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• Simplification of civil procedures in the European Union, the regulation of small claims procedures in particular

  Anna Nyilas

  Views:

  41

  Introduced to reduce obstacles to the free movement of goods and persons, judicial cooperation in civil matters has become part and parcel of the new European area of justice. Creation of this area is meant to simplify the existing legal environment and to reinforce citizens' feeling of being part of a common entity. The Conclusions of the Tampere European Council state in this respect that “in a genuine European Area of Justice individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal or administrative systems in the Member States.”

  At present, the judicial cooperation in civil procedures is based on the Hague Programme, adopted by the 2004 Europen Council in Bruxelles.The Hague Programme requires that the Commission should translate the Hague objectives into concrete measures. To this end, the Annex to the Communication from the Commission to the Council and the. European Parliament on the Hague Programme, consists of an Action Plan listing the main actions and measures to be taken over the next five years, including a specific set of deadlines for their presentation to the Council and the European Parliament.

  The chapter dealing with this area is named „Strengthening justice”, and it includes amongst others the following tasks:

  • Specific Programme on Judicial Cooperation in Civil and Commercial Matters (2007)
  • Support by the Union to networks of judicial organisations and institutions (continuous)
  • Creating a „European Judicial culture”
  • Evaluation of quality of justice (Communication - 2006)
  • Creation, from the existing structures, of an effective European training network for judicial authorities for both civil and criminal matters (2007)

  The European Union has set itself the objective of maintaining and developing the European Union as an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market.

  The Community has among other measures already adopted Council Regulation (EC) No 1348/2000 of 29 May 2000, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; Council Decision 2001/470/EC of 28 May 2001, establishing a European Judicial Network in civil and commercial matters; Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Council Directive 2002/8/EC, of 27 January 2003, to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; Council Regulation (EC) 2201/2003, of 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000; Regulation (EC) No 805/2004, of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Proposal for a regulation of the European Parliament and of the Council creating a European order for payment procedure; Proposal for a regulation of the European Parliament and of the Council establishing a European Small Claims Procedure.

  The disproportionate cost of litigation for small claims has led many Member States to provide simplified procedures for claims of small value which are intended to provide access to justice at a lower cost, thus influencing one of the three factors that determine the rationales in dispute resolution. The details of these procedures have been investigated and documented in detail in studies prepared for the Commission. The evidence from these reports suggests that the costs and timescale associated with the domestic simplified measures, and thus their use and utility to claimants, varies widely. A 1995 study for the Commission found evidence of how costs of cross-border claims were significant compared to the size of most potential claims, and that these costs varied substantially between Member States. The total costs of pursuing a cross-border claim with a value of € 2.000 was found to vary, depending on the combination of Member States, from € 980 to € 6.600, with an average quoted figure of € 2.489 for a proceeding at the plaintiff’s residence. The study also showed that due to different and conflicting costing rules part of the costs have to be paid even by successful plaintiffs.

  On 20 December 2002, the Commission adopted a Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation. The Green Paper launched a consultation on measures concerning the simplification and the speeding up of small claims litigation.

  The European Small Claims Procedure is meant to simplify and speed up litigation concerning small claims, whilst reducing costs, by offering an optional tool in addition to the possibilities existing under the laws of the Member States. This Regulation should also make it simpler to obtain the recognition and enforcement of a judgment given in a European Small Claims Procedure in another Member State, including judgements which were initially of a purely domestic nature. In order to facilitate the introduction of the procedure, the claimant should commence the European Small Claims Procedure by completing a claim form and lodging it at the competent court or tribunal. In order to reduce costs and delays, documents should be served on the parties by registered letter with acknowledgment of receipt, or by any simpler means such as simple letter, fax or email. The procedure should be a written procedure, unless an oral hearing is considered necessary by the court. The parties should not be obliged to be represented by a lawyer. The court should be given the possibility to hold a hearing through an audio, video or email conference. It should also be given the possibility to determine the means of proof and the extent of the taking of evidence according to its discretion and admit the taking of evidence through telephone, written statements of witnesses, and audio, video or email conferences. The court should respect the principle of an adversarial process. In order to speed up the resolution of disputes, the judgment should be rendered within six months following the registration of the claim. In order to speed up the recovery of small claims, the judgment should be immediately enforceable notwithstanding any possible appeal and without the condition of the provision of a security. In order to reduce costs, when the unsuccessful party is a natural person and is not represented by a lawyer or another legal professional, he should not be obliged to reimburse the fees of a lawyer or another legal professional of the other party. In order to facilitate recognition and enforcement, a judgment given in a Member State in a European Small Claims Procedure should be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition. Since the objectives of the action to be taken namely the establishment of a procedure to simplify and speed up litigation concerning small claims, and reduce costs, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article this Regulation does not go beyond what is necessary to achieve those objectives.

  The European Council underlines the need further to enhance work on the creation of a Europe for citizens and the essential role that the setting up of a European Area for Justice will play in thisrespect. A number of measures have already been carried out. Further efforts should be made to facilitate access to justice and judicial cooperation as well as the full employment of mutual recognition. It is of particular importance that borders between countries in Europe no longer constitute an obstacle to the settlement of civil law matters or to the bringing of court proceedings and the enforcement of decisions in civil matters.

