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Voluntary (Non-Contentious) Jurisdiction Around The World

Voluntary

(Non-Contentious) Jurisdiction

Around The World

Ed. by V. V. Argounov

Fills the gap on English material on voluntary jurisdiction

No many and relevant books on the legal basis for voluntary jurisdiction exist in the world

Provides a comparative approach to voluntary jurisdiction very useful for practitioners and legislators

Covers latest developments on reforms in voluntary jurisdiction in a large number of jurisdictions

Argounov V. V.

Voluntary (Non-Contentious) Jurisdiction Around The World. – М.: Publishing House “Gorodets”, 2017.

This book offers an analysis of the history, legal basis and developments in voluntary jurisdiction in a large number of jurisdictions. Authors discuss the terminology, the nature of voluntary jurisdiction, the recent development, the regulatory basis like actors and forums as well as the scope and procedure including effects, appellation and execution of voluntary jurisdiction in the named countries. In the end provides the fresh statistics, problems, outcomes, reforms and visions.

ISBN 978-5-906815-95-8

© Коллектив авторов, 2014

© ИД «Городец», 2017

Table of contents

An Introduction (Alexey Argounov – Vsevolod Argounov)

. +][+Voluntary Jurisdiction in Eastern Europe

[_*Chapter 1. _][*The colorful microcosms of the Hungarian legal system: Voluntary jurisdiction] (Miklós Kengyel – Viktória Harsági – Gergely Czoboly)

Abstract

§ 1.1 The concept of voluntary jurisdiction in Hungary and a brief sketch of its history

1.1.1 Difficulties of concept formation

1.1.2 The history of voluntary jurisdiction in Hungary

§ 1.2 The voluntary jurisdiction in the legal system: doctrine and legislation

1.2.1 Legal nature of voluntary jurisdiction

1.2.2 The regulative basis

1.2.3 The scope and viability of non-contentious jurisdiction

1.2.4 Judicial procedure for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious cases

1.2.5 The decisions taken as a result of considering of voluntary jurisdiction cases: the problem of res judicata

1.2.6 The specificity of appellation and reconsideration procedures

§ 1.3 Particular procedures

1.3.1 Order for payment procedure

1.3.2 Enforcement Procedure

§ 1.4 The future of voluntary jurisdiction: planned reforms

_*Chapter 2._ [*Voluntary (Non-Contentious) Jurisdiction in Russia] (Alexey Argounov – Vsevolod Argounov)

Abstract

§ 2.1 The concept of voluntary jurisdiction and brief sketch of its history

§ 2.2 The voluntary jurisdiction in the legal system: doctrine and legislation

2.2.1 Legal nature of voluntary jurisdiction: jurisdictio, administratio or sui generis? Authorities responsible for considering voluntary jurisdiction cases

2.2.2 The scope and viability of con-contentious jurisdiction. Statistics

2.2.3 The regulative basis: chaotic legislation

2.2.4 Judicial procedure (s) for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious cases

2.2.5 The decisions taken as a result of considering of voluntary jurisdiction cases: the problem of res judicata

2.2.6 The specificity of appellation and reconsideration procedures

§ 2.3 The future of voluntary jurisdiction: main problems and planned reforms

References

_*Chapter 3._ [*Non-contentious procedure law of Slovenia] (Aleš Galič)

Abstract

Introduction

§ 3.1 Non-contentious procedure: type of matters and legislation governs it

§ 3.2 Delimitation between the contentious procedure (litigation) and non-contentious procedure

§ 3.3 Main differencies between litigation and non-contentious procedure

3.3.1 Princple of free disposition and adversarial principle

3.3.2 “Participants” in non-contentious procedure

3.3.3 Some other features of Slovenian non-contentious procedure

3.3.4 Appeals and res iudicata

§ 3.4 The scope and viability of con-contentious jurisdiction. Statistics (in comparison to litigation)

Conclusion

. +][+Voluntary Jurisdiction in Western Europe

_*Chapter 1._ [*Voluntary (Non-Contentious) Jurisdiction in France] (Cédric Tahri)

Abstract

§ 1.1 The concept of voluntary jurisdiction in France and brief sketch of its history

1.1.1 The concept of voluntary jurisdiction

1.1.2 The historical evolution of voluntary jurisdiction

§ 1.2 The voluntary jurisdiction in the legal system: doctrine and legislation

1.2.1 Legal nature of voluntary jurisdiction: jurisdictio, quarterly gold sui generis? Authorities responsible for considering voluntary jurisdiction cases

1.2.2 The scope and viability of non-contentious jurisdiction. Statistics

1.2.3 The regulative basis

1.2.4 Judicial procedure (s) for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious boxes

1.2.5 The course of the voluntary procedure

a. The outbreak of the voluntary procedure

b. The instruction of the voluntary case

1.2.6 The outcome of the voluntary procedure

a. The voluntary judgment

b. The voluntary recourses

§ 1.3 The future of voluntary jurisdiction: main problems and planned reforms

References

Abbreviations (in French)

_*Chapter 2._ *The New German Procedure in Family Matters (Peter Gottwald)

Abstract

§ 2.1 The reform of jurisdiction over non-contentious matters

§ 2.2 Fundamental aims of reform

2.2.1 Comprehensive rearrangement of procedure

2.2.2 The creation of the Grand Family Court

2.2.3 Conflict avoidance and conflict resolution as aims of reform

2.2.4 Special attention to child welfare

2.2.5 The improvement of interim legal protection

2.2.6 Strengthening of execution

§ 2.3 The rearrangement of the general FamFG procedure

2.3.1 Rearrangement of participation

2.3.2 Proceedings on application and proceedings ex officio

2.3.3 Announcement of documents

2.3.4 Liberal and strict rules of proof

2.3.5 Decision by court order

2.3.6 Settlement

2.3.7 Rearrangement of interim relief

2.3.8 New route of appeal

2.3.9 Legal aid

2.3.10 Costs

2.3.11 Execution of FamFG decisions

2.3.12 Proceedings with foreign elements

§ 2.4 The family matters

2.4.1 Matrimonial matters and consequential matters

2.4.2 Childship matters

2.4.3 Descent matters

2.4.4 Adoption matters

2.4.5 Matters relating to the matrimonial home and household effects

2.4.6 Matters relating to the protection from violence

2.4.7 Proceedings for pension benefits rights equalization

2.4.8 Maintenance matters

2.4.9 Matrimonial property matters

2.4.10 Other family matters

2.4.11 Life partnership matters

2.4.12 Costs in family matters

§ 2.5 Evaluation

_*Chapter 3._ [*Jurisdiction Without Conflict? Remarks on Non-Adverse Proceedings in Italy] (Elisabetta Silvestri)

Abstract

Introduction

§ 3.1 Italian legal sources (past and present) and non-contentious jurisdiction

§ 3.2 The «default rules» for non-contentious proceedings

§ 3.3 «To each his own»: a procedure for each non-contentious matter

§ 3.4 Recent uses (or abuses) of proceedings in chambers

§ 3.5 The simplification of special proceedings

Conclusions

_*Chapter 4._ *Voluntary Jurisdiction in Spain (Lorenzo M. Bujosa Vadell)

Abstract

§ 4.1 The Concept of Voluntary Jurisdiction and a Brief Sketch of its History in Spain

§ 4.2 The Idea of Voluntary jurisdiction in the Legal Spanish System

4.2.1 Legal Nature of Voluntary Jurisdiction and Authorities Responsible for Considering Voluntary Jurisdiction Cases

4.2.2 The Scope and Viability of Non-Contentious Jurisdiction. Statistics

§ 4.3 The New Spanish Regulation of Voluntary Jurisdiction

4.3.1 The Regulative Basis

4.3.2 Judicial Proceedings for Considering Voluntary Jurisdiction Cases and its Main Differences from the Procedure for Considering Contentious Cases

A) Introduction

B) Procedures

C) Principles

D) Subjects: a. Judge and Clerk. b. Interested. c. Lawyer. d. Public Attorney

E) General Procedural Structure: a. Initiation. b. Admission. c. Notice. d. Possible Opposition. e. Audience

F) Evidence

G) Coexistence with other procedures

H) Resolution

I) Effects. The Problem of Res Judicata

J) Expenses

K) Appellation and Reconsideration Proceedings

L) Execution

Case Law

List of abbreviations

_*Chapter 5._ [*Non-controversial jurisdiction in Finland and Sweden] (Laura Ervo)

Abstract

§ 5.1 Concepts

§ 5.2 Recent Developments

§ 5.3 The Actors and Fora

§ 5.4 The Nature of Voluntary Jurisdiction

§ 5.5 Statistics

§ 5.6 The Regulative Basis

§ 5.7 The Scope

§ 5.8 The Procedure

§ 5.9 Effects, Appellation and Execution

§ 5.10 Reforms and Future Vision

§ 5.11 Problems and Outcomes

References

. +][+Voluntary Jurisdiction in South America and USA

_*Chapter 1._ [*Voluntary jurisdiction in Argentina: National Report] (Carlos Enrique Camps)

Abstract

§ 1.1 The concept of voluntary jurisdiction and brief sketch of its history

§ 1.2 The voluntary jurisdiction in the legal system: doctrine and legislation

1.2.1 Legal nature of voluntary jurisdiction: jurisdictio, administratio or sui generis? Authorities responsible for considering voluntary jurisdiction cases

1.2.2 The scope and viability of con-contentious jurisdiction. Statistics

1.2.3 The regulative basis

1.2.4 Judicial procedure (s) for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious cases

1.2.5 The decisions taken as a result of considering of voluntary jurisdiction cases: the problem of res judicata

1.2.6 The specificity of appellation and reconsideration procedures

§ 1.3 The future of voluntary jurisdiction: main problems and planned reforms

Conclusions

_*Chapter 2._ *Voluntary jurisdiction in Brazil (Alexandre Freitas Câmara)

Abstract

Introduction

§ 2.1 Short history of voluntary jurisdiction in Brazil

§ 2.2 Bodies that consider matters of voluntary jurisdiction

§ 2.3 Jurisdictional nature of voluntary jurisdiction

§ 2.4 Relation between voluntary jurisdiction cases and contentious cases

§ 2.5 Voluntary jurisdiction proceedings in Brazil

§ 2.6 Short description of voluntary jurisdiction proceedings and its main differences from controversial jurisdiction proceedings

§ 2.7 Appeal proceedings in voluntary jurisdiction

§ 2.8 Recent reforms implemented in the area of voluntary jurisdiction

§ 2.9 Final remarks

_*Chapter 3._ *Voluntary jurisdiction in Venezuela (Jorge I. González Carvajal)

Abstract

§ 3.1 The concept of voluntary jurisdiction and brief sketch of its history

§ 3.2 The voluntary jurisdiction in the legal system: doctrine and legislation

3.2.1 Legal nature of voluntary jurisdiction: jurisdictio, administratio or sui generis? Authorities responsible for considering voluntary jurisdiction cases

3.2.2 The scope and viability of non-contentious jurisdiction. Statistics

3.2.3 Judicial procedure (s) for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious cases

3.2.4 The decisions taken as a result of considering of voluntary jurisdiction cases: the problem of res iudicata

3.2.5 The specificity of appellation and reconsideration procedures

§ 3.3 The future of voluntary jurisdiction: main problems and planned reforms

_*Chapter 4._ [*Non-contentious Jurisdiction in the Courts of the United States] (James E. Pfander – Daniel D. Birk)

Abstract

§ 4.1 Non-Contentious Proceedings in the Federal Courts

4.1.1 Government Benefits

4.1.2 Transfers of Property

4.1.3 Bankruptcy

4.1.4 Government Investigations

4.1.5 Prisoner Litigation

4.1.6 Public and Private Dispute Resolution

§ 4.2 Scholarly Reactions to Ex Parte and Non-Contentious Proceedings

§ 4.3 Toward a Theory of Non-Contentious Jurisdiction

4.3.1 The Theory Sketched

Conclusion

About the Authors

[*Alexey Argounov *]– Candidate on Legal Sciences, Assistant Professor at the Department of Civil, Commercial and Adminstrative Procedure at the Russian Academy of Justice (Moscow).

Vsevolod Argounov – Candidate on Legal Sciences, Assistant Professor at the Department of Civil Procedure at the Lomonosov Moscow State University.

Daniel D. Birk – Partner, Eimer Stahl LLP; J. D. 2010, Northwestern University School of Law.

Lorenzo M. Bujosa Vadell – Tenured Professor of Procedural Law at the University of Salamanca. Member of the International Association of Procedural Law and of the Iberoamerican Institute of Procedural Law. Director of Bogota’s head office for Latin America of the General Foundation of the University of Salamanca.

Alexandre Freitas Câmara – Professor Emeritus and Head of Civil Procedure Department at EMERJ (Rio de Janeiro Judicial School). Judge at Rio de Janeiro Court of Appeals. Member of the International Association of Procedural Law (IAPL).

[*Carlos Enrique Camps *]– Barrister, Professor of Civil Procedure at the National University of La Plata (Argentina).

Gergely Czoboly – Lecturer at the Department of Civil Procedure and Legal Sociology at the University of Pécs (Hungary), fellow of the Institute for Legal Studies, Center for Social Sciences, Hungarian Academy of Sciences.

Laura Ervo – Dr. Professor of law, University of Örebro, Sweden. Adjunct professor (“docent”) at the Finnish Universities of Turku, Helsinki and Eastern Finland. Member of the International Association of Procedural Law (IAPL).

Aleš Galič – Associate Professor at the University of Ljubljana, Faculty of Law, and a legal advisor to the Constitutional Court of Slovenia. Member of the International Association of Procedural Law (IAPL).

Jorge I. González Carvajal – Professor of Procedural Law at Universidad Central de Venezuela.

Peter Gottwald – Dr. jur. habil., Chair for Civil Law, Procedural Law and Conflicts of Law at the University of Regensburg, former president of the (German) Association of International Procedural Law and of the International Association of Procedural Law (IAPL).

Viktória Harsági – Associate Professor, Head of Department at the Pázmány Péter Catholic University (Budapest), Faculty of Law, Department of Civil Procedure Law and lecturer at the Andrássy Gyula German Speaking University (Budapest).

Miklós Kengyel – Chair of the Department of Civil Procedure and Legal Sociology at the University of Pecs (Hungary). Part-time Professor of Comparative Civil Procedure at Andrassy Gyula University in Budapest. Former Dean and Rector. Member of the Council of the International Association of Procedural Law (IAPL).

James E. Pfander – Owen L. Coon Professor of Law, Northwestern University School of Law.

Elisabetta Silvestri – Associate Professor of Civil Procedure and Comparative Civil Procedure at the University of Pavia, Italy.

Cédric Tahri – Director of the Institute of Judicial Training of La Rochelle (IRFJ). Lecturer at the University of Montesquieu-Bordeaux IV.

An Introduction

Alexey Argounov – Vsevolod Argounov

The title of the book – Voluntary (Non-Contentious) Jurisdiction Around the World – is somewhat provocative. It implies that the concept denoted as voluntary or non-contentious jurisdiction is well known. However, the content and scope of this concept have not yet been determined precisely. Moreover, it is subject to multiple and lengthy discussions in different countries. However, we have considered it possible to use it as, its uncertainty notwithstanding, the concept of “voluntary jurisdiction” is the most all-embracing in terms of meaning and reflects all possible procedures of considering the cases traditionally referred to as “non-contentious”.

It should be clarified why we see the concept of voluntary (non-contentious) jurisdiction as a sort of a unifying idea. For this purpose, we will need a brief introduction to the history of this concept emergence and development in the continental law. For many foreign systems of justice that have borrowed the Roman legal legacy, the axiomatic principle is to divide jurisdiction into contentious (jurisdiction contentiosa) and voluntary (non-contentious) (jurisdiction voluntario). This has been noted in many articles included into this book. As many other legal doctrines, voluntary jurisdiction has, through the efforts of the glossators, grown out of the laconic utterances of the Roman jurists into a unique area of legal rules and concepts. Dependent on the country, legal regulation of voluntary jurisdiction may be assigned to the domain of substantive, procedural, public or private law. Situated on the junction of these subsystems, voluntary jurisdiction may be referred to as a “buffer” reflecting the interaction of individual freedom and public enforcement, harmonizing private and public interests in law.

Thus, it is closely related to the social security law, the imperative rules of civil law and family law. Often, non-contentious cases fall within the competence not only of the judicial authorities, but other public authorities as well, or the notaries. The scope of legal literature dedicated to the problematics of the voluntary jurisdiction is vast, and the interest to this subject of jurists and practicing lawyers from all over the world is quite high, and has been high for several centuries now, evidence of which is provided in the chapters of this book, describing the history of voluntary jurisdiction development and containing the main literary sources.

In many foreign systems of law, the concept of “voluntary jurisdiction” includes the following areas of legal regulation:

•the operation of the court related to considering and final resolution of civil cases, most of which are “non-contentious”, i. e., are not related to resolving an issue of law, however, the court judgments are frequently constitutive in nature;

•the operation of the notaries related to certifying all kinds of circumstances having legal meaning, certifying non-contentious rights and facts, performing protective notarial actions.

•“registration operations” related to registering facts and legal status that are most relevant to private law, providing the pre-requisites for the creation of the majority of subjective rights and obligations. We are referring to the state registration of acts of civil status, registering and maintaining registers of legal entities and other organizations, state registration of property rights.

At the same time, it would be an error to consider its voluntary nature to be a general material element of voluntary jurisdiction. Voluntary recourse to a competent public authority by mutual will of individuals only constitutes a basis of a small category of cases falling within this jurisdiction. Most of the categories of voluntary jurisdiction cases, on the contrary, are of explicitly imperative and public nature ensuing from the need to protect public interests. Frequently, intervention by a court (or another competent authority) into private interests is quite serious and happens against the will of the parties. Hence, the title “voluntary jurisdiction” is rather a tribute to the tradition deeply rooted in the legal doctrine, and nowadays does not reflect the real content of the regulated area of legal relations. This is justly highlighted in many Chapters of this book.

In certain countries, voluntary (non-contentious) jurisdiction is conceived as a general concept not related to jurisdiction only; in other, it is not always truly non-contentious. For instance, in Germany, some contentious cases (family cases) are being considered within the realms of the voluntary jurisdiction. In many countries, writ proceedings constitute a part of the voluntary jurisdiction. At the same time, there are some examples of a classical approach to voluntary jurisdiction, where the courts are considering non-contentious cases only (France). Some jurists propose considering voluntary jurisdiction in a broad aspect, including all non-contentious administrative and even criminal cases (The Chapter on Voluntary Jurisdiction in East Scandinavia). At that, doubtless, the proceedings of the court in all systems of law considered in the book is the main and the most significant part of voluntary jurisdiction, it may even be referred to as the classical part. It is in the courts that the majority of the most complex and important matters are resolved, and those of them falling within the jurisdiction of non-judicial authorities are directly controlled by the courts.

A review of this book’s Chapters allows making a conclusion that three main approaches to the legal regulation of voluntary or non-contentious jurisdiction have been established in the world:

1) The rules of considering voluntary jurisdiction cases are provided for in a Civil Procedure Code, general provisions of which are applied when considering both, contentious and non-contentious cases, and, in some instances, in other laws (Argentina, Brazil, Venezuela, Italy, Russia, Finland, France, etc). The above tradition is mostly characteristic for the countries with the Roman system of law, and the countries affected by the Soviet law.

2) The rules of considering voluntary jurisdiction cases are stipulated in an individual law specifically regulating this area of public relations (Germany, Slovenia, Sweden).

3) The rules of considering voluntary jurisdiction cases are stipulated in various industry-specific laws, substantive laws, and no general provisions whatsoever exist (Hungary, common law countries).

Information on the present-day legal regulation of voluntary jurisdiction in different countries may be of interest not only to the jurists, but also to politicians planning to reform this area. For instance, recently, a reform of voluntary jurisdiction has been implemented in Germany; in 2015, a new law on voluntary jurisdiction was adopted in Spain. Currently, it is planned to implement a reform in France. The recent reforms in Spain and France are aimed at relieve the judicial system of non-contentious cases. For instance, in France, it is planned to transfer mutual consent divorce cases into the competence of the notaries. The proposals on vesting in non-judicial bodies the authority to consider non-contentious cases are also being discussed in Russia.

It should be noted that most of the issues in this area, both theoretical and practical, are “cross-cutting” ones, shared by many systems of law. For instance, such theoretical issues as the correlation of justice with other types of law enforcement activity – and primarily, with the notarial actions relating to the state registration of rights and statuses; the matters pertaining to the nature and the tasks of the courts in litigation and other proceedings; the concept of the issue of law and many other are relevant to many countries. The structuring of national legislation, as well as the resolution of many practical tasks, for instance, the issue of unburdening the judicial system and enhancing its performance, depend on the adoption of a certain concept.

We hope that the information on the history and the present-day legal regulation of voluntary jurisdiction in different countries will be helpful and useful to scientists, practicing lawyers and politicians.

SECTION 1

Voluntary Jurisdiction in Eastern Europe

Chapter 1

The colorful microcosms of the Hungarian legal system: Voluntary jurisdiction

Miklós Kengyel – Viktória Harsági – Gergely Czoboly

Abstract

This paper summarizes the general characteristics of the Hungarian non-litigious procedures in such a way that it allows the reader to compare the Hungarian system with the others examined in this volume.

Presently an approximately hundred non-litigious procedures exists in Hungary and the number of legal acts regulating these procedures is nearing sixty. Only a governmental decree from 1952 can be considered as a common rule. In the majority of the matters of voluntary jurisdiction the courts have got competence, but exceptionally, there are other persons (e. g. notaries public, bailiffs etc.) who have jurisdiction in certain civil matters of voluntary jurisdiction.

One of the mostly used is the order for payment procedure which has been comprehensively reformed in 2009. Because of the importance and innovative solutions of the Hungarian order for payment procedure special attention was paid to it. A remarkable innovation is constituted by the solution – unusual in Europe – that the law delegates the non-litigious procedure traditionally falling within the competence of the courts to the competence of notaries public. The new law established an electronic procedure, which renders it possible to shorten the length of the procedure significantly. Beside the detailed examination of this specific procedure the authors synthesize the general characteristics of the non-litigious procedures in Hungary and highlighted the main differences from controversial jurisdiction procedure. The legal effect and the possible legal remedies of the different procedures were also scrutinized.

The paper provides statistical data about the Hungarian system of non-litigious procedures too. It shows that, while the number of litigious cases of the courts is relatively constant, the number of non-litigious proceedings – which are particularly sensitive to economic processes – increased most dynamically during the years of the economic crisis. In 2010 this process was disrupted, the explanation for which lies – unfortunately – not in the upturn of the economy, but in the fact that order for payment procedures making up the majority of non-litigious proceedings have been transferred from the jurisdiction of courts to the competence of notaries.

§ 1.1 The concept of voluntary jurisdiction in Hungary and a brief sketch of its history

1.1.1 Difficulties of concept formation

Long-existing endeavours on the part of the Hungarian science of civil procedure to provide an independent definition for the concept of voluntary jurisdiction[, _]irrespectively of the notion of litigious proceedings, have usually met with failure or such attempts have remained at the level of generalities. The cause of the failure may primarily be traced back to the fact that voluntary jurisdiction proceedings do not have such common rules based on which it would be possible to formulate a definition similar to that of civil litigation proceedings. Even today it is not possible to tell more about the _nearly one hundred types of voluntary jurisdiction proceedings regulated by Hungarian civil procedural law at present than what was stated by Salamon Beck, according to whom[_ a) ]voluntary jurisdiction proceedings consist of consecutive procedural acts [_b) _]the subjects of which are the court (notary public) and the parties concerned, [_c) _]the subject-matter of the proceedings is a civil matter,[ d) ]the purpose of the proceedings is to administer justice,[ e) ]based on the form of procedure prescribed for it1. A similar conclusion has been drawn by the Austrian _Dolinar too, according to whom voluntary jurisdiction proceedings are characterized by such varied forms of appearance that it is possible to define their concept only formally. Based on this definition, voluntary jurisdiction proceedings are proceedings regulated by the State and aimed at disposing of legal matters2.

1Beck, Salamon. 1959. A nemperes eljárásjog. In Magyar polgári eljárásjog, ed. János Bacsó, Salamon Beck, and Mihály Móra, 633. Budapest: ELTE Állam – és Jogtudományi Kar. 633.

2Dolinar, Hans. 1982. [_Österreichisches Außerstreitverfahrensrecht. Allgemeiner Teil. _]Wien: Springer-Verlag. 10.

The above formulation, however, differs only slightly from the – Prussian – definition created one and a half centuries ago that classifies under voluntary jurisdiction the activity of the court that is not considered litigation and that is carried out by it in accordance with the provisions of law, at the request of the parties in the interests of legal security3.

3Allgemeine Gerichtsordnng für die Preussischen Staaten von 1793. Teil 2 Titel 1. §  

One may get closer to the concept of voluntary jurisdiction only if one tries to reveal those shared criteria that distinguish the individual voluntary jurisdiction proceedings from civil litigation proceedings.

At the beginning of the century, Hungarian academic legal literature considered the lack of adversarial hearing and the absence of substantive legal effect attached to the judgment as the most relevant differences between litigation and voluntary jurisdiction proceedings. However, in due course, jurisprudence has discarded both distinguishing features with reference to the fact that there are such voluntary jurisdiction proceedings where adversarial hearing does take place and some orders made in certain voluntary jurisdiction proceedings may give rise to substantive legal effect.

In the 1930 s Richter enumerated twelve characteristic features of civil litigation proceedings, but finally he came to the conclusion that none of these features were suitable for distinguishing litigation proceedings from voluntary jurisdiction proceedings. A distinction can only be made based on the “legal rules defining the procedural acts and governing the order of such acts”, which “can be traced back to the legislator’s will”. Therefore, the fact whether a proceeding is a litigation proceeding or a voluntary jurisdiction proceeding is determined solely by the way of regulation4. The same pragmatic approach was used by Sárffy as well, in whose opinion proceedings governed by the rules of the Code of Civil Procedure relating to civil litigation are called litigious proceedings, while proceedings not regulated under such rules are called voluntary jurisdiction proceedings5.

4Richter, Béla. 1932. A peres és a peren kívüli eljárás viszonya. [_Magyar Jogi Szemle _]13: 132–137.

5Sárffy, Andor. 1930. A peráradat csökkentése. Budapest: Magyar Jogászegylet. 11–12.

The same pragmatic approach dominates German academic legal literature too. According to the prevailing view, voluntary jurisdiction covers matters concerning which the law directly or indirectly provides for voluntary jurisdiction proceedings. Each proceeding has its own substance and its own procedural rules. The activity carried out within the frames of voluntary jurisdiction is partly administration of justice, partly administration, partly an activity aimed at resolving a dispute and partly one that does not decide a case, it is partly of private law and partly of public law nature etc6. Austrian legal terminology uses the term “Außerstreitverfahren” for voluntary jurisdiction, which means non-contentious procedure, which in Fasching’s view refers not only to the lack of a dispute, but also to the lack of litigation7. According to Rechberger, the sole criterion for distinction lies in regulation. Those civil cases fall within the range of non-contentious procedures that are specifically regulated as being subject to such procedure by law8.

6Weirich, Hans-Armin. 1981. Freiwillige Gerichtbarkeit. Eine Einführung in die Systematik und Praxis. Stuttgart: Kohlhammer W. 37–38.; Schmidt, Gerd. 1991. [_Handbuch der freiwilligen Gerichtsbarkeit. _]München: Rehm. 1.; Rosenberg, Leo, Schwab, Karl-Heinz, and Gottwald, Peter. 2010. [_Zivilprozessrecht. _]München: C. H. Beck. 61–63.

7Fasching, Hans W. 1989. Zivilprozessrecht. Lehr – _][_und Handbuch. Wien: Manz’sche. 66.

8Rechberger, Walter H., and Simotta Daphne A. 2009. [_Zivilprozessrecht. _]Wien: Manz’sche. 214–215.

In Hungarian academic legal literature it can be considered a generally held view that voluntary jurisdiction proceedings are regarded as atypical forms of procedure. In Magyary’s opinion, civil litigation is the most important instrument for enforcing private law interests, at the same time, “there are also other proceedings that, although having a different structure, serve the same purpose”9. In Beck’s view, within the unified system of civil procedural law litigation is the typical form, and voluntary jurisdiction proceedings are characterized by a different “world of rules”10. The scope of voluntary jurisdiction was given a negative definition by Farkas, according to whom voluntary jurisdiction covers all civil proceedings that are not conducted in the strictly regulated form of a civil lawsuit11.

9Magyary, Géza, and Nizsalovszky, Endre. 1939.[_ Magyar polgári perjog. _]Budapest: Franklin Társulat. 18.

10Beck, Salamon. 1959. A nemperes eljárásjog. In Magyar polgári eljárásjog, ed. János Bacsó, Salamon Beck, and Mihály Móra, 633. Budapest: ELTE Állam – és Jogtudományi Kar. 634.

11Farkas, József. 1978. Bírósági és közjegyzői nemperes eljárások. In Polgári eljárásjog,[_ _]ed. Jenő Szilbereky, Budapest: Tankönyvkiadó. 177–178.

The positive definition encountered in Hungarian academic legal literature comes from János Németh, who considers voluntary jurisdiction to cover

•consecutive acts defined by law carried out in a peculiar procedural form (that is usually less complicated than the one prescribed for a civil lawsuit),

•by the court, or some other person attached to or classified as identical with the court from a defined aspect, or

•by another person entitled to be involved in the procedure,

•in order to administer justice, or

•in order to certify facts or rights, or have them recognized etc,

•as well as the procedural legal relations connected with such acts12.

12Németh, János. 2002. A polgári nemperes eljárásokról. In A bírósági nemperes eljárások magyarázata, ed. János Németh and Daisy Kiss. Budapest: KJK-KERSZÖV Jogi és Üzleti Kiadó. 32.

A positive approach to the concept may also be encountered in the analytical essay written by Gáspárdy in 200013, as well as in the one authored by Juhász in 201014.

13Gáspárdy, László. 2000.[_ Polgári nemperes eljárások. _]Miskolc: Novotni Alapítvány. 25.

14Juhász, Imre. 2010. A polgári nemperes eljárások fogalma és általános jellemzése. In A polgári nemperes eljárások joga, ed. István Varga. Budapest: ELTE Eötvös Kiadó. 35.

1.1.2 The history of voluntary jurisdiction in Hungary

The modernization of the Hungarian legal system took place in the last third of the 19 th century. The term “voluntary jurisdiction” appeared in the legal literature at that time, which was replaced in the second half of the 20 th century by the term “non-litigious procedures”15.

15The term “non-litigious” was first mentioned by Sárffy, Andor. 1946. Magyar polgári perjog. Budapest: Grill Károly Könyvkiadó. 9–11. After this the use of term became common.

No comprehensive regulation of voluntary jurisdiction proceedings took place either in the 19 th or the 20 th centuries, although such regulation had been carried out already in the 19 th century in German and Austrian law, exerting a substantial influence on the development of the Hungarian legal system. In Austria the Non-Contentious Proceedings Act was adopted in 185416. In Germany, in turn, the Act on Voluntary Jurisdiction entered into force – following lengthy preparatory work – on 1 January 1900 simultaneously with the Civil Code and the Land Registration Act17. In contrast with other sources of law, these two codes did not have a stimulating effect on Hungarian legal development.

16Gesetz über das gerichtliche Verfahren in Rechtsangelegenheiten außer Streitsachen (Kaiserlisches Patent 9. 8. 1854)

17Reichsgesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit vom 17. Mai 1898.

In Hungary the regulation of voluntary jurisdiction has always been considered a question of secondary importance compared to the regulation of litigious proceedings. During the codification of the civil procedure codes of 1911 and 1952, non-litigious procedures were incorporated into acts the purpose of which was to put the civil procedure codes into force. Nevertheless, in 1952 the result was a voluminous regulation, Decree 105/1952. (XII. 28.) MT of the Council of Ministers. It contained in 58 paragraphs the rules of the courts” non-litigious procedures18 and the regulation of notary public procedures, including the general provisions of non-litigious procedures.

18Regulation on provisional measures, termination of the matrimonial community property, declaration of death, order for payment procedure, annulment of securities and documents and succession procedure.

It could have been the starting point for a unified regulation, if there had been will for the codification. Instead of this, a separate regulation of these procedures had begun19. The number of non-litigious procedures increased quickly due to separate legal acts, but the legal regulation did not lose its clarity. By this time the unified regulation did not seem as hopeless as twenty years later, when the explosive growth of the procedures of voluntary jurisdiction took place in several waves. The first wave – after the political changes – brought back those non-litigious procedures, which had existed in our legal system before too, but during the decades of socialism, had atrophied or emptied (e. g. Act XLIX of 1991 on bankruptcy proceedings and liquidation proceedings, Act CXLV of 1997 on the Register of Companies, Public Company Information and Court Registration Proceedings etc.) The second wave was the result of deliberate codification, when procedures of voluntary jurisdiction were created by dozens of major substantive and procedural legal acts (e. g. Act XXII of 1992 on the Labour Code, Act LXXI of 1994 on Arbitration, Act LIII of 1994 on Judicial Enforcement, etc.). A similar consciousness can be detected in the fact that the registration of various – private and public law – bodies and, in some cases, the supervision over their operation is carried out in the form of non-litigious proceedings (e. g. Act CLXXXI of 2011 on the registration of civil organizations). The effective legal regulation uses non-litigious proceedings extensively concerning the judicial review of the decisions of various authorities (e. g. the court reviews decisions of the Hungarian Intellectual Property Office under Act XXXIII of 1995 on the protection of inventions by patents and decisions of the refugee authority under Act LXXX of 2007 on Asylum within the frames of non-litigious proceedings). Finally a “stealth” codification must be mentioned, which means that the legislator created non-litigious procedures in the most unexpected situations due to considerations of legal policy. As a result of the most recent legal development the presumption of paternity can also be challenged in non-contentious proceedings (Act V of 2013 on Civil Code Section 4:114).

19E.g. Decree No. 6/1958. (VII. 4.) IM of the Minister of Justice on the succession procedure, Decree No. 1/1960. (IV. 13) IM of the Minister of Justice on the declaration of death, Decree No. 9/1969 (XII. 28.) IM of the Minister of Justice on the procedures concerning the industrial property rights.

§ 1.2 The voluntary jurisdiction in the legal system: doctrine and legislation

1.2.1 Legal nature of voluntary jurisdiction

Voluntary jurisdiction and the administration of justice

Voluntary jurisdiction is characterized primarily by the jurisdictional activity of authorities. An exception is constituted by cases where the task of the court – even within the frames of voluntary jurisdiction – is to decide the legal dispute. (Out of the voluntary jurisdiction proceedings that are referred to as litigation-substituting proceedings20 such cases include administrative and industrial rights protection proceedings as well as non-litigious proceedings for the termination of matrimonial community property and proceedings relating to suffrage.)

20Farkas, József. 1978. Bírósági és közjegyzői nemperes eljárások. In Polgári eljárásjog,[_ _]ed. Jenő Szilbereky, Budapest: Tankönyvkiadó. 180–181.

The majority of voluntary jurisdiction proceedings are aimed not at the resolution of a legal dispute, but at

•changing legal status,

•avoiding or preparing litigation,

•promoting the exercise of rights, including the certification of facts and rights, as well as,

•enforcing rights through legal compulsion21.

21A similar approach may be encountered in German academic legal literature as well. Rosenberg, Leo, Schwab, Karl-Heinz, and Gottwald, Peter. 2010. [_Zivilprozessrecht. _]München: C. H. Beck. 61–62.

The enumerated activities, as jurisdictional tasks, do not fall under the monopoly of the courts. Pursuant to Article 25 (2) of the Fundamental Law, other bodies may also be authorized by law to proceed concerning specific legal disputes. The legislator has discretion to decide whether to assign proceedings not classified as civil litigation to the competence of the court or to some person attached to the court who, however, has no judicial power (e. g. court clerk, court administrator, enforcement administrator), or some other judicial body, e. g. notary public or court bailiff.

The legislator’s decision may be based on expediency, the aim of ensuring a simpler and more flexible form of procedure, or on the traditions of the legal system as well22.

22See II.1. (Authorities responsible for considering voluntary jurisdiction cases)

Compliance with procedural guarantees

Deciding whether the adjudication of a civil case should fall within contentious or voluntary jurisdiction is a question of legal policy primarily. Therefore the dividing line between the two procedures is rather unfixed23, since as a result of a legislative decision litigation proceedings can easily become voluntary jurisdiction proceedings or the other way round. Despite the possible legal policy considerations there are matters “that are rather to be dealt with within the frames of litigation and there are cases that are rather to be dealt with under voluntary jurisdiction”24. The latter mainly include such proceedings that are aimed not at the resolution of a legal dispute, but rather its prevention or the promotion of the enforcement of rights. Mention should also be made of the fact that voluntary jurisdiction proceedings (due to the limited nature or lack of adversarial hearing, trial and demonstration of evidence) provide fewer guarantees for the right-seeking person compared to civil litigation, therefore in every case the legislator must weigh whether the regulation of a civil matter under voluntary jurisdiction would conflict with Article XXVIII (1) of the Fundamental Law providing for the right of access to the courts or Article 6 of the European Convention on Human Rights relating to the right to a fair trial.

23Fasching, Hans W. 1989. Zivilprozessrecht. Lehr – _][_und Handbuch. Wien: Manz’sche. 66.

24German academic legal literature considers the delimitation of litigation and voluntary jurisdiction proceedings merely as a question of regulation. The legal regulation in force prescribes voluntary jurisdiction proceedings – for reasons of expediency and out of other considerations – also concerning matters which would otherwise be dealt with within the frames of litigation, and the other way round, it regulates as litigious proceedings matters that could also be disposed of under voluntary jurisdiction. Cp. Rosenberg, Leo, Schwab, Karl-Heinz, and Gottwald, Peter. 2010. [_Zivilprozessrecht. _]München: C. H. Beck. 63.

This fact is emphasized by Decision 36/2000. (X. 27.) AB of the Constitutional Court, according to which “it may be decided only based on the characteristics of the individual proceedings whether: there is such interest attached to the given proceeding that justifies its regulation outside litigation and whether within that range the nature of the proceeding (e. g. court proceeding or out-of-court proceeding) is well-suited to the rights sought to be enforced and protected by the proceeding, and whether the proceeding complies with the relevant guarantees.”

1.2.2 The regulative basis

The current situation can be summarized as follows: at present approximately one hundred non-litigious procedures exist in Hungary, and the number of legal acts regulating these procedures is nearing sixty. Only Article 13 of Decree 105/1952. (XII. 28.) MT of the Council of Ministers can be considered as a common rule, according to which, unless the specific legal act which regulates the procedure of voluntary jurisdiction provides otherwise, or it follows otherwise from the nature of the procedure, the provisions of the Code of Civil Procedure shall be duly applied.

The Hungarian code of civil procedure – except some cases – does not regulate the procedures of voluntary jurisdiction. Approximately sixty legal acts contain provisions on these procedures. The most important sources are the followings:

•judicial deposit [27/2003. (VII. 2.) IM rend.];

•company registration (2006: V. tv.);

•registration of civil society organizations (1989: II. tv. 15. § , 2011: CLXXV. tv. 13. § );

•bankruptcy (reorganization) procedure(2006: VI. tv.);

•annulment of securities and documents (2008: XLV. tv. 28–36. § )];

•liquidation procedure (2006: VI. tv.);

•order for payment procedure (Pp. 313–323. § , 2009: L. tv.);

•succession procedure [2010: XXXVIII. tv.];

•declaration of death [1/1960. (IV.16.) IM rend.];

•procedures of voluntary jurisdiction concerning industrial property rights (1995: XXXIII. tv. 85–103. § , 1997: XI. tv. 77–94. § , 1991: XXXVIII. tv. 37. § , 1991: XXXIX. tv. 23. § ); 2001: XLVIII. tv. 61–62. § ;

•procedures of voluntary jurisdiction for the review of administrative decisions [e.g. 1996: LVII. tv. 82. § ; 2003: LXXX. tv. 32. § ; 2007: LXXX. tv. 17. § ; 2009: LXII. tv. 21., 12. § stb.];

•procedures of the notaries public (1991: XLI. tv. 172., 175. § , 2008. évi XLV. tv.)

•procedure of voluntary jurisdiction for the review of the local governments” decrees (2011: CLXI. tv. 46–56. § ),

•procedure of voluntary jurisdiction concerning suffrage (1997: C. tv. 82–85. § );

•procedures of voluntary jurisdiction related to arbitration (1994: LXXI. tv. 53. § )

•dissolution proceeding (2006: V. tv.);

•judicial enforcement (1994: LIII. tv. 1–224. § ).

1.2.3 The scope and viability of non-contentious jurisdiction

Exact statistical data are available on the number of proceedings of voluntary jurisdiction. The following diagram contains the number of litigious (civil and business) and non-litigious proceedings of the courts between 2000 and 2011. It shows that the number of non-litigious proceedings is much higher than the litigious ones. While the number of litigious cases is relatively constant, the number of non-litigious proceedings – which are particularly sensitive to economic processes – increased most dynamically during the years of the economic crisis, which affected Hungary also. In 2010 this process was disrupted, the explanation for which lies – unfortunately – not in the upturn of the economy, but in the fact that order for payment procedures making up the majority of non-litigious proceedings have been transferred from the jurisdiction of courts to the competence of notaries.

The number civil cases at first instance courts and cases of voluntary jurisdiction in Hungary after the millennium (thousand cases)25

25Kengyel, Miklós. 2013. Economic Analysis of Civil Ligitation in Hungary. In Recent Trends in Economy and Efficiency of Civil Procedure, ed. Vytautas Nekrosius, 112–129. Vilnius: Vilnius University

1.2.4 Judicial procedure for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious cases

The general opinion of the Hungarian legal literature is that the procedures of voluntary jurisdiction are atypical compared to the litigious procedure. According to J. Farkas procedures of voluntary jurisdiction are all of those civil procedures which are not proceeded in the strict form of the litigious procedure. The strict form requires that [_a) _]only courts can proceed, [_b) _]there are two opposing parties in the procedure, [_c) _]it begins with claim, [_d) _]the court is obliged to hear both parties, [_e) _]in order to prove facts the court takes evidence, [_f) _]the court decides on the merits with the requirement of finality and their decisions are legally binding. If any of these criteria is lacking the procedure cannot be considered a litigious procedure26.

26Farkas, József. 1978. Bírósági és közjegyzői nemperes eljárások. In Polgári eljárásjog,[_ _]ed. Jenő Szilbereky, Budapest: Tankönyvkiadó. 177–178.

In procedures of voluntary jurisdiction:

•instead of a court, a notary public or a bailiff can proceed as well (e. g. succession procedure or judicial enforcement procedure);

•the opposite party may be missing (e. g. declaration of death);

•the procedure can be commenced by motion, request or other submission (e. g. the judicial enforcement procedure is commenced by a certificate of enforcement issued by the court or a notary public);

•the procedure is not adversarial (e. g. the notary public does not hear the other party in the case of an order for payment procedure);

•the court or notary public does not prove facts, or it does not takes evidence (e. g. order for payment procedure);

•the court decides with a ruling, or with other types of decisions which are not similar to judgment, but to rulings (e. g. enforcement clause issued by the court).

1.2.5 The decisions taken as a result of considering of voluntary jurisdiction cases: the problem of res judicata

According to their form, different decisions exist in non-litigious procedures: they can be rulings, orders, or other decisions (e. g. certificate of enforcement, or enforcement clause), according to their subject, they can be decisions on the merit, or decisions taken during the procedure. In non-litigious procedures judgments cannot be delivered.

Between decisions taken in litigious or non-litigious procedures, there is no difference in their so called “formal legal force” which means that the decision is unimpeachable. Legally binding decisions taken in non-litigious procedures are also unimpeachable.

Among the legally binding decisions the judgment, the order and some rulings have force of res judicata too. In non-litigious procedures the law provides force of res judicata to the following decisions: order for payment (Act L of 2009, 36. § ) and the court-approved settlement (Civil procedure code, 148. § ). Other legal acts does not regulate the legal effect of the decisions made on the merit in non-litigious procedure, hence their legal nature should be taken into consideration. The following decisions have force of res judicata due to their nature: decision on cancellation of a company, decisions taken in the non-litigious procedures concerning industrial property rights, rulings taken on the merit, and among the non-litigious procedures of the notary public, the decisions on the annulment of securities and documents.

1.2.6 The specificity of appellation and reconsideration procedures

Similarly to the litigious procedure, distinction is made between the ordinary and the extraordinary legal remedies. Ordinary remedies are the appeal, the opposition and the objection; extraordinary remedies are the revision and the retrial. It is possible to correct or supplement the decision in non-litigious procedures too and – unless otherwise provided by law – the party may file a motion for justification, if he or his legal counsel failed to appear on a certain date without any fault on his part, or missed a deadline for reasons beyond his control. Due to the nature of non-litigious procedures, there are special remedies too, e. g. withdrawal of the certificate of enforcement (Act on judicial enforcement, 211–212. § ), or in the succession procedure the motion for repeat the procedure. (Act XXXVIII of 2010, 105. § ).

In non-litigious procedure, appeal and revision is permitted against the decision on the merit. Legally binding rulings may be considered as decisions on the merit if the court (or other authority) decides on the initial application. But revision is not only permitted against legally binding rulings which finish the procedure, but against all other rulings in which the court (or other authority) decides on the merit. However in other cases the law explicitly excludes revision. Legal literature estimates that there are circa eighty rulings against which revision is permitted.

In case of the jurisdiction of a notary public or a bailiff, the parties may address a remedy against the decision of the notary public or the activity of the bailiff. For example the decision of the notary public in probate procedure can be challenged by the appeal court.

There are a great number of possible remedies available concerning the civil enforcement proceedings. These remedies may be divided in two main groups: non-litigious remedies (which may be sought within the framework of the enforcement proceedings) and litigious remedies. Within the two above-mentioned main groups, we may distinguish further categories.

The court is to cancel the writ of execution if the court issued the writ of execution on a document in violation of the law. Either party (the debtor and also the creditor) may apply for this remedy, but in practice, in the majority of cases, it is the debtor that applies for the withdrawal or cancellation. The court may also cancel the writ based on the bailiff’s report. This is a special procedure also in the sense that there is no time limit concerning the application for remedy. The petition for the cancellation of the writ may be successful if some legal condition was not met regarding the issue of the enforcement order at the time of ordering the enforcement. Such deficiency may be if the notarial document does not contain or does not contain precisely the conditions specified under Section 21 of the Enforcement Act and therefore judicial enforcement of the document is not possible27. The ground for the cancellation of the writ of execution could also be the lapse of the right of enforcement concerning the claim to be enforced28.

27Rudolf, László. 2001. A közjegyzői okirat bírósági végrehajtása. Közjegyzők Közlönye 7–8: 12–14.

28Vida, István. 2004. A végrehajtás elrendelésével kapcsolatos jogorvoslatok. In A bírósági végrehajtás magyarázata, ed[_. _]János Németh and Daisy Kiss, Budapest: KJK-KERSZÖV Jogi és Üzleti Kiadó. 88.

After the initiation of the enforcement proceedings, the debtor may provide documentary proof that it is probable that he no longer owes a debt or that the claim is unfounded. Such announcement has to be submitted to the bailiff accompanied by the appropriate document, who will set a 15-day deadline for the person requesting the enforcement to make a statement. If the person requesting the enforcement acknowledges the cessation of the claim and pays the costs incurred, the enforcement is terminated. However, it is more common that the person requesting the enforcement does not acknowledge that the debtor has fully performed his obligation. The controversy between the parties is usually concerning the amount. In such cases the dispute may be resolved within the framework of an enforcement action.

A special remedy relating to the implementation of enforcement is the demurrer of enforcement. The demurrer of enforcement cannot be linked to the person of the notary public drafting the notarial document or his actions. The demurrer of enforcement as an institution of remedy is always based on the bailiff’s unlawful actions or his failure to take action. The demurrer may be submitted either by the debtor or the creditor to the court effectuating the enforcement. The demurrer of enforcement has to be filed within 15 days after the actions carried out by the bailiff. If the person filing the demurrer learnt about the actions only later or he was hindered from submitting the demurrer even after the 15 days from the bailiff’s action, limitation for the submission of the demurrer of enforcement runs from the time when the person learnt about the bailiff’s actions or when the obstacle was removed. More than six months after the bailiff’s actions, it is not possible to file a demurrer of enforcement. No justification is accepted for the failure to meet the deadline [§ 217 Enforcement Act].

The special nature of the demurrer is constituted by the fact that it is a non-dutiable remedy and has no suspensory effect on the actions. If it is successful, the court suspends the bailiff’s actions or orders him to take different action29.

29Kengyel, Miklós, and Harsági, Viktória. 2010. Civil Justice in Hungary. Nagoya University Comparative Study of Civil Justice. Vol. 4. Tokyo: Jigakusha. 199–200.

An appeal may be lodged against any court order passed in the course of the implementation of enforcement.

§ 1.3 Particular procedures

1.3.1 Order for payment procedure

The main purpose of the order for payment procedure is to ensure the settling of such presumably uncontested claims by means of a rapid non-litigious procedure, which does not merely reduce the workload of the court but also provides the parties with a time – and cost-efficient solution. The order for payment procedure is one of the few non-litigious procedures the rules of which – for a long time – were not contained in a separate statute or other legal instrument but in the Code of Civil Procedure (HCCP) itself. Mostly non-litigious procedures closely connected with litigious procedures were afforded space in the HCCP30. By now the regulatory technique used by legislators has become different. Rules relating to the order for payment procedure have basically been placed in a separate Act (Act Nr. 50 of 2009); at the same time, the same Act has amended Chapter XIX of the HCCP, the content of which has been reduced to “the court’s tasks pertaining to the order for payment procedure”31.

30For more detail on the ealier regulation, see: Németh János. 2003. Das Mahnverfahren im ungarischen Zivilverfahrensrecht. In Festschrift für Kostas _][_E. Beys dem Rechtsdenker in attischer Dialektik, ed. Nakamura Hideo, 1125–1138. Athen: Sakkulas.

31Harsági, Viktória. 2012. The notarial order for payment procedure as a Hungarian pecularity. In Recht ohne Grenzen. Festschrift für Athanassios Kaissis zum 65. Geburtstag, ed. Reinhold Geimer, and Rolf A. Schütze, München: Sellier, 343. p.

