A white paper for a new Code of Justice brings far-reaching changes to many procedural institutions. For many of them, these changes would mean progress, but is this true also for the intended new rules governing the appeal on a point of law?
The Supreme Court of the Czech Republic and the Czech Association of Judges have already issued brief statements on the proposed reframing of the Code of Civil Procedure, arguing that the proposal neither strengthens legal certainty nor promotes speedier civil proceedings, for a number of reasons described in further detail below.
The most fundamental consequences of the new proposal are associated with the idea that the appeal on a point of law would newly qualify as an ordinary (as opposed to extraordinary) legal remedy, as this would mean that the appellate court's judgment's final force and enforceability would be suspended if either party asks for a third-instance review. For one thing, this change will unavoidably foster distrust towards the decisions rendered by the appellate courts, as if those should be preliminarily "put on hold" for reasons on prudence; for another, it will very likely lead to even longer civil-law court proceedings (and thus to even more substantial expenses for those participating in them).
While keeping the existing four admissibility criteria, the admissibility of an appeal on a point of law is to depend, in the future, also on the value in dispute. For disputes with a value of CZK 50,000 to CZK 100,000, it is the appellate court itself which will decide on whether a third-instance review is admissible (and the court of review will have to respect this decision). At least in this respect, the appellate court thus becomes "its own judge and jury": in effect, if the appellate court were to deviate from the Supreme Court's established case law on the merits and then to adjucate that its own judgment is not subject to review, no recourse would be available to the higher court!
The professional community has also complained that the introduction of a second ground for a review on a point of law – that of nullity of the previous decision – represents a step back: nullity reasons were already abandoned in the past once, mindful of the inordinate case load they put on the Supreme Court. We should mention at this point that there already exists the remedy of a 'complaint on grounds of nullity' which is perfectly sufficient to address any perceived defects of court rulings in this respect.
The next change takes us from the contentious to the bizarre: a penalty of up to CZK 100,000 could be imposed on the attorney of the appellant if the court finds that the appeal on a point of law was arbitrary (capricious) or that the appellant intended to draw out the proceedings indefinitely. To be sure, speedier proceedings are surely to be welcomed, as are measures to prevent the abuse of legal remedies. However, it is completely out of place to achieve this by punishing the appellant's attorney financially, especially if one considers that the white paper provides no guidelines to determine what exactly constitutes an 'arbitrary' appeal. If legal counsel were actually exposed to this kind of risk, they might be extremely reluctant to represent clients before the highest court, not to mention that the risk would be reflected in the fees charged for such representation.
At this point, the new rules for appeals on a point of law as a legal remedy are still on the level of a rough concept (white paper, or general initiative). Legal practitioners hope that they will be cancelled before the amendment moves forward, specifically because of the above-described reasons.
White Paper for a new Code of Civil Justice
Memorandum by the Association of Judges of 29 June 2018
Brief opinion by the Supreme Court of 13 December 2017
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