• The divided trial system of the New Code of Civil Procedure in the light of the Act I of 1911

  88-96

  Áron Ferenczi

  Views:

  94

  n my paper, I dealt with the divided trial system, because in the Conception of the New Code of Civil Procedure arised the idea, that the first-instance procedure will be regulated by the divided trial system. During my studies, I researched the trial system of the Act I of 1911, and I analyzed the sentencing practice in this era.

  First, I presented the matter of the trial system, as well as the two dominant trends in Hungary relating to the creation of civil action. The difference between the two trends, that distinct mesne process creates the civil action. According to one of them, the civil action is created when the defendant gets the statement of claim, or, on the other hand, when the defendant submits countermotion.

  In the next chapter, I intended to present the point of intersection of action, which legal institution separates the first-instance procedure to pre-trial hearing and the trial on the merits.

  After this chapter, I reportedtheresults of sentencing practice and cametotwoconclusions. Ontheonehand, thepre-trialhearinghangedfirefor a longtimebecause of theappealproceedings. Ontheotherhand, thesentencing practice wasnotconsistent, becausethecourtsused an incorrectterminology. Thecourtsdismissedtheproceedingsbeforethesubmission ofcountermotion, butaccordingtotheAct of 1911 themesneprocess of creating a civil actionwastosubmit a countermotion.

  Inconclusion, I thinkthe divided trial system of the New Code of Civil Procedure will be totally different than the divided trial system of the Act of 1911.

• Thoughts for emptying real estate – litigation or non-litigation procedure –

  Éva Kavecsánszki

  Views:

  165

  In many cases, owners have problems recovering their rented or arbitrarily occupied real estate. News often report difficult situations in connection with the evacuation of real estate. More instructive cases have also drawn attention to the severity of the problem. The study describes the rules for (litigation and non-litigation) court proceedings for the evacuation of real estate and does not deal with the enforcement procedures ordered by a notary.

  The possibility to initiate emptying real estate non-litigation procedure - according to Vht. 183rd-184th § - is not well known widely. According to most people, almost the only possible way to reclaim the real estate is to litigate, although the possibility of initiating the non-litigation procedure has been provided for years, provided the conditions of the law are met. Emptying of real estate in non-litigious procedure is possible in the case of real estates by arbitrarily occupied real estates, fixed-term tenancy agreemens of residential premises and other non-residential premises, as well as other types of properties specifically designated by law.

  The study presents the possible ways of carrying out the real estate evacuation, the enforcement procedure following the litigation procedure and the enforcement procedure initiated on the basis of a court non-litigation procedure, focusing primarily on proceedings commenced after 1. January 2018. The study deals with the legal background to the non-litigation and litigation procedure, the order for enforcement, the issuing, the service of an enforceable instrument, the possibilities provided by law in the event of non-execution, the short presentation of remedies. It also deals with some of the innovations introduced by law CXXX of 2016 on Civil Procedure Rules, suspension of enforcement, as well as the applicability of the eviction moratorium in each case. In the emptying of real estate, debtors often face criminal law. The most frequent criminal cases during the emptying of the real estate are presented in the study too (breach of seal, assault on a public official).

• Le présent et le futur de la réparation dans la procédure pénale hogroise

  Ágnes Tarr

  Views:

  75

  A la deuxième moitié du XX ième siècle la victime a commancé á jouer un rôle important de nouveau dans les procédures pénales. Les legislateurs veulent assurer les droit de la victime et garantir qu’elle soit indemnisée le plus tôt possible et pour que tout le monde soit content du résultat.Ce sont les cadres de la juridiction restaurative qui en assurent les possibilités.

  Dans cet essai premièrement je présente le cadre de la constitution de partie civile dans la législation hongroise. C’est une procédure très intéressante parce qu’il faut appliquer d’un côté le droit civil et la procédure civile et de l’autre le drot pénal et la procédure pénale dans le cadre de la juridiction pénale (dans une procédure).

  J’ai analysé le terme de la victime, les règle appliquables et les décisions du juge. J’ai constaté qu’en Hongrie les tribunaux correctionnels ne délibèrent pas les décisions sur le fond dans les cas de partie civile mais ils renvoient les affaires devant les tribunaux civils.

  Ensuite, je présente les institution juridique hongroise qui vise á l’entremise dans la procédure pénale. On peut trouver deux institution juridique en vigeur. En premièr lieu il faut mentionner que dans les cadres de la procédure par constitution de partie civil (où la victime soutient l’accuation) il existe une audition personnelles des parties où le but est donc l’arrangement des parties.

  Il y a une autre institution juridique qui s’appelle l’ajournement de la mise en accusation. On peut l’appliquer si la peine ne mérite pas de trois ans de prison et il y a beaucop de circonstances atténuantes, le procureur peut décider l’ajournement de la mise en accusation d’une au deux ans. On peut prévoir différentes obligations et règlements du comportement pour le prévenu. Par example on peut prévoir de dédommager la victime avec l ‘accord des parties. J’ai examiné cette institution juridique et son efficacité dans la pratique aussi.