The institution of the order for payment procedure was introduced into the Hungarian legal system by Act Nr. 19 of 1893. It was subsequently regulated by Act Nr 3 of 1952 on the Code of Civil Procedure, and has undergone numerous modifications since then. Although there was no change in the essence of the legal institution for a century32, the detailed rules, including in particular the regulation relating to the value limit and the conditions of the statement of opposition, were amended several times33. A few years ago a real turning point was brought about by Act Nr. 30 of 2008 and Act Nr. 50 of 2009. These two Acts served as a basis for the comprehensive reform of the Hungarian order for payment procedure. The former Act, on the one hand, concerned the structure of the procedure to some extent, on the other hand, created the possibility of electronic processing. Although the amendment of 2008 opened the way to the introduction of the electronic order for payment procedure, it did not elaborate the detailed regulation. The Act carried out alterations that simplified paper-based administration of affairs to a great extent and rendered it possible for legal practice to carry out the subsequent transition to electronic order for payment procedures smoothly. The automated order for payment procedures at the courts has not been set up. The practical implementation of electronic processing is ensured by the regulation contained in Act Nr. 50 of 2009. This Act delegates the procedure within the competence of notaries public and contains the detailed rules required for establishing the electronic procedure34.

32Gáspárdy, László. 1994. A magyar fizetési meghagyásos eljárás – nyugat-európai összevetésben. Jogtudományi Közlöny 4–5: 151–158.; Szécsényi-Nagy, Kristóf. 2012. Nagykommentár a fizetési meghagyásos eljárásról szóló törvényhez. Budapest: Complex Kiadó. 30–34. p.; Harsági, Viktória. 2012. A magyar fizetési meghagyásos eljárás fejlődéstörténetének áttekintése. [_Iustum Aequum Salutare _]3–4: 223–237. www.jak.ppke.hu/hir/ias/ias.htm. Accessed 25 April 2015.

33Kengyel, Miklós. 2010. Magyar polgári eljárásjog. Budapest: Osiris. 521.

34Harsági, Viktória. 2010. A fizetési meghagyásos eljárás. In Polgári eljárásjog,[_ _]ed. Petrik Ferenc, Budapest: HVG–ORAC, D/85.

Act Nr. 50 of 2009 provided the order for payment procedure with completely new foundations. In Hungary – similarly to most European countries – since the entry into force of these provisions, it has been possible to have recourse to the order for payment procedure exclusively in order to enforce pecuniary claims35. The order for payment procedure has become transformed into such a non-litigious procedure, where the issue of the order for payment may take place without the examination of the legal basis or evidentiary proof of the claim36. After the order for payment has acquired legal force, it also falls within the competence of the notary public to order its enforcement.

35In accordance with the Hungarian regulation, for a long time, it was possible to enforce two types of claims by the order for payment procedure: firstly, pecuniary claims and secondly, claims directed at the surrender of personal property. This latter was not a common solution in international comparison.

36Lugosi, József. 2010. Kézikönyv a fizetési meghagyásos eljárásról. Budapest: HVG-ORAC. 16.; For more detail, see: Szécsényi-Nagy, Kristóf. 2010. A fizetési meghagyásos eljárás. In A polgári nemperes eljárások joga, ed. Varga István, Budapest: ELTE Eötvös Kiadó. 853.; Harsági, Viktória. 2010. A fizetési meghagyásos eljárás. In Polgári eljárásjog,[_ _]ed. Petrik Ferenc, Budapest: HVG–ORAC. D/102/13–14.

An innovation which has an essential influence on the character of the procedure is constituted by electronic, automated processing. The explanation to the Act refers to the computer system to be set up as a “nationally uniform computer system”, which “contains and mechanically processes declarations and documents relating to order for payment procedures”. All notaries public are granted direct access to the computer system. They carry out their procedural acts through this system, electronically. The automated system creates the decisions during the procedure always on behalf of the “proceeding” notary public, and the decisions bear the name and imprint of the stamp of the given notary public. According to the explanation, the notary public is liable for the decision so issued in his name. The parties and their representatives are also granted access to the system in order that they can directly register their submissions in the internet-based system (on a Web surface). The processing of applications is automated, in other words, the computer system can carry out the procedural acts without requiring human participation if the statutory conditions for this are met. The acts performed in this way are to be regarded as measures taken by the proceeding notary public.

The electronic procedure renders it possible to shorten the length of the procedure significantly. Applications that have been submitted electronically must be disposed of within three working days. As opposed to this, the time limit relating to oral or paper-based applications is a lot longer, 15 days. This is explained by the fact that in the latter case on the basis of the oral or paper-based petition the data will be registered by the notary public in the system of the Hungarian Chamber of Civil Law Notaries (Magyar Országos Közjegyzői Kamara, hereinafter: MOKK), then they will be processed by the system automatically, similarly to applications registered by the party through the internet37.

37Harsági, Viktória. Az elektronikus fizetési meghagyásos eljárások problematikája – hazai, valamint német és osztrák példákon keresztül. Infokommunikáció és Jog 5–6: 179–184.; Molnár, Judit. 2014. A magyar fizetési meghagyásos eljárás az európai megoldások tükrében. Budapest: Közjegyzői Akadémiai Kiadó, 157–168.

The cases in which an order for payment may be issued have been defined by the legislator in conformity with the regulation relating to small claims. Diverging from the earlier Hungarian tradition [_only pecuniary claims that have fallen due _]may be enforced within this procedure. The Act lays down one million forints as the statutory limit38, so claims not exceeding this amount can be enforced exclusively by means of an order for payment procedure. If in his action the claimant is exclusively asserting a claim that may only be enforced by way of an order for payment procedure, on dismissing the statement of claim without the issue of summons, the court will inform him about the possibility and ways of starting an order for payment procedure. Originally the Act did not lay down a maximum value limit, but in practice typically claims of a lesser value are enforced this way. In 2012 was introduced a maximum value limit of 400 million forints.

38For more detail, see: Szécsényi-Nagy, Kristóf. 2008. A fizetési meghagyásos eljárás reformja. In A fizetési meghagyásos eljárás átalakulása. Budapest: MOKK .17. p

However, it should be noted that in cross-border cases the party is not prevented from enforcing his claim within the framework of the procedure defined by Regulation (EC) № 861/2007 establishing a cross-border European Small Claims Procedure or in arbitration proceedings. The European order for payment procedure is not mentioned among these alternatives by the legislator. As a matter of course – if the conditions laid down by Regulation (EC) № 1896/2006 are met – this procedure can also constitute an alternative for the order for payment procedure regulated by national law39.

39Kengyel, Miklós, and Harsági, Viktória. 2009. Európai polgári eljárásjog. Budapest: Osiris. 321.

If the defendant does not have a known Hungarian domicile or place of habitual residence or seat or representation (collectively: a Hungarian address for service of process), it is not possible to conduct a Hungarian order for payment procedure. In such a case the claimant may enforce the claim within the framework of litigious proceedings. Obviously, this restriction cannot be applied in the European order for payment procedure. This restriction relating to the Hungarian order for payment procedure points back in time: it could also be detected in the earlier regulation falling within the jurisdiction of the courts at the time. The reason for the provision lies in the fact that in such a situation service by public notice would be required, which, on due application of § 102 (3) of the Code of Civil Procedure would lead to the appointment of a guardian ad litem. Then in turn, the guardian ad litem would be obliged to submit a statement of opposition, as a result of which all order for payment procedures initiated under such circumstances would, in the order of things, be transferred into civil court proceedings. Consequently, in such a construction the order for payment procedure could not fulfil its function40.

40Harsági, Viktória. 2010. A fizetési meghagyásos eljárás. In Polgári eljárásjog,[_ _]ed. Petrik Ferenc, Budapest: HVG–ORAC. D/102/17.

A pecuniary claim arising from an employment relation can be enforced by way of an order for payment procedure only if the subject-matter of the case is not constituted by the establishment, modification or termination of the legal relation or a penalty applied as a result of the culpable breach by the employee of his obligations relating to the employment relation, or a penalty applied in the case of a breach of discipline. In other cases it is possible to commence legal proceedings directly41.

41Asbóth-Hermányi, Lőrinc. 2012. Módszertani útmutató a fizetési meghagyásos eljáráshoz. Budapest: HVG-Orac. 98–104.

Similarly to the drafting of notarial documents, concerning order for payment procedures as well, the competence of the notary public extends to the whole country. As a result of this, a jurisdiction clause is not possible. In such a construction inequalities in the territorial distribution of cases may be balanced better, as a result of which the efficiency of the system can be increased. However, it should also be noted that this solution is rendered possible by electronic processing, since from the aspect of disposing of applications submitted electronically in the “virtual space”, in an automatic system, the seat and geographical location of the office of the notary do not have much significance.

In the case of applications lodged via the internet, the distribution of cases takes place in an automatic system, electronically. In order to avoid a situation serving as a ground for disqualification, the notary public is required to register the names of his relatives in the system. Identity of names is screened by the distribution system42.

42Szécsényi-Nagy, Kristóf. 2012. Nagykommentár a fizetési meghagyásos eljárásról szóló törvényhez. Budapest: Complex Kiadó. 106–112.

The party (if the party is a natural person and does not have a legal representative) may lodge his application in paper form or orally with any notary public. Basically, the notary with whom the application has been lodged will proceed in such a situation. As a matter of fact, this regulation ensures a choice of forum for the claimant; however, it is of little practical significance because of automatic processing. Choosing one or another notary may, at most, mean a relatively quicker procedure within the 15-day limit prescribed for disposing of such cases, depending on the momentary workload of the chosen notary.

Electronic application must be submitted on a standard form or electronically via an internet surface. The processing of applications will take place automatically – regardless of the method of their submission. For this very reason, it is enough to submit one copy in the case of an application filed in the traditional paper form as well. The notary will immediately record the data of the application in the computer system. It also results from digital data processing that it is not necessary or possible to attach annexes to the applications basically. An application filed electronically may be submitted on an electronic standard form laid down in the order of the Minister of Justice via the system of the MOKK. The qualified electronic signature guarantees that the application has been made by the claimant, and the qualified time stamp certifies the date of submission. The system will send an error message to the submitting person about the deficiencies of the applications intended for electronic submission. The data of the application may be entered in the system of the MOKK after the they have been completed or rectified. The person submitting the application will receive an automatically generated feedback on the registration of the application43.

43Lugosi, József. 2010. Kézikönyv a fizetési meghagyásos eljárásról. Budapest: HVG-ORAC. 165–166.

Service may take place in paper form or electronically. The paper-based document is centrally printed out and prepared for postal delivery by the computer system of the MOKK. At the request of the claimant, the order for payment must be served on the defendant by way of service by a bailiff.

If the claimant does not have a Hungarian address for service of process, he is required to appoint an agent for service of process. In case of failure to comply with this requirement, service by public notice is applicable. It is worth noting the modern solution laid down by § 15 (6) of the Act, which allows the realization of service by public notice via the internet. Obviously, publication of the document itself on the website of the MOKK is excluded because of the wide access to it, as in this case data protection could not be ensured44.

44Szécsényi-Nagy, Kristóf. 2012. Nagykommentár a fizetési meghagyásos eljárásról szóló törvényhez. Budapest: Complex Kiadó. 151.

Concerning the rules relating to the issue of the order for payment, relatively few changes may be encountered. However, time limits relating to the administration of affairs have been modified significantly. The notary public must issue the order for payment within 15 days in the case of an application submitted in paper form and within 3 days in the case of an application filed electronically. The difference between the two time limits may encourage parties to submit their applications electronically even if they are otherwise not required to do so.

The detailed explanation for the bill emphasizes that the regulation relating to time limits is only of theoretical significance, since if the notary should fail to observe the time limit, the computer system of the MOKK would automatically issue the order for payment on the notary’s behalf on the next working day following the expiry of the deadline45. In such a case – if the order for payment has been issued deficiently and it has not been possible to remedy the deficiency as a result of the notary’s omission – the notary must bear the (professional and financial) liability.

45Lugosi, József. 2010. Kézikönyv a fizetési meghagyásos eljárásról. Budapest: HVG-ORAC. 150.

The defendant may file a statement of opposition against the order for payment with the notary public within 15 days from service. If the statement of opposition is directed at only one part or provision of the order for payment, the part (provision) of the order for payment not concerned by the statement of opposition will enter into force.

If in the statement of opposition the defendant refers to the fact that he had performed the enforced claim already prior to the service of the order for payment, at the same time as the notary public serves the notification of statement of opposition on the claimant, he will call upon him to make a declaration about the existence of the claim to the notary public within 15 days. If the claimant accepts the defendant’s allegation or he fails to make a declaration after having been called upon to do so, the notary public will terminate the procedure.

It cannot be considered as contesting the order for payment if the defendant argues that he performed the enforced claim following the receipt of the order for payment; in this case the order will enter into force on the day following the deadline for the filing of a statement of opposition. Following the receipt of the defendant’s declaration, at the same time as the notary public serves the notification of the declaration on the claimant, he will call upon him to make a declaration about the existence of the claim. If the claimant accepts the defendant’s allegation or does not make a declaration as required, the notary will indicate in the res judicata clause that the claim – or its part concerned by the declaration or acceptance – is not subject to enforcement46.

46Szécsényi-Nagy, Kristóf. 2012. Nagykommentár a fizetési meghagyásos eljárásról szóló törvényhez. Budapest: Complex Kiadó. 287–297.

Compared to the earlier situation, it may be evaluated as a novelty that the defendant proceeding in person may also present his statement of opposition orally; moreover, he may not only do so before the notary proceeding in his case but before any notary. He may submit his statement of opposition in writing either to the notary or directly to the computer system of the MOKK. In order to alleviate the defendant’s situation, he receives the standard form relating to the statement of opposition together with the order for payment, accompanied by a reply envelope.

As a result of the statement of opposition filed in due time, the order for payment procedure – in its part concerned by the statement of opposition – is transferred to ordinary court proceedings. At the same time as serving the notification of the statement of opposition on the claimant, the notary calls upon the claimant to pay the court fees relating to the proceedings in a submission filed with the court within 15 days of the service of the notification and to present his detailed allegations of fact pertaining to the case together with the supporting evidence. In his call the notary includes a warning that if the claimant’s fails to carry out its contents, the court will discontinue the civil proceedings. Following the service on the claimant of the notification about the statement of opposition, the notary sends a copy – printed through the system of the MOKK – of the documents recorded in the system of the MOKK pertaining to the order for payment procedure to the court specified in the application for the order for payment by the claimant47.

47Lugosi, József. 2010. Kézikönyv a fizetési meghagyásos eljárásról. Budapest: HVG-ORAC. 283–286.

The order for payment that is not challenged by a statement of opposition within the time limit laid down by law enters into force, and it has the same effect as a final judgment. Against a final order for payment one may have recourse to retrial as extraordinary remedy; however, review is not possible. The court having jurisdiction to conduct retrial proceedings is the one that – in the case of a statement of opposition – would have had jurisdiction as a first instance court to conduct the civil proceedings to which the procedure has been transferred.

With regard to orders for payment having entered into force, the Act delegates the ordering of enforcement to the competence of notaries. Both written and oral application for enforcement may be submitted to any notary, while electronic applications are forwarded to the proceeding notary by the case distribution system. No application for enforcement may be submitted more than 10 years after the entry into force of the order for payment; failure to comply with this time limit results in forfeiture of the right. The certificate of enforcement is issued in the form of an electronic document and it is forwarded electronically to the bailiff, via the electronic system of the MOKK and the Hungarian Chamber of Court Bailiffs.

If the defendant has not taken delivery of the order for payment and, therefore, it must be deemed as delivered on application of the presumption of service contained in § 99 (2) of the HCCP, the notary will inform the claimant about the fact that the defendant may submit a statement of opposition within 15 days of the service of the enforcement order. If the claimant has requested service by a bailiff in such a case, the time limit must be calculated from the point in time when the document containing the final order for payment was successfully delivered by the bailiff. If the final order for payment is challenged by a statement of opposition within the defined time limit, the order will cease to have effect.

The beginning of the time limit relating to the second possibility of statement of opposition may be brought forward by the claimant to the time preceding the enforcement proceeding, thus the claimant may spare the costs of enforcement, which are useless expenses in the case of a statement of opposition48.

48Szécsényi-Nagy, Kristóf. 2010. A fizetési meghagyásos eljárás. In A polgári nemperes eljárások joga, ed. Varga István, Budapest: ELTE Eötvös Kiadó. 897.

1.3.2 Enforcement Procedure

The enforcement procedure consists of the totality of substantive and procedural legal relations. In order to commence enforcement proceedings, a legal title is required, which enforcement, in a narrow sense, means the right to commence enforcement proceedings, and in a broader sense, it refers to the totality of substantive and procedural legal consequences originating from the legal relation, which affect the rights and obligations of the participants of the enforcement proceedings.”49 A characteristic element of enforcement is constituted by the application of sanctions, which may be directed against persons or property. Basically, two types of enforcement may be distinguished: criminal enforcement, where sanctions are predominantly directed against persons and judicial enforcement, which is primarily directed against the debtor’s assets, but the application of coercive measures against persons is not excluded either. Judicial enforcement may serve the purpose of enforcing both private law and public law claims (e. g. outstanding tax liabilities). The Enforcement Act of 1994 contains procedural rules and provisions relating to enforcement agencies. Rules of substantive law may be found primarily in the new Civil Code, which also incorporates two formerly independent codes – the Act on Business Associations and the Family Law Act.

49Vida, István. 2004. A végrehajtás elrendelésével kapcsolatos jogorvoslatok. In A bírósági végrehajtás magyarázata, ed[_. _]János Németh and Daisy Kiss, Budapest: KJK-KERSZÖV Jogi és Üzleti Kiadó. 166.

The rights afforded in the Civil Code may be enforced by way of judicial process – unless otherwise provided for by law (Section 1:6, Civil Code). If the claim awarded by the court is not voluntarily performed by the debtor, the court will order enforcement, at the creditor’s request, if the writ of execution a) contains an obligation (ruling against the judgment debtor), b) _]is definitive or is subject to preliminary enforcement, and [_c) the deadline of performance has expired (Section 13 Enforcement Act). The judgment creditor shall, within the framework of this Act, have the privilege to specify the type of property of the judgment debtor from which to secure enforcement of his claim (Section 8). In the course of judicial enforcement, executive force may be employed to force a party compelled for payment of money or for some other conduct to fulfill such obligation (Section 5).

“The essence of judicial enforcement lies in the application of executive force. This takes place only in the event of the lack of voluntary performance; executive force is resorted to, in any case, secondarily, with a subsidiary character. In its decision the Regional Court of Appeal of Budapest pointed out: executive force applied against the debtor on justified grounds – in the lack of voluntary performance – does not constitute an injury to personal rights and therefore it does not serve as a ground for the award of damages.”50 In the view of the Constitutional Court, it is a provision expressly serving the purpose of the protection of creditors and the general interests of the rule of law that the bailiff does not send a second, completely unnecessary warning to the debtor to perform voluntarily, but instead he or she appears at the debtor’s apartment and seizes the debtor’s personal assets to cover the debt [Decision No. 46/1991. (IX. 10.) AB of the Constitutional Court].

50Gyekiczky, Tamás. 2009. A végrehajtási kényszer alkalmazása. In A bírósági végrehajtás magyarázata, ed. Tamás Gyekiczky, Budapest: Complex, 103.

Judicial enforcement is a way of [_singular assets enforcement, _]not the whole property of the debtor is subjected to enforcement, but his specifically defined assets or pecuniary rights. However, these measures do not concern the debtor as a legal subject. Universal enforcement takes place during liquidation proceedings, where the liability of the business undertaking for its debts extends to all of the assets of the undertaking. As a result of liquidation proceedings the business undertaking ceases as a legal subject. In the case of private individuals no liquidation can take place, nevertheless, it is to be noted that the Hungarian Parliament is soon going to debate the bill on private bankruptcy.

Among the Basic Provisions of the Enforcement Act one may find several provisions relating to the protection of debtors. They include, e. g. that executive force may, within the framework of the Act, be used primarily to restrict the pecuniary rights of the judgment debtor, and may affect the judgment debtor’s civil rights only exceptionally in justified cases (Section 5, Enforcement Act).

During judicial enforcement, money claims are to be collected, in the first place, from the funds on the debtor’s account administered by the financial institution and, in the second place, from the debtor’s wages. If it is foreseeable that the enforcement directed at the funds deposited in a financial institution in the name of the debtor or at his wages will not lead to success within a relatively short period of time, [_any asset of the debtor _]may be subject to enforcement. However, the seized [_real property _]may be sold only if the claim is not fully covered by other assets of the debtor or it could be satisfied in a disproportionately long period of time [[_Gradus executionis – _]Section 7 Enforcement Act].

As we have already pointed out concerning the previous point, the judgment creditor shall have the privilege to specify the type of property of the judgment debtor from which to secure enforcement of his claim. For the purpose of proportionate and/or gradual application of coercive enforcement, the court may deviate from the disposition of the judgment creditor in the interest of the judgment debtor (Section 8 Enforcement Act).

In contrary to some other European states (e. g. Germany, Italy and Poland), in Hungary there is not any debtor’s assets declaration. Consequently, information about the debtor’s assets may be obtained from public registers. It can be obtained by the enforcement organs. Apart from creditors and their lawyers, this task is mainly shouldered by court bailiffs, to whom the authorities can refuse to provide the required information free of charge. Some of the public registers are electronic; therefore, those entitled to it may easily access the required information. The situation of creditors who have free access only to population registers has become more difficult.

The debtor’s financial situation may be revealed based on various public registers. It is the bailiff’s task to obtain, if necessary, the data relating to the debtor’s income and his assets that may be subjected to enforcement. Authorities and organizations administering registers must comply with the bailiff’s request within eight days without charging procedural duty or a fee.

The gathering, verification and processing of the data of the debtor and other persons involved in enforcement proceedings is regulated by Section 47 Hungarian Enforcement Act. In according to it in the interest of carrying out the enforcement procedure successfully, the bailiff shall obtain information for the identification of the judgment debtor, and other particulars such as permanent or habitual residence, head office, place of business, place of employment (or self employment), income and any property that can be seized (movable or immovable property, payment account, deposit, securities, partnership share or other interest in a business association etc.).

The bailiff shall be entitled to approach the authorities and organizations so as to obtain the above mentioned information, such as the police, departments of motor vehicle registration, agencies for personal data and address records, document bureaus, pension insurance administration agencies and health insurance administration agencies tax authorities, courts of registry, payment service providers, investment firms, the real estate supervisory authority, agencies of water and aircraft passenger records, telecommunications organizations, the records office of liens on movable properties (hereinafter referred to as “lien records”), notaries public, and the Chamber so as to review its files on debtor economic operators.

The above-specified authorities and organizations shall satisfy the bailiff’s request for information within 8 days free of any dues or charges.

In its request for information the bailiff shall indicate the case number or the number of the writ of execution to which the information pertains. The bailiff shall safeguard all data and information obtained in his official capacity from any unauthorized access, from publication, and from any illegal use or use for the purpose of any criminal act. The circumstance when such data and information can be contained in any executory documents or can be disclosed to third parties are governed by law.

If the bailiff has in his possession any data and information on the judgment debtor other than those contained in the relevant documents, it shall be recorded in a protocol when the case is closed and filed, and a copy shall be attached to the file. The data and information can be retained for ten years after the enforcement case is closed and filed, following which the bailiff shall destroy the documents containing any such data or shall provide for having the data erased some other way.

The bailiff may request the data by way of electronic means from the authorities and bodies keeping electronic records of such data (e. g. land register).

According to Section 47/A the bailiff may consult the personal data and address records, the register of driver’s licenses, and/or the authority maintaining the register of travel documents or the body operating the central immigration register: [_a) _]to verify the data provided in proof of the identity and home address; [_b) _]to confirm the validity of the identification document or residence document (hereinafter referred to collectively as “identification document”) of the person. The verification may involve the personal data of the judgment debtor, if a natural person, other debtors, and other persons involved in the enforcement proceedings, whose identity the bailiff has established. The bailiff shall inform the person affected, and attending the act of enforcement, other than the judgment debtor, before commencing the verification procedure indicating its purpose, methodology and contents, the obligation to refuse cooperation, the obligation of notification, and concerning the processing of the data obtained.

Data and information for the above-specified control shall be requested by way of electronic means, with the bailiff’s official electronic signature affixed to the request.

Coercive enforcement may restrict the debtor’s pecuniary rights in the first place but, in exceptional cases, it may also concern his civil rights. Coercive action against the person of the debtor is implemented by the police based on the measures taken by the bailiff.

The proportionate and gradual application of coercive enforcement (Gradus executionis). In accordance with the Enforcement Act, during judicial enforcement, money claims are to be collected, in the first place, from the funds on the debtor’s account administered by the financial institution, in the second place, from the debtor’s wages. If it is foreseeable that the enforcement directed at the funds deposited in a financial institution in the name of the debtor or at his wages will not lead to success within a relatively short period of time, any asset of the debtor may be subject to enforcement. However, the seized real property may be sold only if the claim is not fully covered by other assets of the debtor or it could be satisfied in a disproportionately long period of time (§ 7 Enforcement Act).

The creditor’s right to disposition. It depends on the creditor’s disposition from what type of asset of the debtor he wishes to secure enforcement of his claim. However, this right may only be exercised within lawful limits, thus e. g. it cannot be directed at pointing out specific assets during the seizure (§ 8 Enforcement Act).

In case of the jurisdiction of a notary public or a bailiff, the parties may address a remedy against the decision of the notary public or the activity of the bailiff. For example the decision of the notary public in probate procedure can be challenged by the appeal court. There are a great number of possible remedies available concerning the civil enforcement proceedings. These remedies may be divided in two main groups: non-litigious remedies (which may be sought within the framework of the enforcement proceedings) and litigious remedies. Within the two above-mentioned main groups, we may distinguish further categories.

The court is to cancel the writ of execution if the court issued the writ of execution on a document in violation of the law. Either party (the debtor and also the creditor) may apply for this remedy, but in practice, in the majority of cases, it is the debtor that applies for the withdrawal or cancellation. The court may also cancel the writ based on the bailiff’s report. This is a special procedure also in the sense that there is no time limit concerning the application for remedy. The petition for the cancellation of the writ may be successful if some legal condition was not met regarding the issue of the enforcement order at the time of ordering the enforcement. Such deficiency may be if the notarial document does not contain or does not contain precisely the conditions specified under Section 21 of the Enforcement Act and therefore judicial enforcement of the document is not possible51. The ground for the cancellation of the writ of execution could also be the lapse of the right of enforcement concerning the claim to be enforced52.

51Rudolf, László. 2001. A közjegyzői okirat bírósági végrehajtása. Közjegyzők Közlönye 7–8: 12–14.

52Vida, István. 2004. A végrehajtás elrendelésével kapcsolatos jogorvoslatok. In A bírósági végrehajtás magyarázata, ed[_. _]János Németh and Daisy Kiss, Budapest: KJK-KERSZÖV Jogi és Üzleti Kiadó. 88.

After the initiation of the enforcement proceedings, the debtor may provide documentary proof that it is probable that he no longer owes a debt or that the claim is unfounded. Such announcement has to be submitted to the bailiff accompanied by the appropriate document, who will set a 15-day deadline for the person requesting the enforcement to make a statement. If the person requesting the enforcement acknowledges the cessation of the claim and pays the costs incurred, the enforcement is terminated. However, it is more common that the person requesting the enforcement does not acknowledge that the debtor has fully performed his obligation. The controversy between the parties is usually concerning the amount. In such cases the dispute may be resolved within the framework of an enforcement action.

A special remedy relating to the implementation of enforcement is the demurrer of enforcement. The demurrer of enforcement cannot be linked to the person of the notary public drafting the notarial document or his actions. The demurrer of enforcement as an institution of remedy is always based on the bailiff’s unlawful actions or his failure to take action. The demurrer may be submitted either by the debtor or the creditor to the court effectuating the enforcement. The demurrer of enforcement has to be filed within 15 days after the actions carried out by the bailiff. If the person filing the demurrer learnt about the actions only later or he was hindered from submitting the demurrer even after the 15 days from the bailiff’s action, limitation for the submission of the demurrer of enforcement runs from the time when the person learnt about the bailiff’s actions or when the obstacle was removed. More than six months after the bailiff’s actions, it is not possible to file a demurrer of enforcement. No justification is accepted for the failure to meet the deadline [§ 217 Enforcement Act].

The special nature of the demurrer is constituted by the fact that it is a non-dutiable remedy and has no suspensory effect on the actions. If it is successful, the court suspends the bailiff’s actions or orders him to take different action53.

53See: Kengyel, Miklós, and Harsági, Viktória. 2010. Civil Justice in Hungary. Nagoya University Comparative Study of Civil Justice. Vol. 4. Tokyo: Jigakusha. 199–200.

An appeal may be lodged against any court order passed in the course of the implementation of enforcement.

The Hungarian Enforcement Act regulates the order of enforcement in a rather complicated way. The final court judgement, the settlement or the notarial document are not sufficient for the enforcement, the creditor has to apply to the court for the issue of an enforcement order. Based on its own decision or the approved settlement, the court issues a certificate of enforcement and to the notarial document, it affixes a certificate of enforcement. The “certificate of enforcement” was taken over by Hungary from Soviet law in the 50 s and we have not been able to get rid of it even since the political transformation54.

54Vida, István. 2004. A végrehajtás elrendelésével kapcsolatos jogorvoslatok. In A bírósági végrehajtás magyarázata, ed[_. _]János Németh and Daisy Kiss, Budapest: KJK-KERSZÖV Jogi és Üzleti Kiadó. 213.

General conditions of enforcement: An enforcement order may be issued only if the decision to be enforced or the claim based on a document a) contains an obligation (ruling against the debtor), b) it is final or may be preliminarily enforced and c) the deadline for performance has expired. On the basis of a court-approved settlement, an enforcement order may be issued even if the writ of approval has been contested.

Below is given a non-exhaustive list of enforcement titles, based on which the court issues a certificate of enforcement:

•a court ruling against the debtor in a civil case,

•a court ruling against the defendant passed in a criminal case with regard to the civil law claim

•a court-approved settlement

•a decision adopted by a notary public against the debtor

•a settlement approved by a notary public

•judgements of various disciplinary tribunals

•a judgement by a foreign court

•a foreign or Hungarian arbitration award (§ 15 Enforcement Act).

The court or the notary affixes a writ of execution to notarial documents and the decisions of various disciplinary authorities and also to specific decisions by employers.

The enforcement order is usually sent to the bailiff. However, if the claim has to be satisfied exclusively from the debtor’s wages, the court passes an order for garnishment of wages, in which it calls upon the employer to deduct the amount indicated in the order from the debtor’s wages and pay it to the creditor without delay (§ 24 Enforcement Act).

§ 1.4 The future of voluntary jurisdiction: planned reforms

In the last five years many non-litigious procedures have been renewed. This reform process started with the Act XLV of 2008 on certain non-litigious procedures of the notary public, which was followed by the Act L of 2009 on the order for payment procedure. This act – in a unique way in Europe – gave jurisdiction to the notary public, instead of courts, to issue the order for payment. In 2010, one of the oldest procedures, the succession procedure has been reformed as well. After the change of government, the focus of legislation shifted to the issues of the public law (Basic Law, the organization of the courts, the public administration). In the field of private law, the re-codification of the Civil Code has to be mentioned. The Act CLXXV of 2011 has introduced some relevant changes in the registration of civil society organizations. Due to the needs of the economy, the judicial enforcement and the insolvency procedures were also reformed. As a general trend, the introduction of e-justice in the field of non-litigious procedures has to be emphasized.

After the enactment of the new Civil Code (Act V of 2013), preparatory work of the civil procedure code’s codification has began. Neither in the legal literature, nor in the legal practice has the need arised for the integration of the non-litigious procedures into the civil procedure code. The number of legal acts regulating the non-litigious procedures, and the differences between these procedures make the integration practically impossible.

However, it would be essential to declare as a legal policy, which civil cases are litigious and non-litigious. The current borderline is very unsteady, because it can change any time due to a legislative decision. Despite reasons of legal policy, there are cases “which can better be decided in a litigious procedure, and others, which are better suited to a non-litigious one”. These latter would include those which do not aim to decide the legal dispute, but which seek to prevent them, or to promote the enforcement of claims. Finally we have to refer to the fact that non-litigious procedures (due to the lack or the limited nature of the trial, the taking of evidence, or the right to an equal and reasonable opportunity for all parties to present a case) provide fewer guaranties than the litigious procedures. Because of this, the legislator has to decide if the nature of the procedure is not controversial with the right to access to court, provided by the General Law of Hungary (Article XXVIII), or with the right to a fair trial, provided by Article 6 of the European Convention of Human Rights.

In 2013 preparations started for the codification of the new Code of Civil Procedure, during which the issue of the regulation of voluntary jurisdiction proceedings was also raised. The conception revealed to the public in 2014 does not wish to make considerable changes to the existing situation; it continues to take a stand in favour of regulating non-litigious proceedings separately. At the same time, the conception proposes creating a chapter in the new Code of Civil Procedure that would provide guidance for those conducting non-litigious proceedings concerning the application of the rules of the Code of Civil Procedure. […] The chapter would exclude or provide for the applicability of the other chapters or detailed rules of the Code of Civil Procedure concerning non-litigious proceedings by making a reference to specific, uniformly applicable characteristic rules of non-litigious proceedinds55. However, all this is merely a conception, the possible realization of which may be expected in 2017 at the earliest.

55Varga, István. 2014. Egység és sokféleség a perrend kodifikálásában In Egy új polgári perrendtartás alapjai,[_ _]ed. János Németh and István Varga, Budapest: HVG-ORAC. 33.

Chapter 2

Voluntary (Non-Contentious) Jurisdiction in Russia

Alexey Argounov – Vsevolod Argounov

Abstract

This Chapter provides a general overview of voluntary jurisdiction in Russia. The authors analyse history and current state of this legal phenomenon. The main issue, as authors see it, is the lack of a uniform concept of the Russian voluntary jurisdiction in theory and in practice. In the Chapter authors proceed on the basis that voluntary jurisdiction applies to both substantive and procedural law, within the public and private domain alike and include in the concept of voluntary jurisdiction the three most important areas of legal regulation: court activities conducted in the form of considering non-contentious civil cases; the activities of notarial authorities relating to certification of various circumstances having legal significance, establishing indisputable rights and facts, performing protective notarial acts and the so-called “registration activity” (for ex. civil registration, registration and maintenance of registers of legal entities and other organizations and state registration of rights to real estate).

§ 2.1 The concept of voluntary jurisdiction and brief sketch of its history

Voluntary jurisdiction, as a legal phenomenon, has not yet been completely justified within the Russian legal doctrine; nor is this concept used in the Russian legislation. However, this does not make the theoretical and practical issues of voluntary jurisdiction that are relevant and actively debated abroad at the moment unfamiliar or completely irrelevant in the context of our legal framework. On the contrary, the majority of outstanding issues in this area, both general and specific, occur across various national legal systems, and the Russian legal system is no exception. For example, such matters as the concept of justice in civil cases and its relation to other types of law enforcement activities related to the protection and defense of rights, primarily, notarial activities, the activities related to the state registration of rights, matters relating to the types of civil procedure and the criteria for their selection, the nature and tasks of the court in special proceedings, the relation of the court’s competence and the competence of notaries, types of notarial acts, etc, are relevant both in Russia and abroad. At the same time, within the Russian legal science, all of these issues are normally resolved without recourse to a systemic approach, and are considered within the framework of various legal specialist areas (civil and arbitration process, civil law, administrative law, notarial system). As a result, a lack of a unifying concept that would bring in a systemic approach to the abovementioned legal matters becomes a problem in itself.

Voluntary (non-contentious) jurisdiction could become a unifying concept, being the most general notion.

We proceed on the basis that voluntary jurisdiction applies to both substantive and procedural law, within the public and private domain alike. Situated at the junction of these subsystems, voluntary jurisdiction could be called a “buffer” reflecting in legal terms the interplay of “individual freedom” and “coercion by the state”, harmonizing private and public interests within the framework of the law. Voluntary jurisdiction is meant to play the role of the “conscience” of the private law, which is often centered on the private interest, failing to account for the equally important interests of certain social groups and interests of the society on the whole. Thus, it is closely related to the social security law, the imperative rules of civil, marital law, and is a matter of competence not only for the judiciary, but also for other state adminitrative bodies and notaries.

We include in the concept of voluntary jurisdiction the three most important areas of legal regulation:

•court activities conducted in the form of considering non-contentious civil cases. In the Russian civil procedure law, the procedures relating to considering such cases are referred to as “Special Proceedings”;

•the activities of notarial authorities relating to certification of various circumstances having legal significance, establishing indisputable rights and facts, performing protective notarial acts. In Russia, this is a separate legal segment called “Notarial Law and Process”, making up a separate area of legal regulation and included into the subject of study of several legal disciplines – civil law, civil procedural law and administrative law; some authors consider it to be a totally independent discipline and even an independent branch of law called “Notarial Law”;

•the so-called “registration activity” related to establishing the legal facts that are most relevant to the civil (private) law and legal conditions that are a pre-requisite for the appearance of most subjective rights and obligations and are required to each right holder in his/its everyday activities to participate fully in the public circulation and enhance his/its reliability and sustainability. The most extensive forms of such registration activities are civil registration, registration and maintenance of registers of legal entities and other organizations and state registration of rights to real estate.

The history of non-contentious proceedings may be traced back to the formative period of the ancient Russian state in the 6–9 th centuries. The first written records of the Russian law date back to the 10 th century. The form of “record”, i. e., a rite performed in front of the community or free people (witnesses) who in case of a dispute on the right arising from such act were to testify in court giving testimony or taking an oath, is the most ancient form of voluntary jurisdiction that appeared in the ancient Russia.

A strengthening of the princely powers in the 10–12 th centuries led to the inclusion into the ranks of persons whose presence was required to render an act public and credible the prince’s (knyaz’s) servants, and a strengthening of the church powers prompted the inclusion of members of the clergy56.

56Argounov, A.V (2013, pp. 49–50).

In the 12–15 th centuries, transactions, especially those dealing with the real estate, were frequently formalized in writing in the form of a “charter”. However, despite the fact that the will of the parties was established in writing, witnesses (often the clergy) or officials were still often summoned to put their signature on the document to render it credible and public57.

57Duvernois, pp. 212–213.

It was during this period that two new forms of non-contentious jurisdiction, not related to the engagement of the witnesses, appeared. These forms were called “summons” and “report”. Summons is a voluntary jurisdiction procedure based on the right of the seal, well known in France and other European countries and borrowed from there into Pskov and Novgorod the Great. In this case, an act of goodwill was made public by affixing a church or a secular seal.

Another voluntary jurisdiction procedure is a “report”. This is a procedure of the approval by the court of a legal act of an individual. The difference between executing an act in the form of a record and in the form of a “report” is that in the first case, the “witnesses” or the official witnessing an act (agreement, will, etc) were to give testimony should a dispute arise out of this act, i. e., the act had no legal power without evidence being given in court (when a dispute was considered), and in the second case, the act was approved by the court and the witnesses were no longer needed in a dispute, it was enough to produce a written act approved by the court.

In the 16 th century, another form of voluntary jurisdiction appeared – registration in the books of orders with an execution of a written document delivered to the right holder, or with the performance of other actions confirming such registration (branding a horse with a branding iron). It was during this period that there appeared some information on the activities of a special group of persons – scribes – the professionals not employed by the state, but providing the services relating to drawing up and making various private acts in the trading areas. This specialized group came to become a prototype for the notaries58.

58Oleynova, pp. 8–9, 23–30.

Administrative and court reforms implemented by Peter I could not but affect the voluntary jurisdiction procedures. The activities of the free scribes making agreements, wills etc in writing were brought under the state control. Civil registrations were introduced – parish registers maintained by the churth; custody issues handled by the magistrates (courts) and the examination of the mentally ill noblemen were regulated for the first time59.

59See in detail: Femelidi, pp. 68 and next; Argounov, A. V. (2013, pp. 57–61).

The reforms of Peter I were later continued. Voluntary jurisdiction procedures (court, notarial, administrative) have since acquired the features known to the law in its current form. The procedure for restoring title to the lost bearer documents appears and is developed60.

60More detail on the history of the proceedings for restoring the rights of persons who lost bearer documents in the Russian civil procedure in: Argounov, V. V. (2006, pp. 49–73).

However, there existed no code or general law in the area of non-contentious jurisdiction. Various laws regulated various procedures; there were many gaps, uncertainties and conflicts.

A new era in the history of non-contentious jurisdiction in Russia commenced in 1866, from the day when Book IV of the Charter of Civil Proceedings was adopted, regulating an order for considering cases in protective court proceedings61. A Regulation on the Notaries determining the functions of the notaries who now worked in courts was also adopted.

61It is with this date that many Russian academics associate the appearance of special proceedings – court proceedings related to considering non-contentious cases – in the Russian civil process.

It is necessary to draw attention to the fact that during the court reform of 1864–1866, the legislator considered the court procedures for considering non-contentious cases (“protective proceedings”) as a part of the broader voluntary jurisdiction, including the activities of the notaries and the church relating to civil registrations.

In 1889, the term “special proceedings” made its first appearance in the Russian law. The concept was used to denote protective proceedings cases in the Warsaw court circuit and the Baltic provinces.

After the publication in 1866 of Book IV of the Charter of Civil Proceedings and through 1917, the body of the protective proceedings cases expanded massively62.

62More detail on the appearance of new categories of protective proceedings cases in the Charter of Civil Proceedings in Gasman, pp. 85–100.

Due to the need to systemize the voluntary jurisdiction procedures, a new draft law, Charter of Protective Proceedings, was being developed starting from 1907, i. e., all court procedures relating to considering non-contenious cases were supposed to be regulated by a special law (not the Code of Civil Procedure (Charter of Civil Proceedings), same as in Austria and Germany. However, this reform was never implemented due to the October Revolution of 1917.

The history of non-contenious jurisdiction in the Soviet era is the “history of authority redistribution between the court and other state authorities’63. In the Soviet time, non-contentious court procedures came to be known as “special proceedings”, not protective proceedings.

63Argounov, V. N. (1998, pp. 22).

Many works by the Soviet and Russian scientiests focused on the history of non-contentious jurisdiction in the Soviet time64.

64See, for instance, Abramov, pp. 3–11; Argounov, A. V. (2013. pp. 78–85); Melnikov, pp.23–37; Zheruolis, pp. 179 and next; Yudin, pp. 14–21; Chechot (1973, pp. 68–165); Yudelson, pp. 5–31; Oleynova, pp.70–106.

Inconsistent reforms, lack of an integral approach to the change of legislation should be recognized as a general trend of the non-contentious jurisdiction framework renewal in the Soviet and post-Soviet times. Throughout the entire Soviet era, all components of the voluntary jurisdiction were regulated independently and separately: judicial special (non-contentious) proceedings were regulated as a part of the civil procedural law; state notarial system – as an authority included into the executive power framework, but meant to perform the protective functions within the civil law; civil registration authorities – from 1917 – as a regular administrative authority whose status was in no way different from other executive authorities of the state (the church was separated from the state). Thus, in the Soviet era, all components of voluntary jurisdiction were in fact isolated from each other and existed independently. This situation still persists.

Speaking about special (non-contentious) court proceedings, one should pay attention to an important innovation of the Soviet legislation that massively impacted the civil process doctrine. We are referring to the appearance of a new category of cases previously unknown to the Russian or foreign laws – establishing legal facts. This category of cases appeared in the Soviet law as early as in 191865 and still exists66.

65Article 4 of the Regulation on the People’s Court of the RSFSR dated 1918 (Collected Laws of the RSFSR dated 1918, No.85, Page 889).

66More detail on the history of this court procedure in Abramov, pp 11–15; Eliseykin (1973, pp.9–33); Kallistratova, pp.3–11; Chudinovskaya, pp.1–56

Another point to be mentioned is that the main feature of special proceedings – absence of a dispute on the right – was codified in the Soviet legal framework. Building the legislative concept of special proceedings on this basis of indisputability predetermined its further (including current) academic understanding.

The adoption of the RSFSR Code of Civil Procedure in 1923 played a major role in the history of the Soviet special proceedings. Part III of the RSFSR Code of Civil Procedure contained 8 chapters regulating “special proceedings”. Chapter XX contained 3 articles (pages 191–193), only two of which contained the rules common for all special proceedings. According to article 191 of the RSFSR Code of Civil Procedure, special proceedings included cases centered around property left by the deceased, arbitral records and awards; the deposition with the court of items subject to obligation (deposit); issue of court orders on the legal acts; dissolving a marriage; release from religious service due to religious beliefs; or complaints regarding the actions of notaries67.

67Collected Statutes of the RSFSR. 1923. N 46–47.P.478

Special proceedings according to the RSFSR Code of Civil Procedure dated 1923 were inconsistent and incomplete. These were cases different in their nature that could not be considered in litigation (contentious proceedings) for all kinds of reasons. The RSFSR Code of Civil Procedure dated 1923 introduced for the first time a criterion for the division of litigation (contentious) and special (non-contentious) proceedings – absence of a dispute as to the right. (Article 193 of the RSFSR Code of Civil Procedure). Should a dispute arise, the court was to terminate (close down) a special proceedings case and let the parties litigate in contentious proceedings.

Further development of the law led to the exclusion of a number of case categories from the terms of reference of the courts, and a number of new case categories, not only non-contentious ones (procedure for restoring the rights of person who lost bearer documents), but administrative cases as well (complaints over errors in the lists of voters, recovery of arrears and fines) were now classified as special proceedings68.

68Melnikov, pp. 23–37.

The period when the special proceedings were born in their contemporary form (as an integral whole; the Russian science uses the term “type of civil proceedings”) is the 60 s of the 20 th century.

The first step towards the emergence of special proceedings in the civil procedural law as a separate type of civil proceedings (i. e., something integral) was when the concept of different types of civil proceedings was stipulated in the Fundamentals of Civil Procedure of the USSR and Republics of the Union dated 196169. For instance, Article 1 of the Fundamentals dated 1961 provided that the law of civil proceedings stipulated a procedure for considering the cases related to disputes, the cases arising out of the administrative legal relations, and special proceedings cases. Uniform principles were established for all types of civil proceedings and common (albeit, very few) rules were identified, including the rule that from thence onwards, the court was to make court decisions (and not rulings, as before), having all properties of the force of law.

69Fundamentals of Civil Procedure of the USSR and the Union Republics.

According to Article 4 of the Fundamentals dated 1961, special proceedings cases were to include the cases relating to establishing facts having legal significance – declaring an individual missing or dead, declaring an individual legally incapable due to his/her mental illness or dementia. However, according to other laws, special proceedings could also include other case categories.

The second step was the consolidation of special proceedings as a separate type of legal proceedings in the Code of Civil Procedure of the Republics of the Union, including the Code of Civil Procedure of the RSFSR dated 1964 (hereinafter, the RSFSR Code of Civil Procedure dated 1964). The latter contained a broader list of special proceedings cases, and, compared to the cases provided for by Article 4 of the Fundamentals dated 1961, included cases relating to declaring an individual as having limited mental capacity, property being ruled ownerless, establishing incorrectness of civil recordings, complaints against the actions of notaries and authorities performing notarial acts and restoration of rights to lost bearer documents.

During the post-Soviet era of voluntary jurisdiction development nothing changed. Most of the rules relating to special proceedings in the Code of Civil Procedure of the RSFSR dated 1964, regulating both general matters and the peculiarities of considering certain categories of special proceedings cases, were transferred to the RF Code of Civil Procedure dated 2003 without any update70. Nearly all changes relating to the contemporary special proceedings consisted in regulating a procedure for considering new categories of cases appearing in the Code of Civil Procedure due to the change of substantive (civil) law; the already exising categories of cases were also slightly reviewed for the same reason71.

70The RF Code of Civil Procedure was enacted on 1 February 2003 and was officially published in the Collected Laws of the RF Journal, 18.11.2002, No.46, page 4532. On the history of the RF Code of Civil Procedure development and adoption see Treushnikov, M. K. et al. 2004. pp.7–868

71More detail in Argounov, V. V. (2011 a, pp. 73–86).

In 1993, a notarial reform was implemented in Russia, in the course of which the Russian notarial system was reorganized based on the Latin model, and the notaries became “free”, not financed from the budget. Currently, although the notaries are vested with state powers, they are not part of the state authority and are not civil servants72. Unfortunately, as in the Soviet times, the notarial reform of 1993 was implemented disconnectedly from the other elements of voluntary jurisdiction (special proceedings, the system of civil registrations, the system of registering rights to real estate), and today, the notarial system needs a reform again73.

72On 11 February 1993, the Supreme Council unanimously adopted the Framework Legislation on the Notaries in the Russian Federation, enacted on 11 March 1993. See in more detail in Argounov, V. N. et al. 1994, pp.1–3; (Argounov, V. N. 1994, pp. 20–27); Cheremnykh, pp.3–204

73Draft Federal Law “On Notarial System and Notarial Activities in the Russian Federation” was officially published on the website of the Russian Gazette on 18 November 2011.

Upon the enactment in 1998 of the Federal Law No.122-FZ dated 21 July 1997 “On the State Registration of Rights to Immovable Property and Transactions Therewith”, it became possible to talk about the restoration of the system of state registration of rights to immovable property in Russia. State registration is a legal act whereby the state recognizes and confirms the emergence, limitation (encumbrance), transfer and termination of rights to immovable property in accordance with the RF Civil Code (part 1 article 2 of the Law). The Russian system of registrations is administrative, as the state registration and register maintenance are being performed by a specialized competent executive authority. The introduction of a system of state registration of rights to immovable property in Russia also occurred independently of other parts of voluntary jurisdiction, which adversely affected the application of this law in the court practice. Nowadays, there is a number of issues in this area, actively discussed by the Russian academics and practitioners, including the matters of legal nature of the state registration activities, procedure and limits for the interaction of state registration authorities with the notaries and notarial operations, courts and issues relating to the legal force of a registration act74.

74See, for instance, Moskalenko, pp.33–60; Rozhkova, M. A. et al.; Bevzenko, 2011 a, pp.4–30; 2011 b, pp.5–29.

