engleski

Does the New Always Prevail? Parallel Modes of Procedure in the History of Procedural Transformations

This paper provides a historical-comparative analysis of the phases of certain relevant civil procedural reforms in which for a certain period of time the old and the new mode of procedure existed in parallel, with the possibility of the parties’ choice between the two. In the analysis, a threefold perspective is assumed, and the problem is approached from the perspective of Roman law, historical English common law and procedural law reforms in lands of the Habsburg Monarchy in the 19th century. In the analysed periods, contrary to expectations, the parties disregarded the general evaluation of a new procedure’s efficiency. Instead, they were prone to prefer the procedure that suited their immediate interests the best, even if it was generally considered to be outdated. Presence of this phenomenon throughout millennia and in disparate jurisdictions indicates the necessity to calculate its effects into scholarly and practical assessments of any given procedural reform.

legis actiones ; formulary procedure ; lex Aebutia ; assumpsit, trial by jury ; romano-canonical procedure ; Bagatellverfahren ; Summarverfahren ; civil procedural reforms ; Roman law

Knjiga je dio serije knjiga Ius Gentium: Comparative Perspectives on Law and Justice