  Troisièmement j’ai analysé une institution juridique qui entrera en vigeur le 1er janvier 2007. C’est la médiation pénale. Il y a un cadre de décision européen (2001/220/IB) qui préconise aux États memnbres d’introduire la médiation pénale. Pour pouvoir appliquer cette institution juridique il faut modifier le Code Pénale et la loi de la procédure pénale. C’est le procureur qui aura le droit de la suspension du procès pour maximum six mois et renvoyer l’affaire devant un méditeur. Cette procédure devant le médiateur sera regie par une loi d’exeption.( Il y a déja une projet de la loi). Je présente les problèmes en relation la médiation pénale. En résumé on peut dire que la mise en place et la régulation de la médiation demandent du temps et de l’énergie. Je statue qu’il faut attendre beaucoup de temps en Hongrie pour que l’opinion publique et les justiciables acceptent et appliquent avec efficacité la médiation pénale.

• Thoughts about accessory private prosecution

  Sándor Kardos

  Views:

  71

  In Hungary the new code of criminal procedure established a new legal institution to the Hungarian legal system: accessory private prosecution. This kind of private prosecution gives opportunity to the afflicted person to continue penal procedure in case of negative sentences from investigation authorities. If the prosecutor or the investigation authority stops proceeding or the prosecutor sets aside, withdraws formal accusation, afflicted person can substitute them during a penal procedure and has a right to claim the continuation of it. Our valid code does not limit the field of crimes this legal institution of accessory private prosecution can be applied. But there are some strict reasons, which limit this right of the afflicted person. If the investigation authorities neglected formal accusation because of childhood, death, prescription, clemency, prohibition of ne bis in idem, accessory private prosecution cannot be applied.

  Pros of accessory private prosecution can be found in the rights of afflicted persons. Criminal power of the state cannot be absolute, so we have to give the right for the injured to judge whether he insists on taking the responsibility of the perpetrator despite the opposite opinion of public bodies. This legal institution can help omissions of prosecutors to be remedied. Practicing this right depends on the stadium of the procedure. During the investigation period or the period of formal accusation reasons for accessory private prosecution are different.

  According to the new rules of the code, applying an advocate in the procedure is an obligation for the afflicted person. This regulation ensures that the structure of penal proceedings cannot be changed basically. In a normal procedure there is always a professional expert, the prosecutor on the side of accusation. That is why the code does not permit accusation without applying an advocate.

  Costs are interesting question in case of accessory private prosecution. In popular action procedures costs are paid by the state. When the afflicted person practices the right of accessory private prosecution, state pays in advance, but if perpetrator is acquitted or the court stops proceeding, costs should be paid by the private prosecutor himself. There are some rules to ease this burden for the afflicted person: if he has bad financial capacity and he can certify this circumstance, court can authorize him not to pay for the fee of the advocate.

  There is a special question in connection with accessory private prosecution: representation of the state. In these procedures the afflicted person is the state or one of the state bodies itself. There are two points of view to answer the question: who is authorized to represent the state as an accessory private prosecutor during a penal procedure. First we have to make difference between the injuries: if the injury is against the state while practising public authority, the injured party is the state itself. But if the injury hit the state as a civil legal entity, a possessor, the right to claim is in the hand of that public body, which was entrusted to handle the injured property. This theory means that in case of injuries against the public author state, only the prosecutor can represent it, so there is no chance for accessory private prosecution.

  The other solution for this problem has its starting point that in every crime against public property, accessory private prosecution can be applied. In this case the state can be represented by that part of it, which has interest. Although there are no jurisdiction in this question, because accessory private prosecution was established by the new code from 1st July 2003 after fifty years into the Hungarian legal practice. According to the regulations of the code, we can find the following sentence: afflicted person is whose right or legal interest was hurt or endangered by the crime. Analyzing this definition the argument can be read previously is decent for those situations, when we would like to find the legal representative of the state as an accessory private prosecutor.

  Accessory private prosecution is a good solution that fits to the new directions of law development, to increase rights of the afflicted person. Naturally, time needs to become a well-adopted legal institution in Hungarian legal system after half a century silence.

• Rethinking principles of civil procedure - expectations and experiences:

  118-127.

  Tamás dr. Molnár

  Views:

  218

  The central topic of the present study is certain features of the principles re-regulated during the codification of the Hungarian Code of Civil Procedure. It can be said that the number and content of the principles have also become more concentrated as a result of codification.

  The Act CXXX of 2016 on the Code of Civil Procedure (hereinafter “CPC”) brought a number of conceptual changes, which can also be observed in terms of principles. The principles chapter of the CPC has been renewed, some principles that are not yet known in Hungarian civil procedure law have been laid down. The present study reviews these changes and also seeks to take a position on the content of the principles, with a separate examination of the Principle of Concentration of Proceedings, which has also been identified as a priority objective by the legislator.

  The paper analyzes the academic debates on the principles and attempts to answer whether the experience of the period since its entry into force has met some of the expectations for the reform of the principles. The study examines the changed regulations that have led to opposing views in the literature.