§ 2.2 The voluntary jurisdiction in the legal system: doctrine and legislation

2.2.1 Legal nature of voluntary jurisdiction: jurisdictio, administratio or sui generis? Authorities responsible for considering voluntary jurisdiction cases

In the Russian law, voluntary jurisdiction cases (considered broadly) fall not only within the terms of reference of the courts (special proceedings in civil and arbitration (commercial) proceedings), but also of other authorities tasked with performing protective activities in the civil law domain. Primarily, it is the notarial authorities that are engaging in the civil rights protection alongside with the courts. Besides, voluntary jurisdiction authorities in Russia include specialized executive authorities – civil registration offices (ZAGS), the authorities performing registration of legal entities and the authorities registering the rights to immovable property and transactions therewith. Thus, within the framework of voluntary and non-contentious jurisdiction, a huge number of various case categories is considered that have very little similarity procedurally. However, they have common features, allowing to make a conclusion on their homogeneity.

First, such cases include non-contentious cases arising out of the civil relations in the broad meaning of the term (i. e., not criminal). Second, they include cases of protective nature, or the cases relating to the protection of civil rights. Such activities are primarily reflected in the state ensuring that the entities or individuals are able to exercise their rights and lawful interests that may not be exercised without the assistance from the state due to various, often objective, reasons.

The matter relating to the criteria of distribution of competence to consider voluntary jurisdiction cases between the court and non-court authorities was not specifically researched in the Russian literature; however, it is evident that the lawmaker regards the efficiency of a certain authority’s operations as the main criterion when determining the scope of its competence. It is based on this criterion that some case categories are placed within the terms of reference of the court (special proceedings cases), and others are placed within the terms of reference of the notaries and executive authorities. It is known that the court considers the most legally or factually complicated cases (i. e., difficulties related to establishing the facts of the case).

Based on this criterion of the highest efficiency of a certain procedural form of considering a case, it should be mentioned that the voluntary jurisdiction cases are essentially “movable”, meaning that they may be placed within the terms of reference of any authority – both, judicial or non-judicial. This, in particular, is evidenced by the history of non-contentious jurisdiction development in Russia.

The matter regarding the nature of protective activities in the contemporary Russian literature is being resolved dependent on the status of the authority that is competent to consider a certain categiry of voluntary jurisdiction cases. If we are talking about special proceeding cases, it is believed that the court is administering justice75. If we are talking about the operation of the notaries or executive authorities, from a positivist point of view, its administrative and managerial nature is recognized76, although, other considerations are also expressed regarding the notaries77. Thus, the main criterion on which a theory of the legal nature of the operations of a certain authority of non-contentious jurisdiction is built is the so-called “organic”, or, simply the criterion of the nature of the authority itself78.

75Russian academics are also citing other grounds based on which the court’s activity in special proceedings is justice, and specifically: uncertainty of material subjective law, requiring court proceedings to protect a legitimate interest. See Sakhnova, pp.22–23.

76See, for instance, Gracheva et al. p.7; Avdeenko, Kabakova, p.17.

77See in more detail in Kodintsev pp.58–61.

78Zhilin, pp.30–33; Degtyarev, p.162.

This standpoint is the prevailing, but not the only one. In the Soviet time, some proceduralists expressed their doubts in the fact that the court is administering justice when considering special proceedings cases79.

79Bonner (1971, p.194); Eliseykin (1969, pp. 94–95).

Besides, the Russian procedural literature proposed a departure from the opposition of justice and administration and proposed to consider the operations of all non-contentious jurisdiction authorities homogeneous and protective in their nature. Protective activity is neither adjudicature, nor administrative activity in a broader meaning, but rather a sui generis activity. Hence, the court activity relating to considering special proceedings cases is neither adjudicature, nor administration. These are special operations that may as a matter of fact be performed by the court authorities, the notaries and executive authorities80.

80Argounov, A. V. (2013, p.178).

As to the legal nature of notarial operations, some believe that the essence of the notarial activities is law enforcement. It is mentioned that the notaries and the court perform the same function of prior and follow-up control of legality in civil transactions; thus, their activities are closely related. But unlike the court regarding disputes on the right in the civil process, the notaries perform the functions aimed at the legal recognition of civil rights and prevention of any possible violations thereof in the future81. From this point of view, notarial operations are very close to the jurisdictional activities of the court in special proceedings.

81Argounov, V. N. et al. pp.3–4.

2.2.2 The scope and viability of con-contentious jurisdiction. Statistics

When describing voluntary jurisdiction cases, we shall restrict ourselves to just one of its components – special proceedings in the civil process as the broadest and the most extensive part thereof. Let us also briefly list the subject matters falling within the competence of the notaries.

Special proceedings means a procedure for considering and resolving civil cases related to establishing facts having legal significance, confirming the absence or presence of non-contested subjective rights, determining the legal status of a citizen to provide assitance to the claimant and the interested paties in the acquisition of the rights, or creating the requisite conditions for the exercise of the existing subjective rights.

The following cases fall within the scope of special proceedings according to Article 262 of the RF Code of Civil Procedure:

1) related to establishing the facts having legal significance;

2) related to the adoption of children;

3) related to recognizing a citizen as missing or declaring him/her dead;

4) related to limiting the legal capacity of a citizen, recognizing a citizen as having no legal capacity, restricting a minor aged 14 to 18 in his/her right to independently dispose of his/her income, or depriving a minor of such right;

5) related to declaring a minor fully legally competent (emancipation);

6) related to recognizing a piece of movable property as ownerless and recognizing title to an ownerless piece of movable property;

7) related to the restoration of rights under the lost bearer securities or order securities (procedure for restoration of the rights of persons who lost bearer documents);

8) related to forced admission of a citizen to a psychiatric hospital and forced psychiatric examination;

9) related to making amendments or changes to the records relating to acts of civil status;

10) related to the applications regarding the performed notarial actions or refusal to perform them;

11) related to the restoration of lost court proceedings.

Other cases as well may be classified as cases to be considered under special proceedings according to the federal laws.

Special proceedings cases, not listed in the RF Code of Civil Procedure currently include the cases related to recognizing a legally incompetent person or a person having limited competence as completely legally competent (Article 286 of the RF Code of Civil Procedure), reversing the decision on recognizing a person as missing or declaring him/her dead (Article 280 of the RF Code of Civil Procedure).

When putting together this list, the Russian lawmaker was basing itself primarily on the traditions of our country, as well as the efficiency of certain matters review in court. It cannot be said that incontestability is the only criterion considered here. Special proceedings cases also include those that the science proposed to exclude a while ago: “typical administrative justice cases” – proceedings relating to complaints over incorrect recording of acts of civil status and proceedings related to complaints over notarial acts or refusal to perform such, as well as cases with a “potential respondent” – related to recognizing an individual legally incompetent or having limited legal competence82. The differences as to the legal nature (presence of a dispute or an absence thereof) of a number of categories of special proceedings cases are still ongoing.

82Treushnikov et al. p. 59 and 131 and 172.

Many academics believe that the criterion of the absence of a dispute as to the right shall be rejected as it is of a purely artificial nature and prevents from classifying other cases as special proceedings cases83. It is noted that the contemporary civil process has no “uniform” special proceedings, but only has “special proceedings representing specific procedures for considering various categories of cases that are materially different from the procedure for considering civil disputes in court action”84. This theory of the “list”, “feasibility” classifying as special proceedings everything that the lawmaker deems necessary, known to the Russian science of civil procedural law since before the Revolution and set aside during the Soviet times, is gaining momentum at the moment.

83See Blazheev, p.252. Argounov, V. V. (2011 a, p.78).

84See Blazheev, pp.251–252; Uksusova, pp.77–93.; Argounov, V. V. (2011 a, pp. 83–86).

All special proceedings cases may be classified according to the subject matter of court proceedings into the following groups: cases relating to establishing facts having legal significance; cases relating to determining legal status and cases relating to the recognition of indubitable right; cases related to complaints over the actions of the voluntary jurisdiction authorities – notarial authorities and ZAGS (civil registration) offices.

Cases related to establishing facts having legal significance hold a prominent place in the Russian court proceedings.

As may be seen from the statistical data presented above, this category of cases is the most in-demand and numerous among all others. Each second case of special proceedings in the general jurisdiction courts is a case relating to establishing a legal fact. And this state of things has remained unchanged for over fifty years. For arbitration (commercial, trade) courts, this has been the only category of special proceedings cases. The relevance of such cases is due to a number of reasons – imperfect nature of the tricky and multilevel Russian law; poor level of the legal culture of most of the country population; the people being unwilling and unable to strictly comply with the complicated and casuistic rules of the Russian law or simply consciously ignoring them; the state authorities being unable to efficiently respond to any social, economic or political disturbances, natural technogenic disasters; irresponsible and incompetent officials of various levels shifting onto each other resolution of a certain matter seeking to avoid responsibility.

Registration, accounting for and certifying legal facts, execution and issuance of documents (certificates, extracts, attestations, etc) to confirm such facts in order to provide assistance to citizens and entities in the acquisition and exercise of their rights and obligations fall under the general rule within the terms of reference of the executive authorities, notaries, but not the court. In Russia, oftentimes an individual or a legal entity may not confirm or exercise their subjective right due to the absence of any evidence thereto, and the impossibility to obtain such evidence in any way, except in court. The legal process regulated by Chapter 28 of the RF Code of Civil Procedure, Chapter 27 of the RF Arbitration Procedure Code may only be resorted to in exceptional circumstances. Such circumstances include lack of a special procedure for establishing, accounting for and certifying legal circumstances provided for by the existing law (for instance, when the legal facts are not registered at all); situations in which, although the procedure for establishing and registering circumstances is present, such circumstances were not established or registered in time, including due the interested party itself failing to comply with the procedure; when the legal circumstances were registered and certified by the competent executive authorities, but the person/entity failed to keep any confirmatory documents, and the competent executive authority is unable to restore them.

Under the circumstances described above, the matter of a legal fact presence or absence thereof may be resolved by the court as an independent case not related to deciding a matter relating to the right. The actions of the court when considering cases relating to establishing legal facts are limited by simply a statement on the presence or absence of certain circumstances having a legal significance for the claimant’s subjective rights. The matter of the claimant’s subjective rights is not considered by the court, which focuses on the fact – an essential characteristic of all cases related to establishing legal facts.

Thus, the proceedings related to establishing facts having legal significance are meant to eliminate the legal abnormity created in the process of a certain legal matter being resolved by a state authority: “court activities kind of wedge into the law enforcement activities of non-court state authorities contributing to the protection of the rights and interests of the right holders’85.

85Gromoshina, p.181.

The courts may admit applications related to establishing facts and consider them in special proceedings, if:

а) according to the law, such facts create legal consequences (creation, modification or termination of personal or property rights of individuals or entities);

b) establishing a fact is not linked to resolving a dispute on the right, falling within the terms of reference of the court;

c) a claimant does not have any other option to obtain or restore the appropriate documents certifying facts having legal significance;

d) the effective laws do not provide for any other (out of court) procedure for establishing such facts.

Failure to comply with any of the abovementioned conditions makes it impossible for the court to consider a case related to establishing a fact having legal significance, and provides a basis for a refusal to admit an application under Clause 1 Part 1 Article 134 of the RF Code of Civil Procedure, or terminating proceedings under an already initiated case (Clause 1 Part 1 Article 220 of the RF Code of Civil Procedure).

The law (Part 2 article 264 of the RF Code of Civil Procedure provides a tentative list of the facts having legal significance, established by the court in accordance with the rules of special proceedings, including: 1) the fact of being a relative; 2) the fact of being economically dependent; 3) the fact of registration of birth, adoption, marriage, dissolution of marriage, death; 4) the fact of acknowledgment of paternity; 5) the fact of establishing the ownership of documents of title (except for the military service documents, passports and certificates issued by the civil status registration authorities) by a person whose first name, patronymic or last name specified in the document do not match the first name, patronymic or last name specified in the passport or birth certificate; 6) the fact of ownership and use of real estate; 7) the fact of an accident; 8) the fact of death at a certain time and under certain circumstances should the civil registration authorities deny the registration of death; 9) the fact of inheritance acceptance and release; 10) other facts of legal significance.

As may be seen, this category of cases is not only the most numerous among all special proceedings cases, but also has its own unique regulations determined by the specific activities and the court’s tasks related to cases within such category86. As this category is so “in demand” in practice and “unique” in terms of the regulations, many scientists have been able to formulate and elaborate a theory, according to which special proceedings are nothing else but the proceedings aimed to establish legal facts and that is it! In other words, the essence of a single, even the most numerous, category of special proceedings cases was extrapolated onto the essence of the entire special proceedings87.

86See Argounov, V. V. (2013 b, pp.62–71).

87See Eliseykin (1973, p. 8 and 19); Yudin, pp.9–80; Chudinovskaya, pp.1–31. Here also belong the authors believing that the matter in dispute in special proceedings is an interest protected by the law, rather than a subjective right. For instance, Dmitriy Chechot wrote that “in special proceedings cases “an interest protected by the law” of the applicant only consists in establishing the existence of a certain legal fact (event, action or state). See: Chechot, p. 16.

As we see it, this viewpoint is far from being true and shows little promise. Extrapolating the characteristics of cases relating to establishing legal facts onto all special proceedings is a mistake highlighted in the legal literature88, a mistake causing a poorer content and lower value of the special proceedings in court and voluntary jurisdiction on the whole.

88See in detail in Bonner (1974, pp.141–143); Argounov, V. V. (2010, pp.220–237).

The activities of the court related to establishing facts having legal significance are quite close in terms of their content to notarial activities, but it would be wrong to treat them as completely similar.

In accordance with the Framework Laws on Notaries (Articles 221, 35, 36), the notaries shall perform the following notarial acts:

1) attest transactions;

2) issue a certificate of title to a share in the jointly-owned property of spouses;

3) impose and remove prohibitions on the property disposal;

4) certify the validity of copies of documents and extracts therefrom;

5) certify the authenticity of signatures on the documents;

6) certify the correctness of documents translation from one language to another;

7) certify that an individual is alive;

8) certify an individual’s whereabouts in a particular place;

9) certify an individual’s identity as the person on a photograph;

10) certify the time of the documents presentation;

11) certify the fact of credibility of the minutes of meetings drawn up by organizations” management bodies;

12) transfer applications by individuals and legal entities to other individuals and legal entities;

13) accept monetary amounts and securities as a deposit;

14) make enforcement inscriptions;

15) protest notes and bills;

16) present checks for payment and certify non-payment;

17) accept documents for storage;

18) execute maritime protests;

19) supply evidence;

20) certify as true information on the persons in the instances provided for by the laws of the Russian Federation (related to the election laws);

21) issue certificates of inheritance;

22) take steps to protect the inherited property.

The list of notarial acts provided for in the Framework Laws, is not exhaustive, and the Russian notaries shall also perform other notarial acts provided for by the effective laws. At the moment, such acts include notarial acts in the area of inheritance law: 1) admission of a closed last will (Clause 3 Article 1126 of the RF Civil Code; 2) opening and reading out a closed last will after the death of the testator (Clause 4 Article 1126 of the RF Civil Code), etc.

Doubtless, notarial activities are related to the notary public having to perceive and assess different events and actions taking place. Both, the courts and the notaries are not only entitled to, but have to establish legal facts when considering an absolute majority of the cases falling into their terms of reference. Neither the courts, nor the notaries can operate without establishing or finding out legal facts. However, establishing legal facts plays a totally different role in the notarial activities, than in court. A notary establishes facts in the absence of differences between the interested parties and based on indisputable evidence (mostly written) directly provided for by the effective laws, or ascertains the facts that he/she was witness to. A notary has no powers or “toolkit” of means of proving that a judge normally has for finding out the facts of a case. In such circumstances, it may only be said that special proceedings in court and notarial proceedings are complementary, rather than mutually exclusive.

Non-contentious jurisdiction on the whole is one of the legal phenomena that are most demanded for by the citizens in their day-to-day life. Everyone had something to do with it, at least once in their lifetime. Indeed, we have all been parties to cases related to civil registrations (birth, death, marriage, dissolution of marriage, etc), registration of rights to immovable property and transactions therewith. Even without presenting any statistics, one may easily understand how vital the operations of the authorities performing registrations of rights and states are.

However, taking into account a relative easiness of the abovementioned categories of cases, both, legally and factually, and how routine the actions associated with such cases are, as well as their huge number, it is considered unfreasible to place them within the terms of reference of a court or apply any сomplicated procedural rules for their resolution is, so as not to create extra work load for the courts.

This is why in Russia they are customarily placed within the terms of reference of non-court authorities. However, this does not mean that the legal science should study them separately from other categories of non-contentious civil cases, without identifying any systemic link to other cases of voluntary jurisdiction, including those considered by the court.

The same may be said about the notarial acts. There is no doubt as to how much in demand they are. The overall number of notarial acts performed in 2011 ran at 76 882 010. The most in-demand notarial acts for many years have been the attestation of copies of documents and extracts therefrom (41 609 773, or 54.12 % of the total), certifying the authenticity of signatures on the documents and banking cards (13 356 506, or 15.19 %), as well as certification of various types of powers of attorney (11 138 286 or 14.48 %) 89. As may be seen, the most in-demand notarial acts do not include attestation of various types of transactions, including the transactions related to property, unlike the other countries. This is due to the fact that Russia has few imperative provisions requiring mandatory notarial attestation of transactions, for instance, property transactions may be concluded in simple written form, without any notary being involved.

89Federal Notary Chamber. 2012. Performance Results in 2011.

At the same time, which is fairly logical, the number of non-contentious civil cases considered by the court in special proceedings is not a significant number. As noted before, the court considers the most complicated and tricky categories of voluntary jurisdiction cases requiring procedural regulation, broad court powers, etc. Of course, the very composition of case categories tried by the courts may vary dependent on certain factors. Nowadays, 13 case categories are considered in special proceedings in the civil process. According to the 2012 court statistics, special proceedings cases rank second after the litigation. In 2012, 401.5 thousand cases were tried by the district courts as part of special proceedings, making up circa 11.5 % of the total number of cases completed by district courts. Among the special proceedings cases, the cases related to establishing legally significant facts are the most popular ones: of 401.5 thousand cases tried by the courts in special proceedings, 218.2 thousand cases were tried as cases related to establishing legal facts. Thus, around 54.5 % of special proceedings cases tried by the courts are the cases around establishing facts having legal significance90.

90The Judicial Department of the RF Supreme Court. 2013. Overview of the court statistics on the activities of the federal courts of general jurisdiction and justices of the peace in 2012.

Within the system of arbitration (trade and commercial) courts, the number of considered cases dealing with establishing facts having legal significance totaled 1994 in 2012, which is not a significant percentage of the total number of the cases (1 456 128)91.

91The Supreme Arbitration Court of the RF. 2013. Table of main performance indicators of the work of the RF arbitration courts in 2010–2012, 1 H 2012–2013.

Given the above, one may confidently claim that the non-contentious jurisdiction on the whole and component elements thereof are highly significant for the state and the society, and, thus, need to be studied thoroughly, including with use of comparative legal methods.

2.2.3 The regulative basis: chaotic legislation

Russia does not have a tradition for codifying or otherwise systemizing the legal rules governing the consideration of non-contentious jurisdiction cases.

The Russian Federation Code of Civil Procedure that came into effect as of 1 February 2003 should be recognized as the main source of legislation in the area of voluntary jurisdiction. However, it only regulates a part of the voluntary jurisdiction – judiciary, and specifically, the procedures for considering cases in special proceedings.

Section IV of the RF Code of Civil Procedure “Special Proceedings” effectively contains the entire list of special proceedings cases falling within the terms of reference of the general jurisdictions courts. Other federal laws play a minimal role here.

Special proceedings segment as a whole, an independent type of court proceedings, has not been shaped up yet in the arbitration (trade, commercial) procedural law. The terms of reference of arbitration (trade, commercial) courts include only one category of special proceedings cases – cases having to do with establishing facts having legal significance. This category is provided for in Chapter 27 of the RF Code of Arbitration Procedure92.

92Code of Arbitration Procedure of the RF. 29 July 2002.

Notarial activities are governed by the RF Framework Laws on Notaries, entered into force as of 11 March 1993. This piece of legislation that is an essential one for the notaries is set out in detail in the subordinate acts of the RF Government and the departmental acts of the Federal Notary Chamber93. Taking into account that under the Russian law some notarial acts may be performed not only by the notaries, but also by the consulate workers, as well as the officers of local self-governance authorities, the Framework Laws should be supplemented by the Consular Statute of the Russian Federation dated 5 July 2010 No.154-FZ (Article 26)94, as well as the Order of the RF Ministry of Justice dated 27 December 2007 No.256 “On Approving the Instruction on the Procedure for the Performance of Notarial Acts by Heads of the Local Administrations of Settlements and Municipal Districts and Specifically Authorized Representatives of the Local Self-Government of Settlements and Municipal Districts’95.

93See, for instance: Rules of Notarial Proceedings; Regulation on the Procedure for the Making, Circulation, Accounting for and Using the Blank Notarial Forms; Methodological Recommendations for the Execution of Inheritance Rights; Methodological Recommendations for Certifying True Copies of Documents and Extracts Therefrom.

94Consular Statute of the Russian Federation. 12 July 2010.

95Order of the Ministry of Justice of the RF N.256 “On Approving the Instruction on the Procedure for the Performance of Notarial Acts by Heads of the Local Administrations of Settlements and Municipal Districts and Specifically Authorized Representatives of the Local Self-Government of Settlements and Municipal Districts”. 27 December 2007.

Regulation of registration cases is based on the three federal laws:

Civil registrations are being performed by specialized executive authorities (ZAGS (civil registration) authorities) under Federal Law dated 15 November 1997 No. 143-FZ “On Acts of Civil Status’96.

96Federal Law N. 143-FZ “On Acts of Civil Status”. Adopted 15 November 1997.

Legal entities and organizations are registered under Federal Law dated 8 August 2001 No.129-FZ “On the State Registration of Legal Entities and Sole Traders’97. Currently, most registrations are being performed by the Federal Tax Service of Russia and its territorial units (inspectorates).

97Federal Law N.129-FZ “On the State Registration of Legal Entities and Sole Traders”. Adopted 8 August 2001.

State registration of rights to immovable property and transactions therewith is performed according to the rules stipulated by Federal Law No.122-FZ dated 21 July 1997 “On the State Registration of Rights to Immovable Property and Transactions Therewith”. The Federal Service of State Registration, Cadaster and Cartography is the authority currently authorized to perform such registrations. Based on this law a number of Resolutions of the RF Government and subordinate acts were adopted, as well as departmental orders of the abovementioned Service.

Obviously, each area of the voluntary jurisdiction is governed by respective regulations. These regulations currently do not provide for any special requirements determined by the commonality of the area of legal regulation. Hence, it is not possible to talk of any common part containing the rules of procedure for all voluntary jurisdiction cases.

2.2.4 Judicial procedure (s) for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious cases

The procedure for considering voluntary jurisdiction cases falling within the terms of reference of non-court authorities is essentially different from the procedure for considering special proceedings cases in the civil process. While the latter are being considered as part of the civil proceedings, the voluntary jurisdiction cases are being considered as part of the notarial procedures or administrative procedures of executive authorities.

The Russian law theory has not devised any general provisions for considering the cases within all segments of the voluntary jurisdiction. There are only hints indicating the presence of general provisions in one of its segments – special proceedings in the civil process98. Let us talk about these in more detail.

98There are only a few suggestions in the academic works regarding this matter. See Frantsiforov, pp. 71–136; Argounov, V. V. (2010, pp.220–238); Argounov, V. V. (2011 b. p.9).

According to Part 1 Article 263 of the RF Code of Civil Procedure, special proceedings cases are considered and resolved by courts using the general rules of litigation, taking into account the peculiarities imposed by the procedural law. Among these peculiarities, two groups may be identified:

•having general meaning and applicable when considering all special proceedings cases;

•“specific” ones, provided for in Chapters 28–38 of the RF Code of Civil Procedure in respect to certain categories of cases.

Thus, a virtually unlimited applicability of the rules of litigation remains a highly important rule for considering special proceedings cases. This rule being stipulated even in the previous Code of Civil Procedure of the RSFSR dated 1964 may be considered a major milestone in the development of special proceedings in Russia over the entire time of its existence. However, as the rules of the litigation proceeding itself changed and liberalized in late XX century, they were no longer fit for considering special proceedings cases – in the absence of exceptions special proceedings became too liberal and free. Thus, some Russian academics called for expanding the list of these “exceptions”, introducing into special proceedings the investigative principle and broad powers of the court99.

99Argounov, A. V. (2013, pp. 210–211); Argounov, V. V. (2011 b, p.8).

There is another general rule existing in the law, besides what is mentioned above: when finding in a special proceedings case a dispute on the right, falling within the terms of reference of the court, the court shall issue a ruling to dismiss the application and suggess that the claimant and other interested parties resolve the dispute in litigation (Part 3 Article 263 of the RF Code of Civil Procedure).

This rule has also been criticized by the academics for a while, first of all, due to its not being applicable in all special proceedings cases. It was emphasized that an individual may only be recognized as having limited legal capacity or as legally incompetent, missing or dead in special proceedings100. A similar conclusion shall be made in respect to the adoption cases, as it is only possible to establish this kind of legal relation in court in special proceedings. This conclusion is confirmed by the instructions of the Plenum of the RF Supreme Court101. The multiple exceptions prompt that in actual fact, this rule is mostly designed for one category of cases – procedure to establish legal facts.

100Kallistratova, Puchinskiy, et al. pp.285–286.

101The Supreme Court of the RF. 2006. The Supreme Courts Plenum Resolution dated 20 April 2006 No.8 “On the Application of the Laws by the Courts when Considering Adoption Cases (Clause 7).

The assumption used in the court practice is that there is no dispute on the right in the special proceedings cases, as there are no parties with conflicting substantive claims (those of the claimant and the defendant). Special proceedings cases are incited based on an application. The court may not instigate cases ex officio. The provisions of Сhapter 13 of the RF Code of Civil Procedure on provisional remedies, Chapter 22 of the RF Code of Civil Procedure on judgment by default, as well as the rules of Article 137 of the RF Code of Civil Procedure on bringing a counterclaim are not applicable in special proceedings.

Peculiarities of special proceedings not stipulated in the civil procedure code, but stipulated in theory include a specific operating mechanism of the civil process principles.

First, it is proposed to believe that the main difference of special proceedings from litigation (contentious proceedings) is the court having investigative powers.

Seeing as the interests of the claimant and interested parties in special proceedings are not always conflicting, the principle of the court playing an active role in special proceedings cases has its own content expressed in the cooperation between the court and the claimant (interested parties) in collecting and investigating the evidence taking into account the opinion of each party and the court’s right to initiate evidence collection to discover an objective truth.

Due to an absence of a dispute or substantive claims of a person against another person, the principle of free exercise of material and procedural rights by the parties to the legal proceedings operates in a manner different from litigation. In particular, it is not possible to acknowlegde a claim, bring a counterclaim or enter into an amicable agreement. However, a claimant may withdraw his/her application or modify it in part.

Besides, the court must find out who the interested parties are ex officio and join them in the case.

The effective laws do not pinpoint any differences in the application of the principles of oral and written proceedings, publicity and openness in special proceedings. Under the general rule, such cases are considered in the same manner as in litigation.

However, some academics propose that these principles need to be modified taking into account the nature of special proceedings cases. First of all, this refers to the need to conduct an open and full-blown court trial similar to litigation. It is proposed to consider special proceedings cases in a closed trial in court102.

102Argounov, V. V. (2011 c, pp.15–20).

2.2.5 The decisions taken as a result of considering of voluntary jurisdiction cases: the problem of res judicata

In Russia, there is no uniform classification of orders adopted by a competent state authority when considering voluntary jurisdiction cases. Each authority takes a decision, the essence of which is fully dependent on the nature of the authority itself. Court orders, including the decisions, may only be taken by the courts; other authorities have no such powers.

As regards the registration cases, the competent authority (ZAGS (civil registrations office), Rosreestr (The Federal Service for State Registration, Cadastre and Cartography), Federal Tax Service Inspectorate) shall determine whether all requisite documents and other evidence required for the registration have been supplied and takes a decision to grant an applicant’s request or reject it. It is emphasized in the literature that the only concern is whether all requisite documents are in place to register an event or a fact. The registering authority may not look into the essence of the fact/event being registered (e. g., whether a marriage shall be dissolved, whether an adoption decision is correct or not)103. Thus, transfer of a propety right does not occur due to the will of the registering (i. e., a public) authority, but rather according to the will of individuals they expressed in an application for registration of the transfer of right and supporting documents. Registration authorities” decisions are now considered to be typical administrative acts in Russia.

103Gracheva et al., p.36.

In the Russian law, a document adopted by a notary public based on a notarial procedure is commonly referred to as a notarial act104. There is an opinion maintained in the notarial theory that a notarial act is an authoritative decision taken by a competent person – a notary conducting a specific notarial case – expressed in written form105. A notarial act has a number of characteristic features: it is made by a specifically authorized person in the name of the state; has certain individual recipients; contains an authoritative confirmation of a subjective right or legal (evidentiary) fact106. This viewpoint is supported by many Russian academics; however, it has been also subject to constructive criticism demonstrating that when determining the essence of a notarial act, not only the public, but also private aspect needs to be taken into account107.

104Yarkov, Gongalo, et al., p.63.

105Kalinichenko, p.134.

106Tarbagaeva, p.17.

107Gryadov, pp.171–198.

The 1993 Framework Laws on the Notaries do not grant any evidentiary status to the notarial acts, same as exists in France, Germany and some other counties. Notarial acts are treated by the court as standard written evidence not having any stronger evidentiary value.

According to the effective RF Code of Civil Procedure and Arbitration Procedure Code, based on a special proceedings case considered, the court makes a decision. The Russian laws do not differentiate between the decisions issued on contentious cases and the decisions issued in special (non-contentious) proceedings.

Based on their legal properties, all court decisions, after the expiration of period when they may be appealed, enter into legal force and acquire the properties of being universally binding, exclusive, indisputable, prejudicial and enforceable, being all of them acts of justice ultimately settling the case on the merits without any exceptions. The court practice follows the selected legal regulation procedure quite strictly. Thus, the RF Supreme Court rules that the RF Code of Civil Procedure, while stipulating different procedures for trying cases in different types of proceedings (litigation, special proceedings, proceedings related to cases arising out of public legal relations) should provide for a standard form for completing a case trial on the merit by means of taking a decision108.

108The Supreme Court of the RF. 2004. Resolution of the RF Supreme Court Plenum dated 19 December 2003 No.23 “On Court Decision” (clause 17).

This type of lawmaker’s approach to the issue shaped up as early as in the 60 s of the 20 th century, when the RSFSR Code of Civil Procedure dated 1964 made the court orders adopted based on the consideration of non-contentious cases equal in terms of their characteristics to the court orders issued in litigation, resolving the disputes on the right finally and on the merits. This is due to the fact that in the Soviet era, the procedure for a court trial of all civil cases was unified to the maximum. The abovementioned changes allowed building a streamlined system of court orders review and revision (see below), however, as a result, not only were many issues left unresolved, but were aggravated by the legislative regulation approach selected.

The solution referred to above that would work with the Soviet civil process with its unique litigation characteristics (investigative in fact) is currently questioned in the Russian civil procedural law doctrine109. In the liberal and сontentious process (and this is what the Russian civil process has become now), the court orders adopted by the court in special proceedings, having a unilateral and investigative nature, may not be identical to the court orders in contentious cases. We believe that nowadays, a decision adopted in a special proceedings case shall not prevent filing a claim when disputing the rights and interests that were the subject matter of special proceedings.

109Argounov, V. V. (2013 a, pp.36–37).

2.2.6 The specificity of appellation and reconsideration procedures

Taking into account that we are talking not only about the activity of the court related to resolving non-contentious cases, but are also covering the activity of other authorities – notaries, authorities responsible for the state registration of rights and states, adopting their own orders based on the results of resolving a particular matter, different from the court orders, it is evident that the procedures for appealing such orders may not be uniform.

Court decisions made after special proceedings cases are considered on the merits, are, as said before, acts of justice, and, according to the effective procedural codes, are treated equal to the court decisions on contentious cases, in terms of their characteristics. Thus, the appeal procedures are similar to the procedures for appealing classical court decisions. It is common practice to believe that the rules of review and revision of court decisions existing in the civil (arbitration) procedural legislation have a universal meaning, and thus, all matters arising in respect of their application shall be resolved in a “centralized” manner for both, litigation and other types of court proceedings in the first instance courts.

If we talk about the overall system for appealing, reviewing and revising court orders, in the nutshell, it is as follows. In Russia, a court of any level, even the RF Supreme Court, is competent to consider a case in the first instance. The RF Code of Civil Procedure (Articles 23–27) determines what cases specifically fall withn the terms of reference of a certain element of the court system performing the functions of a first instance court (justice of the peace, district court, Supreme Court of an RF constituent element, the RF Supreme Court).

Thus, the matter of which court will consider an appeal or a cassational appeal depends on the level of the court considering the case in the first instance. For instance, if a case was considered in the first instance by a justice of the peace, the decision may be appealed to a district court. If a case was considered in the first instance by a district court, the appeal shall be made to the RF Supreme Court. If a case was considered in the first instance by the Supreme Court of an RF constituent entity, it may be appealed to the Judicial Division for Civil Cases of the RF Supreme Court. If a case was considered in the first instance by the Judicial Division for Civil Cases of the RF Supreme Court, it may be appealed to the Appellate Division for Civil Cases of the RF Supreme Court. Seeing as the special proceedings cases in the first instance are to be considered in the first instance by the district courts and the Supreme Courts of the RF constituent entities (krais, oblasts), the appeals shall be reviewed, respectively, by the Supreme Courts of the RF constituent entities (in the first case), and by the Judicial Division for Civil Cases of the RF Supreme Court (in the second case).

The rules of appeal are uniform for all courts. According to Part 1 Article 320 of the RF Code of Civil Procedure, only the decisions that have not come into force (that are not subject to be enforced) may be appealed. An appeal may be launched within 1 month of the day when a motivated decision is made by the court.

An appeal verifies the court decision both, in terms of the law and the facts of the case. Thus, an appellate instance may reassess the evidence examined by a first instance court and make other conclusions as to the facts of the case. However, new evidence may not be examined according to the general rule in an appellate court. By way of exemption, parties to the proceedings may furnish new evidence, if they prove that they were unable to do so in the first instance court. Based on the case review results, an appellate court may overturn the court order and make a new decision, or dismiss the appeal and affirm the court decision. It is not possible to refer the case to be reconsidered by a first instance court. If such violations of a first instance court are identified evidencing that the decision is null and void (for instance, a case considered without notifying a party to the proceedings), the appellate court shall overturn the decision and consider the case anew, as a first instance court.

Having been considered by an appellate court, the court decision shall enter into force and become enforceable. However, after a case is considered by an appellate court, the parties to the proceedings may file a cassational appeal against the decision of a first instance court or an appellate court.

Cassation is considered to be an extraordinary means of court orders review. An appeal may only be made based on the rules of law violation motives. Filing of a cassational appeal shall not suspend the enforcement of a court order.

For a case to be considered in a cassational instance, a sort of a “permit” is required. First, a cassational appeal is considered on the merits by a judge of a cassational court, who will determine whether any grounds exist for the appeal to be referred to be considered by the court panel. If the judge finds no such grounds, he shall deny the cassational appeal referral to be considered by the court panel, and the cassational proceedings will be thus terminated. If the judge submits an appeal to be considered by the court, the appeal shall be considered in a court trial with the parties to the proceedings summoned, and based on such consideration, the court shall either pass a resolution to dismiss the appeal and uphold the court orders, or overturn the court orders and make a new decision. Besides, a cassational instance court may overturn a court order and refer the case to be considered anew by the court that passed the court order so overturned.

The court orders made in the first instance by the Supreme Court of a constituent entity or the RF Supreme Court, after they were appealed, may not be appealed in cassation, but only by way of supervision to the RF Supreme Court Presidium.

The difference between supervision proceedings and cassational proceedings is that the grounds for the court orders reversal have a different wording in the law. This difference has no practical meaning, as the abovementioned grounds are worded in a very general manner, are vague and not specific.

It is this vague wording of the grounds for court orders reversal in the extraordinary instances that drew, on numerous occasions, criticism of the European Court of Human Rights (ECHR), which formulated, as far back as 2000, a legal standing according to which the extraordinary means of appeal in Russia (nowadays, such include cassation and supervision) do not provide efficient means of legal protection110. And the reversal of the court orders that have entered into the legal force (have become res judicata) by way of supervisory review violates the principle of legal certainty.

110This standpoint was worded in the decision on the matter of the acceptability of complaint No.47033/99 filed by L. F. Tumilovich against Russia and was then repeated and developed in a number of ECHR Resolutions against Russia, including the adoption of the Interim Resolution ResDH (2006)1 against Russia by the Committee of Ministers of the Council of Europe, concerning the violations of the principle of legal certainty through the supervisory review procedure (“nadzor”) in civil proceedings in the Russian Federation – general measures adopted and outstanding issues. See: Interim Resolution ResDH (2006)1 against Russia by the Committee of Ministers of the Council of Europe.

Despite the fact that after a number of the ECHR resolutions that were landmark for Russia, things have massively changed, and, in particular, the means of appeal in the civil process have been reformed, in reality, the situation remains very much the same.

As for the notarial acts, it should be mentioned that the law and doctrine identify two types of the court control of the notaries” activities: direct and indirect control111.

111See Vergasova, pp.410–435; Tarbagaeva, pp.163–189.

According to Article 33 of the Framework Laws on Notaries of the Russian Federation, a refusal to perform a notarial act or an incorrect performance of a notarial act shall be appealed in court.

According to Article 49 of the Framework Laws on Notaries, an interested party who believes that a notarial act was wrongly performed or denied may file a respective complaint to a district court in the area where the notary office is located. The subject matter of a court review is the notarial act itself, its legality and correctness, and thus, such court control is called direct. In Russia, there is a special procedure for exercising direct court control. Today, this special procedure is stipulated by Chapter 38 of the RF Code of Civil Procedure “Considering Applications on the Notarial Acts Performed or Refused”, and is a structural part of the special proceedings within the civil process.

The dispute on the law that arose between the interested parties, based on a notarial act performed, is considered by the court in litigation, whereby the court, considering the main issue – dispute on the right – will concurrently verify the correctness of the performed notarial act. This type of control is called “indirect”.

The legality of the government authorities” actions related to registration cases may be verified both, administratively and in court. If we talk about doing it in court, it is done differently for various government authorities. For instance, court review of the activity of civil registration offices is conducted following a special procedure stipulated in Chapter 36 of the RF Code of Civil Procedure. This procedure is one of the categories of special proceedings cases and is similar to the procedure stipulated for direct court control of the notaries.

As regards the review of other registration authorities decisions – those of the Rosreestr (Federal Service for State Registration, Cadastre and Cartography) and the inspections of the federal tax service, there is no special procedure established, which is why the general procedure applies, stipulated in Chapter 25 of the RF Code of Civil Procedure and Chapter 24 of the RF Arbitration Procedure Code. It is used to contest the decisions, actions (omission) of the government authorities, local self-governance authorities, officials, state and municipal officers. Many believe that this procedure, which is a part of the administrative justice (administrative proceedings), which is not yet shaped up in Russia in its final form, should apply to the review of the activity of the civil registration offices and notaries public112.

112See, for instance, Avdyukov, p.124; Zheruolis, pp.199–201.

§ 2.3 The future of voluntary jurisdiction: main problems and planned reforms

There are no serious reforms planned for implementation in the area of voluntary jurisdiction in Russia at the moment or in the near future. Special court proceedings have remained unchanged for over fifty years and retain the features of the Soviet civil process. There are several changes proposed to the academic civil procedural law, specifically, developing a general part for all categories of cases, providing legislative framework for the principle of investigativity (or active role of the court), delineation of the court decisions taken in special proceedings and litigation, and others, mentioned above113. But all this is de lege ferenda.

113See in more detail: Argounov, A. V. (2013, pp.180–210); Argounov, V. V. 2011 b. pp.8–13; 2011 c, pp.15–20; 2012, pp.32–40).

However, we should mention a huge potential of reforming special proceedings to reduce the load on the court system, facilitation of the proceedings rules for some categories of cases or competence reassignment to non-court authorities114.

114Argounov, A. V. (2010, pp.36–42).

Only notarial activities are undergoing an active reform in Russia at the moment. The need for the adoption of a new Federal Law “On Notaries Public and Notarial Activities” is motivated by the notaries public more actively participating in the economic relations to ensure legal security and protection of both, public and private interests. The new law shall be aimed at actually establishing in Russia a Latin-type notarial system with notaries vested with broader powers, and not only certification functions they perform at the moment. Besides, the civil laws revamp conducted in Russia directly affects the public reltions in the area of the notarial system and activities.

The main issue, as we see it, is the lack of a uniform concept of the Russian voluntary jurisdiction in theory and in practice. Notarial system and civil laws reforms are once again being conducted disconnectedly from other components of voluntary jurisdiction – special court proceedings, registration proceedings. The planned changes to the procedural law aimed to optimize the court activities and reduce load on the judges and the court system are limited by the court infrastructure, and, unfortunately, fail to take into account all the links between the notarial, registration and court activities.

At the same time, special proceedings, notarial procedures and procedures related to the registration of rights and conditions, subject to appropriately built case resolution models and a uniform working methodology, will not only be mutually enriching, but will also benefit related procedures – contentious litigation and enforcement proceedings. It is the area of voluntary jurisdiction that includes the groups of relations associated with preventing civil law disputes and providing their tentative resolution. Hence, the overall quality of voluntary jurisdiction affects, although indirectly, but significantly, the quality of the courts” work in the area of considering contentious cases, overall load on the court system, and thus, the quality of justice on the whole.

The above is a very general outline of the issues we see and the outlook for voluntary jurisdiction development, taking into account the accomplishments and achievements of the Russian science and court practice. Surely, this development is far from being complete; rather, it has just been started; new trends are being specified and shaping up. Now we are looking at them from within, without having this certain historical perspective that allows accurate comparisons and precise assessments.

References

Abramov, S. N. 1948. Establishing Legal Facts in Court. Moscow.

Argounov, A. V. 2010. Special Proceedings in the Law of Civil Procedure in Russia: Areas being Reformed. Russian Justice. 9: 36–42.

Argounov, A. V. 2013. Special Proceedings in the Civil Procedural Law of Russia and France. Moscow: Prospect.

Argounov, V. N. 1994. What the Notarial System in Russia Should Be. MSU Gazette, Series 11. Law. 2: 20–27.

Argounov, V. N. 1998. Special Types of Proceedings Relating to the Protection of Infringed Right and Interest Protected by the Law. Legal World, April: 20–26.

Argounov, V. N. et al. 1994. [_Legal Fundamentals of Notarial Activities. _]Ed. by Vladimir Argounov. Moscow.

Argounov, V. V. 2006. Proceedings for Restoration of the Rights of Persons who Lost Bearer Documents in the Civil Process. Moscow.

Argounov, V. V. 2010. On Certain General Rules for Considering Special Proceedings Cases. Legal Studies. 5: 220–237.

Argounov, V. V. 2011 a. Development of Special Proceedings in the Civil Process: Change of Ideas, Views and Concepts. Moscow University Gazette. Series 11. Law.1: 73–86.

Argounov, V. V. 2011 b. General Provisions on Special Proceedings. Arbitration and Civil Process. 7: 8–13.

Argounov, V. V. 2011 c. General Provisions on Special Proceedings. Arbitration and Civil Process. 8: 15–20.

Argounov, V. V. 2012. Proceedings on the Cases Relating to the Administrative Supervision – New Category of Cases within the Framework of Civil Proceedings. Legal World. 6: 32–40.

Argounov, V. V. 2013 a. Issues related to the Review and Revision of the Court Decisions Adopted in Special Proceedings. MSU Gazette. Series 11. Law. 4: 36–37.

Argounov, V. V. 2013 b. Procedures for Establishing Facts Having Legal Significance: in Court or at a Notary’s? MSU Gazette. Series 11. Law. 2: 62–71.

Avdeenko, N. I. Kabakova, M. A. 1984. Notarial System in the USSR. Leningrad.

Avdyukov, M. G. 1956. Types of Legal Proceedings in the Soviet Law of Civil Procedure. MSU Gazette, Economics, Philosophy and Law series. 2: 112–131.

Bevzenko, R. S. 2011 a. State Registration of Rights to Real Estate: Issues and Solutions. Civil Law Gazette. 5: 4–30.

Bevzenko, R. S. 2011 b. State Registration of Rights to Real Estate: Issues and Solutions. Civil Law Gazette. 6: 5–29.

Blazheev, V. V. 2006. On the Existence of Special Proceedings in the Arbitration Process. In Relevant Issues of the Civil Law and Process: Collected Materials of the International Scientific and Practical Conference. Ed. by Damir Valeev, Mikhail Chelyshev. Moscow.

Bonner, A. T. 1971. Some Issues of the Socialist Justice. All-Union Extramural Law Institute Works. Vol. 17: 193–215.

Bonner, A. T. 1974. Review of the book by P. F. Eliseykin “Establishing in Court Facts having Legal Significance”. Soviet State and Law. 8: 141–143.

Chechot D. M. 1973. Non-Litigation Proceedings. Moscow.

Cheremnykh, I. G. 1999. Russian Notarial System: Past, Present and Future. Moscow.

Chudinovskaya, N. A. 2008. Establishing Legal Facts in Civil and Arbitration Proceedings. Moscow: Wolters Kluwer.

Degtyarev, S. L. 2007. Exercising Court Powers in Civil Proceedings: Theoretical and Applied Issues. Moscow.

Duvernois, N. L. 2004. Sources of Law and the Court in Ancient Russia. Experiments in the History of Russian Civil Law. Saint-Petersburg.

Eliseykin, P. F. 1969. Protection of subjective rights and interests and competence of the court in the Soviet civil process. Academic Notes of the Far East State University (Legal Sciences). Vol. 31. Part. 1: 3–163.

Eliseykin, P. F. 1973. Judicial Ascertainment of Legal Facts. Moscow.

Femelidi A. M. 1902. Russian Notaries. The History of Notaries and the Effective Notarial Regulation dated 14 April 1866. Saint-Petersburg.

Frantsiforov, A. Y. 2012. The Essence of Special Proceedings in the Civil Process. Moscow.

Gasman, A. G. 1914. Charter of Civil Proceedings over 50 Years. [_Ministry of Justice Journal _]9: 85–100.

Gracheva V. A. et al. 1985. Сivil Registrations. Manual. Ed. by V. A. Gracheva. Moscow.

Gromoshina, N. A. 2010. Differentiation, Unification and Simplification in Civil Proceedings. Moscow.

Gryadov, A. V. 2012. Evidentiary Effect of Notarial Act under the laws of Russia and France. Moscow: Infotropic.

Kalinichenko, T. G. 2010. Notarial Law and Process in the Russian Federation: Theoretical Issues of Development. Moscow.

Kallistratova, R. F. 1958. Judicial Ascertainment of Legal Facts in Special Proceedings. Moscow.

Kallistratova, R. F., Puchinskiy, V. K. et al. 1965. [_Scientific and Practical Commentary to the RSFSR Code of Civil Procedure. _]Ed. by R. F. Kallistratova and V. K. Puchinskiy. Moscow.

Kodintsev A. Y. 2008. History and Nature of the Soviet Notarial System in the Works of the Soviet and Russian Academics. Notarial Gazette. 2: 58–61.

Melnikov A. A. 1964. Special Proceedings in the Soviet Civil Process. Moscow.

Moskalenko, I. V. 2007. Notarial System: Jurisdiction Model. Preventive Enforcement Mechanism of Implementing Civil (Private) Law. Moscow.

Oleynova, A. G. 2004. History of the Notarial Law Formation in Russia. Moscow.

Rozhkova, M. A. et al. 2013. Issues Relating to Registration of Rights, Establishing and Certifying Legal Facts of Civil Law: Collected Articles. Editor-in-Chief, M. A. Rozhkova. Moscow.

Sakhnova, T. V. 2008. A Course in Civil Process. Moscow.

Tarbagaeva, E. B. 2001. [_Notarial System in the Russian Federation. _]Saint-Peters­burg.

Treushnikov, M. K. et al. 2004. The Journey to the Law. Ed. by Mikhail Treushnikov. Moscow: Gorodetz.

Uksusova, E. E. 2009. Definition of Due Court Procedure for Civil Cases. Journal of the Russian Law. 6: 77–93.

Vergasova, R. I. 2011. Notarial System in Russia. Moscow.

Yudelson, K. S. 1959. Soviet Notarial System. Moscow.

Yudin, A. V. 2003. Special Proceedings in the Arbitration Process. Samara.

Yarkov, V. V., Gongalo B. M., et al. 2003. Notarial Law of Russia. Ed. by V. V. Yarkov. Moscow.

Zheruolis, Iamantis. 1969. The Essence of the Soviet Civil Process. Vilnius.

Zhilin, G. A. 2010. Justice in Civil Cases. Vital Issues. Moscow.

Laws

Regulation on the People’s Court of the RSFSR dated 1918. Collected Laws of the RSFSR dated 1918. 85: art.889.

Fundamentals of Civil Procedure of the USSR and the Union Republics dated 1961. Published in the Gazette of the USSR Supreme Soviet 1961, 50: art. 526.

Code of Civil Procedure of the RSFSR dated 1964. Published in the [_Gazette of the RSFSR Supreme Council. _]1964, 24: art. 406.

Supreme Council of the RF. The Framework Legislation on the Notaries in the Russian Federation, enacted on 11 March 1993. Officially published in the RF Council of Peoples Deputies and Supreme Council Gazette, 11.03.1993, 10, art. 357.

Federal Law N. 143-FZ “On Acts of Civil Status”. Adopted 15 November 1997. Collected Laws of the Russian Federation dated 24 November 1997. 47: Art. 5340.

Federal Law N.129-FZ “On the State Registration of Legal Entities and Sole Traders”. Adopted 8 August 2001. Collected Laws of the Russian Federation dated 13 August 2001. 33 (Part I): Art. 3431.

Code of Arbitration Procedure of the RF. 29 July 2002. Collected Laws of the Russian Federation. 30: Article 3012.

The RF Code of Civil Procedure enacted on 1 February 2003. Officially published in the Collected Laws of the RF Journal, 18.11.2002, 46, art. 4532.

