the Central European Context | 68 | ||
| IV. The Modern Hungarian Code of Civil Procedure and its Scientific Evaluation | 73 | ||
| V. Modifications of the Hungarian Code of Civil Procedure in the First Half of the 20th Century | 76 | ||
| VI. Conclusions | 82 | ||
| Anna Stawarska-Rippel: The Phenomenon of Departing from Legal Solutions of Expert Bodies in the Legislative Process – the Polish Interwar Experience. Historical or Current Dilemmas? | 85 | ||
| I. Introduction | 85 | ||
| II. What is to Be Done with the “Old” Law? | 86 | ||
| III. Efficiency, Reliability, and Concentration of Civil Procedural Material in Legal History from the Comparative Perspective | 88 | ||
| 1. Obligatory Response to the Statement of Claim and Pre-Trial Proceedings | 90 | ||
| 2. Obligation to Tell the Truth, Discretionary Power of a Judge and Beginnings of the So-Called Abuse of Procedural Rights Clause as a Legal Instrument | 91 | ||
| IV. Final Remarks | 93 | ||
| Petra Skřejpková: The Development of Civil Procedure in the Interwar Period | 95 | ||
| I. Introduction | 95 | ||
| II. Triumphant Nation | 95 | ||
| 1. Cisleithania | 97 | ||
| 2. Transleithania | 99 | ||
| III. On the Threshold of a New Era | 100 | ||
| 1. Extra-Contentious Proceedings | 101 | ||
| IV. Preparation of the New Codification | 102 | ||
| 1. Procedure for the Preparation of the New Codification and the Codification Commission | 102 | ||
| 2. The Content and Structure of the Individual Bills | 106 | ||
| a) The Draft Introductory Law | 107 | ||
| b) The Draft Law on Court Jurisdiction | 107 | ||
| 3. Differences in the Draft Code of Civil Procedure | 109 | ||
| a) Part One – General Provisions | 109 | ||
| b) Part Two – Proceedings before District Courts | 110 | ||
| c) Part Three – Proceedings before Regional Courts | 110 | ||
| d) Part Four – Legal Remedies (Appeal) | 110 | ||
| e) Part Six – Special Types of Proceedings | 112 | ||
| f) Part Seven – Proceedings in Matrimonial Matters | 112 | ||
| g) Part Eight – Proceedings to Challenge the Matrimonial Parentage of a Child | 112 | ||
| V. Unification – Newly Adopted Partial Amendments to Civil Procedure | 113 | ||
| VI. Epilogue | 115 | ||
| Mirela Krešić/Dunja Milotić: Civil Procedure Law in Central Europe. Kingdom of Serbs, Croats and Slovenes/Yugoslavia (1918–1941) | 117 | ||
| I. Legal Particularism in Civil Procedure Law | 117 | ||
| II. Drafting the Unified Yugoslav Act on Judicial Proceeding in Civil Litigations | 119 | ||
| 1. Coming into Force and Beginning of Application of AJPCL | 123 | ||
| 2. Contentious Issues as a Consequence of Different Legal Traditions | 125 | ||
| 3. The Linguistic Issue in the Process of Drawing up the Legislative Bill | 127 | ||
| III. Characteristics and Principles of the Yugoslav AJPCL | 129 | ||
| 1. The Principle of Hearing Both Parties (audiatur et altera pars) | 131 | ||
| 2. The Principle of Free Evaluation of Evidence and Material Truth | 133 | ||
| 3. The Principle of Necessary Representation through an Attorney | 134 | ||
| 4. The Principle of Disposition | 136 | ||
| 5. The Principle of Orality and Directness | 138 | ||
| 6. The Open Court Principle | 139 | ||
| 7. Unity of Oral Hearing and the Principle of Concentration | 140 | ||
| IV. Conclusion | 142 | ||
| Bibliography | 145 | ||
| List of Authors | 167 |