  An important topic of the study is that, in line with the divided structure of the proceeding, the court's intervention activities have also changed. This change can also be observed in the principles, as the Principle of Court's Obligation to Intervene has emerged as a new principle. Some features of the Principle of Truth-telling and Principle of Good Faith are also analyzed.

  The study seeks to shed light on the fundamental issues of civil procedure through foreign examples, in which certain elements of German legislation are mainly mentioned.

• Jurisdictional Constants and Doubtful Questions in Recent Hungarian Jurisdiction of Damages for Non-Pecuniary Loss

  Tamás Fézer

  Views:

  66

  Since 1992, date of Constitutional Court’s decision No. 34/1992, certain rules cannot be found in Hungarian Civil Code. There is only a part of a sentence that gives right to any injured person to claim damages in case of personal injuries. More than 10 years after the cassation we are able to look through the legal practice in connection with damages for non-pecuniary loss. The recent re-codifying process plans a brand new institution to substitute and follow damages for non pecuniary loss: pain award. To establish a decent regulation of pain award, jurisdiction of the last decade cannot be neglected. This essay aims to gather typical and crystallized methods of judgements in certain cases, which could be seen as essential and accepted unwritten rules of jurisdiction concerning this field of damages.

  One of the most difficult problems to solve is the question of amount. This field of damages for non-pecuniary loss is always problematic, because all of the cases are different. Although there are similarities between cases if we examine just damages themselves, but due to the difference of human personality it is almost impossible to give exact phrases and rules to help our judges. We can say that highest amounts are generated by assaults against physical integrity and life. Examination during a legal procedure concentrates on the stress caused by the injury, number of injured rights, age of the injured person and the durability of the harm. If the injured person contributed to the injury, it generates reduced amount of damages.

  Method of compensation is really simple for the first time. Hungarian legal system knows two different types for the method of damages: in kind or in money. Former one is inapplicable for non-pecuniary losses. If we compensate in money, there are two solutions: injured person can get the whole sum immediately or we can choose allowance as well. The adaptation of allowance is rather small in Hungary, in spite of the advantages this legal institution could offer. It does not mean res iudicata, so it is flexible and offers opportunity to adjust to changed circumstances in the future: both duration and amount of allowance could be changed.

  It is an interesting question whether personal circumstances of the misdoer could be examined when calculating the amount of allowance. The answer is not unambiguous. Civil law focuses on compensation for the injured party, not the punishment of the misdoer. In spite of this essential lemma, it is necessary to take into account the solvency of the defendant, if we want the plaintiff to get the adjudged amount really.

  Youth is not the only reason of allowance, sometimes old age could be a well-based legal ground for application of this method of compensation as well. It is really important to examine the personal circumstances of the injured party to choose between these two methods: which one serves the aim of compensation, moderation of lost joy of life the most.

  Civil Code precludes the possibility to apply both methods together for the same plaintiff. In my opinion the solution of German Civil Code (BGB) should be considered. BGB allows both methods together. It means that possibilities could be wider and fit better to the actual case and its circumstances.

   Although obligation of damages has two parties traditionally, in a legal procedure of damages for non-pecuniary loss this bipolar situation can be proven false. On the part of the misdoer it is an interesting question what kind of damages can be blamed the state. In Hungary we can meet rules order the responsibility of the state in the field of medical damages or damages for unlawful arrest and illegal imprisonment. Amounts of damages are the highest in these situations.

  On the part of the injured person an often argued problem the position of secondary victims’ claims. These claims are always problematic, because personality rights belong closely to the person himself and there is no possibility to inherit them. Hungarian Civil Code admits compensation for relatives only in case of injuring reputation of a dead person. There are several decisions in which courts admit these claims on the ground of their sui generis base. It is a decent solution, but because of the uneven jurisdiction it needs codifying.

  We can say that there are a lot of jurisdictional constants in Hungary in connection with damages for non-pecuniary loss. These are easy to collect and most of them are able to be codified in a strictly non-taxative style. But this examination showed that doubtful questions can also be found in Hungary especially the application of allowance, claims of secondary victims. To arrange these problems, starting point should be jurisdiction itself.

• Functions and interpretation of principles in the German contract law

  Andrea Csécsy

  Views:

  52

  To describe the functions of principles we can say that all of them are fundamental basis of an area of law. They declare or solve concrete debates between the parties. If there is a problem with interpreting of a rule in the civil code, judges has this helping hand. In Germany the development of principles in the field of contract law has a really unique historical root. At the time of BGB’s birth, the German Civil Code did not accept any exculpation under the rule pacta sunt servanda. Moral philosophers acknowledged that a contract as private interest of the parties needs special protection from the state. It is not only a personal relationship, because self welfare leads to welfare of the public. The law has to regulate this field and give instruments of protection for both parties to ensure peace and equality in the field of public relations and moral.

  After the First World War, Rechtsmark (German currency) had its deepest point in its history. The inflation was so high that the performance of a contract made before the war was absolutely unfair for the supplier. For the cost of one galloon gas anyone could buy the entire stock after the war. There was a too late and too small reaction from the state for this situation. An Act had been accepted in 1925 about revalorization. The main fault of this Act was the strict and very small applicability in the field of contracts. The regulations of it were applicable only for contracts with large economic potential.