Methodological Recommendations for Certifying True Copies of Documents and Extracts Therefrom. Approved by the Management Board of the Federal Notary Chamber. Minutes No. 03/03 of the Federal Notary Chamber Management Board dated 26–27 March 2003.

Methodological Recommendations for the Execution of Inheritance Rights. Approved by the decision of the Management Board of the Federal Notary Chamber dated 27–28 February 2007, Minutes No.02/07.

Order of the Ministry of Justice of the RF N.256 “On Approving the Instruction on the Procedure for the Performance of Notarial Acts by Heads of the Local Administrations of Settlements and Municipal Districts and Specifically Authorized Representatives of the Local Self-Government of Settlements and Municipal Districts”. 27 December 2007. Bulletin of the RF Ministry of Justice, 2008, 2.

Rules of Notarial Proceedings. Approved by order of the RF Ministry of Justice dated 19 November 2009 No. 403.

Regulation on the Procedure for the Making, Circulation, Accounting for and Using the Blank Notarial Forms. Approved by the decision of the Federal Notary Chamber Management Board dated 21–22 December 2009; minutes No.14/09.

Consular Statute of the Russian Federation. 12 July 2010. Collected Laws of the Russian Federation. 28: Art. 3554.

Draft Federal Law “On Notarial System and Notarial Activities in the Russian Federation”. Officially published on the website of the Russian Gazette on 18 November 2011: http://www.rg.ru/2011/11/18/notariat-site-dok.html. Accessed 19.01.2015.

Interim Resolution ResDH (2006)1 against Russia by the Committee of Ministers of the Council of Europe. 2006: https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805acb85. Accessed 19.01.2015.

Case-law

The Supreme Court of the RF. 2004. Resolution of the RF Supreme Court Plenum dated 19 December 2003 No.23 “On Court Decision” (clause 17). Russian Gazette dated 26 December 2003 No.260.

The Supreme Court of the RF. 2006. The Supreme Courts Plenum Resolution dated 20 April 2006 No.8 “On the Application of the Laws by the Courts when Considering Adoption Cases (Clause 7). Russian Gazette dated 03 May 2006, No.92.

Statistics

Federal Notary Chamber. 2012. Performance Results in 2011. http://www.notariat.ru/ddata/file-file/2790.pdf. Accessed 19.01.2015.

The Judicial Department of the RF Supreme Court. 2013. Overview of the court statistics on the activities of the federal courts of general jurisdiction and justices of the peace in 2012. http://www.cdep.ru/index.php?id=80&item=1911. Accessed 19.01.2015.

The Supreme Arbitration Court of the RF. 2013. Table of main performance indicators of the work of the RF arbitration courts in 2010–2012, 1 H 2012–2013. http://www.arbitr.ru/press-centr/news/totals/. Accessed 19.01.2015.

Chapter 3

Non-contentious procedure law of Slovenia

Aleš Galič

Abstract

In Slovenia non-contentious procedure is considered a part of civil justice. Whereas ordinary litigation is the main method of determining civil cases, non-contentious procedure is considered to be its counterpart, thus a secondary option for those civil matters, which do not – for different reasons – fit well into principles and structure of ordinary litigation. Just like the first Yugoslav Civil Procedure Act of 1929 was almost a complete translation of the Austrian (Franz Klein’s) Zivilprozessordnung, also the first Yugoslav Non-contentious Procedure Act of 1934 was almost identical to its Austrian predecessor (Ausserstreitpatent – 1854). The Slovenian Non-contentious Procedure Act which is currently still in force has been adopted in 1996, so in the time when Slovenia was still a part of Yugoslavia. In spite of numerous reforms the current law of non-contentious procedure in Slovenia is still most closely related to (old) Austrian law, for example concerning delimitation between the contentious procedure (litigation) and non-contentious procedure or concerning the concept of “participants”.

Slovenian law of non-contentious procedure is in a need of a reform. The existing law is in certain aspects outdated. On the other hand, there exists a huge amount of fragmented sectoral legislation, containing norms relevant for specific non-contentious procedures. This causes confusion and lack of clarity. In general however the existing “bipolarity” of civil procedure in courts of law – litigation as its main form and non-contentious procedure as its counterpart – seems to work well. There certainly are cases, for which it is more suitable to be decided by the courts of law than, for example, by administrative authorities or public notaries, but for which the ordinary course of litigation would not be a suitable and effective tool.

In last couple of decades we have, as a result of a world-wide trend, witnessed transfer of decision-making powers from administrative and social welfare authorities to state courts. In this regard non-contentious procedure proved to be especially suitable for many of these matters, especially concerning the safeguarding of the child’s right to be heard. Non-contentious procedure proved valuable in many company law issues as well (so called corporate non-contentious procedure).

Another question concerns the relation between non-contentious proceedings in a court of law on the one hand and notarial proceedings on the other hand. The trend seems to be to take away matters from courts to the benefit of public notaries (as already mentioned, a major reform of probate proceedings law is currently underway and it is expected that the powers to conduct these proceedings shall be vested with public notaries in the future). Sometimes this is a result of a persistent lobbying of public notaries. One can however doubt if the transfer of e. g. probate proceedings from the courts of law to public notaries is really in any public interest or is it rather in a particular commercial interest of the notarial profession. After all the “outsourcing” of probate matters does not really relieve state courts of much burdens if it affects only cases where no dispute at all arises, whereas all the matters, where a dispute emerges or which otherwise prove to be complex are referred back to the court of law.

Introduction

The Slovenian law of civil procedure is closely linked to the Austrian law. This finding applies not only to the system of ordinary litigation (Civil Procedure Code; Zakon o pravdnem postopku) but also to non-contentious procedure and its place and role in the civil justice system. The close connection of the Slovenian and Austrian civil procedure is not surprising for the time period before 1918 since the territory of what is nowadays Slovenia was until then a part of Austrian part of the Austrian-Hungarian Empire. This development was not interrupted when Slovenia became a part of the newly formed Yugoslavia after the First World War (1918). Yugoslavia, when adopting new unified legislation in the fields of private law and civil procedural law decided to transplant Austrian laws. These were considered to be more modern and advanced than, for example laws of former Kingdom of Serbia, which was also integrated in the newly formed Yugoslavia. Thus just like the first Yugoslav Civil Procedure Act of 1929 was almost a complete translation of the Austrian (Franz Kleins) Zivilprozessordnung, also the first Yugoslav Non-contentious Procedure Act (Nepravdni postopnik) of 1934 was almost identical to its Austrian predecessor (Ausserstreitpatent – 1854)115. After the World War II Yugoslavia became a socialist state, consisting of six federal units (“republics”), which Slovenia was one of. In 1991 Slovenia became an independent state, whereby a full international recognition followed in 1992 and at the same time this meant a shift to a parliamentary democratic system and a market economy. As the first one among former Yugoslav republics it joined the European Union in May 2004.

115Juhart, Civilno nepravdno pravo, Splošni del [Non-contentious Procedure Law – General Part], Ljubljana, 1970, p. 24.

In Slovenia non-contentious procedure (nepravdni postopek) is considered a part of civil justice. It is a court procedure and relates to the exercise of judicial power, not administrative decision-making116. Whereas ordinary litigation is the main method of determining civil cases, non-contentious procedure is considered to be its counterpart, thus a secondary option for those civil matters, which do not – for different reasons – really fit well into principles and structure of ordinary litigation117. It is acknowledged that the differentiation between iurisdictio contentiosa and iurisdictio voluntaria has its roots already in the roman law.

116Juhart, op. cit., p. 8.

117Rijavec in: Ude, Galič (Ed.), Pravdni postopek – zakon s komentarjem [Civil procedure – The Act with the Commentary], Vol. 1, Ljubljana, 2005, p. 165

In the last decade a trend of transmitting certain competences from non-contentious court procedures to public notaries (e. g. authentication of documents) is evident in Slovenia. A major reform of law on inheritance law and probate proceedings is currently debated. It is almost certain that the competence for probate proceedings will be transmitted from courts of law to notaries public. But it cannot be said that these notary proceedings shall therefore be non-contentious procedures. The notion of non-contentious procedure can be used solely in the context of a procedure in the courts of law.

The Slovenian Non-contentious Procedure Act (Zakon o nepravdnem postopku; hereinafter NCPA118[_) _]which is currently still in force has been adopted already in 1996, so in the time when Slovenia was still a part of Yugoslavia. There has never existed an uniform Yugoslav NCPA; non-contentious matters fell within an exclusive jurisdiction of the federal republics. The law hasn’t been substantially changed ever since. The project of drafting an entirely new NCPA has started already some ten years ago, but the work on the project has been stalled.

118Official Gazette SRS, No. 30/86.

§ 3.1 Non-contentious procedure: type of matters and legislation governs it

The main source of non-contentious procedure law is the NCPA. The general part of this Act (37 articles) applies to all types of non-contentious procedures. Civil Procedure Act119 is an important source of law for non-contentious cases as well. This goes on account of the fact that for all issues of procedure which are not explicitly regulated in the NCPA, the provisions of the Civil Procedure Act shall apply as appropriate. For example, NCPA contains no rules concerning powers of attorney, manner of examining witnesses, challenge of judges, calculation of time-limits, service of judicial documents, particularities of appeals etc. So, for such issues, the CPA is applicable as appropriate in non-contentious proceedings as well.

119Zakon o pravdnem postopku, Official gazette No. 26/99 … 48/2008.

Particular non-contentious proceedings are regulated in the special part of the NCPA and cover a large spectrum of legal relationships, from matters concerning family relationship and personal status to pecuniary matters concerning certain property law relationships. The general part of the NCPA is applied with regard to all the issues that are not otherwise regulated under particular proceedings contained in the special part of this law.

The general part of the NCPA (including its reference to appropriate application of the Civil Procedure Act) also applies to other non-contentious matters, which are regulated by separate laws. It should be stressed that many non-contentious procedures are not regulated in the special part of the NCPA but in separate sectoral legislation. Some of these laws contain extensive and comprehensive chapters on (non-contentious) procedure. Such is the case, for example, for probate proceedings (regulated in the Inheritance Act), procedure for entry into the land register (The Land Register Act) and for entry into the companies register (The Companies Register Act), procedure for compulsory commitment of psychiatric patients (The Mental Health Act), procedure for recognition and enforcement of foreign judgments (outside the scope of the Brussels I and II Regulations; International Private Law and Procedure Act) or procedure for the return of unlawfully removed cultural heritage (The Return of Unlawfully Removed Cultural Heritage Objects Act). In some other instances, specific sectoral legislation merely provides for a clause that certain matters shall be decided in non-contentious procedure, without specifying any particular additional procedural rules (e. g. for certain proceedings, referred to in the Companies Act, Denationalisation Act, The Provision of Maintenance to Farmers Act and the Forests Act). For these matters, the general part of the NCPA is fully applicable. There are certain acts which regulate some isolated issues of procedure, without an ambition to set a comprehensive procedural system (e. g. for certain non-contentious matters, defined in the Housing Act, the Personal Name Act, The Family Relations Act, Act on the Acquisition of the Strata Title and Arbitration Act – the latter empowers the state court to exercise certain supporting functions in relation to arbitration; e. g. deciding issues of appointment or challenge of an arbitrator).

The fragmentation of legislation, relevant for non-contentious procedure is certainly problematic and so is also a lack of clarity. This is especially critical in the field of procedures concerning family law matters. Certain procedures of that kind are regulated in the NCPA, such as withdrawal of parental responsibility, extension of parental responsibility, withdrawal of contractual capacity (which is an instrument used inter alia also for depriving vexatious litigants to file lawsuits) and granting permission to a minor to conclude marriage. Some other non-contentous matters are however regulated in the Family Relations Act (matters concerning custody, visitation rights and joint exercise of parental responsibility). These matters are not regulated in the NCPA, because in the time when that act was adopted (1986) they did not fell within jurisdiction of the courts but of administrative authorities (social welfare authority). It was only later that – through amendments of the Family Relations Act – most of these powers of social welfare authorities were made subject to jurisdiction of the courts and the courts decide them in non-contentious procedure.

Similar unsatisfactory situation exists in the sphere of non-contentious procedures concerning property law. Some of these remain – concerning procedural aspects – regulated in the NCPA (e. g. division of joint property, regulation of relations between co-owners, delimitation of disputed boundary between neighbouring real estate, establishment compulsory easement (servitude) of access road (pathway)… The rules for certain other non-contentious procedures from the same field of law are however set by the new Property Law Code (e. g. regulation of certain relations between strata title unit owners in the same multi-apartment building).

§ 3.2 Delimitation between the contentious procedure (litigation) and non-contentious procedure

The above overview shows that there is a very large spectrum of matters referred to adjudication in non-contentious procedure. They do not necessarily seem to have much in common. So the question is put, whether any reliable criteria can be followed in order to determine whether a particular matter – if it is to be decided by courts and not by administrative authorities – should be referred to an ordinary litigation or to non-contentious procedure. Slovenian legal scholars and the legislature have since a long ago been preoccupied with the problem how to differentiate matters, which are decided in non-contentious procedure (nepravdni postopek) from those which fall within the scope of a regular litigation (pravdni postopek)120. Different theories developed in this regard121. The oldest and still most widely used theory is the “theory of a dispute”, according to which only cases where no dispute exist should be decided in non contentious procedure. Nevertheless this approach is not entirely reliable as certain matters relating to a very clear dispute are decided in non-contentious procedure (e. g.: determination of the boundary line between neighbouring pieces of real estate), whereas certain cases where no dispute is involved are decided in contentious procedure (dissolution of a marriage upon a consensual joint application of spouses). The “theory of parties” is based on similar starting point. Litigation presupposes the existence of two parties (claimant, defendant) with adverse interests and between whom a clear dispute exists. Even in case of joinder of the parties (co-claimants, co-defendants) the basic structure of clear adversarial “bipolar” procedural roles remains. On the other hand, in non-contentious procedure there exist no such “parties” with adverse interests, as the regulation of a certain legal relationship is in the interest of all participants involved. In addition, there are often more such participants involved Indeed, the NCPA does not use the notion of a “party” but rather refers to the participants (udeleženci) of a procedure. Certain scholars advocated the “theory of preventive vs. repressive goal of adjudication” (adopted in litigation or in non-contentious procedure). Litigation as a traditional and fundamental form of civil procedure is based on the idea that the harm (violation of civil right) has already been done and the aggrieved party needs to seek recourse at the state court. The court’s judgment in such a case is a reaction (retrospective and repressive) to the already existing violation. Non-contentious procedures are based on a different concept: the court should regulate certain legal relationship before any civil rights have been violated. The activity of the court in non-contentious procedure is thus pro-active, aimed at preventing the potential future harm (breaches of civil obligations). To a certain extent this doctrine is a useful tool, but there are exceptions in both directions. On the one hand certain decisions which are made in non-contentious procedure are not preventive, but are a reaction to the harm which has already been done (e. g. deprivation of the parental rights…). On the other hand the idea of preventive goal of civil justice is not unknown to ordinary litigation. It is the instrument of declaratory judgment that serves exactly the purpose of prevention. If the claimant can demonstrate legal interest, he can by virtue of action for declaratory relief, request the court to determine existence or non-existence of rights and legal relationships even before any rights have actually been violated. The “theory of declaratory vs. constitutive nature of decisions” is based on a similar idea. Judgments adopted in regular civil procedure do not establish new rights or change legal relationships but merely determine already pre-existing rights and obligations, whereby they offer the claimant an enforceable title. On the other hand decisions rendered in non-contentious procedure, being pro-active in their purpose, are constitutive – they either establish new or change or terminate already existing legal relationships. However this theory is not immune to criticism either. On the one hand some judgments adopted in regular litigation are constitutive in nature (e. g. dissolution of a marriage, annulment of a voidable contract…). On the other hand not all decisions adopted in non-contentious procedures crate new relationships or bring a change to pre-existing ones. Certain non-contentious procedures result in decisions which are merely declaratory; e. g. certain types of entries into the companies” register. Other authors believed that non-contentious procedure has, although it is a court-procedure, much more in common with administrative procedure (the “theory of a administrative decision-making”). There is more focus on a protection of public interest and public welfare and also more room for the judge’s discretion both concerning procedure as well as the merits). However, whereas in many types of non-contentious matters this is clearly the case (e. g. involuntary commitment of psychiatric patients, deprivation of contractual capacity, declaration of death of missing persons, matters concerning welfare of children, determining compensation for expropriated real property…), there are many non-contentious procedures, which are not really different from regular civil cases, decided in litigation (e. g. division of joint property, regulation of relations between co-owners…).

120See in detail: Juhart, op. cit., p. 15–18, Wedam Lukić, Polajnar Pavčnik, Nepravdni postopek – zakon s komentarjem [Non-contentious procedure – The Act with the Commentary], Ljubljana, 1989, p. 11–12, Rijavec in: Ude, Galič (Ed.), Pravdni postopek – zakon s komentarjem [Civil procedure – The Act with the Commentary], Vol. 1, Ljubljana, 2005, p. 165, Ude, Civilno procesno pravo [Civil procedure], Ljubljana, 2002, p. 72.

121For a summary of different theories and their practical consequences see also the decision of the Supreme court of the Republic of Slovenia No. II Ips 122/99 dated 25 November 1999, decision of the Ljubljana Court of Appeals No. II Cp 1589/2010 dated 18 August 2010.

None of the aforementioned theories succeeded in setting a clear and reliable line between contentious and non-contentious matters122. They nevertheless are still a valuable tool for the legislature when it needs to decide whether certain civil matters shall be subject to adjudication either in litigation or in non-contentious procedures. In the end however, a purely formalistic approach prevails: non-contentious procedure only applies for matters for which the law expressly specifies that they shall be resolved in non-contentious proceedings (Art. 1/1 NCPA). Otherwise, the civil matter shall be decided in an ordinary litigation. Still, the purely formalistic approach is to a certain extent softened. However, if it is clear that a certain type of civil matter is clearly inapropriate for determination in ordinary litigation, it can be decided in non-contentious procedure even in absence of explicit statutory basis (Art. 1, Para. 2 NCPA).

122Juhart, op. cit., p. 15–18, Wedam Lukić, Polajnar Pavčnik, op. cit., p. 11–12, Rijavec in: Ude, Galič (Ed.), op. cit., p. 165, Ude, op. cit., p. 72.

The legislator is free to decide in which kind of proceedings (contentious, non-contentious…), a certain matter shall be decided upon123. The only constitutional limitation is that there may be no arbitrary division that the law would refer a certain matter to one type of procedure, but in another case, a substantially equal matter would be referred to another kind of procedure124.

123Decision of the Constitutional Court, Up 42/96, 30 May 2000.

124The Constitutional Court found it contrary to the constitution that according to the Family Act, the decision on custody rights over children of divorced parents was in the competence of a court, but the decision on custody rights over children of parents, who were never married, was in the competence of an administrative authority (subject, of course, to a subsequent judicial review in administrative court). Decision of the Constitutional Court, U-I-273/98, 1 July 1999.

§ 3.3 Main differencies between litigation and non-contentious procedure

3.3.1 Princple of free disposition and adversarial principle

The principle of free disposition is recognized in Slovenian civil procedure law (Arts. 2 and 3 CPA). The court may not start litigation proceedings ex officio. The situation in non-contentious procedure is different. While most of non-contentious procedures also start solely upon party initiative (iurisdictio voluntaria contentiosa; although not with a “claim” (tožba) but with a “petition” (predlog”), in certain matters the court may start a non-contentious procedure also upon its own motion (iurisdictio voluntaria oficiosa; Art. 2/2 NCPA; e. g. probate proceedings, compulsory commitment of psychiatric patients – urgent proceedings, withdrawal of contractual capacity, withdrawal of parental responsibility…)125. But also in proceedings which start upon a motion of a party, a major difference exists between litigation and non-contentious procedure. The action in litigation must contain a specified relief or remedy claimed in respect of the cause of action and the lateral claims and the court is bound by the claim as determined by the claimant (a court may decide neither extra nor ultra petitum). (Art. 180, CPA). On the other hand a petition in non-contentious procedure does not need to contain such a specified prayer for relief and even if it does the court is not bound by it (Art. 21 NCPA)126. In litigation, parties are also free to dispose of their claim and defences during the trial. The voluntary dismissal of the claim, the acknowledgment (admission) of the claim and the in-court settlement result in a termination of litigation and produce a res-iudicata effect thereby preventing a relitigation regarding the same claim. Again, the situation is different in non-contentious procedures. There is no acknowledgment or abandonment of a claim with direct and automatic effects127. In-court settlement is possible concerning rights, which parties may freely dispose of and provided that the nature of the matter makes a settlement possible. There are also no direct negative effects for the respondent’s default in non-contentious procedure. No judgment by default may be rendered and the default of the parties is not considered as an admission of a claim or of facts128. In ordinary litigation the initiative of the parties prevails also in the field of assertions of facts and evidence. It is a responsibility of the parties to assert facts and present means of evidence (Art. 7, CPA). In general, the system in non-contentious procedure is similar, but there are more exceptions. The court may rely on facts, not asserted by any of the parties and take evidence ex officio in proceedings, which the court started [ex officio _]and in proceedings, where best interest of the children or other vulnerable persons need to be safeguarded (Art. 6 NCPA). This is in line with the general principle that in the non-contentious proceedings, the court shall, _ex officio, take particular care and undertake measures for the protection of rights and legal interests of minors who are without parental care, as well as other persons who are incapable of taking care of the protection of their own rights and interests (Art. 5 NCPA).

125See in detail: Wedam Lukić, Polajnar Pavčnik, op. cit., p. 13, Juhart, op. cit., p. 71.

126See e. g. decision of the Ljubljana Court of Appeals No. I Cp 508/2001 dated 29 March 2001.

127See e. g. Wedam Lukić, Polajnar Pavčnik, op. cit., p. 31.

128Wedam Lukić, Polajnar Pavčnik, op. cit., p. 14.

Both in litigation as well as in non-contentious procedure, it is the responsibility of the court to determine the issues of law (which covers not only domestic law but also foreign law)129. The iura novit curia rule applies (Art. 180, CPA).

129Ude, op. cit., p. 114.

Strict rules regarding the respect of the initiative of the parties are significantly softened by the rules on active case management130. The Slovenian CPA provides for the judge’s obligation to promote clarification (Art. 285 CPA). The judge, as explained above, is in principle bound by factual assertions and evidence, offered by the parties, but has a right and a duty to stimulate the parties (with questions, hints and observations) to amend and clarify their assertions of facts. The judge also needs to warn the parties if they considered the evidence, which the parties offered, as insufficient and warn them on the distribution of the burden of proof. The judge also needs to openly consult with the parties the legal viewpoints which the parties have neglected131. The judge’s duty to promote clarification applies both in litigation as well as in non-contentious procedure. Actually it even has a bigger significance in the latter, given that welfare and public interests are often involved, which calls for a more active role of the judge132. In addition, there is often even a more accentuated need for a speedy resolution of the case.

130See e. g. D. Wedam Lukić, “Vloga strank in sodišča pri zbiranju procesnega gradiva” [The role of the parties and the judge at the collection of procedural material], 24 Podjetje in delo, 1998, No. 6–7, pp. 984–990, Betetto in: Ude, Galič (Ed.), Pravdni postopek – zakon s komentarjem [Civil procedure – Act with the commentary], Vol. 2, p. 582 et seq.

131This requirement follows also from the case law of the Constitutional Court; decisions Nos. Up 130/04 (24 November 2005) and Up 133/04 (1 December 2005).

132See decision of the Ljubljana Court of Appeals No.[_ _]VSL Sklep I Cp 3047/2009 dated 18 November 2009.

Pursuant to an explicit provision in the law the right to be heard must be guaranteed in the non-contentious proceedings in the same manner as it is in litigation (Art. 4 NCPA)133. The explicit provision in this regard in the law is a result of a formerly on-going but now obsolete controversy as to whether the right to be heard (načelo kontradiktornosti) applies in non-contentious proceedings at all.

133See decision of the Ljubljana Court of Appeals No.[_ _]I Cpg 359/2012 dated 24 April 2012.

3.3.2 “Participants” in non-contentious procedure

A system of litigation is based on a purely formal concept of “parties”. The parties are the claimant and the defendant – regardless of whether they are true parties in the substantive sense (thus, if they really enjoy rights or have obligations, which are asserted). The starting point in non-contentious procedure is different. The parties (here called: “participants”; udeleženci) are not defined solely by formal criteria (thus the petitioner and the respondent, who are called “formal participants”; the law usually enumerates persons or public bodies, who have standing to bring proceedings) but also by substantive criteria134. A “material participant” in non-contentious procedure is any person, whose rights, obligations or legal interests may be affected by the outcome of procedure, although she was not formally designated either as the petitioner or as the respondent (Art. 19 NCPA). There is also a third group, called “statutory participants”, which are public bodies which right of participation in certain kind of proceedings is established already by the law (e. g. a Social Welfare Authority and a guardian ad litem in proceedings concerning withdrawal of contractual capacity).

134Juhart, op. cit., p. 54, Wedam Lukić, Polajnar Pavčnik, op. cit., p. 28.

3.3.3 Some other features of Slovenian non-contentious procedure

There are two types of courts of first instance in Slovenia: county courts (okrajno sodišče) and district courts (okrožno sodišče). As a generally applicable rule, County courts have exclusive subject matter jurisdiction for non-contentious procedures. Nevertheless certain laws derogate from the general rule: non contentious procedures relating to family law relations or to the company law are decided by district courts (which also exclusively deal with contentious family law and commercial disputes), and so are proceedings for recognition and enforcement of foreign judgment135. In courts of first instance, a single professional judge constitutes the bench (Art. 18 NCPA). In certain types of non-contentious procedure (entry into land or companies” register) routine decisions are taken by court clerks and the matter is submitted to the judge only if any participant objects the measure taken or the decision adopted. As a principle, a party is not obliged to be legally represented; everyone can present his or her case by him/herself.).

135It must be stressed that district courts have no appellate or supervisory jurisdiction over county courts; both are exclusively courts of first instance and appeals against their judgments are always decided by appellate courts (višje sodišče).

While an oral hearing is an obligatory phase of every litigation, the situation in non-contentious procedure is different. In principle the court is not obliged to schedule an oral hearing (unless the law explicitly provides otherwise – e. g. in boundary delimitation dispute, in procedure for compulsory commitment of psychiatric patients, in most probate proceedings…), but it always has a discretion to do so. The court conducting non-contentious procedure may not itself decide upon the (non)existence of preliminary legal relationships if the decision thereon depends on disputed facts (Art. 9 NCPA). In that case the court is obliged to suspend non-contentious proceedings and refer parties to litigation136. But this does not mean that otherwise there is no evidence taking on disputed factual assertions in non-contentious procedure; the aforementioned restriction applies only in regard to facts which are decisive for the existence of preliminary legal relationships (if in a housing matter a preliminary issue of ownership over the flat is disputed).

136See e. g. decision of the Ljubljana Court of Appeals No. I Cp 4001/2010 dated 20 April 2010.

In general, evidence is taken in a less formal manner in non-contentious procedure than it is in litigation (Art. 26/3 NCPA)137. Means of proof are statutorily limited (but there is no hierarchy between them) to the following: inspection of person or object (“view”), documents, witness testimony, expert testimony and party testimony. Concerning the expert evidence, the principle is that a court will appoint one expert – but such must fully comply with the demands of independence and impartiality. The expert is considered to be an assistant for the court138. Therefore, the grounds for disqualification of judges are applied also with regard to the experts (Art. 247, CPA). In principle, all forms of evidence have the same weight under the principle of free evaluation of evidence (Art. 8, CPA). In broader sense, the principle of free evaluation of evidence also means that the court is not limited at deciding which evidence (offered by the parties) it can use in order to establish the existence of disputed facts. There are however some exceptions to this principle in those non-contentious procedures. That is in cases, where obligatory means of evidence are prescribed (e. g. examination by a medical psychiatric expert in proceedings for compulsory commitment of psychiatric patients or the expert evidence of a surveyor in a boundary delimitation dispute).

137Ude, op. cit., p. 73.

138L. Ude, N. Betetto, A. Galič, V. Rijavec, J. Zobec, D. Wedam Lukić, Pravdni postopek – zakon s komentarjem [Civil Procedure – Act with the commentary], (Ljubljana, GV Založba in ČZ UL, 2005), Vol. 2, p. 481.

Minutes of the hearing are kept in a summary way (Art. 28 NCPA). Parties cannot enter jurisdiction agreements (Art. 14 NCPA) and parties cannot agree on suspension of proceedings (Art. 27 NCPA). Rules concerning perpetuatio fori are relaxed; the court may transmit the case to the better placed court if that was in the best interest of children or other vulnerable persons (Art. 16 NCPA). The petitioner can always withdraw its petition, but any other participants can request the court that the proceedings are not terminated (or the court may decide that sua sponte if the case concerns the matter where the court could also initiate proceedings ex officio in the first place); Art. 23 and 24 NCPA. In non-contentious proceedings the decision of the court is not called the judgment (sodba), but decision (sklep); art. 29 NCPA. It must contain reasons. For a long time it has been a controversial issue whether provisional measures of protection can be adopted in non-contentious procedure. The issue is now settled as the position prevailed that there is no difference between litigation and non-contentious procedure concerning the court’s powers to adopt such measures139.

139See e. g. the decision of the Ljubljana Appellate Court No II Cp 3232/2012 dated 28 November 2012.

Since the Civil Procedure Act is applied as appropriate in non-contentious proceedings as well (where there are no special rules) some controversies have emerged as which instrument of this act can appropriately be applied in non-contentious proceedings at all. For example, the CPA contains a system of certain time-limits for bringing forward new facts and evidence (Preclusions; Art. 285 CPA). In principle parties are only free to do this till the end of the first session of oral hearing (whereby the court may set binding time limits for certain submissions and clarifications already in the written phase of proceedings. It is disputed whether the described system can be applied appropriately in non-contentious proceedings as the NCPA is silent on the point as to when the parties can without restrictions bring forward new material. The prevailing view seems to be that at least those non-contentious proceedings which involve an accentuated welfare or public interest elements are not suitable for such restrictions. On the other hand, non-contentious procedures which are predominantly pecuniar in nature, there are no obstacles for applications of the CPA’s rules on preclusions140.

140Decisions of the Ljubljana Court of Appeals No. I Cp 1268/2010 dated 30 June 2010, I Cp 1035/2012 dated 19 December 2012 and II Cp 39/2009 dated 6 May 2009.

The general rule concerning the costs in non-contentious procedure is that each party bears its own costs (Art. 35 NCPA). This is contrasted to the system of “the loser pays” which is applied in litigation. There are some exceptions to the aforementioned rule though. For example, in proceedings which are only to the benefit of one of the participants (e. g. the establishment of a pathway easement), such participants shall bear all costs. There are also certain non-contentious procedures, where the “loser pays” rule applies (e. g. procedure for withdrawal of the parental responsibility).

3.3.4 Appeals and res iudicata

It is always possible to appeal (pritožba) against the decision of a court, which terminated the non-contentious proceedings at the first instance court. This comes as a matter of right as it is expressly guaranteed by Art. 25 of the Slovenian Constitution. It is not possible to waive the right to appeal before the judgment of the first instance court is rendered. The time limit for an appeal is 15 days from the day of service of the copy of the decision (Art. 31 NCPA). The right to be heard of the other participants is guaranteed; the appeal is served to them and they can file their comments. A timely institution of an appeal has a suspensive effect which means that it prevents the judgment from becoming enforceable and res iudicata in respect of the part subject to the appeal. In non-contentious proceedings the court may nevertheless order that the first-instance decision is directly enforceable, notwithstanding the pending appeal if so prescribed by the law or if necessary for the protection of welfare of children and other vulnerable persons (Art. 32 NCPA). In the appeal the party may seek review of the facts or of the errors in application of procedural or substantive law. If the appeal is well-founded the appellate court may either alter the decision or quash it and order a retrial. A peculiarity in non-contentious procedure is that in certain, genuinely undisputed matters, the first instance court can itself decide upon the appeal. It is under certain circumstances also admissible for the court to review an appeal although it was filed late (see Art. 33 NCPA9.

In principle the further appeal on points of law (revizija) to the Supreme court is excluded in non-contentious procedure (Art. 34). But if the matter raises important issues of law or if the uniformity of application of law needs to be restored or achieved and it is desired that the decision of the supreme court would offer guidance for lower courts for future cases, a public prosecutor may file the request for the protection of legality. Otherwise, this instrument is not available if the appeal on points of law can be filed by the parties. In a small number of non-contentious procedures, a further appeal on points of law to the Supreme court is nevertheless available, as provided for explicitly in sectoral legislation (e. g. concerning the order for compulsory commitment of psychiatric patients or concerning the withdrawal of contractual capacity).

Positions in the legal doctrine were for a long time split concerning the question whether the decisions adopted in non-contentious procedures can at all attain the quality of res-iudicata with the claim and issue preclusion effects. However the view prevailed that there is not really any significant difference between judgments issued in litigation and decisions issued in non-contentious proceedings in this regard141.

141Wedam Lukić, Polajnar Pavčnik, op. cit., p. 38.

§ 3.4 The scope and viability of con-contentious jurisdiction. Statistics (in comparison to litigation)

In 2011 Slovenian courts have received nearly 300.000 new cases, which fall within the scope of non-contentious procedures142. It should however be noted that of these, 230.000 concern entry into a land register and another 35.000 entry into a companies” register. These are predominantly purely routine matters, which are dealt with by court clerks and rarely even reach a judge. Concerning the remaining 30.000 cases, cca. 22.000 were probate proceedings and cca. 4000 non-contentious family law proceedings. Non-contentious procedures concerning relations between co-owners and joint property are quite common as well. In comparison, there were cca. 21.000 new lawsuits (litigation) commenced in county and district courts in Slovenia in 2011.To get a realistic impression of these figures it should be recalled that Slovenia is a small country with only 2 million inhabitants.

142See: Sodna statistika za leto 2011 [The Courts” Statistics for 2011], Ministry of Justice of the Republic of Slovenia.

For practical evaluation of the statistical data it is difficult to set a common denominator for all non-contentious procedures. Whereas some are, as already mentioned, purely routine (“rubber stamping”) matters which don’t require much effort and court’s resources, the others can be very complex, even raising constitutional law issues, and require much attention and court’s resourses (such as: commitment of psychiatric patients, removal of contractual capacity, certain family law matters concerning exercise of parental responsibilities and visitation rights).

Conclusion

Slovenian law of non-contentious procedure is in a need of a reform. Not only is the existing law already quite old and in certain aspects outdated, there is also a lot of fragmented sectoral legislation, containing norms relevant for specific non-contentious procedures. This sometimes causes confusion and lack of clarity. In general however the existing “bipolarity” of civil procedure in courts of law – litigation as its main form and non-contentious procedure as its counterpart – seems to work well. There certainly are cases, for which it is more suitable to be decided by the courts of law than, for example, by administrative authorities or public notaries, but for which the ordinary course of litigation would not be a suitable and effective tool.

In last couple of decades we have, as a result of a world-wide trend, witnessed transfer of decision-making powers from administrative authorities (social welfare authorities) to state courts. In this regard non-contentious procedure proved to be especially suitable for many of these matters, especially concerning the safeguarding of the child’s right to be heard. Non-contentious procedure proved valuable in many company law issues also (so called corporate non-contentious procedure; ranging from appointment and determining fees for liquidators and founding editors, call of the general meeting in certain circumstances to the exercise of the shareholder’s right to information).

Another question concerns the relation between non-contentious proceedings in a court of law on the one hand and notarial proceedings on the other hand. The trend seems to be to take away matters from courts to the benefit of public notaries (as already mentioned, a major reform of probate proceedings law is currently underway and it is expected that the powers to conduct these proceedings shall be vested with public notaries in the future). Sometimes this is a result of a persistent lobbying of public notaries. One can however doubt if the transfer of e. g. probate proceedings from the courts of law to public notaries is really in any public interest or is it rather in a particular commercial interest of the notarial profession. After all the “outsourcing” of probate matters does not really relieve state courts of much burdens if it affects only cases where no dispute at all arises, whereas all the matters, where a dispute emerges or which otherwise prove to be complex are referred back to the court of law.

SECTION 2

Voluntary Jurisdiction in Western Europe

Chapter 1

Voluntary (Non-Contentious) Jurisdiction in France

Cédric Tahri

Abstract

This Chapter provides a general overview of voluntary jurisdiction in France. The author analyzes history and current state of this particular and exceptional judicial activity with regard to the contentious procedure. He shows that in France, it is considered that the normal mission of the judge is to rule on disputes which are submitted to him. So the judge can intervene except any dispute only on express order of the law. It is exactly the object of the voluntary jurisdiction (called also “juridiction gracieuse”) which at the end of the article 25 of the Code of civil procedure includes all the demands for which the law prescript, in the absence of dispute, the control of the judge. So, the absence of dispute is a necessary condition of any voluntary procedure, what allows to distinguish it from the contentious procedure. But this condition is not sufficient, still the law has to require a judicial control. However, these criteria can mask the great difficulty which have the French scholars to agree on the domain of the voluntary jurisdiction. In this regard, the chapter ends by the presentation of the reform discussed to the parliament which has in particular for object the diversion of the divorce by mutual consent, the most significant non-contentious case in France.

§ 1.1 The concept of voluntary jurisdiction in France and brief sketch of its history

1.1.1 The concept of voluntary jurisdiction

In France, the voluntary jurisdiction, more known under the expression “jurisdiction gracieuse”, is defined in article 25 of the Code of civil procedure: “the judge rules regarding gracious when in absence of dispute it is seized of an application which the law requires, due to the nature of the case or the quality of the applicant, whether subject to his control”. Thus, the legal definition places two criteria of the voluntary jurisdiction: the absence of litigation and legal obligation to resort to the courts.

Essential characteristic of the voluntary jurisdiction, the absence of litigation is a relatively recent negative condition. Indeed, earlier texts to the Code of civil procedure, such as the law of July 15, 1944, referred to the more restrictive notion of absence of “dispute”. This criterion is relatively difficult to identify because it refers to the ambiguous concept of dispute. The jurisprudence and the doctrine agree however on the fact that this lack of litigation requires a response of the judge outside any litigation born and current, but not any subsequent dispute is absolutely impossible. In other words, the demand for justice has no claim against an opponent. AC. civ.ording to the famous formula of scholars Gérard Cornu and Jean Foyer, “Is not a matter to be decided, but to follow”. Therefore, the mere existence of a contentious “latent” or “potential” is not enough to transform the nature of the case and make him lose his voluntary character.

From the Decree of 1975, the criterion of the legal obligation to resort to the courts is the principle of a special jurisdiction of the Court. Whenever the law has planned his speech because of the nature of the case or the quality of the applicant, the judge may proceed with a protean control the Act of private will submitted to him (approval, clearance, permission…).

The extent of this judicial review is variable: it is the simple control of legality (jurisdiction without knowledge of the facts) to the control of opportunity (jurisdiction in full knowledge of the facts).

When the judge has a control without knowledge of the facts, it simply checks the conditions set by the law. The origins of this control of legality in Roman law: the control of the judge was “causa sine cognita”, without knowledge of the facts, appearing only as a form of solemnity. The Roman praetor merely to endorse the agreement of the two false litigants that were presented to him by using the procedure in the swear sale. The ancient authors also defined the voluntary jurisdiction as the judge exercises without knowledge of the facts between parties who agree. This definition yet not take into account the development of the voluntary jurisdiction since Roman law because many cases considered at the time as voluntary became the responsibility of the notary. Most importantly, this voluntary material design today tends to disappear.

When the judge has control in full knowledge of the facts, he has control of strict legality with control of opportunity. In other words, it enters into the role of a judge to say whether the request submitted is about, if it is suitable in terms of the protected interests. The magistrate must enforce a collective balance. It must ensure that the Act of private will complies with certain values which the Act relates to the legitimacy of the operation. To do this, the legislator fixed flexible criteria supposed to guide the judge in his assessment of the appropriateness of the Act. For example, “the interest of the family” (and also of the child) must be taken into account in case of change of matrimonial regime (C. civ, art. 1397).

1.1.2 The historical evolution of voluntary jurisdiction

The voluntary jurisdiction is a judicial function which has its origin in Roman law, that has changed, in the background and in the terminology, by Canon law, before being adopted by modern law. Its history reveals that it is intimately related to family law, which is considered privileged application domain143.

143On the history of the voluntary jurisdiction, v. including D. D’AMBRA, “Lobjet de la fonction juridictionnelle : dire le droit et trancher les litiges”, Preface of G. WIEDERKEHR, private law library, volume 236, LGDJ, 1994, pp. 261–269; D. LE NINIVIN, “La juridiction gracieuse dans le nouveau Code de procédure civile”, Litec, 1983, n ° 3–45, pp. 1–13; A.-M. ZAGHLOUL, “La juridiction gracieuse. Essai de contribution à létude de lacte juridictionnel dans les droits français et égyptien”, thesis, Lyons, 1981, pp. 12–52.

a) The voluntary jurisdiction in Roman law

According to some authors, it is not possible to date the appearance of the voluntary jurisdiction, seriously it having ignored a long time any written regulation144. The origin of the voluntary jurisdiction which also called point at the time voluntary jurisdiction but voluntary jurisdiction, yet seems to date back to Roman text that figure to the Digest, book 1 er, title XII of officio legati and proconsulis145. The rule laid down by the first law of this title, which is a text of MARCIAN, the truth is a rule of jurisdiction. It states that it is possible to make emancipation of a son of family, a postage of slave and adoption before any proconsul as soon as he is out of Rome and even though it happened yet in his province, that it is not permissible to the legate. “Omnes proconsultes statim quam Urbem egressi fuerint” tells us the text to characterize this function, “habent jurisdictionem sed non contentiosam sed voluntariam”. Certainly, the Romanists discuss about whether this text has been interpolated or has not been146. But this fragment we more interested by his descendants by his ancestry. That’s so three acts – emancipation, postage, adoption – which could be performed in front of a proconsul irrespective of the place in which they were made on the condition that it was out of the city. Other texts of the Digest, appearing notably in respect of feriis, indicates that the proconsul could instrument even during the bad days, days during which it was impossible to deliver justice; other texts say it could instrument even in the cases the interesting personally, especially for free one of his slaves or emancipate a child.

144D. LE NINIVIN, “Voluntary matter”, J.-Cl. Proc. civ., number 115, redesigned by Y. DESDEVISES and J. LE MASSON, 1, 2003, n ° 2, p. 4.

145A. HENRY, “De la nature et de la portée des décisions judiciaires en matière gracieuse”, thesis Paris, ed. Rousseau, 1913, p. 15 and s.

146A conflict exists between the quoted text of MARCIAN and a text of PAUL inserted in the Digest, XL-3, Bill 24, which, against the text of MARCIAN, seems to give the jurisdictio voluntaria to the legatus proconsulis. However, the question trying to reconcile them in the direction indicated, v. M. PLANIOL, “Caractères et effets des décisions rendues en matière de juridiction gracieuse”, thesis, Paris, LGDJ, 1910, p. 8.

These three assumptions, emancipation, empowerment and adoption, had to quickly close a few others in which the magistrate took decisions at the end of a procedure – called “injure cessio ” -which was not contradictory and against people who don’t are resisted point 147. Finally will emerge little by little a third idea. It is that, in these kinds of cases, the magistrate makes a decision without first taking a “cognitio causae” without knowledge of the facts.

147In thein swear sale, two false litigants appear before the magistrate in the first phase of the procedure, which is the phase in swear. The applicant says solemnly that such right either personal or real belongs to him. The defendant, instead of claiming the same right turn (vindicatio contra) or deny (infitiatio), silent. In other words, it fades before the claims of the other party: cedit in jure. The judge gives them act at all and the right is transferred to the head of the defendant on the applicant. Therefore, there is no real trial. Indeed, the parties being in agreement, they will not be returned to the judge to decide the case. There will not be, as in contentious material, of litis contestatio, that is a break leading to the trial in judicio.

Lower Empire, the palette will be enriched by the insinuation on donations of real property by a constitution of Constantine. We know that beyond his mandatory field, it will be an extremely important optional extension and it’s her that’s born, after centuries of interruption, contemporary notaries. Among the functions of the voluntary jurisdiction however it will appear soon enough that some are not entirely without “cognitio causae” and already, in the Roman texts, an example us is the giving of a tutor to a pupil.

b) The voluntary jurisdiction test of the medieval Romanists

Anyway, in the doctrine of the Romanists medieval, while some will insist particularly on the role that will eventually be one of the notaries, including BARTOLE148, which defines the jurisdiction of voluntary as jus acta conficiendi – and despite the efforts of CUJAS149 to try to return to a narrow concept, one that resulted from the letter of the texts the authors will eventually get all the powers of the judge other than those which consist in empty litigation by a sentence in the voluntary jurisdiction. They will continue to write ritually these attributions are exercised [cognitione causae _]sine and they are more of the _imperium as the jurisdictio, “magis imperii quam jurisdictionis”150. But about cognitio causae, the Romanists will experience more and more embarrassment in noting, which was already true in Roman law, that if in some acts, the judge has a purely passive role, that of an official witness, notary, in other cases, he has discretion. In the presence of this contradiction that still exists in contemporary times – but tends to disappear – the doctrine of the Romanists will react in two ways. Each will imagine that it isn’t actually two kinds of jurisdiction but three, that it is a mixed type, which has one of the characters of the freiwilligen jurisdiction because it applies inter volentes or more exactly, like POTHIER will propose to tell the XVIIIth century, in volentes but respect by another is similar to the contentious jurisdiction, in the sense that it contains the cognitio causae. However, another idea will prevail in the French tradition, and is still today, proposed by of ARGENTRÉ in its commentary to article 1 er from the custom of Brittany, which will establish a distinction of MERLIN will judge light between two species of causae cognitio: cognitio legitima causae, that of the contentious Court in which the judge is bound, aC. civ.ording to what we call today the principle device to adjudicate “secundum allegata et probata partium” and a causae cognitio informatoria, specific to the voluntary jurisdiction in which the judge freed from the obligation to rule “secundum allegata partium” may introduce in its determination of the facts that the parties have not alleged, and has complete freedom in the search for evidence. This is the legacy civil in this matter.

148A. HENRY, supra, p. 25.

149J. CUJAS, in “Digeste”, book 2, title 1 (Volume 7, col. 59). The author limited the voluntary jurisdiction to only acts of adoption, of freedom and emancipation. Nevertheless, he assigns an administrative basis by declaring that it is rather a matter of the [imperium _]as the _jurisdictio.

150The best known example is that of sending in possession. The jurist Ulpian wrote “In possessionem mittere magis est imperii quam jurisdictionis” (Law 4, “De jurisdict.”, Digest, book 2, title I).

c) The voluntary jurisdiction test of the canonists

Is the canonical right to have proposed the term of court voluntary after having coexisted in the French tradition with the end of voluntary jurisdiction ultimately completely eliminating this last151. Canon law admitted and always admits a jurisdictio _]extremely broad concept that holds that he does not admit the idea, anachronistic for him, of separation of powers. The modern canonical law keeps this broad notion of [_jurisdictio; However, it tends to give it up. The Code of Canon law, promulgated on 25 January 1983, prefer the term “potestas regiminis”. But the canon 129 § 1 er of this Code reminds that this potestas regiminis is also called power of jurisdiction “etiam potestas jurisdictionis vocatur”.

151D. JOUSSE, “Traité de la juridiction gracieuse, volontaire et contentieuse des officiaux et autres juges déglise, tant en matière civile que criminelle”, Paris, ed. Debure, 1769.

The assumption that now the Court refers to the prerogatives of public power belonging to the Roman Pontiff, the bishops or Abbots152 and having a narrow notion of contentious jurisdiction, that is to clear the litigation, we’ll include in the voluntary jurisdiction the most diverse assignments, so that the material will be somewhat obscured. Canonists will notice that in the exercise of these powers in general, to the ordinary ecclesiastical authority is not bound by the need to apply the rule of law as it is in the contentious jurisdiction, that for example, the voluntary jurisdiction in temporal order has the power to grant exemptions, remissions, all assignments that are equity more than law strict153.

152J.-E. M. PORTALIS, “Discours, rapports et travaux inédits sur le Concordat de 1801”, Paris, ed. Joubert, 1845, pp. 238–239.

153The authors of the end of the Ancien Régime in France will not hesitate to bring into the Court voluntary or voluntary, decisions such as the snack of a profit or appointment to an office. The benefit of having no right to get the snack of the benefit in question, this snack appears on the part of the authority that has the power to confer it as grace where the name of voluntary jurisdiction.

d) The voluntary jurisdiction at the end of the Ancien Régime

The French doctrine of the end of the Ancien Régime involved the Roman and canonical traditions. The first brought in the voluntary jurisdiction the powers of the judge stated, in a passive way, certain legal acts. The second sees in the voluntary jurisdiction the right which belongs to certain dignitaries of the Church, or to certain state employees to give or to refuse, by virtue of a real discretionary power, certain authorizations.

During this period, the matter is dealt with not in the treaties of procedure, but in works of public law. She is exposed by LOYSEAU in his treatise “Des offices”154 and it is by DOMAT in his “Droit public”155. According to the latter, “one could still distinguish loads of justice by the difference to do two kinds of jurisdiction, one called volunteer who is exercised without part and without challenge by the power to make regulations and by a management matter to the knowledge of those who exercise this jurisdiction and the other so-called contentious that applies between the parties which we judge the disputes”. Under Roman terminology, because DOMAT still talk of voluntary jurisdiction, it is the canonical notion that he’s holding, since it includes the regulatory power in the voluntary jurisdiction. This mix of genres – illustrated by JOUSSE156 and POULLAIN DU PARC157 – will continue until the French Revolution French.

154V. Ch. LOYSEAU, “Traité des offices”, book II, Chapter 5, §  49. The author acknowledged to the clerks to the judges the exercise of voluntary jurisdiction: “and both as well as the clerks to the judges shipped under them and their presence acts of contentious jurisdiction, also they shipped only and in the absence of the judge [under his name however] the proceedings of voluntary jurisdiction are contracts, because when the parties agree the judge has nothing to do”.

155DOMAT, “Loix civiles. Le droit public”, book II, title 28.

156JOUSSE, “Traité de l’administration de la justice”, t. 1, part. 1, title I, section 7.

