Truth and Efficiency in Civil Litigation

In the pursuit of justice, truth always plays a prominent role. In most legal systems, elaborate rules on the taking of evidence try to guarantee that an accurate, factual basis is used for the application of the law. Such rules are the core of most methods of adjudication and they are the main theme of the present volume, which focuses specifically on the rules of evidence within the context of efficiency in civil proceedings.
Editor(s):
C.H. van Rhee, Alan Uzelac
Series:
Ius Commune Europaeum
Volume:
111
book | published | 1st edition
December 2012 | xviii + 402 pp.

Paperback
€80.-


ISBN 9781780681337

Details

In the pursuit of justice, truth always plays a prominent role. Few if any legal systems are willing to waive the right to claim that the results of their legal processes are fair, just and above all based on the truth. In most legal systems, elaborate rules on the taking of evidence try to guarantee that an accurate, factual basis is used for the application of the law. Such rules are the core of most methods of adjudication and they are the main theme of the present volume, which focuses specifically on the rules of evidence within the context of efficiency in civil proceedings. This is not without a reason. Apart from the fact that a link between the pursuit of truth and efficiency has been emphasised since the time of ancient Rome, all legal systems must find the right balance between the amount of time and money invested in the civil trial and the thoroughness of the proof-taking stage in litigation. Obviously, a system of proof that can produce trustworthy results is in need of considerable investment of time and resources, but the amount of time available and resources is not without its limits. If a proper balance between truth and the necessary time and resources cannot be found, the whole process of litigation may be endangered.

Chapters

Table of Contents (p. 0)

INTRODUCTION

The Pursuit of Truth in Contemporary Civil Procedure: Revival of Accuracy or a New Balance in Favour of Effectiveness? (p. 1)

TRENDS AND CHALLENGES IN WESTERN EUROPE: THE NETHERLANDS, ITALY

More Facts, Less Evidence: The Growing Importance of Fact-gathering and the Demise of the Traditional Presentation of Evidence in Courts in the Netherlands (p. 11)

The Relevance of Truth: The Case of Mediation versus Litigation (p. 27)

The Antique Shop of Italian Civil procedure: Oath and Confession as Evidence (p. 47)

The Judgment on Facts in Italian Summary Proceedings (p. 59)

Expert Testimony in the Italian Judicial System: Characteristics, Questions and Comparative Views (p. 81)

Inspection by the Court as a Means of Evidence in Italy and The notorium facti permanentis: A Balance between Efficiency and Due Process of Law (p. 97)

COMMON LAW PERSPECTIVE: USA, SOUTH AFRICA

The Demise of Trial in American Civil Procedure: How It Happened, Is It Convergence with European Civil Procedure? (p. 117)

Extremism in the Pursuit of Truth is our ‘Virtue’: The American Infatuation with Broad Discovery (p. 165)

Fact- and Truth-Finding in South African Civil Procedure (p. 189)

SOCIALIST AND POST-SOCIALIST PERSPECTIVES: CHINA, ROMANIA, SLOVENIA, RUSSIA

Efficiency and Truth in Civil Fact-finding: The Evolving Role of the Judge in Mainland China and Hong Kong and the Effect of the Policy Preference for Court Mediation on Fact-finding in the People’s Courts (p. 229)

Rules of Evidence in Romanian Civil Procedure and Their Impact on Truth and Efficiency (p. 261)

Efficiency versus Fairness in Civil Procedure in Slovenia (p. 283)

The Jurisdiction of Russian Courts in Civil Matters (p. 301)

Truth and Efficiency in Russian Civil Procedure (p. 313)

TRANSNATIONAL PERSPECTIVE: TRUTH-FINDING AT INTERNATIONAL TRIBUNALS

Taking and Administering Evidence beyond the State - Some Reflections on Procedural Issues before the Court of Justice of the European Union (p. 329)

PURSUIT OF TRUTH AND THE HISTORY OF CIVIL PROCEDURE: ROMAN LAW PERSPECTIVE

The Pursuit of Truth and Efficiency in Roman Arbitration Proceedings (p. 357)

Propter celeritatem dirimendarum litium – Presumptions and Stipulatio in Roman Law (p. 375)

EXPERIMENTAL APPROACH TO TRUTH-FINDING

Immediate Judgments in Civil Proceedings in the Netherlands – An Experiment (p. 389)

About the series:

Ius Commune Europaeum

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The ‘Ius Commune Europaeum’ series focuses on the common foundations of the legal systems of the Member States of the European Union. It includes horizontal comparative legal studies as well as studies on the effect of EU law, treaties and international regulation within the national legal systems. All substantive fields of law are covered.

The series is published under the auspices of METRO, the Institute for Transnational Legal Research at the Maastricht University.

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Editorial Board
Prof. Dr. J. Smits (chair - Tilburg University, the Netherlands)
Prof. Dr. M. Faure (Maastricht University and Erasmus University Rotterdam, the Netherlands)
Prof. Dr. E. Vos (Maastricht University, the Netherlands).


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