  German jurisdiction had to solve the problem. The most difficult part of this process was how to dissolve the strict paradigm of pacta sunt servanda. Oertmann, a German legal expert created the collapse of the foundation of the transaction. It meant that changed circumstances deprive the contract from its ground, the need of the party. Anybody who signs a contract has a need and tries to create all conditions of that specific contract to harmonize with his or her needs and interest. In case of an essential change of circumstances this interest modifies and the original transaction became tremendously onerous for him or her. The doctrine of Oertmann was insisted on pacta sunt servanda, so after the change of circumstances the whole contract failed.

  Jurisdiction in Germany accepted Oertmann’s doctrine with a completion. Judges vindicated the right for themselves to modify the contract to be suitable for the new interests of the parties. This modification meant the implementation of clausula rebus sic stantibus into German contract law. It became applicable worldwide in the field of long term relationship of the parties.

  In this essay I examine not only the development of these contractual principles in Germany but the effectiveness and functions of them. I describe and define the legal interest of regulating contracts and what is the connection between private and public interest in the field of the law of contracts. As a defect of the contractual procedure non-performance and other breach of a contract have special importance in civil law. Good faith is a basic principle of civil law in Hungary too and in most European civil codes. The interpretation of German good faith theory (Treu und Glauben) is significant from the viewpoint of the judicial modification of contracts. In case of clausula rebus sic stantibus if the party wants to ground his or her claim, he or she has to prove the good faith as a moral standard to be an exculpation under the heavy burden of pacta sunt servanda. The conclusion is that in Germany the basic element of private contracts is not the consent of parties but good faith of them. The socially excepted moral appears through the requirement of good faith of the parties. The law has to ensure that in any period of a contractual relationship this good faith exists.

• The Hungarian system of sanctions in connection with copyright law comparising to directive 2004/48 EC about validation of intellectual property right

  Tibor Kiss

  Views:

  85

  Copyright law is a relative young area of civil law. Intellectual property and creations ensure the revelation of human personality. The infringement of these rights became general with the development of technology. From the beginning copyright law tried not only circumscribe the possibilities of unrestricted use but ensure effective protection to authors with exact sanctions.

  In the essay I examine the international and Hungarian regulation against usurpation demonstrating all sanctions and opportunities. Not only one area of law gives protection to these rights. Civil law, criminal law and administration law has different sanctions for infringements.

  On 29th April 2004 2004/48/EC directive has been accepted about validation of intellectual property rights. The explanation of this directive is that different regulations in member states endanger the unified internal market. The directive consists of the rules of proceedings and sanctions.

  In this study I present the development about system of sanctions form an international and from a Hungarian perspective. I examine all types of sanctions concerning to the field of civil law and try to analyze functions and aims in connection with them. The effectiveness and history of these legal institutions are also presented in the study.

  Comparing the directive and the Hungarian copyright law it can be said that despite of all circumstances the Hungarian law has to be improved especially on the field of proceedings and temporary arrangements. These rules are specified compared to the ones in the Hungarian civil procedure, so judges have to take care of these differences.

• Regulatory issues of intellectual property rights

  27-33.

  György Csécsy

  Views:

  166

  The study finds that the regulation of intellectual property is dominated by civil law rules. The old Civil Code expressed the correlation with the law of intellectual property and regulated the legal protection of know-how, however, the legal material could be found in the separate legal acts organically related to it. The new Civil Code, Act V of 2013 is no longer entitled as intellectual property rights but “copyright and industrial property rights”, and know-how has been protected as a form of trade secret. The homogeneous nature of copyright is broken by Act XCIII of 2016, which provides for collective rights management. In the field of industrial property protection, the most problematic legal institution was know-how. The LIV Act of 2018, which was born after the rules of the new Civil Code, opens a new chapter in the regulation of know-how. In this connection, the law transposes Directive 2016/943/EU into the Hungarian law. The legislator therefore chose the solution that it has incorporated the new conceptual approach, legal institutions, and rules of procedure for the protection of business secrets into national law not by creating them in the Civil Code but by creating new legislation. In this way, the private secrets of natural and legal persons will continue to enjoy the protection of personal rights, while trade secrets and know-how will enjoy protection based on the logic and sanction system of intellectual property protection.

• What are the limits? - Thoughts about Certain Issues of the Active Judicial Role

  61-73.

  Attila Dr. Kiss

  Views:

  207

  The Act CXXX of 2016 on the Code of Civil Procedure introduced the image of the managerial judge into the Hungarian civil litigation. This perception means that the judge has to take part actively in the litigation. It is not just the notion of the Hungarian legislator but it is also an international requirement. The new principle – so called court inducements – entitles and obligates the judge to offer some kind of support to the parties in order to faciliate to concentrate the actions. That means the judge has to conduct substantively the proceedings, which may expand on the merits, if the party’s case initiation statement is incomplete, not sufficiently detailed or contradictory. However, this support is not equal to giving advices like a legal counsel does. The judge can not overtake the function and task of neither the party nor the legal counsel. The judicial activitiy is meant to provide the party’s opportunity to enforce his claims and a proper level of legal protection. This image of an active and managerial judge originates from the Austrian social model of litigation which goes back to 1895. But it is also not unfamiliar to the Hungarian litigation because the Act I of 1911 on the Civil Procedure was based on an active role of the judge too. My goal is to ascertain what the essence and function of the active role of the judge is. I also examine that in what kind of situations and in what procedural phases the judge can offer support to the parties. Furthermore I intend to define the limits of the judicial management. In addition, I analyse how some interpretative organisations view the issues that appeared in the judicial practice.