157POULLAIN DU PARC, “Principes du droit français suivant les maximes de Belgique”, t. IX, 1770, pp. 491–492. The author, who considers the notaries as officials exercising powers of voluntary jurisdiction, wrote: “the judgments of voluntary jurisdiction are those that are made without controversy between the parties and without that there is a real request by one of the parties against the other”.

e) The voluntary jurisdiction in the Intermediary Law (period between the Ancient Law and the Civil Code)

Intermediate law breaks with the past and introduced a fundamental change. The separation of powers “without which, wrote the Declaration of rights of man and of the citizen, there is no constitution” was proclaimed as much by defiance of the judges than by distrust of the King and it has led to the reduction of the areas of intervention and the powers of the first. That’s why their was removed the regulatory power in the texts of judicial organisation of 16 and 25 August 1790. This withdrawal is confirmed by article 5 of the civil Code prohibiting judges about causes which they are seized, have through General and regulatory. Now, the regulation is completely separated from the Court. But the judicial authority, even in the middle right, and in the new law, was not strictly limited to the exercise of traditional litigation jurisdiction.

f) The voluntary jurisdiction at the beginning of the XIX th century

Codes and especially the civil Code of 1804 maintained the judge of the assignments that were previously classified in the voluntary or voluntary jurisdiction. Justice of the peace, today called judge instance, receives as proconsuls Romans, declarations of emancipation; the Court of first instance became in 1959 High Court, adoptions. The one and the other involved particularly in the protection of incapable major or minors, through appointments of guardians, permission for the guardian to accomplish such or such act or approval of Act, approved by the family Council. The interventions of the judge in the field of private interests have been strongly developed in contemporary times; some of the provisions of the civil Code and some of the provisions of the special part of the Code of civil procedure of 1806 have set rules for exercising these judicial powers, especially in family matters. It should be noted that these codes have made use, in any of their items to the end of voluntary jurisdiction or voluntary jurisdiction. This silence is not surprising, because most of these texts of the Code of civil procedure of 1806 are new versions of texts from the old law and there was no more allusions to the court voluntarily or voluntary in the Laye order of April 1667. It is worth noting that POTHIER, who analyzed the voluntary jurisdiction in its “Pandectes remises en ordre”, did not utter the term in his treatises of customary law. If the rules laid down by the Napoleonic codes had been complete, you could design the old expressions were completely abandoned. It was not so. The rules laid down by the codes included number of gaps, which allowed the old terminology of resurface in the cases and under the pen of authors.

g) The voluntary jurisdiction in the middle of the XIX th century

During the first two thirds of the XIX th century, reappears a living tradition which was so remained. The phenomenon can be explained easily; lawyers, be they academics or practitioners, are more likely to perceive continuity to feel the changes and differences. It has been the case for the voluntary jurisdiction, both on the part of authors and on the part of judicial practice.

The first authors who have dealt with the court voluntarily or voluntary are first HENRION DE PANSAY in his “Traité de lautorité judiciaire” and MERLIN in his “Répertoire”. The Treaty of HENRION DE PANSAY includes a chapter entitled “the contentious jurisdiction and voluntary jurisdiction”. Its originality lies in the references to the articles of the civil Code providing for such or such judicial intervention. For the rest, the author takes over from the contentious jurisdiction and voluntary jurisdiction definitions of the Treaty of the German HEINEC. CIV.IUS: “Jurisdictio recte definitur volontaria quae inter volentes sed sine cognitione causae exercetur et contentiosa quae inter invitos litigantes cum causae cognitione exercetur”. Thus, HENRION DE PANSAY is part of the lineage of the Romanists. Continuity with their old ideas is perfect.

There is also a great continuity in the thinking of MERLIN between the period prior to the Revolution and the subsequent to the Revolution, what we perceive in MERLIN effort interesting to try to explain, not only in what the voluntary jurisdiction differs from the contentious jurisdiction, but what meets the voluntary jurisdiction. A passage from MERLIN deserves to be quoted because he probably had a considerable influence on the continuation of the development of the law and ideas. In this passage, the author writes: “it is under the voluntary jurisdiction and not the court litigation that the magistrate proceeds whenever he decides on an application which, by its nature, either by the State of things, is not likely to contradiction”. There is, it seems, the indication that all the times that the procedure is unilateral, we’d be in a voluntary jurisdiction case. The point has been submitted to protest later and he was, without doubt, questionable.

The third author to quote in this period from the middle of the XIX th century, is a Professor of the Law Faculty of Strasbourg by the name of RAUTER. Author of a treatise of civil procedure, it does, in a very clear manner, the distinction between the various cases of voluntary or voluntary jurisdiction. In some cases, the judge has a purely passive role; It records the manifestation of will made before him without anything to change or refuse to receive and it’s what RAUTER offers to appoint strict voluntary jurisdiction in the sense. In other cases, the assumptions of the many more contemporary times, the judge has a power of discretion and control and therefore a real decision-making power. At these cases, RAUTER proposed to reserve the term of voluntary jurisdiction.

While so that the doctrine did little effort of renewal and change, judicial practice was much more. Indeed, the Code of civil procedure of 1806 had not determined how voluntary Affairs should be dealt with. At the beginning of the XIX th century, continuity is remarkable, as for the staff of the justices of the Ancien Régime and the courts of the modern era. Number of members of the new judiciary had belonged to the former judiciary or had belonged to the former bar. It was the case of PIGEAU and LAURANCE. The practice of the Court of first instance of Paris took a lot of the errors of the old Châtelet. He resurrected the training which, at the Châtelet of Paris, dealt with the voluntary jurisdiction and which has become, according to our terminology, the Council Chamber, training sitting without advertising, on the report of one of the judges, after communication to the public prosecutor.

This room of the Council received its final organisation of a great magistrate, of BELLEYME, under restoration at the head of a Court of the Seine and which was to remain there for several decades. A lawyer named BERTIN, spent at the beginning of the Second Empire, at the Council Chamber a book prefaced by of BELLEYME itself. The magistrate, in this preface, develops extremely interesting considerations about the basis and purpose of the voluntary jurisdiction, saying that it is made to ensure the protection of incompetent at the same time that some interests, such as that of the family. In the book, BERTIN brought indications not less interesting on the procedure of the House of the Council as well as on the practice followed by the Tribunal of the Seine in the various categories of cases under its jurisdiction voluntary, a practice which was not well known before BERTIN, otherwise a few practitioners, since that Court was in session without advertising, that its decisions were not published and often the law provided to motivate them. From this moment, one of the problems which arise in practice will be the one to know what are the cases that need to be addressed in the Council Chamber and those who instead should be treated in a public hearing.

In a contemporary way to reorganization and restructuring of the Council Chamber, always develops under the influence of BELLEYME, the practice of orders on request. The brilliant magistrate imagine even a sort of remedy against the said orders: the clause of reserve of interim measures. This time, the big question of the voluntary jurisdiction becomes legal remedies.

h) The voluntary jurisdiction at the end of the XIX th century

In the last third of the XIX th century, the doctrine is a construction of the voluntary jurisdiction which offers rigorous and orderly, of a very classical architecture architecture characters. But, if this plan is quite sharp and accused characters, its field of application is uncertain in its limits and the questionable criterion of the voluntary jurisdiction. These hesitations will resonate in jurisprudence. However, after many variations, the courts will fundamentally transform the regime of the voluntary jurisdiction regarding legal remedies158.

158Jurisprudence, after having for some time disqualified acts of voluntary jurisdiction to allow the appeal, finally taken the plunge. Jurisprudence jumped it in 1895 in favour of third parties, allowing them to exercise what the Court of cassation called a third party against the voluntary jurisdiction Act (Cass. civ., April 3, 1895, DP, 1896, 1, p. 5, note E. Glasson). Then she allowed the appeal on the part of the applicant whose request was rejected. The Court of cassation did in 1897 without hesitation since (Cass. civ., 24 November 1897, S. 1900, 1, p. 336).

The doctrine of the last third of the XIX th century built the regime of the voluntary jurisdiction around two concepts. The first borrowed from the theory of orders on request, although it may not apply to all orders, would be the interim nature of the acts of the voluntary jurisdiction, and the second idea is a very old idea that acts of the voluntary jurisdiction are “Magis imperii quam jurisdictionis”. The doctrine concludes that the voluntary jurisdiction term is misleading, in fact, in the exercise of the judicial function, the judge judge nothing, he decides, that it controls, that he commands, so that the acts in question are not the acts of jurisdiction159. Therefore, she professes that all voluntary acts were provisional, that they have any kind of authority of res judicata since the judge decides, but don’t judge anything, and therefore remedies are useless. It will be the traditional doctrine, with all the problems including the main action in nullity160.

159J. BERRIAT-SAINT-PRIX, “Cours de procédure civile”, tome 1, Paris, ed. Plon, 7 th ed., 1855, p. 10. The author already considered the litigation activity as “the most important” and justified that referred to “by the simple word of jurisdiction”. This trend continues in the XX th century, v. R. JAPIOT, “Traité élémentaire de procédure civile et commerciale”, Paris, Ed Rousseau, 1916, p. 112: the expression of “jurisdiction” is reserved for the contentious function.

160The main action in nullity is not the querela nullitatis kept by the contemporary Canon law. Read the judgments of the Court of cassation of the era, it is not strictly speaking an action directed against the Act of the aC. civ.omplished judge in the exercise of its voluntary jurisdiction; It is an action in nullity that remains open against the Act authorized or approved by the judge despite the decision for approval or authorization.

No doubt, doctrinal construction of the time would have been perfect if she had been able to determine with certainty the area and therefore the criterion of the voluntary jurisdiction. However, classical authors put amounts of operations that have nothing to do with each other. We find the old examples of Roman law – the law of persons and family-from-, emancipation, but not postage that has lost any kind of useful since there are more slave, adoption, the protective measures of the incompetent, the authorizations given to the wife in case of impossibility for the husband to show consent, all things that it was reasonable to put, but there are also measures of inner administration of the courts, the rotation of judges between rooms, distribution of cases between the rooms, the setting of the hours of hearings etc. Plus a number of procedural steps that can be taken by order on query, such as permission to assign at short notice or authorization to practice a seizure without enforceable title. At the end of the XIX th century, the voluntary material so has a great heterogeneity. It is then explained by how civil procedure specialists think judicial activity. By elevating the distinction between the voluntary jurisdiction and contentious jurisdiction to the rank of summa divisio, the authors wanted to avoid the dispersal of judicial activity fully exhausting the function of the judge in this doublet conceptual161. In other words, everything that is not “contentious” is necessarily “non-contentious”.

161A. COLSON, “La fonction de juger. Etude historique et positive”, preface Loïc CADIET, University Presses of the Faculty of law at Clermont-Ferrand, LGDJ, 2006, p. 89, n ° 199.

i) The voluntary jurisdiction at the beginning of the XX th century

The voluntary jurisdiction is enshrined in legal language in 1901, during a change of the law of January 22, 1851 on assistance judiciary162. But a comment by PLANIOL, published in the scientific journal Dalloz in 1905, brand, at the bottom, the first turning point of the century. In this note, the author of the famous basic civil law treaty, had eliminated the concept of voluntary jurisdiction of all kinds of powers and acts who had, according to him, nothing to do with it. He eliminated all what was only an outdated tradition but it did not go quite to the end; It will be the work of other processualistes163. PLANIOL always supports the voluntary jurisdiction is an administrative operation more than to jurisdiction; the contemporary doctrine will jump the not by saying that in reality, he is a real jurisdiction.

162Article 1 er, paragraph 2, modified, stated the extent applicable “to all disputes…” and “outside any dispute, acts of voluntary jurisdiction and provisional acts”. Then the 1851 Act was repealed by section 33 of Act N ° 72–11 January 3, 1972.

163Including, E. GLASSON and A. TISSIER, “Traité théorique et pratique d’organisation judiciaire, de compétence et de procédure civile”, vol. 1, Paris, Sirey, 3 e ed., 1925 ed., p. 36. Authors exclude “private acts of pure administration,[_ foreign rights_]” of the voluntary material.

With PLANIOL, contemporary returned to a univocal concept of voluntary jurisdiction. It no longer claims to cover all the non-contentious powers of the judge, but only some of them. These allocations are those that involve the judge to be in the formation of legal acts under private law which only become perfect because of his prior involvement in the form of authorization or after the fact in the form of approval. The idea is taken up by a number of court decisions; it had been drawn moreover already by PLANIOL from some judicial decisions, in particular a decision of 1826 and we shall find it in the law of July 15 th, 1944 on the council chamber. This law is still only the Council Chamber but, basically, this last has a significant role in the voluntary jurisdiction. Year 1944 will thus constitute the second turning point in the contemporary history of the aforementioned jurisdiction.

j) Law N ° 44–256 July 15, 1944, on the council chamber

To set the jurisdiction of the council chamber, the Act implicitly provides a definition of jurisdiction voluntary164. It is the first time that Parliament defines the voluntary material and organizes the procedure to follow. Thus, under the terms of article 2–1 of the Act of 1944, the council chamber of the Court be empowered to know two types of voluntary requests: those who have no opponent and cannot give rise to no dispute on the part of third parties and those in which the parties not being in disagreement are held, by their qualities or the nature of the case to obtain a decision of the tribunal. The criteria of the voluntary jurisdiction, namely the lack of challenge and the legal need to resort to the courts, are clearly stated but strongly critical. For example, HEBRAUD, in his famous commentary on the law the council chamber165, estimated that the criterion of the absence of challenge is too harsh, or even inappropriate to the hypotheses of latent litigation. But, whatever the criticisms of the first definition of the voluntary jurisdiction, the law of July 15, 1944 remains a fundamental step because it has the merit “to offer some guidelines to the interpreter”166. In fact, until the Code of civil procedure of 1975, no noticeable change will come. Later texts will be very discreet with respect to voluntary jurisdiction167. It will take the Decree of September 9, 1971, particularly articles 63 to 67, to see to outline the regulatory modern168. The provisions of the law of July 15, 1944 will be repealed at the same time. Same fate will wait for the Decree of 1971 due to the entry into force of the Code of civil procedure.

164V. JO July 27, 1944; E. CUQ, “Commentary on the law of July 15, 1944”, S. 1946, 1, p. 89.

165P. HEBRAUD, “Commentary on the law of July 15, 1944 on the judge”[_ Council Chamber_]”, D. 1946, IV, p. 337 and s., spec. p. 343.

166H. SOLUS and R. PERROT, “La procédure civile non contentieuse en droit judiciaire français”, report to the International Academy of law compared to Uppsala, in studies of contemporary law, Paris, ed. Cujas, 1966, p. 233.

167V. Decree N ° 58–1289 22 December 1958, JO of 23 December 1958 (modification of the default procedure).

168V. Decree N ° 71–740 of September 9, 1971, JO from September 11, 1971. Article 63 of the Decree on the Organization of the Tribunal of first instance, precise as “when, in the absence of challenge, the applicant is required due to its quality or the nature of the case a decision of the tribunal, the request is formed by simple request”.

k) The Code of civil procedure of 1975

Regulation of voluntary activity is completed by the codification169, which “has been revived for the voluntary jurisdiction”170. For the first time since its appearance, this activity is being autonomous and benefits from specific texts. The material is deeply renewed171. As Mr. LE NINIVIN, “breaking up is […] almost also charged that one of the Napoleonic era to the old law; and from the point of view of interpretation, the lawyer ends up a bit as in 1804”. Evidenced by the place of the chapter on the voluntary jurisdiction in the first articles of the Code of civil procedure. Sections 25 to 29 of the code is indeed the common law of the voluntary jurisdiction whose links with the family law have been brilliantly demonstrated: “why have dedicated to him, at the top of the code, in the introductory provisions, just after the guiding principles, a synthesis chapter where are gathered the essential elements of a coherent theory of the voluntary material?[_ Because civil law multiplied in the case, adding to its traditional applications (e. g. adoption) of many other illustrations, change of matrimonial regime, divorce by mutual consent, legitimation by justice authority, name change […].] [_Has these parallel openings, should be given a procedural substratum what they claimed, the basic uniform and specific development of voluntary procedures]”172. In other terms, the multiplication of the assumptions of recourse to the judge in non-contentious situations173, sign a “quiet revolution”174 of the family law, is coupled with a recognition of the voluntary jurisdiction, considered by one of the editors of the Code of civil procedure as the “second pillar is given to the function legal”175.

169V. The Code of civil procedure, established by Decree N ° 75–1123 of December 5, 1975, came into force on 1 St January 1976. He took his almost final contours with the Decree N ° 81–500 on 12 May 1981 (JO of 14 May 1981). Furthermore, it should be noted the hybridization of the code of civil procedure by voluntary procedures in Alsace and Moselle, v. J. FOYER, “Le nouveau Code et lunification du droit de la procédure”, in the new Code of civil procedure (1975–2005), under the direction of J. home and C. PUIGELIER, al. legal studies, volume 25, Paris, Economica, 2006, pp. 17–23.

170D. LE NINIVIN, op. cit., n ° 46, p. 13; A. COLSON, op. cit., n ° 419–421, pp. 182–183: the author talks about a “resurgence of the voluntary jurisdiction”.

171D. LE NINIVIN, “Voluntary matter”, J.-CL. Proc. civ., number 115, redesigned by Y. DESDEVISES and j. LE MASSON, 1, 2003, n ° 7–10, p. 5.

172G. CORNU, “Lélaboration du code de procédure civile”, in “La codification”, under the direction of B. BEIGNIER, Themes and comments, Paris, Dalloz, 1996, p. 72.

173In this sense, v. G. CORNU, “La refonte dans le Code civil français du droit des personnes et de la famille”, in “Lart du droit en quête de sagesse”, Paris, PUF, 1998, p. 382.

174G. CORNU, “Droit civil. La famille”, Coll. Domat private law, Paris, Montchrestien, 9 e ed., 2006, n ° 6, p. 13

175G. CORNU, “La refonte dans le Code civil français du droit des personnes et de la famille”, in “Lart du droit en quête de sagesse”, Paris, PUF, 1998, p. 382.

Another innovation of the Code is to provide a definition of the voluntary cases. Article 25 provides that “the judge rules regarding gracious when in the absence of dispute it is seized of an application which the law requires, due to the nature of the case or the quality of the applicant, whether subject to his control”. The authors of the Code of civil procedure resumed so Mr. HEBRAUD formulas by characterizing the voluntary jurisdiction by two strokes, on the one hand the absence of litigation, it is the traditional character, and other hand the legal need to resort to the courts, the control of which the Act in question is submitted. Therefore, the voluntary jurisdiction appears as a notion more restricted than that which had been admitted a century earlier and whose main interest seems today to be transported from the ground of the procedural law on private law, of the substantive law: it is to determine and analyze the role of the judge in the formation of a number of private legal operations. This connection is perfectly true in family law where the function of judge translated faithfully mutations of law substantial176.

176On this point, v. V. EGEA, “La fonction de juger à l’épreuve du droit contemporain de la famille”, thesis, Aix-Marseille III, 2007, n ° 12, p. 16

The role of the judge is protean. There are hardly any hypotheses in which the judge retains the purely passive role it had in the case of the voluntary jurisdiction of the Roman law. In the emancipation itself, its role has changed. In most situations, the law assigns sometimes indistinct control and general, sometimes specific, sometimes the judge must ensure that consent, in the divorce by mutual consent, for example, sometimes it must check that the Act affects by the interests of any particular class of persons, or check that the Act complies with the interest of the family, etc. In these cases, the idea of D’ARGENTRÉ has been particularly fruitful; the Code of civil procedure takes it away, the judge has a much larger than its contentious jurisdiction office. He is not held by the principle device; he can introduce into the debate of the facts which the applicants did not put it; he can base himself on the experiences of his personal knowledge and he has, as regards the research for the truth, a freedom franked of very kind from shape.

The modern doctrine still ponders the nature of these proceedings. Some authors177 remain loyal to classical thought, but the majority of the processualistes, and not the least178, considers that this voluntary jurisdiction is a real court, that she turns as the jurisdiction of litigation around the notion of litigation, except that the contentious jurisdiction is exercised after the fact and to resolve a dispute that is already born while the voluntary jurisdiction has a preventive character and it is intended to prevent the dispute to be born, what it mostly succeeds. Gradually, a “substantial unity”179 of the voluntary jurisdiction and contentious jurisdiction seems to take shape. However, many grey areas remain in the end of this century180.

177G. COUCHEZ, “Procédure civile”, Paris, Sirey, 15 e ed., 2008, n ° 216, p. 218; D. D’AMBRA, op. cit., pp. 279–294. M. FRISON-ROCHE, “Les offices du juge”, in “Jean Foyer, auteur et législateur: leges tulit, jura docuit, Ecrits en hommage à Jean Foyer”, Paris, PUF, 1997, n ° 7, p. 463

178Including, L. CADIET and E. JEULAND, “Droit judiciaire privé”, Lexisnexis-Litec, 6 e ed., 2009, n ° 99, pp. 74–75; S. GUINCHARD, F. FERRAND and C. CHAINAIS, “Procédure civile. Droit interne et droit communautaire”, Dalloz, 29 e ed., 2008, n ° 213, p. 249; G. CORNU and J. FOYER, “Procédure civile”, Coll. Thémis private law, Paris, PUF, 3 e ed., 1996, n ° 21, p. 126; P. ANCEL, “Le problème de la juridiction volontaire gracieuse dans le développement du droit moderne”, J. T., 1961, pp. 217–220.

179P. HEBRAUD, comment supra, p. 353

180There are for example the reservations about the legal nature of the orders on request, v. S. GUINCHARD, F. FERRAND and C. CHAINAIS, op. cit., n ° 214–215, pp. 250–253

l) The voluntary jurisdiction at the beginning of the XXI th century

A clearly, the voluntary jurisdiction has entered a turbulent period. Inflation of the missions of the judge, who no longer content to state the law in deciding disputes, led to wonder about the limits of its adjudicative function and more directly on the existence of a court voluntary181. Thus, Mr. LE NINIVIN says: “a latent, whose dimension economic and political speech is obvious to anyone, advocates of the role of the judge on its essential missions and it is tempting to consider interventions voluntary judge or at least some of them are somehow ancillary to its main function and that they could therefore have administrative treatment by different legal activity”182. The logic of this design, taken to the extreme, could be transferred purely and simply some of these powers to administrative authorities, or even to court officials – notaries, for example – without any parallel power judicial. But a radical downloading seems hardly conceivable in the current state of things. It is true that the law No 95–125 of 8 February 1995 had already operated a transfer of some powers of judges in favor of the chief clerks. However, the increase in the workload of such personal is not made without warranty.

181M. BANDRAC, “De lacte juridictionnel et de ceux qui ne le sont pas”, in “Le juge entre deux millénaires, Mélanges P. DRAI”, Dalloz, 2000, p.171. G. WIEDERKEHR, “Lévolution de la justice gracieuse”, in “Le juge entre deux millénaires, Mélanges P. DRAI”, Dalloz, 2000, p. 483.

182D. LE NINIVIN, “Voluntary matter”, J.-CL. Proc. civ., number 115, redesigned by Y. DESDEVISES and J. LE MASSON, 1, 2003, n ° 13, p. 5.

The family law does not escape this phenomenon of diversion creeping183. Indeed, well that the judge is considered to be “the body of public authority responsible for regulation of family relations”184, its interference in the privacy of individuals is often misperceived185. More and more, the family is designed as a “sanctuary of privacy”186, an area reserved for its members which, as such, must be free from any external intervention. Law No 2006–728 of June 23, 2006, reform of inheritance and gifts has significantly reduced judicial intervention in the context of regime change marital187. The diversion of divorce by mutual consent has also been explored188. Raised in 1997 by Mrs Elisabeth GUIGOU, then Minister of Justice, the idea of a removal of the Probate Court made its reappearance in political discourse ten years later, during the presentation of a report by Mr. Eric WOERTH, Minister of the Budget, on behalf of the first Council of modernization of public policy chaired by the head of State. But, facing protests from lawyers, this project was temporarily abandoned on June 27, 2008. Besides, in the light of the best interests of the child, the report of the Commission on the distribution of the litigation, called “reasoned peaceful justice ambition” and handed over to the Minister of Justice on June 30, 2008, had made no recommendation in this sense. Proposal N ° 25 of the Committee chaired by the Dean Serge Guinchard clearly was “maintaining the procedure of divorce by mutual consent before a judge, but according to a simplified procedure and regulated or fixed cost”189. However, it is precisely on this recommendation that returned the Bill to the distribution of the litigation and relief of certain court proceedings, presented at the Council of Ministers on March 3, 2010. Article 13 of this project had for objective to simplify the procedure of divorce by mutual consent, judged to be too long and too expensive: in the absence of minor children, spouses would have been provided to appear before the judge, unless the judge himself or one of the spouses190. However, he was permanently retired in its review to Parliament this summer 2011. More recently, the old guard of the seals Christiane Taubira received December 9, 2013 in the report of the Working Group to reflect on the “judge of the XXI e[_ century_]” chaired by Pierre Delmas-Goyon, Counsellor at the Court of cassation. Among the 67 proposals in the report, proposal N ° 49 recommend giving the judicial clerk – status created by the report – a competence for the pronouncement of divorce by mutual consent. This recommendation has raised the ire of lawyers and judges so that it has not been included in the draft law action group and the judiciary, tabled in the Senate on July 31, 2015 and currently under review. However, the resignation of Mrs Taubira and substituting Jean-Jacques Urvoas changed the game. Indeed, the new Minister of Justice amended the Bill by introducing the controversial divorce by mutual consent without judge (amendment adopted in Committee by deputies on May 4, 2016, became article 17 ter of the project). Then the text, expanded and renamed “Bill of modernization of justice in the XXI th century”, was adopted in first reading by the Senate may 24, 2016. Since then, the joint committee of the two chambers of the parliament failed on 22 June 2016, requiring a second reading before the two assemblies in the fall… Whatever the outcome, it does not more lawyer to see once more the specter of diversion …

183S. AMRANI MEKKI, “La déjudiciarisation”, Gaz. Pal. June 5, 2008, n ° 157, pp. 2 and s.; J. HAUSER, “La loi,[_ le juge et la volonté dans les réformes de droit de la famille_]”, in “Etudes offertes au doyen Philippe SIMLER”, Lexisnexis-Litec, 2006, spec. pp. 164–165.

184P. RAYNAUD, “Le contentieux familial dans le droit judiciaire français”, in “L’évolution du droit judiciaire au travers des contentieux économique, social et familial”, Brussels, ed. Bruylant, 1984, p. 90.

185Ch. DUARD-BERTON, “L’ordre public dans le droit de la famille”, thesis, Paris II, 2004, p. 10, n ° 12

186A. BENADENT, “Lordre public en droit de la famille”, in “Lordre public à la fin du XX e siècle”, Paris, Dalloz, 1996, p. 27.

187E. JEAMMIN-PETIT, “La libéralisation du changement de régime matrimonial”, JCP ed. G 2007, I, p. 108; J. REVEL, “Le changement de régime matrimonial: quelle déjudiciarisation?”, D. 2006, p. 2591.

188F. GRANET-LAMBRECHTS, “Un divorce par consentement mutuel sans juge?”, in “De code en code, Mélanges en lhonneur de Georges Wiederkehr”, Paris, Dalloz, 2009, pp. 357–363

189AVENA-ROBARDET, “Rapport Guinchard : une procédure familiale remodelée”, AJ. Fam. 2008, p. 268.

190The Bill also experience required and prior use of family mediation prior to any referral to the judge to amend the terms of the exercise of parental authority or the contribution to the maintenance or education of the child previously set by a court ruling.

Notwithstanding these assumptions of removal of judicial intervention, the current tendency is to generalize the use of voluntary approval which becomes a mode of action of public order of protection. Evidenced by recent reforms to the family law, that of 4 March 2002 on parental authority and that of 26 May 2004 on divorce, which multiply the possibilities for approval191. This technique in full swing is at the service of the “conventionnalisation” of the family law, since it is the confidence in the judge who allowed to continue the movement of liberalization of this branch of the law192. Thus, by a movement of flow and ebb of probate cases, evidence of some permanence of the voluntary jurisdiction, there gradually shift the family law193.

191J. HAUSER, “Le juge homologateur en droit de la famille”, in “Le conventionnel et le juridictionnel dans le règlement des différends”, under the direction of P. ANCEL and M.-C. RIVIER, Paris, Economica, 2001, p. 114 and s.

192P. MURAT, “Introduction”, in “Droit de la famille”, Dalloz Action 2008/2009, Paris, Dalloz, 2007, n ° 01–32, p. 13: “there is including in the development of the technique of the approval of the family law the trace of a certain legislative philosophy of humility and flexibility, but also the concern not to let the conventions family in the pure field of the autonomy of the individual will”.

193G. CORNU, “Droit civil. La famille”, Coll. Domat private law, Paris, Montchrestien, 9 e ed., 2006, n ° 7, p. 15.

§ 1.2 The voluntary jurisdiction in the legal system: doctrine and legislation

1.2.1 Legal nature of voluntary jurisdiction: jurisdictio, quarterly gold sui generis? Authorities responsible for considering voluntary jurisdiction cases

The vast majority of the doctrine considers today that the gracious decision is a judicial act. Indeed, when the judicial judge reviewing an action or a legal situation, it exercises a decision-making power by checking of the claim against the rule of law. Therefore, the voluntary Act participates well in the category of legal acts.

Moreover, insofar as the drafters of the new Code expressly opened remedies against the voluntary decisions, in particular the call (C. proc. Civ., art. 543), this implies that the judge having ruled in first instance be withdrawn and that his decision have the authority of res judicata. Mind control code so, from a logical point of view, to confer the authority of res judicata to the decisions taken in voluntary material.

However, the case law continues to refuse the authority of res judicata to decisions voluntary (Cass. req., may 3, 1897, D. 1897. III. 224). Recently, it was reaffirmed that the decisions in voluntary area do not have res judicata authority (including Cass. civ. 1, 6 April 1994, Bull civ. I, n ° 141) and divesting not the judge. This position is open to criticism, because while deviating from the spirit of the Code, it ignores all of the situations where the jurisdiction to pronounce in voluntary material on a permanent basis, that is in the vast majority of cases. In fact, the Court of cassation appeared to begin a shift about the approval of a final agreement of voluntary divorce (Cass. civ. 2, 25 nov. 1999, JCP 2000. II. 10338, note A. Guedj). However, jurisprudence admits all voluntary material decisions can at least be modified, unless new circumstances (Cass. civ., 25 oct. 1905, D. 1906. 1. 337, note Mr. Planiol). In other words, failing to give them an authority of res judicata full, it recognizes them some authority, similar to that interim decisions.

1.2.2 The scope and viability of non-contentious jurisdiction. Statistics

In 2014, on 123 537 pronounced divorces, 54 % are by mutual consent (66 234 decisions). 99 % of divorce agreements are approved by the judge. In fact, on a quantitative level, divorce by mutual consent concentrates the vast majority of voluntary Affairs.

The number of requests related to matrimonial is stable in 2014 (6 200). The average duration of proceedings is 14 and a half months. 65 % rate of acceptance (3 796 decisions). A fifth of matrimonial decisions been appealed.

For adoptions (9932 ended business), judges are entitled to demand in more than 90 % of cases with an average duration of procedures under 5 months.

Change of name requests brought before justice (2 800 in 2014) are on the rise over the last five years (+ 9 % for 2010). The acceptance rate is important (86 % in 2014).

1.2.3 The regulative basis

Article 25 of the Code of civil procedure gives a definition of the voluntary jurisdiction: “the judge rules regarding gracious when in absence of dispute it is seized of an application which the law requires, due to the nature of the case or the quality of the applicant, whether subject to his control”. But other sections of the same code refer to the voluntary material.

The result is that some authors fall under two broad categories of non-contentious decisions: who are part by nature in the voluntary jurisdiction (who submit to the judge an act of private will, and for which the texts use the term “relèvent de la juridiction gracieuse”), and those that aren’t attached to the voluntary procedure without for as much together all components of the voluntary material and whose texts are saying they “sont instruites ou jugées comme en matière gracieuse” (G. CORNU, Revue d’histoire des facultés de droit t. 16, 1995. 249, repris in La codification, 1996, coll. Thèmes et commentaires, Dalloz). In other words, a part of the French doctrine distinguishes voluntary cases by nature of the voluntary cases by assimilation.

The voluntary case by nature

Few and related exclusively to family law, the voluntary by nature form a homogeneous and coherent group. In all these cases, the judge is required to complete an act of private, will powerless to produce legal effects only. Judicial review is therefore to throw an obstacle of law.

Divorce by mutual consent (C. proc. civ., art. 1088), fall into this category decisions dedicated adoption (C. proc. civ., art. 1167) and empowerment (C. civ., art. 477), the attribution of parental authority by joint declaration (C. proc. civ., art. 1180–1), the change of first names (C. proc. civ., art. 1055–2) and the authorization to use reproductive medically assisted (L. 152–2 of the code of public health)… In addition, approval of change of matrimonial regime, maintained by the law N ° 2006–728 of June 23, 2006, but the binding is reduced in case, although there was no opposition, one spouse has minor children (C. civ., art. 1397, C. proc. civ., art. 1301). As the legitimization, she no longer voluntary material since its abolition by the order of July 4, 2005.

Voluntary cases by assimilation

Heterogeneous, voluntary cases by assimilation will not exactly meet the conditions of article 25 of the Code of civil procedure. Their federation is only possible through the broad notion of “remedies to exceptional situations” in the words of Gérard Cornu. Indeed, the intervention of the judge, in such circumstances, is required to compensate for the lack of authority of the applicants as an inability to exercise rights only.

Fall into this category, including requests for authorization and empowerment in matters matrimonial (C. civ., art. 217, 219, 1426) when the latter do not tend to spend in addition to the refusal of spouse, petitions for declaration of absence (C. proc. civ., art. 1067 and 1069) and rectification of acts of civil status or similar judgments (C. civ., art. 99), specific to the Alsace-Moselle voluntary cases and applications unilateral baseless litigation, but who do not fully meet the voluntary model.

1.2.4 Judicial procedure (s) for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious boxes

The voluntary procedure in the civil courts is original. This originality, based on the absence of contradiction, manifests itself during the different phases of the voluntary process.

1.2.5 The course of the voluntary procedure

a. The outbreak of the voluntary procedure

Voluntary is a unilateral procedure instituted by application (C. proc. civ., art. 60). The judge is seized by the filing of the application to the registry. A verbal declaration registered at the registry just to introduce the procedure before the Court (C. proc. civ., art. 62).

The public prosecutor may initiate a voluntary procedure as main part, in order to defend public order (C. proc. civ., art.423) and in the cases provided by law, such as the rectification of acts of civil status (C. civ., art. 99), the declaration of absence (C. civ., art. 122)… The public prosecutor can intervene as added party (C. proc. civ., art. 424). Besides, he receives all voluntary business communication before the High Court (C. proc. civ., art. 798).

Since the Decree N ° 2015–282 March 11, 2015, the public prosecutor, if there are debates, is required to attend or make known its opinion (C. proc. civ., art. 800). There is therefore now an option when a hearing is held. He can communicate his opinion in writing, without attending the debates

b. The instruction of the voluntary case

In the absence of the defendant, the powers of the judge are exceptionally increased to restore some form of contradiction. So, it can make, even ex officio, all useful investigations. The judge may hear all the people who can light it up as well as those whose interests may be affected by its decision (C. proc. civ., art. 27). The investigation is carried out by a judge-rapporteur the Court of first instance (C. proc. civ., art. 799). The judge may base its decision on facts even not alleged by the applicant, but it must require his explanations (C. proc. civ., art. 26). The representation of the parties fall within the rules specific to each jurisdiction. Thus, the representation is mandatory before the first instance court (C. proc. civ., art. 797). Third parties who justify a legitimate interest can be issued copy of the folder after authorization from the judge (C. proc. civ., art. 29).

According to the statement, the judge may pronounce without debate. When they take place, the debates take place in judges” council chamber (C. proc. civ., art.434). The judge has then the faculty to hear the applicant as well as the prosecution which is present or makes known its opinion in writing (C. proc. civ., art. 800).

1.2.6 The outcome of the voluntary procedure

a. The voluntary judgment

The voluntary judgment is an act of a judicial nature, ruled out the presence of the public (C. proc. civ., art.451). It shall be notified to the applicant by the registry by means of a registered letter with a request for advice of receipt (C. proc. civ., art.675). The registry shall notify the decision to the public prosecutor as well as to third parties whose interests may be affected by the decision as long as it mentions the name of the latter (C. proc. civ., art.454).

In principle, the voluntary decisions are devoid of the authority of res judicata and they not divesting the judge who made them (Cass civ. 1, April 6, 1994, Bull. civ. I, n ° 141).

b. The voluntary recourses

Ordinary remedies are open with the exception of the opposition who has no place to be gracious regarding.

The voluntary appeal is open to individuals who have received notification of the decision. It is formed by statement made or sent by registered mail to the registry of the Court that rendered the decision by counsel or a solicitor (C. proc. civ., art. 950). The appeal period is 15 days (C. proc. civ., art. 538). When a person appeals against a decision of the voluntary, two possibilities arise: the judge of first instance modifies or retract its decision, either he leaves to make the referral to the Court (C. proc. civ., art. 952).

Regarding the third-party proceedings, interested third parties to whom the decision has not been notified have the opportunity to use it.

For the extraordinary remedies, appeal in cassation is widely recognised (C. proc. civ., art. 604, 605 and 610) while judicial review is controversial, although some decisions promptly admitted it (for example, CA Versailles, November 22, 2001, D. 2003, somm. 654, obs. Serra; however, v. Cass. civ. 1, November 5, 2008, n ° 07–14.439, the indivisibility of the divorce and the approved convention makes inadmissible partial review).

Anyway, the exercise of a remedy by a third party, whereby the decision complains, operates the passage of the gracious in litigation. This is called “rise of the litigation”194.

194P. Calle, “Lélévation du contentieux”, Procédures 2003, chron. 6.

This means that an application which is initially the voluntary material becomes contentious following the emergence of a dispute in the proceeding. Of course, it could be supported that the gracious character of the Act remained unchanged despite the occurrence of a dispute. But the absorption of the litigation by the gracious is hardly sustainable today because she ignores the change in procedure the problem is to determine at what point does this procedural change.

If the dispute exists from referral to the judge, the procedure is necessarily contentious. Similarly, if a voluntary procedure was nevertheless committed, it would be inadmissible. Subject to this, a dispute can also rise at any time, after the introduction of the voluntary procedure, either before or after the decision sought.

In the first case, the dispute may first appear during the voluntary intervention of a third party to the proceedings the judge can always order in the voluntary material. Indeed, the response is defined as the application from which the object is to make a third party to the trial between the original parties. It gives its author the quality of applicant to claim that he is raising. However, this claim has another object that to oppose the application. Intervention is the elevation of the litigation (Cass. civ. 1, March 7, 1995, Bull. civ. I, n ° 118, p. 95). This solution must also be retained in the event of opposition by a third party whose consent is required (Cass. civ. 1, January 5, 1999, D. 1999, IR, p. 34, about the denial of a father to consent to the simple adoption of her son). The reason is essentially the third cause of layout that is then considered to be a party to the proceeding. On the other hand, more problematic is the opposition to the voluntary application from a third party to the proceeding and that would not be formalized in an incidental demand. The simple hearing of the third party or its Board, even decided ex officio by the judge, lead to a mutation of the voluntary procedure? The doubt is allowed insofar as their hearing, heard people can raise objections to the merits of the applicant’s initial request. However, the instance remains gracious (Cass. civ. 1, March 19, 2008, n ° 05–21–924). The third audition can be described as truly a party to the proceeding, his procedural role being does not exist because of the lack of collateral request. Is also delicate opposition to voluntary demand from the public prosecutor because the mutation of the procedure depends on the role played by the latter. It all depends on whether the prosecutor acted as main part or attached part. If the public prosecutor objects to the measure sought by intervening as main part, the mutation of the procedure takes place immediately and the decision will necessarily be contentious nature (Cass. civ. 1, October 8, 2008, n ° 07–16.067). However, if the public prosecutor is a party attached, because it merely an opinion, even contrary to the request, on the conformity of the situation in law, his opposition has no influence on the gracious nature of the procedure (CA Douai, March 6, 1995, Procédures 1995, n ° 294, obs. H. Croze). Indeed, in this case, it is not a party to the trial, it is not a third party to the trial, what explains this solution.

In the second case, when the dispute arises only after the pronouncement of the decision, this one is necessarily of voluntary nature, but it is then the procedure opened on recourse that is contentious. This transformation of the procedure takes place when a hurt third forms directly a recourse (Cass. civ. 1, October 28, 1969, JCP G 1969, II, 16501, note Mr. Gobert), worth knowing the appeal or the third opposition as the decision was notified to him or not.

Admittedly, article 953 of the Code of civil procedure seems to oppose stating that “the appeal is educated and judged according to the rules applicable in voluntary material before the Court of first instance. However, the majority doctrine considers that this article relates that the applicants, as this position is accredited by case law” (CA Paris, June 10, 1997, Rev. crit. 1997, p. 705, note H. Muir-Watt; Cass. civ., December 24, 1901, S. 1902, I, p. 353, E.-H. Perreau (2 species). As for the third-party proceedings, article 587, paragraph 3, of the Code of civil procedure stipulates that “when the third party is against a judgment rendered in voluntary material, it is formed, heard and decided according to the rules of the litigation process”. This solution is valid even if the third party to the pending appeal procedure (Cass. civ. 2, June 30, 1993, JCP G 1994, II, 22246, note D. Le Ninivin). Finally, the metamorphosis of the procedure may result from the intervention of the public prosecutor in the appeal procedure (Cass. civ. 1, November 23, 1976, D. 1977, IR, p. 70, opposition of the public prosecutor to a request for rectification of civil status).

§ 1.3 The future of voluntary jurisdiction: main problems and planned reforms

Aware that divorce by mutual consent is devoid of any contentious and it is necessary to refocus the judge on his true mission, namely disputes, the french legislator decided to divert the divorce by mutual consent, which represents a very important part of voluntary Affairs. This idea is recurring but all projects have been abandoned so far due to opposition from several professions (judges, clerks, lawyers, notaries). With the Bill “of modernization of the justice of the XXI th century”, currently being discussed in Parliament, extrajudicial divorce seems finally become a reality. This time, all couples are concerned, with or without children, with or without real estate. To pacify divorce, objective of the legislature since 1975, it would more be approved by the judge for Family Affairs (JAF) but registered before a notary.

Thus, by application of the future articles 229 and 229–1 of the Code civil, when the spouses agree on the breakdown of their marriage and its effects, they can, assisted by a lawyer, see their agreement in an agreement in the form of an act under private signature countersigned by their lawyers and established in accordance with section 1374 of the civil Code. This agreement shall be deposited in the rank of the minutes of a notary, which will see the divorce (fixed price of 50€ approximately) and will give effect to the convention giving him date certain and enforceability (C. civ., art. 229–1, 229–4, al. 2).

According to the legislator, compulsory assistance of each spouse by a lawyer is presented as a protection of the parties in the light of the current procedure which allows assistance by a single lawyer. Yet the doctrine strongly critical of this reform leading to a divorce judge. Indeed, in France, the judge is considered traditionally as the protector of the weak and particularly children. It preserves the interests at stake. Therefore, the disappearance of the judge, third-party external and impartial, worried because some authors see an out of balance between the spouses, the triumph of the strong over the weak… being specified if the responsibility of lawyers or notary will be difficult to engage. Furthermore, the doctrine believe that the advent of a divorce without judge fade a little more the institutional aspect of marriage for the benefit of its contractual aspect.

Nevertheless, the out-of-court procedure will be excluded in both cases (C. civ., 229–2 and s.): on the one hand, the passage in front of the judge will be mandatory when minor children, informed by her parents of the right to be heard by the judge in the terms of article 388–1 of civil Code, will ask the hearing; on the other hand, divorce by mutual consent cannot dispense from the judge when one of the spouses is under one of the regimes of protection provided for in chapter II of title XI of book I of the civil Code, namely the protection of justice, curatorship and guardianship.

Furthermore, it should be noted that if the judge is excluded at the time of the divorce, it can be highly sought in the Legal Department of repartnering because failure to comply with the convention of divorce will report to the common law of contracts litigation. More specifically, the convention should be able to be attacked like any contract for vice, absence or insufficiency of consent (C. civ., art. 1129), lack of capacity (C. civ., art. 1145), annoyance to public order (C. civ., art. 1162), disappearance of one of its essential elements (C. civ, art. 1186) etc., under the conditions and within the time of common law. It could be amended or revoked by mutual consent of the parties or for cases that the law allows (C. civ., art. 1193) and should be subject to the new provisions on the hardship (C. civ., art. 1195). Will also apply to non-compliance (C. civ., art. 1217) and rules on contractual liability (C. civ., art. 1231)… In these circumstances, it is possible that no judge divorce is divorce appeased, it is likely that the after divorce without judge is much less.

References

D. D’AMBRA, “Lobjet de la fonction juridictionnelle: dire le droit et trancher les litiges”, Preface of G. WIEDERKEHR, private law library, volume 236, LGDJ, 1994, pp. 261–269;

D. LE NINIVIN, “La juridiction gracieuse dans le nouveau Code de procédure civile”, Litec, 1983, n ° 3–45;

A.-M. ZAGHLOUL, “La juridiction gracieuse. Essai de contribution à létude de lacte juridictionnel dans les droits français et égyptien”, thesis, Lyons, 1981, pp. 12–52.

D. LE NINIVIN, “Voluntary matter”, J.-Cl. Proc. civ., number 115, redesigned by Y. DESDEVISES and J. LE MASSON, 1, 2003, n ° 2, p. 4.

A. HENRY, “De la nature et de la portée des décisions judiciaires en matière gracieuse”, thesis Paris, ed. Rousseau, 1913

M. PLANIOL, “Caractères et effets des décisions rendues en matière de juridiction gracieuse”, thesis, Paris, LGDJ, 1910, p. 8.

D. JOUSSE, “Traité de la juridiction gracieuse, volontaire et contentieuse des officiaux et autres juges déglise, tant en matière civile que criminelle”, Paris, ed. Debure, 1769.

J.-E. M. PORTALIS, “Discours, rapports et travaux inédits sur le Concordat de 1801”, Paris, ed. Joubert, 1845, pp. 238–239.

POULLAIN DU PARC, “Principes du droit français suivant les maximes de Belgique”, t. IX, 1770, pp. 491–492.

J. BERRIAT-SAINT-PRIX, “Cours de procédure civile”, tome 1, Paris, ed. Plon, 7 th ed., 1855, p. 10.

R. JAPIOT, “Traité élémentaire de procédure civile et commerciale”, Paris, Ed Rousseau, 1916, p. 112

A. COLSON, “La fonction de juger. Etude historique et positive”, preface Loïc CADIET, University Presses of the Faculty of law at Clermont-Ferrand, LGDJ, 2006, p. 89, n ° 199.

E. GLASSON and A. TISSIER, “Traité théorique et pratique d’organisation judiciaire, de compétence et de procédure civile”, vol. 1, Paris, Sirey, 3 e ed., 1925 ed., p. 36.

H. SOLUS and R. PERROT, “La procédure civile non contentieuse en droit judiciaire français”, report to the International Academy of law compared to Uppsala, in studies of contemporary law, Paris, ed. Cujas, 1966, p. 233.

D. LE NINIVIN, “Voluntary matter”, J.-CL. Proc. civ., number 115, redesigned by Y. DESDEVISES and j. LE MASSON, 1, 2003, n ° 7–10, p. 5.

G. CORNU, “Lélaboration du code de procédure civile”, in “La codification”, under the direction of B. BEIGNIER, Themes and comments, Paris, Dalloz, 1996

G. CORNU, “La refonte dans le Code civil français du droit des personnes et de la famille”, in “Lart du droit en quête de sagesse”, Paris, PUF, 1998

G. CORNU, “Droit civil. La famille”, Coll. Domat private law, Paris, Montchrestien, 9 e ed., 2006, n ° 6

V. EGEA, “La fonction de juger à l’épreuve du droit contemporain de la famille”, thesis, Aix-Marseille III, 2007, n ° 12, p. 16

G. COUCHEZ, “Procédure civile”, Paris, Sirey, 15 e ed., 2008

M. FRISON-ROCHE, “Les offices du juge”, in “Jean Foyer, auteur et législateur: leges tulit, jura docuit, Ecrits en hommage à Jean Foyer”, Paris, PUF, 1997, n ° 7, p. 463

L. CADIET and E. JEULAND, “Droit judiciaire privé”, Lexisnexis-Litec, 6 e ed., 2009,

S. GUINCHARD, F. FERRAND and C. CHAINAIS, “Procédure civile. Droit interne et droit communautaire”, Dalloz, 29 e ed., 2008

G. CORNU and J. FOYER, “Procédure civile”, Coll. Thémis private law, Paris, PUF, 3 e ed., 1996, n ° 21, p. 126;

P. ANCEL, “Le problème de la juridiction volontaire gracieuse dans le développement du droit moderne”, J. T., 1961, pp. 217–220.

M. BANDRAC, “De lacte juridictionnel et de ceux qui ne le sont pas”, in “Le juge entre deux millénaires, Mélanges PDRAI”, Dalloz, 2000

G. WIEDERKEHR, “Lévolution de la justice gracieuse”, in “Le juge entre deux millénaires, Mélanges PDRAI”, Dalloz, 2000

S. AMRANI MEKKI, “La déjudiciarisation”, Gaz. Pal. June 5, 2008, n ° 157

J. HAUSER, “La loi, le juge et la volonté dans les réformes de droit de la famille”, in “Etudes offertes au doyen Philippe SIMLER”, Lexisnexis-Litec, 2006.

P. RAYNAUD, “Le contentieux familial dans le droit judiciaire français”, in “L’évolution du droit judiciaire au travers des contentieux économique, social et familial”, Brussels, ed. Bruylant, 1984.

