Role of Principles in Civil Proceedings

Undoubtedly, the development of IT has an impact on every aspect of civil proceedings. This was clearly formulated at the 2007 World Congress of the International Association of Procedural Law: ‘[The] new technologies have the capacity to change the core values of civil litigation by making litigation more efficient and effective, by making the civil justice system more accessible, and by changing the way we determine the facts and decide the case.’ And so at the outset of this contribution it should be noted that the technology of today can provide more than we could ever need with respect to the ‘electronification’ of judicial proceedings and what could lay the foundations for more effective and up-to-date litigious and non-litigious proceedings while still ensuring the required guarantees. The task of the experts of civil procedural law is to find the limits of the applicability of the technology instead of integrating all technical possibilities into the proceedings without criticism.

When establishing these limits attention should be paid to numerous theoretical and practical aspects, and one should find the ‘core’ of the procedural rules according to the aim of the proceedings, the basic values the continuity of which must be ensured. In W. Rechberger's words, ‘the cultural core of our procedure should not be “sacrificed on the altar of modern technology”’. This does not necessarily mean that the traditional interpretation should prevail and that the basic principles should not be touched; however, it is obvious that it is within this circle of rules that the above-mentioned stable core is to be looked for. For this very reason, when analysing this problem it is necessary to carry out a thorough review of basic principles, to be open to modern solutions, but to apply criticism and to search for equilibrium at the same time.

Specific attempts have been made to identify the principles the unchanged nature of which must be guaranteed. In Leipold's view, instrumental principles may be overridden or reinterpreted, e.g. the principles of orality and immediacy. However, the question is far from being that simple; it must be dealt with in a more refined way, for it is difficult to distinguish between basic principles on this ground.