• The role of interest in civil processes

  42-46

  Tibor Kiss

  Views:

  291

  The study reviews the enforcement of various interest-related claims in civil litigation and their special litigation rules, emphasizing that there are few specific norms in the Code of Civil Procedure from a procedural point of view compared to the enforcement of pecuniary claims. The study compares the interest provisions of the Act III. of 1952 and the Act CXXX of 2016, and seeks to provide adequate answers to enforcement issues arising from regulatory gaps. The article states that the law generally sets out some specific procedural provisions for contributions to be enforced together with the principal claim, which are also subject to interest as a contribution to the principal claim. The number of purely interest-specific provisions in our current law is negligible. The analysis covers the following specific legal provisions concerning interest: the amount in dispute, appeal against the interest provisions of the judgment at first instance, the admissibility at second instance of an increase of the claim for payment of interest, the admissibility of an application for review only of the provisions of a final judgment concerning interest. The study evaluates trends in court practice through analysis of ad hoc court decisions. The author states that uniform and coherent case law is in the best interests of the claimants based on clear legal provisions.

• Legal institutions that interrupt temporarily the chain of procedural actions of the judicial foreclosure

  9-18

  Péter Gyüre

  Views:

  196

  This study presents the legal institutions that temporarily interrupt the chain of procedural actions of the judicial foreclosure, namely the interruption, suspension and intermission of the foreclosure. In the publication - as an acting lawyer - pragmatism has an emphasised role and it highlights the problems that arise when applying the legal institutions and offers alternatives and de lege ferenda solutions. The author seeks to draw the reader's attention to the interrelations and differences between legal institutions for the sake of clarity. Furthermore the speciality of this study is that it uses the civil procedural regulations which are applicable as a background standard for the Code of Judicial Foreclosure, from the new Code of Civil Procedure which entered into force on 1 January 2018, referring in several places simultaneously to the regulations of the previous CCP.

• Is the COVID-19 Really a Technical Question on the Part of the Attorney?

  5-19

  Judit Balogh

  Views:

  140

  Abstract: The COVID-19 pandemic has disrupted our daily lives in spring 2020. Many of the effects of the closures and home-working practices that accompanied the epidemic are still being felt in civil procedure today, whether positive or negative. On the positive side, the courts and authorities have recognised the potential of online communication, so that some of the proceedings can be moved online even in periods when there is no epidemic, saving time and energy. There are mixed views on the benefits of the fact that courts are ordering more only written preparation for the commencement of civil litigation proceedings than in the past. Lastly, it is negative that, to date, no satisfactory solution has been found for dealing with cases of absence due to sudden illness. This study examines the practice in the field of sickness absence: on the basis of an order of the Hungarian High Court (Curia) of February 2021, issued under the specific circumstances of a case of emergency, it seeks to shed light on the real content and role of the right to representation (and the substitution of the attorney) in civil proceedings.

• Considerations on legal remedies in Romanian civil proceedings

  Claudia Roᶊu

  Views:

  91

  In the system of the Romanian Code of Civil Procedure the legal remedies that can be exercised against judgements are: the appeal, the second appeal, the appeal for legal contest in annulment and review. The appeal is the only ordinary remedy, while all the others are classified as extraordinary remedies.

  The reasons for which the legal remedies may be exercised vary depending on this qualification, which means that the appeal is applicable for any dissatisfaction of the parties, whereas the second appeal, the legal contest in annulment and the review may be exercised only for reasons explicitly defined by the law.

  The extraordinary legal remedies cannot be exercised as long as one may lodge an appeal.

  A legal remedy can be exercised against one judgement only once, if the law provides the same term of exercising the legal remedies for all existing grounds on the date of declaring that specific remedy.

  The judgement is subject only to the remedies provided by the law, under the respective terms and conditions, regardless of the particulars of its statement of reasons.

• The special rules of retail and high priority significance lawsuits in civil procedure

  Gabriella Lipták-Vida

  Views:

  102

  My paper is about the preferential significance and minor value actions special rules in the civil proceeding. These types of actions have several special rules compared to the general rules and have specialities compared to each. The specialities are multiple the most important is the sum in dispute. This is under 1 M florins in minor value actions and above 400 M florins in preferential significance values. These worths are too low in minor value actions and too high in preferential significance actions. This is proven by that there are almost no cases where these rules are adaptable.

  These rules are simple and easy to use it but not common in civil proceedings. It is mistake because these are useful rules and these would make the actions more simple.