Ch. DUARD-BERTON, “L’ordre public dans le droit de la famille”, thesis, Paris II, 2004

A. BENADENT, “Lordre public en droit de la famille”, in “Lordre public à la fin du XX e siècle”, Paris, Dalloz, 1996

E. JEAMMIN-PETIT, “La libéralisation du changement de régime matrimonial”, JCP ed. G 2007, I

J. REVEL, “Le changement de régime matrimonial: quelle déjudiciarisation?”, D. 2006.

F. GRANET-LAMBRECHTS, “Un divorce par consentement mutuel sans juge?, in “De code en code, Mélanges en lhonneur de Georges Wiederkehr”, Paris, Dalloz, 2009, pp. 357–363

G. CORNU, “Droit civil. La famille”, Coll. Domat private law, Paris, Montchrestien, 9 e ed., 2006

Law

Bill of modernization of the justice of the XXIth century.

https://www.legifrance.gouv.fr/affichLoiPreparation.do?idDocument=JORFDOLE[+ 000030962821&type=general&typeLoi=proj&legislature=14+], accessed 11.10.2016; https://www.legifrance.gouv.fr/eli/loi/2016/11/18/JUSX1515639L/jo

Civil code, ed. Dalloz, 2017.

Code of civil procedure, ed. Dalloz, 2017.

Law N ° 44–256 July 15, 1944, on the judges’council chamber, D. 1946, Legislation, p. 333–348.

Case-law

Cass. civ., april 3, 1895, DP, 1896, 1, p. 5, note E. Glasson

Cass. req., may 3, 1897, D. 1897. III. 224

Cass. civ., november 24, 1897, S. 1900, 1, p. 336

Cass. civ., december 24, 1901, S. 1902, I, p. 353, E.-H. Perreau (2 species)

Cass. civ., october 25, 1905, D. 1906. 1. 337, note Mr. Planiol

Cass. civ. 1, october 28, 1969, JCP G 1969, II, 16501, notes Mr. Gobert

Cass. civ. 1, november 23, 1976, D. 1977, IR, p. 70

Cass. civ. 2, june 30, 1993, JCP G 1994, II, 22246, note D. Le Ninivin

Cass. civ. 1, april 6, 1994, Bull civ. I, n ° 141

CA Douai, march 6, 1995, proceedings 1995, n ° 294, obs. H. Croze

Cass. civ. 1, march 7, 1995, Bull. civ. I, n ° 118, p. 95

CA Paris, june 10, 1997, Rev. crit. 1997, p. 705, notes H. Muir-Watt

Cass. civ. 1, january 5, 1999, D. 1999, IR, p. 34

Cass. civ. 2, november 25, 1999, JCP 2000. II. 10338, note A. Guedj

CA Versailles, november 22, 2001, D. 2003, somm. 654, obs. Serra

Cass. civ. 1, march 19, 2008, n ° 05–21.924

Cass. civ. 1, october 8, 2008, n ° 07–16.067

Cass. civ. 1, november 5, 2008, n ° 07–14.439

Abbreviations (in French)

AJ Fam.: Actualité juridique famille, éd. Dalloz

Al.: Alinéa

Bull. civ. I: Bulletin des arrêts de la première chambre civile de la Cour de cassation

CA: Cour d’appel

Cass. civ: Chambre civile de la Cour de cassation

Cass. civ. 1: Première chambre civile de la Cour de cassation

Cass. civ. 2: Deuxième chambre civile de la Cour de cassation

Cass. req.: Chambre des requêtes de la Cour de cassation

C. civ.: Code civil, ed. Dalloz, 2017

C. proc. civ.: Code de procédure civile, ed. Dalloz, 2017

D.: Recueil Dalloz

Ed.: Edition

Gaz. Pal.: Gazette du palais, éd. Lextenso

IR: Informations rapides

JAF: Juge aux affaires familiales

J. Cl. Proc. civ.: Juris-classeur périodique – Encylcopédie de procédure civile, éd. Lexisnexis

JCP: Juris-classeur périodique (La semaine juridique), éd. Lexisnexis

JO: Journal officiel de la République française

Obs.: Observations

Procédures: Revue Procédures, ed. Lexisnexis

S.: Recueil Sirey

Somm.: Sommaire

Chapter 2

The New German Procedure in Family Matters

Peter Gottwald

Abstract

This Chapter provides a general overview of the new German procedure in family matters The author analyse The Reform Law on Non-Contentious Matters Jurisdiction (FGG-Reformgesetz, FGG-RG) which restructured German procedure in family and non-contentious matters.

§ 2.1 The reform of jurisdiction over non-contentious matters

The Reform Law on Non-Contentious Matters Jurisdiction (FGG-Reformgesetz, FGG-RG) of December 17, 2008 has comprehensively restructured German procedure in family and non-contentious matters. The new “FamFG” came into force on September 1, 2009195. With this law, the German legislature sought to achieve two objectives:

195For the preparation of the English version I am much indebted to my assistant Carl Robert Whittaker, B. A. Oxon.

BGBl 2008 I p. 2586.

(1) a self-contained rearrangement of the procedures for non-contentious matters which satisfies the modern requirements of the rule of law, and

(2) a uniform regulation of procedure in family matters while simultaneously creating a Grand Family Court.

The purpose of the old FGG of May 5, 1898196 was to accommodate the procedural rules that were necessary for the execution of the Civil Code (BGB) and Commercial Code (HGB)197. But it never had been set up as a self-contained, systematic procedural code198. As a result of many post-war reforms both in substantive and general procedural law, and particularly due to the establishment of the small Family Court in 1977, the old FGG had for a long time been cluttered and confusing. Therefore, reform had been contemplated in the seventies already. In 1977, a reform commission of the Federal Department of Justice (Bundesministerium der Justiz) had presented the Draft for a New Procedural Code for Jurisdiction over Non-Contentious Matters ([_Entwurf für eine neue Verfahrensordnung der Freiwilligen Gerichtsbarket _](FrGO))199. In essence, this draft would have codified the law applicable at the time. But it did not receive political support and thus was not put into action. Only after the 2001 reform of the Code of Civil Procedure had gone ahead, legal policy turned its attention to family procedure and non-contentious matters jurisdiction as well200.

196RGBl 1898 p. 189.

197Cf. Keidel/Kuntze/Winkler /Schmidt, FGG, 15. Ed. 2003, introd. para. 1.

198H. Borth, Einführung in das Gesetz zur Reform des Verfahrens in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit v. 17.12.2008 (FGG-RG), FamRZ 2009, 157.

199Published by the Federal Department of Justice, cf. H. Kollhosser, Zur Problematik eines “Allgemeinen Teils” in einer Verfahrensordnung für die Freiwillige Gerichtsbarkeit, ZZP 93 (1980), 265.

200Cf. Ch. Meyer-Seitz/D. Kröger/N. Heiter, Auf dem Weg zu einem modernen Familienverfahrensrecht, FamRZ 2005, 1430; Entwurf eines FGG-Reformgesetzes vom 7.9.2007, BT-Drucks. 16/6308; Keidel/Sternal, FamFG, 16. Ed. 2009, introd. para. 12 ff.

Alongside the creation of a self-contained law on procedure for non-contentious matters, the legislature’s second primary objective was to extend the jurisdiction of the small Family Court that had been introduced by the first Marriage Reform Law of June 1, 1977. The intention was to convert it to a Grand Family Court and to subject its procedure to the newly created uniform procedural code. The mixed procedure in divorce proceedings, which had been governed partly by the Code of Civil Procedure (CCP) and partly in the FGG, had been confusing and difficult to apply in practice.

§ 2.2 Fundamental aims of reform

2.2.1 Comprehensive rearrangement of procedure

At the heart of the FGG-RG is a comprehensive rearrangement of family law procedure. The regulations, which to this point had been scattered across the CCP, the FGG, the Regulation on Household Effects (Hausratsverordnung) and the Family Law Modification Law (Familienrechtsänderungsgesetz), were consolidated in the new FamFG. However, the separation from civil proceedings was not fully executed. The new law refers to family matters concerning pecuniary rights as contentious family matters (Familienstreitsachen, § 112 FamFG). Along with matrimonial matters, it subjects them to a large extent to the general provisions of the regional court procedure under the CCP (§ 113 s. 1 FamFG). The distinction between non-contentious matters and ordinary civil matters thus has not been fully upheld. It does however show in the terminology, and expressly in the Judicature Act (Gerichtsverfassungsgesetz, GVG). § § 23 and 23 a GVG juxtapose the jurisdiction of district courts for civil matters and that for family and non-contentious matters, and § 17 a s. 6 GVG expressly subjects references between both departments of the district court to the rules on the transfer of actions between ordinary courts and administrative courts201.

201Cf. Rosenberg/Schwab/Gottwald, Zivilprozessrecht, 17. Ed. 2010, §  11 para. 14 f; Jacoby, in Bork/Jacoby/Schwab, FamFG, 2009, §  1 para. 11 f.

2.2.2 The creation of the Grand Family Court

The German legislature had at first allocated only a part of contentious family matters to the family court, namely matrimonial matters, post-divorce matters and custody matters. The distinction however proved problematic. The FGG-RG has now realised the Grand Family Court, an institution which had been demanded for a long time on the political level. The purpose is to allow disputes within the “family” to be dealt with by one and the same judge and according to a procedure that is more appropriate for the matter than ordinary civil proceedings. § § 23 a, 23 b GVG refer family matters to special departments of the district court which act as the family court.

Today, according to § 111 FamFG family matters are comprised of (1) matrimonial matters, (2) childship matters, (3) descent matters, (4) adoption matters, (5) matters relating to the matrimonial home and household effects, (6) matters relating to protection from violence, (7) matters relating to pension benefits rights equalization, (8) maintenance matters, (9) matrimonial property law matters, (10) other family matters and (11) life partnership matters. This list is exhaustive.

Compared to the law before reform, the range of family matters has been extended by the inclusion of descent matters, adoption matters, matters relating to protection from violence and other family matters. Childship matters now are the former custody matters with the addition of the former guardianship and care matters202. Descent matters are the former childship matters. The other family matters include all claims between fiancées or former fiancées, all claims based in marriage, all claims between married or formerly married persons relating to separation or divorce, and also claims between a spouse and a parent or parent-in-law (§ 266 s. 1 FamFG).

202Cf. §  151 no. 4–8 FamFG; H. Borth (fn. 4), FamRZ 2009, 157, 159.

In practice, the Grand Family Court also has jurisdiction for all conventional matters of the guardianship court (Vormundschaftsgericht). That court therefore has been dissolved. The remaining matters, i. e. the legal protection of adults and the committal of adults, were assigned to a new department of the district court, the protection court (Betreuungsgericht)203.

203Cf. W. Zimmermann, Die allgemeinen Regelungen des neuen FamFG, JuS 2009, 692.

2.2.3 Conflict avoidance and conflict resolution as aims of reform

While classic civil proceedings govern contentious proceedings between two equal parties, the reform law is based on the premise that family law proceedings, but also the other proceedings under non-contentious matters jurisdiction, are based on conflicts between unequal participants which cannot and should not be resolved by way of classic liberal party dispute. Therefore the procedure has been engineered so as to allow for a better reappraisal of the conflict, for positive influence and if possible, for resolution.

Resolution by settlement therefore is intended not only in proceedings over assets but in all family law proceedings. In childship matters, for instance, the court is supposed to work toward a consensual arrangement of custody, contact and access rights or return of the child (§ 156 FamFG). If the participants reach agreement on contact with and access to the child or on the return of the child, this agreement is to be accepted as settlement if the court approves it (§ 156 s. 2 FamFG). The court approved settlement is in this respect a novelty in German procedural law204.

204Cf. W. Schael, Von der vergleichsweisen Einigung der freiwilligen Gerichtsbarkeit alten Rechts zum gerichtlich gebilligten Vergleich, FamRZ 2011, 865.

Under the CCP, in post-matrimonial property matters the court should in any event and at every stage of the proceedings work towards a settlement (§ 113 s. 1, 2 nd sentence FamFG, § 278 s. 1 CCP). Under § 135 FamFG, it can in addition order the spouses to participate in a consultation on mediation or other options for alternative dispute resolution regarding the matter in question. Finally, the court can even suggest alternative dispute resolution to the spouses for the pending matter.

If the execution of a court approved settlement concerning contact and access to the child turns out to cause difficulty, special in-court mediation proceedings between the parents can be initiated (§ 165 FamFG).

2.2.4 Special attention to child welfare

Separation and divorce of parents affect the children in particular. Therefore the law provides for childship matters relating to residency of the child, contact and access rights and the return of the child to be dealt with on a preferential basis and in an accelerated way (§ 155 FamFG).

The legal position of an underage child is further bolstered by the requirement that procedural counsel (Verfahrensbeistand) is to be provided in all proceedings that affect the child if this is necessary for the representation of its interests (§ 158 FamFG). This procedural counsel is not the legal representative of the child (§ 158 s.4, 6 th sentence FamFG), but represents the child’s objective interests in his own name and may take legal action in the child’s interest (§ 158 s. 4, 5 th sentence FamFG).

2.2.5 The improvement of interim legal protection

In family matters, effective interim protection is of particular importance. The courts had indeed developed such protection without a legal basis in the FGG. Now, interim injunctions are the subject of detailed regulation in § § 49 ff FamFG. Orders can generally be made prior to and without pendency of main proceedings. Their content is no longer limited to emergency measures but can even anticipate the main proceedings.

2.2.6 Strengthening of execution

Decisions on contact and access rights and on the return of the child sometimes require execution by the court. Under the old law, the existing regulations had not been sufficient. While under § 33 FGG the only way an obligated person could be forced to perform actions or return a person used to be an order for coercive payments (Zwangsgeld), § 89 FamFG now provides for violations against such obligation to be sanctioned by fines (Ordnungsgeld) and if necessary by arrest for contempt of court (Ordnungshaft). The change from coercive payments to fines is not just terminological; it entails that the measure is not only a mere coercive measure but a sanction with quasi-criminal law character205.

205R. Schlünder/M. Nickel, Das familiengerichtliche Verfahren, 2009, para. 330, 333.

§ 2.3 The rearrangement of the general FamFG procedure

Following this overview of the general aims of the reform, I would now like to present the core elements of the new general FamFG procedure206.

206Cf. H. Roth, Die Reform der freiwilligen Gerichtsbarkeit durch das FamFG, JZ 2009, 585; W. Zimmermann, Die allgemeinen Regelungen des neuen FamFG, JuS 2009, 692.

2.3.1 Rearrangement of participation

The centrepiece of the reform is the rearrangement of the participants” positions. Particularly in custody proceedings, but also in proceedings for a certificate of inheritance, there are not just two parties but numerous materially interested participants. The FGG in this respect included a term for “participants” (“Beteiligte”), but this term was not defined. In practice, the distinction ran between participants in the formal and in the substantive sense. Whether someone was participating substantively ultimately depended on the substantive legal situation and was thus relatively uncertain. The same was true for formal participation, for instance by the youth welfare office or other authorities.

§ 7 of the new FamFG distinguishes between participants by operation of law (kraft Gesetzes) and participants by inclusion (kraft Hinzuziehung). The applicant is a participant by operation of law. Within the group of participants by inclusion, a further distinction is made between must-participants by inclusion (Muss-Beteiligte kraft Hinzuziehung) and can-participants by inclusion (Kann-Beteiligte kraft Hinzuziehung). Those immediately affected by the proceedings are must-participants by inclusion (§ 7 s. 2 no. 1 FamFG); this essentially corresponds to the former group of substantively participating persons. Similarly, those who must be included ex officio due to special rules or upon application now are must-participants by inclusion (§ 7 s. 2 no. 2 FamFG), though these used to be formally participating persons207. The group of must-participants is joined by that of can-participants as per § 7 s. 3 and 4 FamFG. Can-participants are also split into two sub-groups. On the one hand, substantively participating persons who by their right of application can themselves decide whether or not they want to participate. On the other, a range of generally interested persons which the court in its discretion may include as participants. The specific questions of who is or may be a non-personally affected must-participant and who is or may be a can-participant is answered by the law in a range of special regulations on the different types of matters. Under this new system, the group of persons that enjoy a status with quasi-party rights is legally fixed. This contributes to legal certainty. To remove doubts, the law also clarifies that persons that are merely heard during proceedings and persons that are under an obligation to provide information do not for this reason alone become a participant (§ 7 s. 6 FamFG).

207H. Roth, Der Beteiligtenbegriff in § 7 FamFG, GS Manfred Wolf, 2011, p. 503, 507 f; Ch. Bruns, Die Beteiligten im Familienverfahren, NJW 2009, 2797; W. Zimmermann, Die Beteiligten im neuen FamFG, FPR 2009, 5; R. Schlünder/M. Nickel (fn. 9) para. 66 ff.

2.3.2 Proceedings on application and proceedings ex officio

Like the old law, the FamFG distinguishes between proceedings upon application and proceedings ex officio. For the first time, § 23 FamFG determines which requirements an application for the initiation of proceedings must meet. § 24 FamFG explicitly states that the initiation of proceedings ex officio may be prompted and that the person prompting the court is to be notified if the court does not act in response (§ 24 s. 2 FamFG). On the other hand, if the court does act no notification whatsoever is necessary208.

208Rightfully critical W. Zimmermann, Das neue FamFG, 2009, para. 73.

2.3.3 Announcement of documents

All dates and deadlines are to be announced to the participants (§ 15 s. 1 FamFG)209. Announcement is possible by way of formal delivery under the Code of Civil Procedure, but also by simply posting the document210. In relation to a national recipient, delivery is presumed to have taken place three days after postage (§ 15 s. 2, 2 nd sentence FamFG). In relation to foreign recipients, delivery is presumed to have taken place two weeks after postage (§ 184 s. 2, 1 st sentence CCP). However, in both cases this is merely a rebuttable presumption; the participant may convince the court that the document was delivered later or not at all211.

209Cf. H. Schneider, Bekanntgabe und Zustellungen in Familiensachen, Rpfleger 2011, 1.

210Critical regarding the triggering of the period St. Rüntz/W. Viefhues, Erste Erfahrungen aus der Praxis mit dem FamFG, FamRZ 2010, 1285, 1286.

211Keidel/Sternal (fn. 6) §  15 para. 70.

2.3.4 Liberal and strict rules of proof

Like before, as a general principle the liberal rules of proof (Freibeweis) apply under the FamFG (§ 29 s. 1, 1 st sentence FamFG). Furthermore, the general principle of investigation (§ 26 FamFG) operates so that the court is not bound by the submissions of the participants. Generally and as before, whether a question of fact is answered under the liberal rules of proof or by a formal taking of evidence is decided by the court on the basis of duty-bound discretion (§ 30 s. 1 FamFG). Expressly disputed facts that are relevant for the decision may however only be established by formal taking of evidence (§ 30 s. 3 FamFG). Furthermore, certain facts always have to be established by a formal taking of evidence. An example is the determination of descent in proceedings for the determination of the parent-child relationship or proceedings on a challenge to fatherhood (§ 177 s. 2 FamFG).

2.3.5 Decision by court order

Final decisions in all matters under FamFG are now made uniformly by court order (Beschluss, § 38 FamFG) with instructions on the right to appeal (Rechtsmittelbelehrung, § 39 FamFG). Decisions are also made by way of court order in divorces and contentious family matters concerning pecuniary rights, such as equalization of acquisitions (Zugewinnausgleich) or maintenance. In this respect the regulation breaks with long-standing tradition for the sake of procedural uniformity. Yet in substance, the court order differs little from a judgment (Urteil) under the CCP; however, in the reasons, facts and legal reasons are not treated separately. The interests of the parties – who often are not represented by counsel – are now better protected due to the duty of instruction on the right to appeal212.

212Cf. I. Götz, Die Rechtsbehelfsbelehrung, FPR 2011, 1. The extent to which a lawyer can rely on an erroneous instruction, however, is controversial; cf. OLG Rostock and OLG Zweibrücken FamRZ 2011, 986 f.

2.3.6 Settlement

The FamFG accords a higher standing to amicable settlement between the participants than the FGG had done. As before, participants can agree on settlement to the extent that the substantive rights are at their disposition (§ 36 s. 1, 1 st sentence FamFG). What is new is that the court is also to work towards amicable settlement between the participants in all other matters (except those relating to protection from violence) as well (§ 36 I, 2 nd sentence FamFG). To the extent that the participants are not fully entitled to make dispositions, the court decides on the basis of the agreement between the parties or it approves settlement between the parties, for instance in childship matters (§ 156 s. 2 FamFG).

2.3.7 Rearrangement of interim relief

The FamFG extends the range of application of interim relief. In family matters the court can now always take provisional measures to the extent that an urgent need for immediate action exists (§ 49 s. 1 FamFG). Pendency of a congenial main matter or at least an application for approval of legal aid (Verfahrenskostenhilfe) no longer is a pre-requisite for the making of an interim order. The main matter and proceedings for interim relief are two separate proceedings which in principle are independent of one another (§ 51 s. 3, 1 st sentence FamFG)213. However, pursuing both proceedings alongside each other usually is wanton behavior (mutwillig)214. After an interim order has been made, main proceedings are only conducted upon application (§ 52 s.1, 1 st sentence FamFG). The court may impose a waiting period of up to three months for ex officio proceedings within which no application for main proceedings may be lodged (§ 52 s.1, 2 nd sentence FamFG).

213Cf. OLG Stuttgart FamRZ 2010, 1678; Gießler/Soyka, Vorläufiger Rechtsschutz in Familiensachen, 5. Ed. 2010; Löhnig/Heiß, Die Neuregelung des einstweiligen Rechtsschutzes nach dem FamFG, FamRZ 2009, 1101; I. Socha, Probleme des einstweiligen Rechtsschutzes nach dem FamFG am Beispiel der Kindschaftssachen, FamRZ 2010, 947.

214OLG Köln (14.12.10, 4 WF 230/10), FamRZ 2011, upcoming.

In maintenance matters the law goes even further. Under § 246 FamFG, the court may always, upon application, arrange in the interim order the obligation to pay maintenance or to pay an advance for court proceedings. A special requirement of urgency or a limit regarding amount or time does not apply215.

215OLG Thüringen FamRZ 2011, 491 (m. Anm. van Els); Hoppenz/Herr, Familiensachen, 9. Ed. 2009, §  246 FamFG para. 3 ff; W. K. v. Swieykowski-Trzaska, Die einstweilige Anordnung in Unterhaltsstreitverfahren, FÜR 2010, 167.

2.3.8 New route of appeal

A further key reform point is the modification of the route of appeal. In general matters under non-contentious matters jurisdiction, complaints formerly could be made from the district court (Amtsgericht) to the regional court (Landgericht) and from there on to the high regional court (Oberlandesgericht). The Federal Court of Justice only had to act in the very exceptional case of a divergence request. While adopting the system of the CCP for appeals in family matters, the FamFG now provides for a three-tier appeal route for all proceedings from the district court to the high regional court and from there on to the Federal Court of Justice216.

216Cf. H.-K. Maurer, Die Rechtsmittel in Familiensachen nach dem FamFG, FamRZ 2009, 465; R. Rackl, Das Rechtsmittelrecht nach dem FamFG, 2011; H. Schürmann, Rechtsmittel in Familiensachen nach dem FamFG, FuR 2010, 425; V. Vorwerk, Die neuen Rechtsmittel im FamFG, FF 2010, 297.

To challenge a first instance decision, a time limited (§ 63 FamFG) complaint (Beschwerde) must be filed with the district court (the judex a quo)217. In property law disputes, value in dispute either must exceed € 600 or the complaint has to be admitted by the district court because of its general importance (§ 61 FamFG). The complaint after completion of the main matter is now expressly provided for where the complainant’s rights were infringed by the decision (§ 62 FamFG). Functionally, the complaint corresponds to an appeal in civil proceedings (Berufung). Correspondingly, the complaint can be based on new facts or evidence (§ 65 s. 3 FamFG); preclusion due to belated submission is provided for only in matrimonial matters and contentious family matters in cases of gross negligence (§ 115 FamFG)218. In family matters, the first instance court may not (unlike usually) remedy the complaint (§ 68 s. 1, 1 st sentence FamFG).

217Cf. A. Abramenko, Das Beschwerderecht nach dem FamFG, AnwBl 2010, 117; H. Vogel, Probleme mit dem neuen Rechtsmittel der befristeten Beschwerde beim judex a quo, FPR 2011, 4.

218Cf. OLG Celle (20.4.2011, 15 UF 251/10), FamRZ 2011 (upcoming).

§ 70 FamFG now provides for a complaint on points of law due to general importance to the Federal Court of Justice against the decision of the court of complaint. The complaint on points of law however is permissible only if the court of complaint has admitted it in its decision (§ 70 s. 1 FamFG). By contrast to civil proceedings, there is no complaint against the refusal of admission (Nichtzulassungsbeschwerde). Without admission, complaint on points of law is permitted only in committal matters and matters relating to deprivation of liberty (§ 70 s. 3 FamFG). So while before there had been differences in the law between one high regional court and the next, the Federal Court of Justice can now ensure the uniformity of the law. At least in the last year, the high regional courts have admitted numerous complaints on points of law and the participants have actually made considerable use of this opportunity. As a result, the uniformity of the law in this area has markedly improved.

2.3.9 Legal aid

Just as in civil proceedings, “poor” participants may be granted legal aid upon application. The relevant system in the CCP similarly applies to proceedings under FamFG (§ 76 s. 1 FamFG). To the extent that counsel is mandatory (as it is in matrimonial matters, consequential matters and independent contentious family law matters, § 114 s. 1 FamFG), a lawyer of its choice is appointed for the “poor” party (§ 78 s. 1 FamFG). However, if counsel is not mandatory the FamFG deviates from the solution in the CCP219. A lawyer is only appointed if representation appears necessary because of the difficulty of the factual or legal situation (§ 78 s. 2 FamFG). Meanwhile, a considerable number of judgments have been given on this matter220. Courts most often refer to the objective difficulty of the factual or legal situation but also take into account the subjective capacities of the respective applicant. There is no appointment merely for equality of arms if another party is represented by counsel221.

219Cf. F. Götsche, Die neue Verfahrenskostenhilfe nach dem FamFG, FamRZ 2009, 383.

220Cf. just OLGe Karlsruhe, Celle, Dresden, Brandenburg FamRZ 2010, 2003 ff; D. Büte, Verfahrenskostenhilfe und Anwaltsbeiordnung, FPR 2011, 17.

221Cf. M. Streicher, FamRZ 2011, 509, 511 ff.; Kalthoener/Büttner/Wrobel-Sachs, Prozess – und Verfahrenskostenhilfe. Beratungshilfe, 5. Ed. 2010, para. 562.

2.3.10 Costs

Prior to reform, the FGG contained no rules on costs whatsoever. Insofar, by law the Costs Regulations (Kostenordnung) applied directly. It was possible for the court under § 13 a FGG to order one participant to bear another’s costs for equitable reasons. The FamFG now regulates costs comprehensively. Ordinarily, according to § 81 s. 1, 1 st sentence FamFG, payment of the costs of the proceedings is to be ordered by equitable discretion against the participants in full or in part222. Costs may not be ordered against underage participants. Costs have to be borne in particular by those who caused proceedings by gross negligence, those who submit patently futile applications, those who lied about relevant facts during proceedings, and those who violated other obligations of cooperation or who refused to work towards a consensual solution (§ 81 s. 2 FamFG).

222Cf. J. Volpert, Kosten im familiengerichtlichen Verfahren nach der Reform, ZFE 2010, 463; F. Finke, Die Kostenentscheidung nach dem FamFG im Überblick, FPR 2010, 331; M. Keske, Das neue Kostenrecht in Familiensachen, FuR 2010, 433.

In divorce proceedings, costs for the divorce and consequential matters ordinarily are set off against each other in the same way as before223. Only if this solution appears inequitable in view of a reconciliation or the result of a consequential matter, the court is entitled to distribute costs differently (§ 150 s. 4, 1 st sentence FamFG). If the application for divorce is rejected or withdrawn, the applicant has to bear the costs (§ 150 s. 2, 1 st sentence FamFG).

223W. Zimmermann, Die Kostenentscheidung nach dem FamFG, FamRZ 2009, 377, 378.

In maintenance matters, costs again are not distributed according to the CCP, but on the basis of equitable discretion. Factors to be considered are the proportions of success and failure and the duration of the obligation to pay maintenance, but both the giving of insufficient information on respective income prior to the proceedings or upon order by the court and an immediate recognition may also be taken into account (§ 243 FamFG).

In matrimonial property law matters or other contentious family matters relating to pecuniary rights, distribution of costs is based on the proportions of success and failure according to the CCP (§ 113 s. 1 FamFG with § § 91 ff CCP).

2.3.11 Execution of FamFG decisions

Monetary claims, the return of movables, the performance of actions both capable and incapable of performance by agency, the enforcement of tolerance or forbearance or the making of a declaration of intent (Willenserklärung) are generally executed according to the CCP (§ § 95 s. 1, 120 s. 1 FamFG). Unlike under the CCP, final decisions are capable of execution as soon as they enter into force (§ 120 s. 2, 1 st sentence FamFG).

Special rules apply to the execution of decisions regarding the return of persons and arrangements for contact and access (§ § 88 ff FamFG)224. Persons who do not comply with such an entitlement to the return of a child or to the arrangement of contact and access may be compelled by the court by way of fines or arrest for contempt of court (§ 89 FamFG). An individual fine may amount up to € 25,000 (§ 89 s. 3, 1 st sentence FamFG). By contrast to the old sanction by coercive measures, the fine is intended not only to coerce into compliance with the entitlement in question but also to penalise the violation of the entitlement at the same time.

224Cf. M. Cirullies, Vollstreckung in Familiensachen, 2009; R. Schlünder, Die Vollstreckung nach dem FamFG, FamRZ 2009, 1636; J. Dörndorfer, Vollstreckung nach dem FamFG, JurBüro 2011, 4.

2.3.12 Proceedings with foreign elements

Finally, it must be emphasised that for the first time the legislature has dealt with questions relating to international jurisdiction as well as recognition and execution of foreign decisions in a separate section of the law (9 th section, § § 97–110 FamFG)225. Even though these rules do not apply in the area of application of the European regulations (Brussels IIa, Maintenance Regulation, the future Rome III Regulation and the future Inheritance Regulation), this clear compilation is of tremendous importance due to the widespread uncertainty among practitioners in this field.

225Cf. W. Hau, Das internationale Zivilverfahrensrecht im FamFG, FamRZ 2009, 821; F. Klinck, Das neue Verfahren zur Anerkennung ausländischer Entscheidungen nach §  108 II S. 1 FamFG, FamRZ 2009, 741; P. Finger,[_ ]Familienrechtliche Verfahren mit Auslandsbezug, FuR 2010, 3; [_O.Beller,[_ ]Die Vorschriften des FamFG zur internationalen Zuständigkeit, ZFE 2010, 53; [_D. Henrich], in Johannsen/Henrich, Familienrecht, 5. Ed. 2010, §  §  97 ff FamFG; Heiderhoff, in Bork/Jacoby/Schwab, FamFG, 2009, §  §  97 ff.

§ 2.4 The family matters

Following this overview of the general points of reform – which apply to family matters as well as to non-contentious matters (such as legal protection matters226, estate matters227, registry matters228 and cancellation proceeding matters) – I would like to turn to the peculiarities of the individual family matters229. I will emphasise in particular the deviations from the previous law.

226Cf. S. Sonnenfeld, Das Betreuungsverfahrensrecht nach dem FamFG, Rpfleger 2009, 361.

227W. Zimmermann,[_ ]Das Erbscheinsverfahren im FamFG, JuS 2009, 817; _id., Die Nachlasspflegschaft und sonstige Nachlassverfahren im FamFG, Rpfleger 2009, 437.

228Cf. P. Ries,[_ _]Änderungen im Registerverfahren nach der Reform des Rechts der freiwilligen Gerichtsbarkeit, Rpfleger 2009, 441.

229Cf. A. Roth, Die Familiensachen des FamFG, JZ 2009, 805.

§ 111 FamFG provides an exhaustive list of family matters under the jurisdiction of the district court.

As mentioned above, this covers (1) matrimonial matters, (2) childship matters, (3) descent matters, (4) adoption matters, (5) matters relating to the matrimonial home and household effects, (6) matters relating to protection from violence, (7) matters relating to pension benefits rights equalization, (8) maintenance matters, (9) matrimonial property law matters, (10) other family matters and (11) life partnership matters.

The general rules of procedure outlined above (at III) apply to all these family matters. But in § § 121–270 FamFG, the law contains numerous special provisions for the individual types of family matters.

Family matters can roughly be divided into three types. (1) matrimonial matters, (2) contentious family matters, and (3) non-contentious family matters.

Matrimonial matters are divorce matters, matters relating to the annulment of marriage, and consequential matters.

Contentious family matters are those independent family matters concerning pecuniary rights that involve a dispute over maintenance, pension benefits rights equalizations or other property rights between current or former spouses and their parents. A large part of the general FamFG regulations are not applicable to matrimonial matters and contentious family matters; instead, the general rules of the CCP (§ § 1–252 CCP) and the rules on procedure before the regional court (253–494 a CCP) apply (§ 113 s. 1 FamFG). Terminological peculiarities however remain. According to § 113 s. 5 FamFG there is no litigation (Prozess) but only proceedings (Verfahren), no action (Klage) but an application (Antrag), no parties (Parteien) but participants (Beteiligte) and consequently neither claimants nor defendants (Kläger, Beklagte) but applicant and respondent (Antragssteller, Antragsgegner).

2.4.1 Matrimonial matters and consequential matters

Matrimonial matters are divorce matters, proceedings for the annulment of marriage and for the determination of the existence or non-existence of a marriage (§ 121 FamFG).

As before, divorce matters and consequential matters are to be heard and decided together (§ 137 s. 1 FamFG). Consequential matters are (1) matters relating to pension benefits rights equalization, (2) maintenance matters in respect of joint children or in respect of the spouse, (3) matters relating to the matrimonial home and household effects as well as (4) matrimonial property matters. Furthermore, childship matters for the arrangement of parental custody, of contact and access rights or the return of a joint child also become consequential matters upon application (§ 137 s. 3 FamFG). Only the ordinary pension benefits rights equalization is, ex officio, dealt with jointly with the divorce, as it was before (§ 137 s. 2, 2 nd sentence FamFG).

The regulation of procedure in matrimonial matters is complex. The general provisions for matrimonial matters (§ § 111 ff FamFG), the rules on procedure in matrimonial matters (§ § 121 ff FamFG) and the rules on procedure in divorce matters (§ § 133 ff FamFG) apply. Under § 113 s. 4 FamFG, the rules of the CCP, which are based on the parties” freedom over the body of facts, are not applicable because in matrimonial matters a restricted standard of investigation applies.

In substance, procedure for divorce has hardly been changed by the FamFG. The court is to order the personal appearance of the spouses and to hear them (§ 128 FamFG).

According to § 114 s. 1 FamFG, legal counsel is mandatory in matrimonial matters and consequential matters. If the applicant does not appear at the hearing, the application for divorce is not rejected; the decision regarding unexcused absence against the applicant instead concerns the withdrawal of the application (§ 130 s. 1 FamFG). Against the unexcusedly absent respondent, neither a court order for unexcused absence (Versäumnisbeschluss) nor a decision based on documents on file (nach Aktenlage) are permissible (§ 130 s. 2 FamFG). If necessary, contentious proceedings therefore are to be held with the applicant unilaterally.

So as to facilitate an easier divorce in practice, the respondent can declare his agreement to the divorce and the withdrawal of an application for divorce without a lawyer for documentation by the office, and even personally in oral proceedings for documentation by the court (§ 134 s. 1 FamFG).

A settlement regarding the divorce itself is not possible, but the court is to work towards an amicable solution in view of the consequential matters. The court may even order the spouses to participate in a consultation on mediation or other ways of alternative dispute resolution (§ 135 FamFG)230.

230Cf. W. Reinken, Hinwirken auf ein Einvernehmen der Beteiligten, FPR 2010, 428; criticized by M. Grabow, Das kostenfreie Informationsgespräch nach §  135 FamFG, FPR 2011, 33.

The joinder of divorce and consequential matters (Verbund von Scheidung und Folgesachen) was retained by the FamFG without any material changes231. The idea behind the joinder of decisions was to allow the spouses to gain awareness of the consequences of divorce before their final decision. From a purely rational point of view, this is surely correct. However, hardly anyone chooses divorce for purely rational reasons. If somebody wants a final divorce, its delay due to difficulties in consequential matters will not return him or her to the other spouse. However, the application for joinder can be used by one spouse to exert pressure on the spouse who is pushing for divorce. The legislature therefore now provides for a mandatory joinder only in respect of public law matters relating to pension benefits rights equalization. Otherwise, joinder takes effect only upon application. The participants have to submit consequential applications two weeks before oral proceedings at the latest (§ 137 s. 2, 1 st sentence FamFG). Since according to § 113 FamFG read with § 217 CCP, parties can be summoned with only one week’s notice, practical difficulties ensue. After some back and forth, the courts now have reached the convincing solution that each spouse must be granted the full two weeks of notice after delivery of the summons. If this notice period is not observed, each spouse can nonetheless submit a consequential application and the hearing must be postponed232.

231Cf. M. Löhnig, Das Scheidungsverbundverfahren in erster Instanz nach dem FamFG, FamRZ 2009, 737; P. Gambke, Das neue Scheidungsverbundverfahren nach dem FamFG, 2011.

232Cf. OLG Oldenburg FamRZ 2010, 2015; commented by Löhnig; P. Finger, Verspätet angebrachte Anträge für Folgesachen im Entscheidungsverbund, MDR 2011, 77; R. Kemper, Die Begrenzung des Verbundes durch die Zeitgrenze für die Antragstellung, FamFR 2011, 27 .

The ways in which a joinder can be dissolved have also been slightly expanded. According to § 140 s. 2 no. 4 FamFG, a matter relating to pension benefits rights equalization can be detached if the spouses have performed all the necessary cooperative actions, three months have passed since pendency of the application for divorce and both spouses apply for detachment. Otherwise, the hitherto applicable general provision applies: a detachment can be considered if the divorce is being so exceptionally delayed so as to be unacceptably harsh and a spouse applies for detachment (§ 140 s. 2 no. 5 FamFG).

2.4.2 Childship matters

Childship matters under the FamFG are the former disputes over custody, contact and access rights and return of the child. Childship matters now also include all other matters relating to guardianship (Vormundschaft), curatorship (Pflegschaft), deprivation of liberty of and committal of underage persons (§ 151 FamFG)233.

233Cf. E. Stößer, Das neue Verfahren in Kindschaftssachen, FamRZ 2009, 656; D. Büte, Das Verfahren in Kindschaftssachen nach dem FamFG, FuR 2010, 597; D. Zorn, Das Verfahren in Kindschaftssachen nach dem FamFG, Rpfleger 2009, 421.

The abovementioned duty of preference and acceleration applies in particular to childship matters (§ 155 FamFG). In childship matters, an oral hearing with all participants is to take place no later than one month after initiation of proceedings (§ 155 s. 2, 2 nd sentence FamFG)234. Since decisions on contentious matters in these areas, in particular ones relating to contact and access rights, are often boycotted, the court is to work towards an amicable resolution and to approve a settlement between the participants if this does not conflict with the child’s welfare (§ 156 s. 2 FamFG). Even an official expert (Sachverständiger) can be instructed to work towards agreement between the participants (§ 163 s. 2 FamFG)235.

234Cf. J. Schmid, Das Beschleunigungs – und Vorranggebot, FPR 2011, 5.

235Cf. R. Greger, Die einigungsorientierte Begutachtung aus verfahrensrechtlicher Sicht, FPR 2010, 443; R. Ballof, Die Beauftragung des Sachverständigen in Kindschaftssachen, FPR 2011, 12.

Whether a supplementary curator (§ 1909 BGB) is to be appointed for the child in its capacity of a must-participant (§ 7 s. 2 no. 1 FamFG) in custody disputes between the parents is controversial236.

236Cf. M. Streicher, Rechtsprechungsübersicht FamFG, FamRZ 2011, 509, 514; Bork/Jacoby/Schwab/Zorn §  156 para. 11; criticized by Küntz/Viefhues FamRZ 2010, 1285, 1289.

In any event, the court has to appoint a special procedural counsel (Verfahrensbeistand) for an underage child (§ 158 FamFG). This procedural adviser replaces the former procedural special advocate (Verfahrenspfleger) of the child (§ 50 FGG). Procedural counsel must identify the interests of the child and bring those interests to bear in the proceedings. In individual cases, the court can also instruct procedural counsel with the task of arranging an agreement with the parents and further persons with close ties (§ 158 s. 4 FamFG). As mentioned above, procedural counsel is not the legal representative of the child, but can in its interests take legal action against any decision (§ 158 s. 4, 5 th & 6 th sentence FamFG). A professional procedural counsel receives a publicly funded one-off remuneration of € 350 for each instance. If he is to work towards an agreement, the amount increases to € 550 (§ 158 s. 7, 2 nd–5 th sentence FamFG).

While under the old law, curators could only be heard, under § 161 s.1, 1 st sentence FamFG they now can be included in the proceedings as participants in the child’s interests if the child has for some time been living with them in family care. The youth welfare office is to be heard in all childship matters and may upon application participate in the proceedings (§ 162 FamFG)237.

237Cf. H. Katzenstein, Formelle Beteiligung des Jugendamtes im familiengerichtlichen Verfahren, FPR 2011, 20.

§ 165 FamFG provides for a special mediation procedure so as to avoid or remove difficulties in connection with the exercise of contact and access rights238. In the past, such mediation efforts have not been particularly successful. Whether they will become more effective now cannot yet be finally foreseen.

238Cf. Haußleiter/Fest, FamFG, 2011, §  165 para. 1 ff.

2.4.3 Descent matters

Prior to the FamFG, proceedings for the establishment or clarification of fatherhood had been contentious civil proceedings. They are now dealt with under the FamFG procedure for the first time239. The child, the mother and the father (§ 172 s. 1 FamFG) and, upon the latter’s application, also the youth welfare office (§ 172 s. 2 FamFG) are to participate in the proceedings. If it appears necessary for the protection of interests, procedural counsel is to be appointed for each underage participant (§ 174 FamFG). Each participant is obliged to tolerate examinations for the determination of descent (§ 178 s. 1 FamFG). For the establishment of fatherhood, by necessity a formal taking of evidence is conducted by requesting an expert’s certificate of descent (§ 177 s. 2 FamFG). Private certificates which have already been obtained may be used if there are no doubts about their accuracy (§ 177 s. 2 2 nd sentence FamFG)240.

239Cf. E. Stößer, Das neue Verfahren in Abstammungssachen nach dem FamFG, FamRZ 2009, 923; J. Kieninger, in Helms/Kieninger/Rittner, Abstammungsrecht in der Praxis, 2010, para. 188 ff.

240Cf. MünchKommZPO/Coester-Waltjen/Hilbig, Vol. 4, 3. Ed. 2010, §  177 FamFG para. 11 ff.

In the event of the death of a participant prior to entry into force of a decision, proceedings are continued only upon application of another participant (§ 181 FamFG).

In the event of a successful challenge to fatherhood, the participants with the exception of the child bear the costs in equal shares; out of court costs are to be borne individually (§ 183 FamFG).

As before, the decision in descent matters has effect for and against all participants (§ 184 s. 2 FamFG). So the child’s status is to be determined retrospectively and with general effect. Anybody who was or ought to have been included as a participant, meaning also the biological father or the authority with a right to challenge, can submit a complaint against a final decision in descent matters (§ 184 s. 3 FamFG). Persons whose rights are merely indirectly affected by the status of the child, such as siblings or grandparents, are not entitled to complain241.

241Prütting/Helms/Stößer, FamFG, 2009, §  184 para. 11.

2.4.4 Adoption matters

Adoption proceedings so far had been dealt with by the guardianship court. With the coming into force of FamFG they have become family matters. Few substantive changes have resulted from this242. Now, however, procedural counsel can be appointed for underage persons if this appears necessary for the protection of their interests (§ 191 FamFG)243.

242Cf. Ch. Braun, Das Verfahren in Adoptionssachen nach §  §  186 ff FamFG, FamRZ 2011, 81; Sieghörtner, in Müller/Sieghörtner/Emmerling de Oliveira, Adoptionsrecht in der Praxis, 2. Ed., 2011, para.172 ff.

243Cf. Prütting/Helms/Krause §  191 para. 2 ff.

2.4.5 Matters relating to the matrimonial home and household effects

Court determined assignment of the matrimonial home and household effects after separation or divorce of the spouses has always been a matter of non-contentious jurisdiction. So far, it had only been governed by the Household Effects Regulation of 1944 (Hausratsverordnung). In the course of reform, the legislature has moved the substantive part of the regulation into the Civil Code and the procedural part into the FamFG244.

244Cf. I. Götz/G. Brudermüller, Die “Rechtsnachfolger” der Hausratsverordnung, FamRZ 2009, 1261, G. Weinreich, Die Neuregelung des Wohnungszuweisungs – und Haushaltsverteilungsverfahrens, FuR 2010, 1; D. Büte, Ehewohnungssachen nach neuem Recht, FPR 2010, 537.

2.4.6 Matters relating to the protection from violence

Under the Law on the Protection from Violence of December 11, 2001 (Gewaltschutzgesetz), the injured person can claim before court measures for the protection from violence and personal stalking as well as the relinquishment of a jointly used place of residence245. Both claims do not require for the participants to have had a connection in family law or to have had a permanent joint household. Nonetheless, for the purpose of simplification the legislature has categorised as family matters all claims under the Law on the Protection from Violence246. The new regulations of the FamFG that allow for interim injunctions to be ordered without main proceedings have proven themselves particularly in respect of matters relating to the protection from violence. In very many cases, they provide sufficient protection to the injured person so that main proceedings are not initiated247.

245Cf. U. Ehinger, Die Wohnungszuweisung nach dem Gewaltschutzgesetz, FPR 2010, 567.

246Cf. D. Büte, Das Verfahren in Gewaltschutzsachen nach dem FamFG, FuR 2010. 250; K. Schulte-Bunert, Gewaltschutz, FuR 2011, 202; Prütting/Helms/Neumann §  210 para. 1.

247Cf. M. Giers, Verfahren und Vollstreckung in Gewaltschutzsachen, FPR 2011, 224.

2.4.7 Proceedings for pension benefits rights equalization

As before, pension benefits rights equalization is ordinarily performed by mandatory joinder with the divorce (§ 137 s. 2 1 st sentence, no. 1, 2 nd sentence FamFG)248. The FamFG has merely regrouped the pre-existing special regulations for pension benefits rights equalization in a new, more orderly section (§ § 217 ff FamFG). The right of the court to request from all insurance providers information on the reason and size of pension rights is important (§ 220 FamFG). The requirement for the information to be provided on the included form is a novelty.

248Cf. J. Hauß/R.-M. Eulering, Versorgungsausgleich und Verfahren in der Praxis, 2009, para. 165 ff. On equalization after divorce, see §  223 FamFG.

Content-wise, the legislature has changed the mode of substantive pension benefits rights equalization simultaneously with the reform of procedural law. Primarily, it discarded overall equalization with equal division of excessive entitlements that were obtained during matrimony and replaced it with an individual division of all pension benefit rights entitlements249. Due to structural differences between different types of pensions, overall equalization often entailed numerous uncertainties and hardship. Equal division of each pension benefit entitlement by reference to the duration of matrimony is intended to yield a higher degree of individual justice.

249Cf. M. Schmid/R.-M. Eulering, Der reformierte Versorgungsausgleich, FamRZ 2009, 1269; H. Borth, Der Wertausgleich von Versorgungsanrechten, FamRZ 2009, 1361; L. Bergner, Der reformierte Versorgungsausgleich, NJW 2009, 1233; J. Hauß, Ein Jahr neues Versorgungsausgleichsrecht im neuen Verfahrensrecht, FPR 2011, 26.

2.4.8 Maintenance matters

Proceedings for payment of maintenance based in family law had already been assigned to the family court. Procedurally, however, they were dealt with as contentious proceedings under the CCP. If maintenance was claimed in joinder with divorce, only the joinder regulations had to be applied additionally.

The rearrangement in § § 231 ff FamFG has only changed some details.

(1) In maintenance matters, too, there no longer is an action; a maintenance application has to be submitted. The court decides not by judgment but by court order.

(2) As explained above, maintenance can be claimed in full without time limits by way of application for interim order (§ 246 FamFG)250.

250OLG Thüringen FamRZ 2011, 491; Thomas/Putzo/Hüßtege, ZPO, 32. Ed. 2011, §  246 FamFG para. 6.

(3) Apart from this, maintenance matters for payment of maintenance are contentious family matters to which the rules of the CCP apply (§ 112 no.1, § 113 s. 1 FamFG)251.

251Cf. M. Hütter/K. Kodal, Die Grundlinien des Familienstreitverfahrens, insbesondere des Unterhaltsverfahrens, FamRZ 2009, 917; H. Schürmann, Das FamFG-Verfahren in Unterhaltssachen, FuR 2009, 130.

In maintenance matters, there continues to be no duty of official investigation. However, the court may impose obligations on participants and third parties to disclose information (Auskunftspflichten) on income, property and personal and economic affairs (§ § 235, 236 FamFG)252. If a participant applies for the making of such an order, the court has to take steps in relation to the person obliged to disclose information253.

252Cf. W. Viefhues, Verfahrensrechtliche Auskunftspflichten nach dem FamFG, FPR 2010, 162; M. Klein, Der Auskunftsanspruch nach §  235 FamFG, FPR 2011, 9.

253Cf. H. Borth, Praxis des Unterhaltsrechts, 2. Ed. 2011, para. 674 ff.

The provisions on the modification of maintenance entitlements have been changed254. The law distinguishes between the modification of court decisions (§ 238 FamFG) and that of settlements and enforceable instruments (§ 239 FamFG). For court decisions, the law makes very clear that modification is permissible only if certain conditions are met. There must be material changes; the modification must preserve the basis of the decision (carrying forward its mistakes); there must be reasons which developed after the earlier proceedings” last oral hearing on facts (§ 238 s. 2 FamFG). In keeping with the substantive law, the law now provides that a retrospective increase in maintenance (§ 238 s. 3, 2 nd sentence FamFG) and a decrease with retroactive effect for up to a year may be claimed if the debtor had requested the creditor to disclose information or to disclaim the hitherto existing entitlement (§ 238 s. 3, 3 rd & 4 th sentence).

254H.-U. Graba, Die Abänderung von Unterhaltstiteln nach dem FamFG, FPR 2010, 159; id., Probleme bei der Abänderung von Unterhaltstiteln, FPR 2011, 158.

