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Preliminary dispute hearing in terms of one of newly adopted procedure codices in Slovakia

On May 21, 2014 the National Council of the SlovakRepublicadopted proposals of three procedure codices resulting from long-term work of the Recodification Commission for the Civil Procedure Code, created by the minister of justice in July 2012. Civil Dispute Code (hereinafter referred to as the “CDC”), Civil Non-Dispute Code and Administrative Judicial Code in wording as adopted by the parliament shall become effective on July 01, 2016. In this article we will closely examine some of the significant changes to be implemented by the CDC.

The Civil Procedure Code has been amended more than 80 times, which naturally led to violation of its internal consistence and relationship between its parts. The aim of recodification is not only acceleration of the proceedings, but also establishment of such rules that would rationalize it. The said is to be achieved, among others, by implementation of consistent process concentration and increase in demands on process activity of dispute parties. Civil procedure will be supplemented by process foreclosure, in consequence of which a party which fails to perform and act within the stated period shall lose its right to perform it any time later, adoption of delivery fiction with respect to unenterprising individuals as well, imposing of fines in case of obviously unreasonable prejudice objections, compulsory legal representation determined by the dispute matter and revision of the extraordinary appeal institute (by reason of discrepancy of its current aspects with practise of the European court of Human Rights).

The newly adopted institute of the preliminary dispute hearing shall represent an instrument for rejuvenation and acceleration of concentrated dispute proceedings (§ 168 – 172 of CDC). When implementing this institute, the legislator has inspired itself in foreign judicial codes, whose experience with its application proved its contribution to securing of process economy of dispute proceedings.

Provided that the court does not decide otherwise after filing an action (i.e. rejection of the action or abortion of proceedings do not take place), it will order the preliminary dispute hearing before the first hearing and summon both dispute parties, their representatives or other persons that might contribute to fulfilment of its purpose (summons shall be delivered to the addressee only). During the preliminary dispute hearing the court investigates whether the process conditions are fulfilled or it adopts precautions for removal of discovered deficiencies, attempts to settle the dispute by reconciliation or recommends the parties to try mediation. Within this context, the currently valid Civil Procedure Code includes the institute of conciliation attempt having a proposal nature, i.e. the court performs it only on the basis of any of the dispute parties´ proposal.

Should the dispute not be settled by reconciliation, the court shall entail obligations to the parties in relation to preparation of the hearing. It will simultaneously determine which factual allegations it considers as disputable, which as undisputable and which proofs will be executed and which not. The court might consider as undisputable such facts, which the parties agree on, except from those, in relation to which a reasonable concern about their truthfulness exists. The court shall also express preliminary appraisal of the matter and probable term of hearing. This should serve for the purpose of avoidance of so called surprising court decisions, since its aim is to clarify the dispute matter, law of evidence questions and legal examination of the case. Taking into account that provisions on hearing shall apply accordingly to this phase of proceedings, elementary evidence may be executed during the preliminary dispute hearing and the court may even decide on the merit (providing that it is possible and efficient).

In case the petitioner or the defendant does not appear at the preliminary dispute hearing, despite being duly and timely subpoenaed (and provisions on delivery were complied with), the court might issue a default judgment. Each participant must be instructed about this consequence in the summons to the preliminary dispute hearing. Mentioned regulation is a result of consistent exercise of process diligence principle (negotiation principle) manifested by sanctioning of process passivity of the respective dispute party. The law naturally constitutes an opportunity to propose default judgment abolition, provided that the respective party missed the preliminary dispute hearing for excusable reason; proposal for its abolition will be possible to submit within 15 days as of discovery of default judgment issuance by the participant.

New legal regulation shall represent fundamental and inevitable steps leading to improvement of law enforceability in the Slovak Republic, to securing of more effective protection of rights and legitimate interest of dispute parties, as well as to all-society interests protection.

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

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