• The Notarial Examination of the Order for Payment Requests

  14-20

  Fanni Ferenczi

  Views:

  132

  2010 marked the opening of a new chapter inthe more than 120 years history of the Hungarian order for payment procedure. Breaking with the Hungarian traditions, the notaries became competent to carry out these procedures instead of courts. The Hungarian Chamber of Civil Law Notaries established an accessible web-based computerised system for support of procedures. The registration of requests, the assignment of cases to notaries and the administrative handling of cases are carried out through this electronic network. The legislator’s aims when modified the regulation of this legal instrument was to reduce the duration of order for payment procedures and the workload of courts. In this paper I give an overview of the content of order for payment requests and of the practical experience of the notaries in connection with the examination of requests.

• Comparison of condemnation and declarative litigation, special conditions of declarative claims

  Szilvia Kiss

  Views:

  95

  For the first, I think that it is necessary to make clear what action is.

  The action the application to the proposal of which the half interested in the debate is entitled and the court passes judgement on it. Bringing an action to the court is the prerequisite of the setting in motion of the civil action procedure.

  The plaintiff asks it for the restoration of his violated subjective right practically in the action of detaining to oblige the defendant. The object of the action of detaining the claim originating from the violated subjective right, the controversial material legal contractual relationship, his content though the plaintiff’s application, that let the court oblige it defendant onto a particular activity, abstaining from it.

  Basic rule: action of detaining expired in case of claims only enforceable. The action of assessment in so much action of detaining, that it positively aims at the court establishing it for the plaintiff’s right and the existence of the defendant’s asking to stay being mentioned.

  It being possible to initiate action of assessments has two conditions conjunctive: the legal defence for the claim of his necessity and the impossibility of the vindication. The content and the consequences of the action of assessment considering too narrower than the action of detaining.

  The plaintiff’s aim in the action of assessment, that the court clears up whether one of the contractual relationships exist with a judgement or not, it does not claim him accomplishing a defendant’s active behaviour beyond this. The deficiency of the execution follows from this, the giving onto an end which can be grown in the part of a judgement saying detaining in the legal charge only.

  Verifiable, that the action of assessment independent legal defence device quality actions. Categorically cannot be declared, if action of detaining possible, assessment one is not eligible. The clarification of the situation and correcting him wait for the legislator however.

• A büntetőjogi mediáció gyakorlati aspektusai

  1-12

  Eszter Héthy

  Views:

  126

  Mediation is a conflict-management method designed to achieve restorative justice (offenders should assume responsibility and pay the penalty for their deeds, with the greatest emphasis on reparation of the victim, and the affronted community should be conciliated). This method may be applied to solving a variety of disputes or conflicts (e.g. disputes involving neighbours, families, couples, and companies).
  The mediation technique has already been used in the fields of civil law, family law and employment law. From 2007 onwards, it can also be applied in criminal procedures. According to Article 221/A of the Code on Criminal Procedure (Act XIX of 1998) the mediation process may be used in criminal procedures dealing with certain offences against the person, property or traffic offences if the crime is punishable with no more than five years imprisonment, and the offender has made a confession during the criminal investigation.

• Texas Shoot-out and other security clauses in the Syndicate (Shareholders) Agreement

  118-129

  Gergely Szabó

  Views:

  72

  The shareholders agreement is considered a typical contract. This agreement is concluded by and between the members of the company in order to establish the rules of the cooperation among them, their behaviour towards and expectations from each other in connection with the company.

  The agreement is often used in the practice, since its flexible construction enables to rule various types of transaction. For example, in Hungary there is a growing tendency i.e.the major investments and joint venture agreements are being established in the frame of a shareholders’ agreement.

  On the other hand, drafting such a contract is a complex procedure. This type of agreement is not governed by specific law, therefore the general rules of the contract law may be linefore. Furthermore the shareholders’ agreement is located at the borderline between the civil and company law, and in a given case it might be complicated to enforce the provisions of the agreement. For example, if the member breaches the voting provision outlined in the shareholders’ agreement, then the resolution passed upon the contract breach cannot be challenged.

  Due to lack of a specific law, the practice created the adequate legal securities to ensure the enforcement of the cooperation structure outlined in the shareholders’ agreement.

  As the first analysed security, the purpose of the buy-out clauses (Russian Roulette, Texas Shoot-out, Dutch Auction, Put-Option, Call-Option) is to ensure the company’s permanent operation, if there is an insoluble dispute among the members, which obstructs the decision making, and consequently the operation of the company, as well. The concept of the buy-out clause is to settle the dispute in the way of taking over the participation of the involved member by another member.

  The exit clauses (Drag Along, Carry Along) aimed to encumber or to unburden the step out from the company. The entitled person is able to sell the shares of the remaining members to the buyer, or to oblige the seller to sell his own and the entitled person’s participations jointly to the buyer.

  The takeover clauses’ (Control Flip Over, Swiss Clause) duty is to enable the enforcement of the corporate legal obligations outlined in the agreement. If a member fails to fulfil his obligations, the entitled person may acquire his participation, which will enable him to pass the necessary resolution in the members meeting (general meeting). After the voting, the “seller” is entitled to buy back his participation at the same price.