It is important that in maintenance proceedings, counsel now is mandatory. Exceptions apply only to the simplified proceedings on maintenance of underage persons which, put roughly, are a type of payment order proceeding (Mahnverfahren) for minimum maintenance under the Civil Code (§ § 249 ff FamFG), and to proceedings for interim orders for payment of maintenance (§ 114 s. 4 no.1 FamFG).

By contrast to contentious proceedings, costs in maintenance matters are always to be distributed by equitable discretion (§ 243 FamFG)255.

255Cf. R. Bömelburg, Die Kostenentscheidung im Unterhaltsrecht, FPR 2010, 153

2.4.9 Matrimonial property matters

Matrimonial property matters (§ § 261 ff FamFG) are for the most part contentious family matters (§ 112 no. 2 FamFG)256. Therefore the general rules of the regional court proceeding of the CCP (§ 113 s. 1 FamFG) apply to them as they did before.

256Cf. D. Büte, Das Verfahren in Güterrechtssachen nach dem FamFG, FuR 2010, 65 (see also p. 67 on non-contentious proceedings under §  261 Abs. 2 FamFG).

Additionally, it should be pointed out that the permissions that so far had been granted by the guardianship court are now granted by the family court in non-contentious matters.

2.4.10 Other family matters

Under this somewhat pallid term, the legislature has grouped together a range of proceedings which have a special proximity to the family, such as claims relating to engagement, claims relating to matrimony, all other claims between married or formerly married persons or claims between them and their parents, furthermore claims relating to the parent-child relationship and finally claims relating to contact rights, for instance for reimbursement for additional costs (§ 266 FamFG)257. Prior to reform, most of these claims were general civil matters. All of these claims have one aim: the economic disentanglement of the spouses following a failed marriage258. Therefore, and rightly so, they are now allocated to the family court259.

257Cf. Th. Heiß, Ansprüche aus dem Eltern-Kind-Verhältnis und aus dem Umgangsrecht, FPR 2011, 96.

258M.-M. Hahne, Tempora mutantur…, FamRZ 2002, 921, 923.

259Cf. W. Burger, Die sonstigen Familiensachen nach dem FamFG, FamRZ 2009, 1017; M. Löhnig, Sonstige Familiensachen als Verwirklichung des Großen Familiengerichts, FPR, 2011, 65; N. Heiter, Das Verfahren in sonstigen Familiensachen nach dem FamFG, FamRB 2010, 121; Th. Heiß, Zuständigkeit des Familiengerichts für sonstige Familiensachen nach §  266 I Nr. 3 FamFG, FamFR 2010, 292.

Nonetheless, the ultimate “super family court” has not yet been achieved because the assignment expressly excludes claims that fall within the jurisdiction of the labour courts (relating to the relationship of employment between spouses or between a spouse and parents or parents-in-law), claims that are based in residential property ownership, claims which relate to the law of succession, and claims that due to their difficulty are heard in the chamber at the regional court. At least in respect of disputes over residential property ownership and claims from the law of succession, this solution is not convincing and will probably be rectified sooner or later.

“Other family matters” relate purely to property law; according to § 112 no. 3 FamFG they are contentious family matters so that according to § 113 s. 1 FamFG the general rules of the CCP apply. According to § 114 s. 1 FamFG, representation by a lawyer is mandatory for these matters as well.

2.4.11 Life partnership matters

In practice, all disputes that can arise in a heterosexual family can similarly arise between same-sex couples who are formally joined in a life partnership. The FamFG therefore provides that for these proceedings the regulation on divorce proceedings, on family matters and on other family matters are to be applied accordingly (§ 270 FamFG).

2.4.12 Costs in family matters

Simultaneously with the Reform of Procedure in Family Matters, the German legislature passed a new Law on Court Costs in Family Matters ([_Gesetz über Gerichtskosten in Familiensachen _](FamGKG))260. In all family matters, costs are determined exclusively by the new FamGKG. Structurally, the new law is largely based on the general law on court costs. However, it contains numerous provisions through which fees are reduced by comparison to ordinary contentious matters. As before, the proceeding in matrimonial matters costs only 2 rates based on the value of proceedings (instead of 3 rates). For matrimonial matters, the value of proceedings is determined by the individual circumstances and the income and property of the spouses. Income is determined by reference to achievable net income over a period of three months (§ 43 FamGKG). In childship matters (custody matters) the value of the proceedings generally amounts to € 3000 (§ 45 FamGKG), in descent matters it amounts to € 2000 for the establishment of fatherhood (§ 47 s. 1 FamGKG). In matters relating to the protection from violence the value of proceedings amounts to € 2000 for no-contact restraining orders and € 3000 for assignments of residence (§ 49 s. 1 FamGKG). In most cases, pension benefits rights equalizations have become more expensive because the value of proceedings here is determined by charging 10 % of the value of each right subject to equalization, provided the result is not inequitable (§ 50 FamGKG). In maintenance matters, the value of proceedings is calculated on the basis of 12 months” maintenance up to a maximum of the total sum claimed (§ 51 FamGKG).

260Cf. R. v. König/H. H. Bischof, Kosten in Familiensachen, 2009; Petzold, in Binz/ Dörndorfer/Petzold/Zimmermann, GKG, FamGKG, JVEG, 2. Ed. 2009, p. 343; R. Schlünder, Die gebührenrechtlichen Änderungen des FGG-Reformgesetzes, FamRZ 2009, 2056.

§ 2.5 Evaluation

With the FamFG, the German legislature has successfully implemented a comprehensive rearrangement of procedure in the area of non-contentious jurisdiction. Family matters are ultimately considered a part of this jurisdiction which as far as possible relies on amicable resolution of disputes. The goal of creating a more uniform and more easily understandable modern code of procedure for a sensitive area of life has similarly been reached261.

261Cf. Meyer-Seitz/Krüger/Heiter FamRZ 2005, 1430, 1437.

Over the past 18 months, practitioners have frequently been confronted with transitional questions262. Ambiguities in the details, which however are important for lawyers, dominated.

262According to article 111 FGG-RG, proceedings which were initiated prior to September 1 st, 2009 are to commence wholly on the basis of the old procedural law.

In respect of divorce proceedings by joinder, the FamFG has brought only a few changes. The changes in interim protection and appeals procedures are more significant. The fact that all FamFG matters can now be brought before the Federal Court of Justice and that therefore the uniformity of the law can be achieved is a major improvement.

Practice would not be practice if it was not slow in embracing substantive changes in the style of proceedings, in particular the increased effort in working towards consensual solutions.

But on the whole, the law has passed its first test.

Chapter 3

Jurisdiction Without Conflict? Remarks on Non-Adverse Proceedings in Italy

Elisabetta Silvestri

Abstract

The chapter describes the procedural treatment of non-contentious matters in Italy. After a brief historical recount on the evolution of the concept of “non-contentious jurisdiction”, from Roman law to the law in force, the chapter emphasizes the extreme variety of non-adverse proceedings governed by the Code of civil procedure and special statutes as well. Furthermore, the chapter expands on the “default rules” of non-adverse proceedings (meaning the rules applicable insofar as the law does not ordain otherwise) provided by the Code of civil procedure. These rules outline a procedure in chambers that is simpler and less time-consuming than the ordinary one: for these reasons, the procedure in chambers has been increasingly adopted for the judicial treatment of a few contentious matters, with mixed results. As far as non-contentious matters, in light of the notorious overload of Italian courts the author believes that they could be handles more efficiently by administrative authorities.

Introduction

In Italy, non-adverse proceedings are often referred to by resorting to the umbrella-term “non-contentious jurisdiction” (in Italian, “giurisdizione volontaria”). This expression is quite common in the Italian legal jargon: it is used to define a large portion of the legal matters that notaries public are in charge of; it can be read on the doorplates of the offices that are present in every courthouse and that deal with “Affairs of Non-Contentious Jurisdiction”; it represents the title of many legal treatises and course books that law students are supposed to read and become familiar with. In spite of all that, it is difficult to offer a specific and unequivocal definition of the expression, since it refers to a variety of disparate legal matters and procedures that do not have much in common. Probably the only definition of “non-contentious jurisdiction” that could make some sense is the intuitive one: it is a form of judicial authority exercised as regards matters or issues that are not in controversy between two or more parties. Since it is well established that Roman law made a distinction between contentious jurisdiction and iurisdictio voluntaria263, it is reasonable to say that the expression travelled from antiquity into modern law remaining unchanged in its form, even though its meaning, necessarily, has changed over the centuries.

263See, for instance, Fernández de Bujan, Antonio. 1987. Diferencias entre los actos de iurisdictio contenciosa y los actos de la denominada iurisdictio voluntaria en derecho romano. In Estudios de derecho romano en honor de Alvaro dOrs, 1, 427–55. Pamplona: Ediciones Universidad de Navarra; Luzzatto, Giuseppe Ignazio. 1965. Il problema dorigine del processo extra ordinem, 1, Premesse di metodo: i cosiddetti rimedi pretori. Bologna: Patron, 137–41; Solazzi, Sirio. 1972. “Iurisdictio contentiosa” e “voluntaria” nelle fonti romane. In Scritti di diritto romano, III, 163–97. Napoli: Jovene.

If one decided to embark on the venture to summarize how the most prominent Italian scholars define non-contentious jurisdiction, one would have first to mention the many theories followed with a view to describing what the public function called jurisdiction is and which features draw the dividing line between contentious and non-contentious jurisdiction: a task certainly beyond the purpose of this essay, which aims at outlining the Italian law in force, dispensing with any “Pindaric flights” in the deep blue skies of jurisprudence264. Therefore, it seems acceptable to offer a down-to-earth definition of non-contentious jurisdiction: it is a form of judicial intervention that borders on the field of tasks falling, as a rule, within the realm of the executive power, that is, tasks that could (at least in principle) be performed by administrative bodies as well. As far as the reasons why courts are called upon to take care of matters that could easily be dealt with by administrative bodies are concerned, a frequent explanation is that such matters touch upon public interest, and therefore it is appropriate to entrust them to the courts in their capacity as the ultimate defenders of the rule of law. Whether that holds true is disputable, since – as will be clarified below – the contemporary landscape of non-contentious jurisdiction includes matters on which public interest has no bearing at all.

264The major Italian academic contributions to the study of non-contentious jurisdiction are the following: Denti, Vittorio. 1987. La giurisdizione volontaria rivisitata. Rivista trimestrale di diritto e procedura civile XLI: 325–39; Cerino Canova, Antonio. 1987. Per la chiarezza di idee in tema di procedimento camerale e di giurisdizione volontaria. Rivista di diritto civile XXXIII: I, 431–85; Fazzalari, Elio. 1970. Giurisdizione volontaria (diritto processuale civile). In Enciclopedia del diritto, XIX, Milano: Giuffrè Editore, 330–81.

§ 3.1 Italian legal sources (past and present) and non-contentious jurisdiction

The Italian Code of Civil Procedure (adopted in 1940 and in force since 1942) makes no specific reference to non-contentious jurisdiction; the expression was included in a single article of the Code (Article 801, concerning the recognition of foreign judgments and orders) that was repealed in 1995 by the statute reforming the rules governing the Italian system of private international law. Non-contentious jurisdiction is mentioned, without any further specification, in one of the rules enacted for the implementation of the Civil Code: a rule of negligible relevance, since it applies to a family-related matter pre-empted by more recent statutes.

Even though the main source of Italian procedural law apparently seems to ignore non-contentious jurisdiction, one cannot overlook the fact that in reality a whole section of the Code of Civil Procedure (exactly, Book Four of the Code) provides for a variety of special proceedings that are conventionally ascribed to non-contentious jurisdiction: just to mention a few, one may list the procedures for having a person declared incompetent, the procedures for the declaration of absence and presumed death of those who have disappeared from their last known residence for a certain number of years, the many procedures by which the interests of minors and incompetent persons are protected (e. g., the appointment of guardians), and the procedures to be followed for the administration and the settlement of decedents” estates. But quite a number of other non-contentious proceedings are governed by different legal sources, that is, the Civil Code or specific statutes, while Book Four of the Code of Civil Procedure also provides for many contentious proceedings, such as the summary ex parte proceeding leading to orders for payment, the eviction proceeding, a wide variety of provisional remedies, divorce proceedings and – last but not least – arbitration. In other words, Book Four of the Code of Civil Procedure is conceived as a legal “department store’265, in which one can find the judicial proceeding that fits one’s needs: it is as if the legislators, after having abided by strict analytical accuracy in the preparation of the previous three Books of the Code, had given up and decided to toss into Book Four all the leftover proceedings, the ones that could not be properly located anywhere else.

265This is the definition of Book Four of the Code given by a prominent Italian scholar, the late Virgilio Andrioli: see Andrioli, Virgilio. 1979. Diritto processuale civile, I, Napoli: Jovene, at p. 52.

An explanation for the reasons why non-contentious proceedings do not have an autonomous place in the Code of Civil Procedure and are not governed by a single group of uniform rules can be found in the explanatory report accompanying the original text of the Code. In the report, the Ministry of Justice at that time explained that the original idea of the drafters of the Code – that is, to concentrate in a single book all non-contentious proceedings so as to distinguish them from any other special proceedings provided for by the Code – had to be abandoned, due to the difficulty of drawing a clear-cut divide between contentious matters (meaning, matters calling for the adjudication of substantive rights) and non-contentious ones: it is up to scholars and not to legislators, the Ministry wrote, to elaborate further on the distinction266. In this regard, the rationale underlying the choice made by the drafters of the Code has its roots in the previous code, that is, the first Code of Civil Procedure of the unified Kingdom of Italy, enacted in 1865. Commenting on the rule stating that “unless the law provides otherwise, non-contentious matters are assigned to proceedings in chambers” (My translation)267, scholars acknowledged the vagueness surrounding the concept of non-contentious jurisdiction, emphasizing that legislators could only take note of such vagueness and devise a procedural model adaptable to the matters that, from time to time, would be identified as non-contentious268. Such a procedural model was the so-called proceedings in chambers.

266See “Relazione alla Maestà del Re Imperatore del Ministro Guardasigilli Grandi, presentata nell’udienza del 28 ottobre 1940-XVIII per l’approvazione del testo del Codice di procedura civile”, available at http210011/Relazione_al_re_per_l’approvazione_del_testo_del_codice_di_procedura_civile, at p. 15.

267See Article 778 of the Code of Civil Procedure of 1865.

268See, for instance, Saredo, Giuseppe. 1874. Del procedimento in camera di consiglio e specialmente per gli atti di volontaria giurisdizione (2 nd edn.), Napoli: Libreria Nuova, p. 29–31.

Similar to the Code of Civil Procedure of 1865, the Code in force too provides for a set of rules governing proceedings in chambers, rules to be applied unless the law dictates otherwise, but these rules make no explicit reference to matters falling within non-contentious jurisdiction. In spite of that, conventional wisdom tends to identify the procedure in chambers as the archetype of the procedural model according to which courts handle non-contentious matters. In reality, there is more to this than meets the eye, since – as will be described shortly – on the one hand, for several non-contentious matters judicial intervention follows a pattern that does not conform to the procedure in chambers and, on the other hand, for quite a number of contentious matters special statutes provide for proceedings in chambers. Therefore it would be misleading to say that, according to the Italian law in force, an equivalence between non-contentious jurisdiction and the procedure in chambers can be established: a more accurate statement would picture the rules governing proceedings in chambers as “default rules”, that is, rules to be applied absent a specific regulation of the non-contentious matter at stake.

§ 3.2 The «default rules» for non-contentious proceedings

A brief description of the rules defined above as “default rules” is in order269. The procedure in chambers is simpler than the ordinary one and, at least supposedly, much faster. The procedure is commenced by filing an application that includes a basic statement of the factual and legal grounds for the relief sought. As far as the subjects having standing to lodge the application are concerned, the law sometimes clearly identifies them, other times entitles every “interested person” to pray for relief. In exceptional circumstances, standing is granted to the Public Prosecutor as well: more frequently, though, the Public Prosecutor can or sometimes even must make an intervention in the proceeding once it has been instituted by a private party, as a rule when the matter involves aspects of public interest. In general, the role played by the Public Prosecutor is not a very active one, and it is limited to the filing of short, written opinions.

269Reference is made to Articles 737–742 [bis _]of the Code of Civil Procedure. The academic literature on proceedings in chambers and the rules governing them is extensive, but since this essay is addressed to foreign readers, who may not be familiar with Italian, the author has chosen to avoid complex bibliographical information. For a general overview of the subject, see Laudisa, Luciana. 2002. Camera di consiglio – I) Procedimenti in camera di consiglio – Diritto processuale civile. In _Enciclopedia Giuridica Treccani, VI, Roma: Istituto della Enciclopedia Italiana, 1–17; Arieta, Giovanni. 1996. Procedimenti in camera di consiglio. In Digesto delle discipline privatistiche – _][_Sezione civile, XIV, Torino: UTET, 435–59; Civinini, Maria Giuliana. 1994. I _][_procedimenti in camera di consiglio, I, Torino: UTET.

There is dispute over whether the applicant must be represented by an attorney of his choice. The case law is not consistent on the issue of legal representation in non-contentious proceedings handled in chambers, even though some recent opinions issued by the Italian Supreme Court (the Corte di cassazione) with reference to a relatively new procedure for the guardianship of mentally incompetent persons seem to support the thesis according to which in proceedings in chambers applicants can appear before the court in person270.

270Se, for instance, judgments no. 19233 of 2008 and no. 25366 of 2006, available (in Italian) at http:+][+//pluris-cedam.utetgiuridica.it/main.html#m=home[+:+] on this judgments, see Silvestri, Elisabetta. 2015. Commento all’articolo 720 bis. In Commentario breve al codice di procedura civile (8 th edn.), eds. Carpi, Federico – Taruffo, Michele. 2794–801. Padova: CEDAM. It may be interesting to recall that the general rule in Italian civil procedure is that parties to a judicial proceeding (meaning a contentious one) must always be represented by attorneys: litigants can appear in person only before the justices of the peace, provided that the value of the case is below € 1,100 (according to Article 82 of the Code of Civil Procedure).

As far as the development of the procedure is concerned, it must be emphasized that, as opposed to the typical allocation of powers between the parties and the court in ordinary proceedings, proceedings in chambers are marked by the extensive inquisitorial powers bestowed upon the judge in charge of the case. As a matter of fact, the judge can call for the production of any kind of evidence ex officio, since the wording of the relevant article of the Code is interpreted so as to grant the judge ample discretion as regards the evidence-taking phase of the procedure.

The orders issued by the court take the form of decrees. A special avenue of appeal, known as reclamo, is open to the applicant, any interested party and sometimes the Public Prosecutor. In principle, no further appeals are allowed.

Decrees issued in chambers in non-contentious matters have no [_res judicata _]effects. Upon application lodged by any interested party, a decree can be modified or revoked if the circumstances originally taken into account by the court have changed, provided that the rights acquired in good faith by third parties are safeguarded. According to one school of thought, under specific circumstances a decree issued in non-contentious matters can also be declared null and void by a judgment rendered in an ordinary proceeding.

§ 3.3 «To each his own»: a procedure for each non-contentious matter

As mentioned above, the “default rules” are applied to non-contentious matters only insofar as the law does not ordain otherwise. And, as a matter of fact, the law does ordain otherwise in a wide variety of non-contentious matters. Just to offer an example, let us take into consideration one of the proceedings that can be instituted to have a person declared incompetent:271 it is a proceeding that, although considered “special”, bears a close resemblance to the ordinary proceeding provided for civil actions before the courts of first instance. The rules governing proceedings in chambers (the “default rules” of non-contentious jurisdiction) do not enter into play at all: in fact, the proceeding ends with a judgment, a real judgment, and not a decree, and such a judgment is able to become final and have res judicata effects.

271The Italian legal system provides for three different proceedings for having a person declared incompetent: when the person is mentally ill, senile, or suffering from other disabilities that prevent him from taking care of his own affairs. The choice of the appropriate proceeding depends on the seriousness of the incompetency; to each proceeding corresponds a court order imposing different levels of limitation on the legal capacity of the incompetent person. The matter is governed by Articles 712–720 bis of the Code of Civil Procedure, rules that must be read in connection with the articles of the Civil Code (Articles 404–432) listing the circumstances under which a person can be deprived of his legal capacity and the substantive effects of a declaration of incompetency. For an overview of the subject, see Silvestri, Elisabetta. 2015. Commento agli articoli 712–720 bis. In (eds.), Commentario breve al codice di procedura civile (8 th edn.), eds. Carpi, Federico – Taruffo, Michele, 2784–801. Padova: CEDAM.

Other examples could be mentioned to give proof of the fact that the deviation from the “default rules” of non-contentious proceedings is not a rare exception, but the rule in Italian civil procedure. Often, the procedural model is a sort of hybrid that mixes together steps typical of ordinary proceedings and steps borrowed from the procedure in chambers, which is likely to cause practical problems, for instance as regards the appeal that can be brought against the court order, with reference to the form the appeal is supposed to take, as well as its latitude and effects: as an example, problems of this kind are common in the practice of separation and divorce proceedings, which quite a number of scholars still ascribe to non-contentious jurisdiction272.

272For an extensive overview of separation and divorce proceedings, see Graziosi, Andrea (ed.). 2011. I _][_processi di separazione e di divorzio (2 nd edn.). Torino: Giappichelli Editore, 2011.

In conclusion, it seems important to emphasize again the lack of consistency in the procedural treatment of matters that rightly or wrongly are deemed to be non-contentious: a lack of consistency that in recent years has brought about a proliferation of multifaceted “special proceedings” that have turned the administration of Italian civil justice into a maze, causing further problems for a system already in bad shape. At last in 2011 an attempt was made by the legislators to simplify the situation, reducing the number of available special proceedings, but the expected positive results of this reform have yet to be seen273.

273The issue of the statute for the simplification of special proceedings will be addressed further on, in para. 6.

§ 3.4 Recent uses (or abuses) of proceedings in chambers

It has previously been mentioned that the “default rules” of proceedings in chambers outline a procedural pattern that is simpler, less formal, and supposedly faster than the one to which ordinary proceedings conform. For these reasons, the legislators have increasingly turned to proceedings in chambers when they decided to update the judicial treatment of a few contentious matters. In light of the notoriously excessive length of Italian civil cases it is not difficult to understand the appeal of proceedings in chambers. At the same time, it is undeniable that when the adjudication of substantive rights is in question, the fundamental guarantees of due process must be safeguarded to their full extent, which is not always the case in proceedings in chambers since they are conceived for cases in which, at least allegedly, there is no controversy among the opposing parties over substantive rights.

The trend followed by the legislators extending the procedure in chambers to contentious matters has not been well received by scholars, who have emphasized the dangers this choice could bring about in the judicial enforcement of the right of action and its procedural applications, either enshrined in the Constitution or implied by the constitutional rules on the guarantee of due process274. In particular, it has been maintained that proceedings in chambers lack an adequate protection of the right to be heard, grant the court an excessive amount of discretion, and, most of all, result in orders unable to become res judicata, since they can be modified or revoked at any time: the features that make proceedings in chambers valuable for a quick and efficient disposition of non-contentious matters become serious flaws in the framework of contentious jurisdiction, since substantive rights, when disputed, have to be adjudicated with the full panoply of the guarantees offered by ordinary proceedings, leading to judgments able to acquire the irrefutable certainty and everlasting durability that only res judicata can assure275.

274The relevant rules of the Italian Constitution are the following:

Article 24

’Anyone may bring cases before a court of law in order to protect their rights under civil and administrative law.

Defense is an inviolable right at every stage and instance of legal proceedings.

The poor are entitled by law to proper means for action or defense in all courts.

The law shall define the conditions and forms of reparation in case of judicial errors.”

Article 111

’Jurisdiction is implemented through due process regulated by law.

All court trials are conducted with adversary proceedings and the parties are entitled to equal conditions before an impartial judge in third party position. The law provides for the reasonable duration of trials …

All judicial decisions shall include a statement of reasons.

Appeals to the Court of Cassation in cases of violations of the law are always allowed against sentences and against measures affecting personal freedom pronounced by ordinary and special courts. This rule can only be waived in cases of sentences by military tribunals in time of war.

Appeals to the Court of Cassation against decisions of the Council of State and the Court of Accounts are permitted only for reasons of jurisdiction.” (Official translation, available on the website of the Italian Senate, at http:+][+//www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf.)

275The volume of academic writing on whether it is appropriate to resort to proceedings in chambers for contentious matters is monumental. Among the most significant and recent contributions to the debate, see Carratta, Antonio. 2010. Processo camerale (diritto processuale civile). In Enciclopedia del diritto, Annali, III, Milano: Giuffrè Editore, 928–59.

In spite of the concerns voiced by scholars, the Italian Supreme Court has repeatedly supported the policy upheld by the legislators in adopting the “default rules” of proceedings in chambers also for contentious matters, such as family matters concerning parental authority, filiation, adoption, as well as matters related to the management of companies and to bankruptcy, just to mention a few. According to the Court, proceedings in chambers are “neutral containers”, that is, they outline (by virtue of the “default rules”) a malleable procedural model suitable to be adopted as it is by the legislators, or to be enriched with the features that, according to the matter at stake, are necessary to comply with the constitutional mandate upholding the due process clause276. By the same token, the case law of the Constitutional Court supports the position that the choice of the procedural rules to be applied to contentious or non-contentious matters falls completely within the discretion of the legislators, provided that such discretion is exercised in a manner that is consistent with the principle of reasonableness. According to the Court, the rules governing proceedings in chambers by themselves are not at odds with the basic tenets of due process: therefore, it is possible (and sometimes even imperative) to interpret them so as to “make room” for the procedural steps that, from time to time, are required by the fundamental guarantees surrounding the judicial enforcement of substantive rights277.

276See in particular the judgment of the Italian Supreme Court issued [en banc _]on 19 June 1996, no. 5629, published in 148 _Giurisprudenza italiana, 1996, I, 1, 1300.

277See, for instance, the following judgments issued by the Constitutional Court: no. 140 of 2001; no. 160 of 1995; no. 52 of 1995; no. 573 of 1989. All the judgments of the Court are published (in Italian) on its institutional website, at http:+][+//www.giurcost.org/decisioni/index.html.

§ 3.5 The simplification of special proceedings

As noted above, the growing number of “special proceedings” dealing with both contentious and non-contentious matters and the difficulties brought about by the overlapping of different legal sources making it quite complex to identify the proper proceeding to be instituted persuaded the legislators to engage in an effort to simplify the procedural landscape. It is well known that the road to hell is paved with good intentions, and the statute “on the reduction and simplification of judicial proceedings’278 is a perfect demonstration that good intentions are not enough to produce good results.

278The statute referred to in the text is statute no. 150 of 2011. For an extensive commentary, see Carratta, Antonio. 2012. La “semplificazione” dei riti e le nuove modifiche del processo civile, Torino: Giappichelli Editore.

The idea underlying the statute was to reduce the special proceedings to only three procedural models already existing in the Code of Civil Procedure, that is, the ordinary proceeding, the proceeding in labor cases, and the summary proceeding. Unfortunately, not all special proceedings were taken into consideration, but only the ones regarding contentious matters and governed by specific statutes; other exceptions were contemplated, for instance as regards family law, consumer law, and intellectual property (IP) law. In short, the statute on simplification applies only to some special proceedings of minor importance, and certainly not to the ones that crowd the courts” dockets. In addition, even for the proceedings affected by the so-called simplification new and complex rules had to be enacted so as to make the transmigration from the old rules to those of the “proceeding of destination” viable. It seems superfluous to elaborate any further on the absurdity and uselessness of such an effort, whose positive outcomes have yet to be proven.

Even though the statute on simplification has affected some proceedings that originally took place in chambers (for instance, the ones concerning immigration law), nothing has changed in the arrangement of Book Four of the Code of Civil Procedure, in which a disparate variety of special proceedings continue to coexist as strange bedfellows.

Conclusions

It is difficult to foresee whether in the near future more attention will be devoted by Italian legislators to non-contentious jurisdiction so as to lay down rules that are uniform and consistent. In recent decades, Italian civil procedure has been re-written again and again in the attempt to solve the most serious and enduring problem of the justice system, namely, the excessive length of proceedings279. Many reforms have failed and from those that are too recent to be appreciated positive results, if any, cannot reasonably be expected in the short run. The uncertainties of the political landscape and the continuing serious economic crisis affecting the country make it unlikely that the spotlight will shine again on non-contentious matters any time soon, since the situation is much more dramatic in other aspects of civil justice, that is, in ordinary proceedings and in enforcement proceedings. In the meantime, Italian scholars, who are often more interested in strictly theoretical issues than in the daily problems of judicial administration, will keep on chasing the perfect answer to the question whether non-contentious jurisdiction is true jurisdiction or something else, even though, already back in 1987, one of the most prominent scholars in procedural law of the last century, the late Vittorio Denti280, wrote that the notion of non-contentious jurisdiction belonged to the history of the doctrines and ideologies of civil procedure that were popular in the past but had lost their appeal in the contemporary cultural environment, in which there seemed to be no space left for great conceptual constructions. Drawing inspiration from this thought, this author thinks that both scholars and legislators should set aside any concerns about the true nature of non-contentious jurisdiction and address a more mundane issue: whether or not, in light of the present situation of Italian courts, overloaded with cases and lacking human and material resources, it still makes sense to entrust the judiciary with duties that – where the conflict between private individuals is over matters devoid of any public interest – could be discharged hopefully in a more efficient and less time-consuming way by administrative authorities.

279See Silvestri, Elisabetta, “The Never-Ending Reform of Italian Civil Justice”, available at http:+][+//ssrn.com/abstract=1903863.

280See Denti, Vittorio, above n. 2, at 339.

Chapter 4

Voluntary Jurisdiction in Spain

Lorenzo M. Bujosa Vadell

Abstract

The voluntary jurisdiction matters have been controversial in the last few years. The Spanish legislation was very old and not much systematic, with a direct descent of the Roman and Medieval Law. The legal nature was not so clear because from the Civil Procedure Code (LEC 1881) we could not infer any final consequence on this, but at first glance we could speak of a judicial activity, which real nature has been very discussed. The main reason of this great historical disagreement could be the extraordinary heterogeneity of the cases that we put under the title “voluntary jurisdiction”, whose nature was so much varied and very outdated.

Recently we have some good news: the Spanish Parliament passed a Voluntary Jurisdiction Act. Therefore, the Spanish Legal system shows right now a great modernization of the regulative basis and a relocation of many of the old voluntary jurisdiction procedures in other public bodies, not without hard doctrinal discussions. The main idea is to reduce the voluntary jurisdiction procedures because the great majority should not be so. They were there for historical and practical reasons, and above all for the big practical obstacles for reforming in the last decades. It is not fair that the controversial cases have big delays and the same judge must resolve much of those cases where only we need a legal guarantee of rights, but not a real jurisdiction exercise, I mean, when it is no necessary a sovereign act of actual judging.

§ 4.1 The Concept of Voluntary Jurisdiction and a Brief Sketch of its History in Spain

With a direct descent of the Roman Law of the Corpus Iuris Civilis and the studies of the glossators and other medieval lawyers, the Siete Partidas of the Castillan King Alfonso X the Wise, collected in the 13 th century a large set of rules. In Part III ([_Partida _]III), gathered many issues to be included in the scope of the so-called “voluntary jurisdiction”, but without any systematization.

The first existing Civil Procedure Code in Spain, the Ley de Enjuiciamiento Civil of 1855, was mainly influenced by the Partida III and by the nineteenth-century liberalism also, and it was purported to order all the civil procedural regulation in the Kingdom of Spain and, thus, its regulation as divided in two large parts: the first one dedicated to the “contentious jurisdiction” (arts. 1 to 1260) and the second one to the “voluntary jurisdiction” (arts. 1207–1415). In these relatively few articles of part two was included for the first time in our country a systematic codification of the rules on the non-controversial matters.

After numerous drafts to update the Civil Procedural Law, in 1881 was enacted a new Ley de Enjuiciamiento Civil (LEC 1881), which has been in effect – not without important partial reforms – to govern the main Spanish civil proceedings until January 8, 2001. This important, but quite out-of-date Code was divided into three parts: one dedicated to common legal provisions; the second one dedicated to the contentious jurisdiction and the third one precisely to the voluntary jurisdiction (arts. 1811–2181)281. The rules contained in Book III of this Code, and a few others, are those that regulated the Voluntary Jurisdiction in Spain mainly until July 23 th 2015282.

281Vid. GÓMEZ ORBANEJA, E., and HERCE QUEMADA, V., Derecho Procesal Civil, T. II, 6 ª ed, Madrid, 1969; FERNÁNDEZ DE BUJÁN, A.,[_ La jurisdicción voluntaria,] Madrid, 2001, and particularly LIÉBANA ORTÍZ, J. R., [_Fundamentos dogmáticos de la jurisdicción voluntaria,] Madrid, 2012, pp. 25–37.

282Law 15/2015, July 2 nd, of Voluntary Jurisdiction. Final provision twenty-first. Entry into force:

“The present law will come into force on the twenty days of its official publication in the “Official State Gazette” except:

1. The provisions of Chapter III of Title II of this Act, which regulate adoption, which will come into force when the Law on Modification of the System for the Protection of Children and Adolescents comes into force.

2. The provisions of Title VII of this Law that regulate voluntary auctions held by the judicial Secretaries and those of Chapter V of Title VII of the Law of May 28, 1862, of Notaries contained in the eleventh final provision, which establish the regime of notarial auctions, which will enter into force on October 15, 2015.

3. Amendments to Articles 49, 51, 52, 53, 55, 56, 57, 58, 62, 65 and 73 of the Civil Code contained in the First Final Provision, as well as amendments to Articles 58, Final provision two and final provision five bis of Law 20/2011, of July 22, of the Civil Registry, included in the fourth final provision, regarding the processing and celebration of civil marriage, which will enter into force on June 30, 2017.

4. Amendments to article 7 of the State Cooperation Agreement with the Federation of Evangelical Religious Entities of Spain, approved by Law 24/1992, of November 10; Those of Article 7 of the State Cooperation Agreement with the Federation of Israeli Communities of Spain, approved by Law 25/1992 of 10 November; And those of article 7 of the State Cooperation Agreement with the Islamic Commission of Spain, approved by Law 26/1992, of November 10, contained in the final provisions of the fifth, sixth and seventh respectively, which will enter into force on June 2017.

5. The provisions of Section 1 of Chapter II of Title VII of the Law of May 28, 1862, of Notaries, contained in the eleventh final provision, which establish the rules governing the marriage certificate and the public deed of Marriage, which will enter into force on June 30, 2017”.

And what is Voluntary Jurisdiction in Spanish context? Right now, we have a legal definition in art. 1.2 Law 15/2015, July 2 nd: “All those proceedings that require the intervention of a judicial body for the protection of rights and interests in matters of civil and commercial law, without there being any controversy that must be substantiated in a contentious process”283. So, they are Voluntary Jurisdiction proceedings those that are used for Private Law, but without controversial questions and even so, it is considered that must decide on them a jurisdictional public body284.

283It’s realistic the assertion of GENGHINI, L., [_La volontaria giurisdizione, _]Padova, 2006, p. 3: “La nozione di volontaria giurisdizione non può essere contenuta in un’una definizione, perché essa comprende procedimenti molto diversi tra loro, che non permettono di essere ricondotti ad unità”.

284As explains RAMOS MÉNDEZ, F., El juicio civil,[_ _]Barcelona, 2015, pp. 266–267: the final reason for this attribution is linked, according to the explanatory memorandum of the law, to the existence of assumptions that justify the establishment of limitations to the autonomy of the will in the private law field, which prevent a certain legal effect when the relevance of the matter affected, the nature of the interest at stake or its impact on the statute of the interested parties or affected, so justify. Or, with the impossibility of having the assistance of individual wills needed to constitute or give effect to a certain right.

On the deep debate on the contentious or non-contentious criterium, vid. FERNÁNDEZ DE BUJÁN, A., Hacia una Teoría General de la Jurisdicción Voluntaria (I), Madrid, 2207, pp. 24–48.

Before this new Law, the regulation of Voluntary Jurisdiction was mainly that included in Book III of the Spanish Civil Procedural Code (Ley de Enjuiciamiento Civil) from 1881, and some other articles of the Book I (“Common Rules of Contentious and Voluntary Jurisdictions”) as article 4, 10 and 11 on the technical assistance and representation in these proceedings and article 63 on the territorial competence rules in voluntary jurisdiction cases. Also in Book II there was the extrajudicial conciliation norms and the procedure for the [_abintestato _]heir declaration.

We must say that the contentious civil procedure had been renovated by a new Ley de Enjuiciamiento Civil approved in January 7 th 2000 (Ley 1/2000) with a year of [_vacatio legis. _]This is our new Civil Procedure Code, but now only dedicated to the contentious matter. Indeed, the Derogatory Provision of the new Code expressly maintains in force the articles mentioned in the previous paragraph until will be approved a special law called Voluntary Jurisdiction Act. The 18 th Final Provision of the Ley1/2000 orders to the Government to present a proposal of Voluntary Jurisdiction Act to the Legislative Power in a six months” term. This term was broadly unfulfilled, until entered into force the Law 15/2015, July 2 nd, of Voluntary Jurisdiction.

So, just before this moment, this questions were still regulated by a then not yet derogated big part of the ancient Civil Procedure Code of 1881. It was a steady affirmation that the Spanish provision on voluntary jurisdiction was too much heterogeneous. In fact, they were proceedings too up to date, I mean, not used nowadays. Others were perfectly transferable to other bodies, not judicial bodies, but to the Clerk, who is a Procedural Law specialist in our System or even others extrajudicial persons, as it has been made later.

The authors used to organize that enormous variety of proceeding for didactical purposes and so they distinguished two great fields:

1. Voluntary jurisdiction on civil affairs

2. Voluntary jurisdiction on commercial affairs

The first chapters of the LEC 1881 Book III were dedicated to regulate the civil affairs, but in an incomplete manner. There were others in other Codes (Civil Code) or Special Laws (Mortgage Law). There was as well an important lack of systematic order that made so difficult a clear explanation of this matter285. The usual way seen in the Spanish doctrine was as follows:

285From a critical view vid. FERNÁNDEZ DE BUJÁN, A., “La reforma de la Jurisdicción voluntaria: problemas, interrogantes, soluciones”, [_Diario La Ley, _]n. 6216, 23 de marzo de 2005.

Civil Affairs

a.Proceedings related to other procedural institutions

i.Qualification to appear at a civil contentious procedure

ii.Appointment of a judicial defender

iii.Information for a perpetual memory

b.Persons Law Proceedings

i.Appointment for the case of disappearing of a person

ii.Absence declaration

iii.Death declaration

iv.Presentation of the absent person

c.Things Law Proceedings

i.Judicial possession

ii.Demarcations of boundaries

iii.Some special rules on demarcation and apportionment of charges

iv.Ownership in non-contentious proceedings

v.Common knowledge declarations

vi.Proceedings to exempt charges

d.Copyright Proceedings

i.Authorization to spread a work

ii.Determination of the author’s remuneration

iii.Correcting of omission in the editions contract

iv.Determination of the term to exploit a work

e.Obligations Law Proceedings

i.Disposal of underage’s and disabled’s goods

ii.Voluntary auction sales

iii.Judicial consignment

f.Family Law Proceedings

i.Dispenses to get married

ii.Civil marriages

iii.Sheltering and adoption

iv.Tutorage

v.Provisional measures to protect children

vi.Returning of underage from a international kidnapping

vii.Measures on the children’s property

viii.Recognition of extramarriage sons or daughters

ix.Emancipation of underage

x.Determination of the marriage domicile

xi.Measures on unofficial tutor

g.Inheritance Law Proceedings

i.Creation of a public document from a will

ii.Opening of a closed will

iii.Protocolize a holographic will

Commercial Affairs

a.Proceedings on commercial documents

i.Entrusting of commercial documents

ii.Recognition of commercial documents

iii.Consignation of a bill of exchange

iv.Declaration of robbery, theft or lose

b.Proceedings on commercial companies

i.Appointment of a manager in collective companies

ii.Examination of books and documents

iii.Judicial control of not monetary contributions in joint-stock companies

iv.Appointment of an auditor for a joint-stock company dissolution

c.Proceedings on insurance contracts

i.Appointment of experts

ii.Judicial declaration in casualties

d.Proceeding on sea commerce

i.Justification and liquidation of general averages

ii.Opening of hatchways

iii.Unloading

iv.Dereliction of merchandises for paying freights

v.Deposit of merchandises for paying freights

vi.Deposit to guarantee the cargo value

vii.Right to ship for a co-owner

viii.Incident in a chartering contract

ix.Disposition of commercial documents in urgent cases

x.Repairing a ship

xi.Bottomry loan

xii.Obtaining supplies during the navigation

The Government approved a Draft Law in October 2006286 to reform all these rules and accomplish the Parliamentary order contained in the Civil Procedural Code (LEC 200) after 125 years of applying this rules. But the real origin was the Proposal approved a year earlier by the Codification General Commission287.

286[_Vid. Proyecto de Ley de Jurisdicción Voluntaria. Boletín de Información. Ministerio de Justicia, _]Suppl. to n. 2015, 15 de noviembre de 2006.

287Vid. Anteproyecto de Ley de Jurisdicción Voluntaria. Boletín de Información. Ministerio de Justicia, _]octubre de 2005. [_Vid. _]FERNÁNDEZ DE BUJÁN, A., “El nuevo perfil de la jurisdicción voluntaria en el Anteproyecto de Ley de octubre de 2005 (De la tutela de relaciones jurídicas privadas a la protección de intereses generales, públicos o sociales), [_Diario La Ley,[_ _]n. 6500, 8 de junio de 2006.

The Proposal sets a configuration of voluntary jurisdiction in the judicial area, except certain acts, which are adjudicated in favor of notaries and registrars and are subject to specific legislation. So, art. 1 considers acts of voluntary jurisdiction: “all those in which the intervention of a court is necessary or requested without being engaged or promoted any dispute between known and determined parties, without prejudice to the possibility of opposition in accordance with what is regulated in this law”. This regulation was an obvious modernization and a good model for the ancient European norms still in force.

Later, in june of 2006, the Ministry of Justice presented a new text where it was changed the main tendence of the Proposal: Instead of a manly judicial approach a more administrative conception of Voluntary Jurisdiction to transfer some issues to notaries” public offices or recorder of deeds. In fact, the declarations of heirs [_abintestato _]was an exclusive matter for notaries. But proceedings on persons and family were maintained as judicial exclusive ones288.

288Vid. _]SEOANE CACHARRÓN, J., “Breve examen crítico del Anteproyecto de Ley de Jurisdicción Voluntaria del Ministerio de Justicia de 1 de junio de 2006”, [_Diario La Ley,[_ _]n. 6559, 28 de septiembre de 2006.

The Government Draft was based on the Ministry text: “Draft of Law on Voluntary Jurisdiction to facilitate and speed the protection and guarantee of the persona rights and civil and commercial matters”. The structure was as follows:

1. General Provisions

2. Administration of voluntary jurisdiction proceedings

3. Conciliation

4. Personal matters proceedings

5. Family matters proceedings

6. Real rights matters proceedings

7. Obligations matters proceedings

8. Successions matters proceedings

9. Commercial matters proceedings

10. Maritime Law matters proceedings

It’s important to point out that this draft followed the idea of a new distribution of cases between different public organs and functionaries or privates but with public functions: Clerks, notaries and recorders of deeds, and so to unload the heavy judicial work and to protect indirectly the human right to the proceedings in a reasonable term. This regulation implied, anyway, a certain dejudicialization. Judges still were only exclusively competent for personal and family matters. Another purpose of the draft was the codification of the proceedings regulated in special laws and the simplification of them, but that was only partially reached. Also, I should stress that the guarantees increase in these proceedings, maintaining a formal way but with even more flexibility289.

289[Vid. _]FERNÁNDEZ DE BUJÁN, A., “Observaciones al Proyecto de Ley de Jurisdicción Voluntaria, de octubre de 2006”, _Diario La Ley, n. 6599 and 6600, 27 y 28 de noviembre de 2006. LACUEVA BERTOLACCI, R., “Algunas reflexiones sobre el Proyecto de Ley de Jurisdicción Voluntaria”, Diario La Ley, _]n. 6755, 12 de julio de 2007. DEL RÍO FERNÁNDEZ, L., “El nuevo perfil de la Jurisdicción Voluntaria”, [_Diario La Ley,[_ _]n. 6770, 3 de septiembre de 2007. SEOANE CACHARRÓN, J., “Examen del procedimiento judicial común en el Proyecto de Ley de Jurisdicción Voluntaria”, [_Diario La Ley, _]n. 6773, 6 de septiembre de 2007.

Some political problems and, above all, the pressure of the lobbies provoked that in October 2007 the Draft was retired from the Spanish Senate290. The aim of this Draft was good, but insufficient: We think that the voluntary jurisdictions cases should be restricted, and the other cases, now regulated as voluntary jurisdiction proceedings should be given up to notaries and other private persons with public functions. In Spain it was very clear the necessity of a great actualization of that topic but the struggle between different interest groups of professionals stopped the reform. The government, which has serious economic problems, wanted not to complicate even more his agenda.

290Vid. _]FERNÁNDEZ DE BUJÁN, A., “Esperando a la Jurisdicción Voluntaria”, [_ABC,[_ _]11 de diciembre de 2007.

There is an important paper by Professor Francisco RAMOS MÉNDEZ291[_ _]where this scholar put on the discussion the main question: “What a dose of voluntary jurisdiction do we need?”. I share many of his opinions. The idea is to reduce the voluntary jurisdiction because the great majority of voluntary proceedings should not be so. They were there for historical and practical reasons, and above all for the big practical obstacles for reforming all that current regulation. It is not fair that the controversial cases have big delays and the same judge must resolve also much of the non-controversial cases, where only a guarantee of rights is needed, but not a real jurisdiction exercise, I mean, it is no necessary a sovereign act of actual judging.

291RÁMOS MÉNDEZ, F., Justicia,[_ 2006 Revista de Derecho Procesal,][ _]n. 3–4.

Another perspective that it’s worth to think about is if some of the traditional voluntary jurisdiction proceedings would be appropriate to being submitted at ADR procedures. I’m sure that some of them are so.

The primary conclusion would be that some of the voluntary proceedings could be reserved to the judge decision, because of the important interests involved, but the vast majority of the current proceedings should be dejudicializated without any serious difficulty. Anyway we should take care of the financial consequences of it: the attribution of certain procedures at private professionals could bear an increase of the fees for obtaining an act with all the juridical guarantees. So we think that the cases in which this guarantee is absolutely necessary, they should not be attributed to private professionals, but only to public functionaries.

And finally, as we said, a new Law was passed on July 2 nd: Law 15/2015, of Voluntary Jurisdiction292, that will be examined in the next pages.

292Vid. _]FERNÁNDEZ DE BUJÁN, A., [_La reforma de la Jurisdicción Voluntaria. Textos prelegislativos,[_ legislativos y tramitación parlamentaria,][ _]Madrid, 2015.

§ 4.2 The Idea of Voluntary jurisdiction in the Legal Spanish System

4.2.1 Legal Nature of Voluntary Jurisdiction and Authorities Responsible for Considering Voluntary Jurisdiction Cases

From long time ago one of the principal questions on the voluntary jurisdiction in Spain was just this one: who should consider these matters of voluntary jurisdiction? But only [_de lege ferenda¸ _]i. e., by doctrinal scholars or by some drafts for a new regulation, as we have already said.

It has been revealed the historical importance that the so-called “voluntary jurisdiction” affairs were conducted by a escribano público, historic ascenstor of both notaries and court Clerks. The purpose was clear: to provide certainty and legal guarantee to these affairs. In 1881 the regulation in Spain defined acts of voluntary jurisdiction as “all those by which it is necessary, or can be requested the intervention of the judge without being involved – nor being promoted – any issue between known and certain parts” (art. 1811 LEC 1881) and now art. 1.2 of Law 15/2015, July 2 nd: “All those proceedings that require the intervention of a judicial body for the protection of rights and interests in matters of civil and commercial law, without there being any controversy that must be substantiated in a contentious process”.

From the constitutional point of view there is any difficulty in this. Article 117.3 of the Spanish 1978 Constitution entrusts Courts with the function to judge and enforce judicial decisions, but in the following section (4 th) to this main function they are added others with a single condition: that they were assigned to them by law in guarantee to any right. And, as we know, what is intended in matters of voluntary jurisdiction is precisely the guarantee of the rights involved.

However, while the function of judging and enforcing judicial decisions is exclusive of the Courts, the guarantee of the rights may be exercised by other public subjects, or at least, by private subjects that exercise public functions. And this is where has been greater discussion and greater pressures, in one sense or another completely different, to avoid certain preparatory legislative drafts were passed on in the Spanish Parliament in last years.

So the Jurisdictional Body competent in voluntary jurisdiction cases are the Juzgados de Primera Instancia, these are the ordinary civil jurisdictional unipersonal courts in the Spanish System to decide on first grade of jurisdiction in civil matters (art. 85.2 Judicial Power Organic Law – LOPJ – and 2109 LEC 1881). But in commercial issues they are the Commercial Judges(“Juzgados de lo Mercantil”) those who have jurisdiction.

From the text of the LEC 1881 we could not infer any final consequence on the nature, judicial or administrative, of the voluntary jurisdiction provisions. At first glance we would speak of judicial activity, and it’s clear by what is said in the prior answer. But it is not the same in our System the judicial activity and the jurisdictional activity, as the first one would mean only the judicial presence but it would say us nothing about the activity nature, whereas the jurisdictional activity would mean an exercise of the judicial power to judge or enhance the judicial decisions. The point of disagreement, of course, has been this later.

Some of the authors who studied this matter are in favor of the thesis of a real jurisdictional activity in voluntary jurisdiction cases (RAMOS MÉNDEZ, GÓMEZ DE LIAÑO, FERNÁNDEZ DE BUJÁN), others write on material administrative but formal judicial acts (SERRA DOMÍNGUEZ, FAIRÉN GUILLÉN), others on a private activity through an administrative way before the Courts (GUASP DELGADO, ARAGONESES ALONSO, PRIETO CASTRO), and some others on pure administrative acts in spite of the judicial presence (COUTURE, LIÉBANA ORTIZ), and still others even have spoken of a[_ tertium genus ](ALCALÁ-ZAMORACASTILLO)293[._]

293Vid. _]FERNÁNDEZ DE BUJÁN, A., [_La jurisdicción voluntaria,[_ ]Madrid, 2001, pp. 57–108; SÁNCHEZ GÓMEZ, R., “La naturaleza jurídica de la jurisdicción voluntaria según la delimitación prevista en la Ley 15/2015, de 2 de julio, de la Jurisdicción Voluntaria”,[ Diario La Ley,][ ]n. 8623, 13 de octubre de 2015; BANACLOCHE PALAO, J., [_Los nuevos expedientes y procedimientos de jurisdicción voluntaria. Análisis de la Ley 15/2015,][_ de 2 de julio,][ _]Madrid, 2015, pp. 27–29.