  If the members want to exclude acquiring participation by third persons in the company without their approval, there are adequate securities to be specified in the shareholders’ agreement (for example the right of first refusal, option right).

  By the specific type of shareholders’ agreement the creditor makes investments in the company and becomes member in order to secure the transaction. If the company or the original owners of the company breach the contract, they will be held individually liable till the limit of the investmented amount.

  The shareholders’ agreement is an efficient option to rule major transactions, and with the help of the securities described in this study, the investor could feel his money in safe. On the other hand, there are still a lot of questions to be answered. For example the compliance of these securities with the strict provisions of the law. It is the duty of the practice to reveal the answers.

• Enforceability of the civil law in connection with organ donation, the lack of legal framework

  Nóra Kiss

  Views:

  62

  Developments in the last centuries in the fields of pharmacy and surgery have had a beneficial effect on the treatment of various diseases and injuries. As a result these two areas have attracted the support and admiration both of the scientific world and the general public.

  The examination of the effects of taking part by human beings has become unavoidable in the healing process. This relationship is unusually complex regards scientific opportunities and fragile in respect of people’s defencelessness.

  Important legal background material is available today relating to organ transplantations. It must be recognized, however, that this legal corpus has been a long time in the making and is still taking shape even today. Although people are trying to establish suitable legal framework for medical law, there are still some weak points and „prejudices”. Nowadays it is necessary to make an attempt at reconciling medical science and law not forgetting about the fact that their approaches are different.

  Medical law is not just about damages. Informing about the topic, the rights and the possibilities, preventing the trials: all of these things are more important. First of all, this is a life-saving procedure and money can not „repair” the problem in that case. Although it sounds cliché, it is true: you can not replace the unpurchasable organ by money. On the other hand, this should be a teamwork between the donors and recipients. They have to cooperate. The „job” of the law – which tries to be objective while it makes rules- should be to consider both views.

  It is well-known that the waitinglists are very long. What is the reason? What kind of solution is able to make the waiting-time shorter? These are very serious questions but the efficient transplantation is the most important. Transplantation is one thing and surviving it is another. And top of all that there is the problem of the „tragedy of the transplantation”: it is often said that donors have no rights. Which should/ can be preferred : the right to live or the right to voluntarism?! Can you decide which system (opt-in or opt-out donation system) gives better solution?!

  Giving a right answer is not so easy. Opt-out system may increase the level of available organs but it does not mean necessarily that there will be more organs for donation with absolute certainty. That is why you can not say simply that the „donor-licence” is a bad idea. There are lot of „ingredients” you should consider: technical developments, public education and last but not least social acceptance. According to the law in the opt-out system doctors should not ask the relatives about their opinions but it is said they usually do it. Is this an efficient system?!

  In my opinion an effective „dialogue” is needed -not only between law and medical science but between the organ donation systems, too- for the sake of a „flexible” legal background which can take part actively in our everydays in the 21st century. 

• The legal basis and the conduct of probate proceeding, particularly the distribution of the tasks in the proceeding and some of the possibilities of appeal

  22-31

  Fanni Ferenczi

  Views:

  130

  As the title suggest, the study intends to provide a summarized overview on the regulation of probate proceeding. The legal nature of out-of-court proceeding and the various stages of the procedure are briefly presented in this study. The procedural steprelated to the task of inventory taking and each stage of the proceeding related to the notary public are explained too. Finally, the study includes an overview of the available remedies (like the certain aspects of appeal and the possibility of retrial) and the basic rules on enforcement of inheritance claims.

• A new draft of classification of claims: Reinstating of Bankruptcy Rules in the Provisional Judicial Rules

  66-77.

  Máté Pétervári

  Views:

  151

  After the failure of the Hungarian Independence War of 1848-1849, the neoabsolutism which was the ruling of the Franz Joseph I from 1851 to 1860 reformed the Hungarian legal system. The emperor aimed at legal unification of Austrian Empire therefore he introduced the Austrian codes to Hungary. In 1860 the Austrian emperor eased the absolutistic government attitude with the issuing of the October Diploma and restored the Hungarian jurisdiction and public administration system which functioned before 1847. He charged the Lord Chief Justice, gr. György Apponyi who was recently appointed by him with the realisation of this restitution. That’s why Apponyi summoned a meeting for the Hungarian lawyers in 1861 which called the Conference of the Lord Chief Justice. This assembly specified the material and procedural law for the Hungarian courts.

  In this paper I examine the effect of this conference on the bankruptcy law, and I present the provisions of the Conference of Lord Chief Justice concerning bankruptcy law and the driving forces of the regulation based on the assembly’s records. The conference put into force the first Hungarian Bankruptcy Act (Act 22 of 1840) instead of the Austrian provisional bankruptcy procedure. The Hungarian literature typically includes about this regulation that the assembly only adjusted material and procedural rules of the Bankruptcy Act to the requirements of the civil era. I demonstrated with archival sources and views of conference’s participants that the modifications generated bigger changes in the Hungarian bankruptcy practice. In addition, the first appearance of the deed of arrangement without bankruptcy proceedings in Hungary was connected to the neoabsolutism of which the Hungarian lawyers expressed their opinions.