The main reason of this great historical disagreement could be the extraordinary heterogeneity of the cases that we put under the title “voluntary jurisdiction”, whose nature can be so much varied. And this has been taken in strict consideration when the legislative has undertaken an up-to-day of our so old regulation. This implied a big restriction of the cases and a great reorganization of the entire matter.

What has been the Courts opinion? The Spanish Supreme Court (Administrative Chamber) has defended the jurisdictional thesis, for instance, in STS May 22, 2000 on the nature of a proceedings include in the mortgage regulation; the Civil Chamber of the same High Court in STS April 28, 2003, has recognized the “fluidity of the limits between contentious and voluntary jurisdiction”. But the same Chamber has emphasized the nonexistence of[_ res iudicata _]effect in the voluntary jurisdiction procedures (STS October 18, 2007).

Already a resolution ([_auto) _]of the same Chamber of September 24, 2002, had established that: “acts of voluntary jurisdiction, in which the intervention of the judicial authority is not given by the existence of a dispute or controversy between warring parties but that his presence is required because of the exigency of the Law, when he or she has to receive personal declarations of private will, so then this judicial presence is a formal requirement from which depends the effectiveness of the act, directed to interpret or apply the law to the case which is subjected, giving to this act constitutive effects, that produce the attribution of rights for those involved or simply confirm already existing rights. In the Spanish procedural legal order the acts of voluntary jurisdiction have also been characterized by not producing executive effect – at least strict meaning – nor material res judicata material effect, so it can be submitted the case in contentious way through the contentious procedure that corresponds.”

4.2.2 The Scope and Viability of Non-Contentious Jurisdiction. Statistics

Art. 1.1 of Law 15/2015, July 2 nd has a broad scope: all the Voluntary Jurisdiction issues should be included in this regulation. As we said: all those proceedings in which intervenes a judicial body to protect private rights, when it doesn’t exist any controversy, because in that case the question should be resolved in a contentious process.

On whether the procedures of non-controversial cases resolution relate to civil procedure or administrative (other) procedure, they do, but only in an excluding way. The article 1823 LEC 1881 stated that the voluntary jurisdiction cannot be accumulated to any contentious proceedings. Now art. 6 Law 15/2015: “It is not possible to initiate or continue with the proceeding of a file of voluntary jurisdiction that is seen on an object that is being substantiated in a contentious process. Once the presentation of the corresponding claim has been proven, the proceedings will be filed, and the documents will be sent to the court that is hearing the judicial process to incorporate it into the records”. Also “The suspension of the proceedings shall be agreed upon when there is evidence of a contentious judicial process whose resolution may affect it, and the incident must be processed in accordance with the provisions of article 43 of the Law on Civil Procedure”.

Art. 1817 LEC 1881, when in an ordinary voluntary jurisdiction proceeding there is some opposition by someone who has interest in the affair, established that this procedure was converted in a contentious one, without any changes in the situation of interested persons and the object of that procedure. The new procedure originally was that that corresponds depending to the value of the claim; it is to say, according the ordinary provisions of the civil procedure. Anyway, Derogatory Rule 1, 1.a 4.a LEC provided that the new procedure would be the small claims procedure (juicio verbal). But this regulation was no without exceptions, because of the structure of some particular voluntary jurisdiction proceedings the contradiction must be postponed to the resolution to that voluntary case (for instance, he opposition in the adoption procedure).

These rules have been derogated, so the opposition in a voluntary proceeding not will convert the proceedings in contentious process. Even it will go on the procedure with the opposition in the way that we will explain in the next part of this study.

According the 2015 Report of the Consejo General del Poder Judicial (CGPJ) – Judiciary Power General Council, approved by the entire Council on July 22 nd, 2015, after four years of declines, there has been a slight rebound in the number of matters entered in all jurisdictions. 8,653,160. 0.2 % more than in 2013. Civil Courts shown in 2014 the greatest increase in the number of 1,845,173, representing 10.5 % more than those admitted in 2013. 1,858,579 cases have been resolved, 2.4 % more than in 2013, leaving 1,009,392 in process at the end of 2014, 1.9 % less than those that remained by the end of 2013.

The voluntary jurisdiction number of cases has been increased 3,8 %, so not confirming a long diminishing tendency in the last years. The more accurate data are as follows, by Spanish Autonomous Communities 294:

294Of course, these numbers have not been influenced yet by the reform of the Voluntary Jurisdiction that is by Law 15/2015, July 2 nd.

|~. p<>{color:#222221;}. Region |~. p={color:#222221;}. Initiated |~. p={color:#222221;}. Finished |~. p={color:#222221;}. In proceedings |~. p={color:#222221;}. Variation | |~. p<>{color:#222221;}. ANDALUCÍA |~. p={color:#222221;}. 8.226 |~. p={color:#222221;}. 8.734 |~. p={color:#222221;}. 6.041 |~. p={color:#222221;}. 1,3 % | |~. p<>{color:#222221;}. ARAGÓN |~. p={color:#222221;}. 1.802 |~. p={color:#222221;}. 1.746 |~. p={color:#222221;}. 799 |~. p={color:#222221;}. 3,4 % | |~. p<>{color:#222221;}. ASTURIAS |~. p={color:#222221;}. 2.119 |~. p={color:#222221;}. 2.121 |~. p={color:#222221;}. 649 |~. p={color:#222221;}. 1,3 % | |~. p<>{color:#222221;}. BALEARIC ISLANDS |~. p={color:#222221;}. 1.318 |~. p={color:#222221;}. 1.311 |~. p={color:#222221;}. 704 |~. p={color:#222221;}. 8,0 % | |~. p<>{color:#222221;}. BASQUE COUNTRY |~. p={color:#222221;}. 3.747 |~. p={color:#222221;}. 3.607 |~. p={color:#222221;}. 1.457 |~. p={color:#222221;}. 2,8 % | |~. p<>{color:#222221;}. CANARY ISLANDS |~. p={color:#222221;}. 2.064 |~. p={color:#222221;}. 2.172 |~. p={color:#222221;}. 2.088 |~. p={color:#222221;}. 8,9 % | |~. p<>{color:#222221;}. CANTABRIA |~. p={color:#222221;}. 1.205 |~. p={color:#222221;}. 1.133 |~. p={color:#222221;}. 469 |~. p={color:#222221;}. -0,2 % | |~. p<>{color:#222221;}. CASTILLE AND LION |~. p={color:#222221;}. 5.652 |~. p={color:#222221;}. 5.562 |~. p={color:#222221;}. 3.144 |~. p={color:#222221;}. -0,2 % | |~. p<>{color:#222221;}. CASTILLE-LA MANCHE |~. p={color:#222221;}. 2.446 |~. p={color:#222221;}. 2.573 |~. p={color:#222221;}. 1.997 |~. p={color:#222221;}. 2,1 % | |~. p<>{color:#222221;}. CATALONIA |~. p={color:#222221;}. 6.370 |~. p={color:#222221;}. 5.935 |~. p={color:#222221;}. 4.493 |~. p={color:#222221;}. 4,5 % | |~. p<>{color:#222221;}. EXTREMADURA |~. p={color:#222221;}. 1.342 |~. p={color:#222221;}. 1.382 |~. p={color:#222221;}. 768 |~. p={color:#222221;}. 2,0 % | |~. p<>{color:#222221;}. GALICIA |~. p={color:#222221;}. 5.443 |~. p={color:#222221;}. 4.733 |~. p={color:#222221;}. 3.022 |~. p={color:#222221;}. 7,2 % | |~. p<>{color:#222221;}. MADRID |~. p={color:#222221;}. 8.003 |~. p={color:#222221;}. 7.833 |~. p={color:#222221;}. 4.237 |~. p={color:#222221;}. -0,1 % | |~. p<>{color:#222221;}. MURCIA |~. p={color:#222221;}. 1.671 |~. p={color:#222221;}. 1.899 |~. p={color:#222221;}. 1.070 |~. p={color:#222221;}. 0,6 % | |~. p<>{color:#222221;}. NAVARRA |~. p={color:#222221;}. 1.295 |~. p={color:#222221;}. 1.170 |~. p={color:#222221;}. 618 |~. p={color:#222221;}. 6,7 % | |~. p<>{color:#222221;}. RIOJA |~. p={color:#222221;}. 520 |~. p={color:#222221;}. 456 |~. p={color:#222221;}. 267 |~. p={color:#222221;}. 8,1 % | |~. p<>{color:#222221;}. VALENCIAN COM.
~.
p={color:#222221;}. 5.937
~.
p={color:#222221;}. 3.643
~.
p={color:#222221;}. 14,9 %
~.
p={color:#222221;}. 59.154
~.
p={color:#222221;}. 58.304
~.
p={color:#222221;}. 35.466
~.
p={color:#222221;}. 3,8 %

The data on conciliation proceedings are put aside, as follows: They have been initiated 93.990 conciliation cases, 15,3 % less than in 2013. The had been derived to mediation 1.252 cases, 16,5 more than in 2013. Only 10 % finished by agreement. In Family Courts had been derived to mediation 5.723 cases: 53,2 % more than in 2013. The agreements were 18,2 %. By Autonomous Communities:

ORDINARY CASES

| p<>{color:#222221;}. Region | p={color:#222221;}. Derived to Mediation | p={color:#222221;}. Agreements | p={color:#222221;}. No Agreements | |~. p<>{color:#222221;}. ANDALUCÍA |~. p={color:#222221;}. 383 |~. p={color:#222221;}. 7 |~. p={color:#222221;}. 273 | |~. p<>{color:#222221;}. ARAGÓN |~. p={color:#222221;}. 29 |~. p={color:#222221;}. 4 |~. p={color:#222221;}. 14 | |~. p<>{color:#222221;}. ASTURIAS |~. p={color:#222221;}. 3 |~. p={color:#222221;}. 2 |~. p={color:#222221;}. 4 | |~. p<>{color:#222221;}. BALEARIC ISLANDS |~. p={color:#222221;}. 27 |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 3 | |~. p<>{color:#222221;}. BASQUE COUNTRY |~. p={color:#222221;}. 63 |~. p={color:#222221;}. 25 |~. p={color:#222221;}. 12 | |~. p<>{color:#222221;}. CANARY ISLANDS |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 | |~. p<>{color:#222221;}. CANTABRIA |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 | |~. p<>{color:#222221;}. CASTILLE AND LION |~. p={color:#222221;}. 10 |~. p={color:#222221;}. 3 |~. p={color:#222221;}. 3 | |~. p<>{color:#222221;}. CASTILLE-LA MANCHE |~. p={color:#222221;}. 35 |~. p={color:#222221;}. 8 |~. p={color:#222221;}. 25 | |~. p<>{color:#222221;}. CATALONIA |~. p={color:#222221;}. 371 |~. p={color:#222221;}. 15 |~. p={color:#222221;}. 234 | |~. p<>{color:#222221;}. EXTREMADURA |~. p={color:#222221;}. 2 |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 2 | |~. p<>{color:#222221;}. GALICIA |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 | |~. p<>{color:#222221;}. MADRID |~. p={color:#222221;}. 191 |~. p={color:#222221;}. 9 |~. p={color:#222221;}. 152 | |~. p<>{color:#222221;}. MURCIA |~. p={color:#222221;}. 17 |~. p={color:#222221;}. 1 |~. p={color:#222221;}. 8 | |~. p<>{color:#222221;}. NAVARRA |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 | |~. p<>{color:#222221;}. RIOJA |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 1 |~. p={color:#222221;}. 0 | |~. p<>{color:#222221;}. VALENCIAN COM.
~.
p={color:#222221;}. 10
~.
p={color:#222221;}. 37
~.
p={color:#222221;}. 1.252
~.
p={color:#222221;}. 85
~.
p={color:#222221;}. 767
~.
p={color:#222221;}. 16,5 %
~.
p={color:#222221;}. 4,9 %
~.
p={color:#222221;}. -10,2 %

FAMILY CASES

| p<>{color:#222221;}. Region | p={color:#222221;}. Derived to Mediation | p={color:#222221;}. Agreements | p={color:#222221;}. No Agreements | |~. p<>{color:#222221;}. ANDALUCÍA |~. p={color:#222221;}. 1163 |~. p={color:#222221;}. 124 |~. p={color:#222221;}. 729 | |~. p<>{color:#222221;}. ARAGÓN |~. p={color:#222221;}. 183 |~. p={color:#222221;}. 21 |~. p={color:#222221;}. 134 | |~. p<>{color:#222221;}. ASTURIAS |~. p={color:#222221;}. 31 |~. p={color:#222221;}. 1 |~. p={color:#222221;}. 12 | |~. p<>{color:#222221;}. BALEARIC ISLANDS |~. p={color:#222221;}. 121 |~. p={color:#222221;}. 12 |~. p={color:#222221;}. 67 | |~. p<>{color:#222221;}. BASQUE COUNTRY |~. p={color:#222221;}. 376 |~. p={color:#222221;}. 115 |~. p={color:#222221;}. 152 | |~. p<>{color:#222221;}. CANARY ISLANDS |~. p={color:#222221;}. 170 |~. p={color:#222221;}. 31 |~. p={color:#222221;}. 75 | |~. p<>{color:#222221;}. CANTABRIA |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 0 | |~. p<>{color:#222221;}. CASTILLE AND LION |~. p={color:#222221;}. 144 |~. p={color:#222221;}. 12 |~. p={color:#222221;}. 96 | |~. p<{color:#222221;}. CASTILLE-LA MANCHE |~. p={color:#222221;}. 78 |~. p={color:#222221;}. 18 |~. p={color:#222221;}. 36 | |~. p<>{color:#222221;}. CATALONIA |~. p={color:#222221;}. 1.393 |~. p={color:#222221;}. 85 |~. p={color:#222221;}. 477 | |~. p<>{color:#222221;}. EXTREMADURA |~. p={color:#222221;}. 99 |~. p={color:#222221;}. 6 |~. p={color:#222221;}. 87 | |~. p<>{color:#222221;}. GALICIA |~. p={color:#222221;}. 279 |~. p={color:#222221;}. 51 |~. p={color:#222221;}. 81 | |~. p<>{color:#222221;}. MADRID |~. p={color:#222221;}. 371 |~. p={color:#222221;}. 18 |~. p={color:#222221;}. 292 | |~. p<>{color:#222221;}. MURCIA |~. p={color:#222221;}. 100 |~. p={color:#222221;}. 6 |~. p={color:#222221;}. 57 | |~. p<>{color:#222221;}. NAVARRA |~. p={color:#222221;}. 37 |~. p={color:#222221;}. 6 |~. p={color:#222221;}. 5 | |~. p<>{color:#222221;}. RIOJA |~. p={color:#222221;}. 2 |~. p={color:#222221;}. 0 |~. p={color:#222221;}. 2 | |~. p<>{color:#222221;}. VALENCIAN COM.
~.
p={color:#222221;}. 91
~.
p={color:#222221;}. 389
~.
p={color:#222221;}. 5.723
~.
p={color:#222221;}. 597
~.
p={color:#222221;}. 2.691
~.
p={color:#222221;}. 53,2 %
~.
p={color:#222221;}. 27,3 %
~.
p={color:#222221;}. 25,6 %

§ 4.3 The New Spanish Regulation of Voluntary Jurisdiction

4.3.1 The Regulative Basis

The so called “Law of Voluntary Jurisdiction” was approved by Law 15/2015, July 2 nd (Official Diary July 3 th 2015) fourteen years later than LEC was provided in Final Rule n. 18 th: “Within one year from the date of entry into force of this Law, the Government will send to the Cortes Generales a Draft Law on Voluntary Jurisdiction”295.

295On a critical basis, vid. _]GONZÁLEZ GRANDA, P., [_¿Quo vadis,[_ jurisdicción voluntria_]?[_ (La reestructuración parcial de la materia en la ley 15/2015,][ de 2 de julio,][ de jurisdicción voluntaria,][ _]Madrid, 2015, pp. 61–112.

But the new law not only introduces the Voluntary proceedings. Also modifies a lot of other Laws more or less related to this matter:

•Final provision first. Modification of certain articles of the Civil Code

•Final provision second. Amendment of the Commercial Code

•Final provision third. Modification of certain articles of Law 1/2000, of Civil Procedure

•Final provision fourth. Amendment of Law 20/2011, of July 21, on Civil Registry

•Final provision fifth. Amendment of Law 24/1992, of November 10, approving the agreement of cooperation of the State with the Federation of Religious Entities of Spain.

•Final provision sixth. Amendment of Law 25/1992, of November 10, approving the Agreement of State Cooperation with the Federation of Israeli Communities of Spain

•Final provision seventh. Amendment of Law 26/1992, of 10 November, approving the Agreement of State Cooperation with the Islamic Commission of Spain

•Final provision eighth. Modification of Law 33/2003, of November 3, on Patrimony of Public Administrations

•Final provision ninth. Amendment of Law 50/1980, of October 8, of Insurance Contract

•Final provision tenth. Amendment of Law 41/2003, of 18 November, on the patrimonial protection of persons with disabilities and amendment of the Civil Code, the Law on Civil Procedure and the Tax Rules for this purpose

•Final provision eleventh. Amendment of the Law of May 28, 1862, Notary

•Final provision twelfth. Amendment of the Mortgage Law

•Final provision thirteenth. Amendment of the Law of December 16, 1954, Mortgage and pledge without displacement of possession

•Final provision fourteenth. Amendment of the Consolidated Text of the Capital Companies Act, approved by Royal Legislative Decree 1/2010, of July 2

•Final provision fifteenth. Amendment of Law 211/1964, of December 24, on regulation of the issuance of obligations by Companies that have not adopted the form of Anonymous, Associations or other legal persons and the constitution of the Union of Debtors.

•Sixteenth final provision. Modification of the single transitional provision of Law 33/2006, of October 30, on equality of men and women in the order of succession of titles nobility

•Final provision seventeenth. Amendment of the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws, approved by Royal Legislative Decree 1/2007, of November 16

•Final provision eighteenth. Amendment of Law 10/2012 of 20 November, which regulates certain fees in the area of the Administration of Justice and the National Institute of Toxicology and Forensic Sciences

4.3.2 Judicial Proceedings for Considering Voluntary Jurisdiction Cases and its Main Differences from the Procedure for Considering Contentious Cases

A) Introduction

The description of the Spanish procedure is even in the new regulation quite an impossible mission. There are some general provisions that will be described in the following paragraphs, but by this way the foreigner scholar would appreciate very few of the procedure regulation. The reason is that the every one of the mentioned proceedings has a particular regulation. In fact, the rules contained in chapter two (Rules of proceeding) are only residual: (art. 13: The provisions of this Chapter shall apply to all cases of voluntary jurisdiction insofar as they do not conflict with the rules specifically governing the proceedings in question.). Of course, it is possible also some generalization and in short, we can realize that those proceedings have some features in common: simplicity, flexibility, agility, lack of warring parts, and in the old law sometimes even lack of contradiction296.

296BANACLOCHE PALAO, J., Los nuevos expedientes y procedimientos de jurisdicción voluntaria…,[_ op. cit._], pp. 37–44, explains as general features of the voluntary jurisdiction procedures: “Simplification, partial adjudication, alternative and specialty”.

When the petitioner asks for the some other person declaration, or who holds a genuine interest, o the Judge itself considers it so suitable, he or she will decide the hearing, putting the case openly to the interested for a small and discretionary while – of course, discretionary it’s not the same that totally free: the Judge must decide taking account of the case particular circumstances. In these hearings, it will be heard also the petitioner and the Public Prosecutor when the public interest was in stake and when the case was related to a person or thing under his or her protection). The documents that all they will present will be accepted without any special formality.

A paradoxical question it’s that the voluntariness that appears even in the generic name itself of those proceedings is not real, as we can see in many examples (adoption, justification of damages in the ship…), because in those cases we cannot obtain the effect that we want if we not initiate a proceed as the law provides; so many of those “voluntary proceedings” are not actually voluntary.

B) Procedures

Then, as we said, every one of the proceedings has his own particular regulation, very hard to generalize297. In fact, the procedures include in the new Voluntary Jurisdiction Law are the following:

297RAMOS MÉNDEZ, F. Elogio de la nada procesal,[_ _]Barcelona, 2016, p. 441, Criticizes this legal option: “Of course, multiple casuistic procedures are not necessary. Apart from complicating things unnecessarily, this behavior would be nothing more than an indication of laziness or negligence in the performance of the duties of a good legislator. The “substantive” rules must go in the three above-mentioned directions: deregulating, replacing and simplifying what remains. In these last cases, the procedure must be unique, general and of few articles”.

I. On voluntary jurisdiction in matters of persons

•Authorization or judicial approval of recognition of non-marital filiation

•Authorization to appear in court and the appointment of judicial defender

•On adoption

•Procedure for the exclusion of guardianship functions from the adopter and extinction of the adoption

•International Adoption

•Conversion of simple or incomplete adoption in full

•On guardianship and guardianship

•On the de facto guard

•On the judicial grant of the emancipation and the benefit of the majority of age

•On the protection of the heritage of persons with disabilities

•On the right to honor, to the privacy and to the own image of the minor or person with judicially modified capacity

•Authorization or judicial approval for the performance of acts of disposition, encumbrance or others that refer to the assets and rights of minors and persons with judicially modified capacity

•On the declaration of absence and death

•On the extraction of organs from living donors

II. On voluntary jurisdiction in matters of family

•On the waiver of the marriage impediment

•Judicial intervention in relation to parental authority

•Judicial intervention in cases of disagreement in the exercise of parental authority

•On the measures of protection related to the improper exercise of the custody of custody or administration of the assets of the minor or person with judicially modified capacity

•On Judicial intervention in cases of marital disagreement and in the administration of property assets

III. On voluntary jurisdiction related to inheritance law

•On the inheritance administration

IV. On voluntary jurisdiction related to the Law of obligations

•Fixing the deadline for performance of obligations when appropriate

•On consignment

V. On voluntary jurisdiction related to the real rights

•On judicial authorization to the usufructuary to claim expired credits that form part of the usufruct

•On the demarcation of farms not inscribed

•On Voluntary Auctions

VI. On voluntary jurisdiction in commercial matters298

298Vid. _]RAFÍ i ROIG, F. X.; DÍAZ REVORIO, E., [_Jurisdicción voluntaria en materia mercantil. Tras la Ley 15/2015 de 2 de julio de Jurisdicción Voluntaria,[_ _]Valencia, 2016. On the derogated regulation, but still very interesting RAMOS MÉNDEZ, F., [_La Jurisdicción voluntaria en negocios de comercio, _]Madrid, 1978.

•On the exhibition of books of the people forced to carry accounting

•On Appointment and revocation of liquidator, auditor or financial controller of an entity

•Reduction of share capital and the redemption or disposal of shares From the judicial dissolution of companies

•On the convening of the general meeting of bondholders

•On theft, loss or destruction of title value

•Appointment of expert in insurance contracts

VII. On conciliation

The main differences between voluntary and controversial proceedings are perhaps in terminology: here there is not “demanda” (formal request), but “solicitud” (informal claim); there are not formal “parts”, but only interested participants; not formal proceedings (autos), but informal ones (expediente). These differences are controversial and not always so clearly perceptible. The same could be said on the effect of the judgment: there has been a lot of doctrinal controversy too on the [_res judicata _]effect in voluntary proceedings.

The new law follows those features that the old one had already. What Law 15/2015 makes is a modernization of the regulation, reducing the number of specific proceedings and allowing in some cases alternative out-of-court solutions. The main criticism is the absence of a true common procedure of wider application. There are few general rules and numerous specific for each procedure. As the Law Memorandum itself recognizes (Section IX) that the general rules “give form to a general procedure of voluntary jurisdiction, of subsidiary application to each of the files in what is not specifically established by each of the particular regulations”. So we should remember article 13, to which we have already referred, and have to add the supplementary relationship of the LEC (article 8 Law 15/2015: “The provisions of the Law on Civil Procedure shall be applied in addition to the files of voluntary jurisdiction in all matters not regulated by this Law”).

C) Principles

The main principles that we can deduce of the Voluntary Jurisdiction Procedures are:

•Hearing and contradiction (STC 114/1997, June 16, remembers: “What is fundamental, from the constitutional point of view, is to appreciate whether, in the circumstances of the particular process followed, the holder of the fundamental right has enjoyed a real possibility of defending his legitimate rights and interests, by means of sufficient evidence and evidence when acting respectfully due process of law (SSTC 4/1982, legal basis 5 and 14/1992, legal basis 2)”)299.

299“This has been the case,” continued STC 298/1993, “of the Court’s approach to prosecuting questions of defenselessness, which arose in circumstances analogous to the present, in SSTC 13/1981 and 71/1990. In the first of these Judgments we have already pointed out that the diversity of the cases contemplated in Book III of the Law on Civil Procedure, coupled with the various theses on the legal nature of such manifestations of voluntary jurisdiction, preclude general conclusions on art. 24 C. E. It is necessary, on the contrary, to descend to the particular cases to be seen in the light of the Constitutional Text, bearing in mind some legal features of these judicial proceedings: notably, that the law offers ample occasion of allegations to those who hold legitimate interests in the decision To take, as well as to provide documents and all kinds of justifications, taking into account a lesser formal rigor and the exclusion of preclusion, and that the scope of res judicata is limited, as is clear from arts. 1,813, 1,816 and 1,818 L. E. C., among others (STC 13/1981, legal bases 3 and 4). And in STC 71/1990 it was generally stated that it is not decisive that the procedure followed by the Tribunals to decide on the rights of the parents on their children is unique or specialized, in relation to other procedures established in the laws on common processes, not even when it develops according to rules lacking the rigor and formalism proper to such common procedures. The decisive factor is to specify if, in the proceedings that are the subject of the application for amparo, the basic procedural guarantees protected by the Constitution in its art. 24 (STC 76/1990, legal basis 6.5) “(STC 298/1993, legal basis 6).

•Equality: The Law 15/2015 doesn’t use the expression “procedure parties”, but it should be obvious that in these proceedings there are parties in a broad sense (as we will show supra the interested persons can act in these procedures to defend their rights and interests) and they must be in an equality position from the procedural point of view. Some exceptions are when who intervene is the public prosecutor , that must defend constitutionally the public interests and the legality principle (art. 124 CE).

•Dispositive / Officiality: As the issues at stake are so different, also are the proceedings. So, depending in the predominant interest (public or private) the procedure is dominated by the dispositive principle (expression of the autonomy of the will of private persons) or by officiality principle (expression of the public interest predominance and in consequence of a procedure more attached at the formal Law).

•Orality: The ordinary regulation of the proceeding, i. e., with some exceptions in the specific rules, orders a celebration of the audience with the presence of the judge or the Clerk (depending on the cases) in the term of 30 days after the admission of the petition.

•Immediacy: Depending on the competence, the proceedings must be developed before the judge or the Clerk. We mean, before the person who will decide on the issue.

•Concentration: The application of orality and immediacy principles drive to the concentration principle: the audience should be in one session or in several but close sessions.

D) Subjects

a. Judge and Clerk

Last years (above all, from 2009) in Spanish Civil Procedure It has been a reassessment of procedural functions between the Judges and the [_Letrados de la Adminsitración de Justicia _](called, before 2015, [_Secretarios Judiciales, _]that are public specialists in Procedural Law in the jurisdictional body (as a complex body).

One of the main questions on the Spanish reform, was on this reassessment in voluntary jurisdiction proceedings. So more complex, because of the real lobby of notaries and recorder of deeds.

Always the Clerk will lead the procedure and drive the proceedings. Depending on the cases it will decide the judge or the Clerk itself. Every specific procedure states who does it. It has been a great restriction on the cases in the judges” decision scope. Only when public rights and interests are predominant it will decide the judge (mainly in persons and family procedures).

b. Interested

They can promote the voluntary jurisdiction procedures and intervene in them obviously because of their own interest. So, the rights” or lawful interests” holders are legitimated to initiate these procedures. Also, who can defend a legal position by objective reasons.

Art. 3 Law 15/2015 states also the possibility of initiation officially in some cases or by petition of the Public Attorney.

c. Lawyer

The same article (Art. 3 Law 15/2015) provides that: “Both the applicants and the interested parties must act defended by Lawyer (Abogado) and represented by Procurador in those provide that this Law provides for. However, even if not required by law, parties who so wish may act assisted or represented by Attorney and Procurador, respectively.

In any case, it will be necessary the action of Attorney and Procurador for the presentation of the review and appel that may be filed against the final resolution, as well as from the moment of opposition”300.

300As we can see, in these procedures there is a dual presence of law professionals, following the Spanish tradition in almost all the cases in contentious and non-contentious procedures: It is not the same person who defends the case and the person who represents the applicant or interested person in the procedure. Both, Abogado and Procurador, must have studied Law at the University and later pass some national exams.

d. Public Attorney

The law requires the prosecutors to intervene in cases where the civil status is affected or the condition of the person with legal capacity is modified judicially and in cases in which the law expressly requires it (so, art. 4 Law 15/2015)301.

301However, Instruction 2/2015, from the Public Attorney General, on initial guidelines following the entry into force of the new Voluntary Jurisdiction Law, raises the fear of not being able to meet the demands of intervention of the law. Practical problems are foreseen and solutions are proposed that tend to reduce or prevent the physical presence of the Prosecutor, except for the promotion of concentration of audiences: use of videoconferences, presentation of written opinions whenever possible (“General pattern in cases of impossibility of assistance”), a subsidiary application of art. 183 LEC to announce the impossibility of attending “for reasons of force majeure or another reason of similar entity” and to ask for the transfer of the hearing as soon as possible.

E) General Procedural Structure

a. Initiation

Initiation can take place in three ways:

Ex officio

•At the request of the Public Prosecutor

•At the request of an authorized person

In the application, the applicant should be identified, and where appropriate also with expression of the domicile for notifications. Facts and legal grounds on which the claim is based shall be clearly and precisely stated.

The documents and opinions that are considered of interest and copies for the interested persons will be accompanied.

These persons and their address or form of identification should be identified.

It is envisaged that standard forms will be used, but without any legal basis will be needed when the intervention of Abogado and Procurador is not mandatory. And the possible use of electronic means is also foreseen.

b. Admission

The Clerk will rule on admission, when he is competent: If he sees that the application is not admissible, he should issue a decree of archiving. If the competent it’s the Judge, the Clerk will give account of its criterion, so that the judge will decide what he considers available.

c. Notice

Once the application has been admitted, the interested persons will be summoned to the audience whenever:

•Some interested persons other than the applicant must be heard (oral contradiction);

•It’s necessary to have evidence;

•The Judge or the Clerk competent considers the holding of the audience for a better decision.

The interested persons are summoned fifteen days in advance, warning them to bring the means of proof that they try to use.

d. Possible opposition

The opposition must be formulated within five days of the summons. It is supposed to be grounded. And the procedure will not become contentious, nor will it prevent the continuation of its processing until it is finished, unless the law expressly states otherwise.

The opposing writing shall be immediately transferred to the requesting party.

The change is important, because until 2015 art. 1817 LEC 1881 provided that if in front of the request would be presented an opposition by someone who has an interest in the matter, the procedure will become contentious, without altering the situation that they have, at the time of being initiated, the interested persons and would be subject to the contentious procedures established by the Law according to the respective amount. Although the enactment of the LEC, the sole derogatory provision 1, 1, IV, referred in all cases to small claims process.

e. Audience

In the presence of the Judge or the Secretary, according to the competence rules, the hearing (“comparecencia”) will be held within 30 days of the submission of the request.

Small claims procedure is followed, but with important specialties:

•The absence of the applicant will entail the file of the request, having it for granted. If there is no more of those summoned, the hearing will be held and the proceedings will continue.

•The applicant will be heard, also the others summoned and those who the law requires. It can be ordered too the hearing of those who are affected by the request. There is a specific rule, in addition, for access to information for people with disabilities.

•If procedural issues are raised that may impede the valid prosecution of the proceedings, hearings will be heard on them and will be resolved orally.

•If a minor or a person with a judicially modified capacity is affected, his or her hearing may be agreed in a separate act, without the presence of other persons, except for the Public Attorney, who may attend, and that person may be assisted by specialists. A detailed record will be made and if possible audiovisual recording.

•After the evidence, the conclusions will be orally formulated.

•The documentation of the audience will be made in a medium suitable for recording and reproduction of sound and image.

F) Evidence

The evidence is normally proposed at the request of a party, but there is a wide-ranging provision of proof ex officio: in the cases in which there is a public interest; children or persons with judicially modified capacity are affected or it is considered appropriate to clarify some element relevant and determinative of the matter or when expressly provided by law. Whoever is competent will decide on the admission of the proposed evidence.

G) Coexistence with other procedures

If two procedures with the same object are processed, priority will be given to the one that had been started before and the others will be archived.

It is necessary to accumulate the files when the resolution of one can affect the other or there may be risk of contradictory resolutions. There is a reference to the rules of process accumulation in the small claims contentious procedure, with some specialties in art. 15.

In addition, it’s clear the impossibility of valid initiation or continuation of a proceeding on an issue that is already being processed in a judicial process [_(lis pendens). _]So, the presentation of the corresponding claim would lead to the file of the procedure of voluntary jurisdiction (art. 6.2 Law 15/2015). But also, if the existence of a judicial process whose decision can have effects on the voluntary jurisdiction procedure the last one will be suspended, following the rule of art. 43 LEC.

H) Resolution

Article 1818 LEC 1881 provided that the Judge could vary the interlocutory resolutions, without taking account of time and form foreseen for controversial proceedings. But the second paragraph of this article excluded of this norm the final judicial decisions, when any appeal was presented. About the same was provide for article 2111 LEC 1881, related to commercial

A difference with controversial procedures is that the final decision is an [_auto, _]not a [_sentencia. _](arts. 1818 and 2111 LEC 1881). But the [_autos _]need to be fully motivated, as always in our system.

The new regulation assesses that the decision will be done by Judge’s auto or by Clerk’s [_decreto, _]depending of the competence in particular cases. The decision must fall within five days after the termination of the audience or, if it has not been, after the last evidentiary proceeding performed.

If a minor or a person with a judicially modified capacity is affected, there is a significant change in the limits of congruence: the decision may be based on any facts that have come to light as a result of the allegations of the interested parties, the evidence or the audience, even if they have not been invoked by either the applicant or the other interested parties.

I) Effects. The Problem of Res Judicata

We have already explained that a traditional doctrinal trend points out the lack of [res judicata _]effect as a justification for the decision about the nature of the voluntary proceedings: no[ res judicata ]effect, no jurisdictional nature on voluntary proceedings. But this assertion it’s no so clear: from the article 1818 LEC 1881 we could also deduce the irrevocability of the final decision ([_auto]), are it’s normal in whatever real procedure. And this firmness is the base for the res judicata effect. Another different question is that the objective limits of that effect are small: only related to the petition presented to the Judge, and they will not impede a wider consideration of the question in a controversial procedure. But in this procedure the pretension will be not exactly the same.

So more than the lack of [_res judicata _]effect, we would say better that there it is actually that effect in these cases, the thing is that the [_res judicata _]effect has its objective limits and it would reach only the voluntary jurisdiction scope. Obviously, it may be initiated a later contentious procedure on some aspects or in relationship with or on a situation related to that voluntary jurisdiction case302.

302[Vid. _]RAMOS MÉNDEZ, F.,[ El juicio… op. cit.,][ _]p. 276.

According to the new Law 15/2015 there is an effect impeding from the definitive decision for the initiation of a new proceeding with the same object, unless changed circumstances. There is also a positive effect of the decision on other proceedings or subsequent actions. However, the resolution of a file of voluntary jurisdiction cannot prevent the initiation of a subsequent judicial process for “the same object”, and the resolution issued therein must be pronounced on the confirmation, modification or revocation of the agreement in the voluntary jurisdiction proceeding (art.19.4 Law 15/2015).

J) Expenses

The general rule is that the expenses are paid by the applicant unless the law says otherwise. While the expenses related to witnesses and experts will be borne by the proposer.

K) Appellation and Reconsideration Proceedings

It is possible to appellate the judicial acts of voluntary jurisdiction, as it occurs in controversial judgments. But the appellation regulation is not the same. The ancient regulation (in articles 1819, 1820 and 1821 LEC 1881) had some particular provisions for voluntary jurisdiction proceedings in general, and so for commercial voluntary jurisdiction cases (in articles 2112, 2113, 2114, 2115 and 2116 LEC 1881).

In these regulation the appellation had different effects depending on the person who appeals. If this one was the petitioner, the appeal suspended the proceedings. When who appealed was the interested not petitioner (who was been called by the Judge, who appeared when the procedure was on, or who wanted to present an opposition to the initial petition) the appeal not paralyzed the proceedings. In both cases the appellation resolution was competence of the provincial Court (Audiencia Provincial), and the rules who governed this verification were those related to appellation incidental questions in controversial procedure, so a quite simple proceedings, in fact only one appellation procedure (arts. 455–467 LEC) in the controversial procedures. In the commercial cases, there were some special provisions on single steps (art. 2113 or 2115 LEC 1881), but the differences on the effects depending on who appealed were the same. The judicial decision on these appellations will not be able to be challenged (art 2116 LEC 1881).

Let’s try to outline the regulation on reviewing possibility of a decision according the Law 15/2015:

Against interlocutory resolutions, it is possible the reposicion. This means a review by the same who decided the first time. If it is a decision taken orally during the hearing, it will be processed and resolved verbally and immediately.

Against the final decisions issued by the Judge, the law allows than an appeal may be filed under the LEC, in a single effect, that is: it does not have suspensive effects – it does not impede the execution of the decision-, unless the law expressly provides otherwise.

Against definitive resolutions issued by the Clerk, the interested person can summit an appeal for revision under the LEC, with the possible application of art. 454 bis 3 LEC: “Against the order issued resolving the appeal for review can only be appealed when it ends the procedure or prevents its conclusion”

L) Execution

The art. 22 Law 15/2015 refers to the LEC, and, in particular, to articles 521 and 522, i. e. it refers to the regulation of the enforcement of constitutive judgments. It is further specified that it may be urged immediately to carry out the precise acts to give effectiveness to the decision.

If what is declared in the decision is a fact or act registered in the Civil Registry, an official document will be issued for its registration or annotation.

If it is necessary to register in the Property Registry, Mercantile or any other, at the request of a party a warrant will be issued for its record, which will be sent electronically. The Registrar’s qualification in these cases will be limited.

Case Law

Supreme Court – Civil Chamber

STS May 22, 2000

ATS October 24, 2002

STS April 28, 2003

STS July 7, 2006

STS October 18, 2007

Constitutional Court

STC 114/1997, June 16

STC 124/2002, May 20

STC 75/2005, April 8

STC 18/2006, January 30

STC 58/2008, April 28

STC 61/2010, October 18

STC 133/2010, December 2

List of abbreviations

ADRAlternative Dispute Resolution

ARTArticle

ATS[_Auto del Tribunal Supremo _](Supreme Court Resolution – Civil Chamber)

BOEBoletín Oficial del Estado (State Official Bulletin)

CCCivil Code

CESpanish Constitution

CGPJConsejo General del Poder Judicial (General Council of the Judiciary)

EDEdited by

LEC[_Ley de Enjuiciamiento Civil _](Code of Civil Procedure)

LJVLey de la Jurisdicción Voluntaria (Voluntary Jurisdiction Act)

LOPJLey Orgánica del Poder Judicial (Organic Act of the Judiciary)

NNumber

STSSentencia del Tribunal Supremo (Supreme Court Sentence – Civil Chamber)

TCTribunal Constitucional (Constitutional Court)

STCSentencia del Tribunal Constitucional (Constitutional Court Sentence)

VidSee

Chapter 5

Non-controversial jurisdiction in Finland and Sweden

Laura Ervo

Abstract

In this Chapter I will compare voluntary jurisdiction in East-Scandinavian countries, which are Finland and Sweden. I will discuss the terminology, the nature of voluntary jurisdiction, the recent development, the regulatory basis like actors and forums as well as the scope and procedure including effects, appellation and execution of voluntary jurisdiction in the named countries. Also the fresh statistics will be given. In the end the problems, outcomes, reforms and visions will be taken up.

In Finland and Sweden the voluntary jurisdiction is taken care both by the general courts and administrative bodies depending on the situation. Especially in Finland, the scope of the voluntary jurisdiction has become wider under the recent decades. On the one hand this is due to the fact that there has been a need to create totally new forms to solve problems especially in the field of insolvency law because of the first economic crisis in the beginning of 90´s. Those kinds of examples are reorganizations of firms and loan arrangements of private persons. Also some types of cases which have earlier been normal civil cases have been changed into voluntary jurisdiction. These kinds of examples are divorce cases with their secondary claims and procedures where a person is declared legally incompetent. However, at the same time many registration issues which earlier happened at courts have been moved to administrative bodies and they are no longer taking court resources which can focus better on the disputed cases. In Sweden, the development has been similar. In 2011, many types of cases in the voluntary jurisdiction were moved from the district courts to the competence of the administrative authorities. The idea was that the courts should focus on adjudication and the other authorities should take care of pure administrative issues.

The opinions of the nature of the voluntary jurisdiction do vary a lot especially in the Finnish legal doctrine. Some scholars see it as administration when some others think it is almost pure civil proceedings. This dichotomy will be detailed discussed in the article.

Nowadays it is stressed that the legal services should be cheap, simple and rapid for the individuals. The voluntary jurisdiction and the non-contentious cases easily fulfill the named requirements. Therefore it can be even recommended to cover more and more cases by that system. However, at the same time it makes the legal system incoherent and difficultly controllable. Therefore one of the more general problems is that the field of the voluntary jurisdiction is very heterogeneous in the both countries. Not even the terminology is well established. With the concept of the voluntary jurisdiction it is possible to refer to the non-contentious civil, criminal and administrative cases, in the other words to the different sorts of adjudication. In addition, it usually covers also pure administration like registrations.

In the Chapter all the mentioned issues and many more will be discussed in a detailed and comparative way.

§ 5.1 Concepts

In Finland and Sweden, voluntary jurisdiction is effectuated both by the general courts and by administrative bodies depending on the situation303. In Finland, voluntary jurisdiction is nowadays mostly called “hakemuslainkäyttö” and in Sweden “domstolsärenden”. _]These national terms refer especially to those [_non-contentious civil cases which in Finland are regulated under Chapter 8 of the Code of Judicial Procedure (oikeudenkäymiskaari) and in Sweden under the Act on Non-Contentious Civil Cases (lag om domstolsärenden). The mentioned laws do not, however, cover registrations or other non-contentious administrative cases, or voluntary jurisdiction in criminal matters, which also exist in both countries (cf. e. g. protection orders or coercive measures). Consequently, the aforementioned Finnish and Swedish concepts are not comprehensive enough to cover voluntary jurisdiction as such, and should arguably only be used when referring to non-contentious civil cases rather than to voluntary jurisdiction in general304. This is also the reason why it is advisable to use the Latin term jurisdictio voluntaria instead of Finnish or Swedish terms if the intention is to cover the whole field of different issues traditionally classified as voluntary jurisdiction, including e. g. registrations and all types of non-contentious cases, despite their procedural nature as civil, criminal or administrative cases.

303Kuuliala 2004, p. 639.

304At least nowadays, many colleagues seem to understand the contents of the concept in this very limited way.

The difference between the concepts “special procedures”, “jurisdictio voluntaria’305 and “non-contentious civil cases” is not entirely clear either, and therefore the contents of these concepts vary as well306. Sometimes non-contentious civil cases are mentioned as one type of special procedure, while at the same time many other types of voluntary jurisdiction are not mentioned at all. On the other hand, some special types of non-contentious civil cases, like e. g. bankruptcy and rehabilitative insolvency proceedings, are usually categorized as special proceedings only and thus distinctly not classified as non-contentious civil cases or as jurisdictio voluntaria307.

305[Hassler _]assigns all cases into two groups: (1) the adjudication which happens in civil and criminal proceedings and (2) the voluntary jurisdiction which covers situations where an individual’s rights may be in danger and s/he needs legal protection to counteract future risk. Therefore, the nature of voluntary jurisdiction is constructive but sometimes decisions made by means of voluntary jurisdiction can also have immediate effects. Hassler 1972, p. 144. [_Hassler´s _]classification is clear and traditional but not totally adequate today where many cases which classify as non-contentious (and therefore as voluntary jurisdiction) can have characteristics of adjudication, like e. g. insolvency procedures and family law procedures. In addition, cases can become disputed _during the procedure and after that the case/the procedure becomes almost identical with normal civil cases, which clearly qualify as adjudication.

306See for instance Fitger 2004, pp. 13–21 where the author clarifies the scope and nature of voluntary jurisdiction from the current and former legislation´s perspective.

307On special procedures and their contents, see also Lindell 2012, p. 135.

The issue of determining the contents of the concept raises yet other important questions. Should we classify for instance registrations and licenses as voluntary jurisdiction even if they are wholly administrative matters by nature and procedure? And if so, what is then the difference between administration and voluntary jurisdiction?308

308For instance, the reallocation of land registration cases from district courts to National Land Surveys is said to make the legal system more coherent. Niemi 2008, p. 86.

Also to be considered are the international differences in the application of the concept. For example, in some jurisdictions debt collection in undisputed cases is handled by means of voluntary jurisdiction while other jurisdictions use normal proceedings even if usually organized in a lighter way (i. e. e. g. summary proceedings). What is the difference between voluntary jurisdiction and special proceedings (normal proceedings in varying forms), one might ask, if the only factual difference between the two is whether the procedure was initiated through a law suit or an application? Does it even make sense to apply such a classification? And finally, what does the concept of voluntary jurisdiction in fact cover?

The mentioned problems with the above concepts and their contents make especially comparative studies in voluntary jurisdiction very difficult. In this article, I will use the term voluntary jurisdiction to cover all kinds of situations where the issue is not disputed from its very early beginning; where legal protection is needed mainly against potential events in the future, or where the party relationship is not mutual309, like e. g. in non-contentious civil, administrative and criminal cases, precautionary and coercive measures, and in connection with registrations. I will also cover the types of insolvency proceedings which correspond to the requirements introduced above, e. g. bankruptcy and rehabilitative procedures.

309On those characteristics, see for instance Kuuliala 2004, p. 641.

The main focus of this paper, however, remains the non-contentious civil cases,[_ _]which is also the main and most homogeneous group of cases settled through voluntary jurisdiction nowadays in both Finland and Sweden. In Finland, such cases are decided in district courts and regulated under Chapter 8 of the Code of Judicial Procedure. The same goes for Sweden where the cases are decided at district court level and regulated under the Act on non-contentious civil cases. I will examine this group of cases comprehensively and in that process also describe the other mentioned situations, e. g. registrations, proceedings in precautionary and coercive measures and insolvency procedures as examples.

I will moreover comment upon specific examples where in Finland a case might be included under voluntary jurisdiction while in Sweden it would belong under special or even normal proceedings, and vice versa. In addition, I will discuss certain registration matters which have previously been handled by courts and which, at least traditionally, have therefore been included under voluntary jurisdiction even if nowadays they can also be effectuated as pure administration.

In sum, the category “voluntary jurisdiction” is indeterminate310, and may even be influenced by an author´s own personal opinion on what to include under the concept. I shall thus try to shed light on the general grouping of specific issues which can be and/or are usually categorized as voluntary jurisdiction in both the chosen jurisdictions (Finland and Sweden). It may be that [_non-controversial _]jurisdiction would be a better term to cover all the issues under examination here, even if this term would not be totally correct, either. Indeed, non-controversial jurisdiction is often understood not to cover registrations and other types of non-contentious matters which are hence no longer handled by courts. However, especially that part of the voluntary jurisdiction system has traditionally been at the very core of non-controversial jurisdiction.

310Kuuliala 2004, pp. 640–641.

§ 5.2 Recent Developments

Especially in Finland, the scope of voluntary jurisdiction has become wider during recent decades. Some researchers argue that the significance of voluntary jurisdiction has in fact become increasingly evident recently311. On the one hand, this is due to the fact that there has been a need to create totally new forms of solutions to problems especially in the field of insolvency law because of the first economic crisis in the beginning of the 1990 s312. Examples include the reorganization of firms and loan arrangements of private persons. Also, some types of cases which would previously have been classified as normal civil cases have been reclassified as voluntary jurisdiction. Examples include divorce cases with secondary claims and procedures where a person is declared legally incompetent.

311Jokela 1988, p. 151, Koulu 1996, p. 652 and Kuuliala 2004, p. 639.

312In Sweden, it became apparent already at the beginning of the 1970 s that the scope and significance of voluntary jurisdiction was growing wider due to societal developments. Modern society, including relations between individuals, has grown increasingly complicated, which has led to a greater need for voluntary jurisdiction and for new forms of voluntary jurisdiction. Hassler 1972, p. 144.

Simultaneously, many registration issues which would likewise previously have been handled by the courts have now been moved to administrative bodies and no longer require court resources – resources which, in turn, can be better applied in disputed cases313.

313Kuuliala 2004, p. 639–640 and 644–658.

At the same time, the trend has been that courts should focus on disputed matters and adjudication while the issues grouped under voluntary jurisdiction should be moved from the courts to other public authorities. Similarly, lighter procedures for handling voluntary jurisdiction matters should be found in order to save resources for the difficult and complicated cases314. The European Council accordingly emphasizes that it is important that courts can concentrate on adjudication and disputed matters, advocating that e. g. registrations be moved to other public authorities315.

314Heinonen 1998, p. 954, Tuomioistuimet 2000-luvulle, pp. 20, SOU 2003:111, Tuomioistuinlaitoksen kehittämiskomitean mietintö 2003:3, p. 18–20, Työryhmän mietintö 11.1.2001, p. 2 and httpBrax/1175668844738, visiting date 26.03.2012. According to Kuuliala, this kind of development has been obvious for quite some time and he gives many examples of situations where registration issues have been moved from courts to other authorities. At the same time, he too picks up on the opposite trend of more and more non-contentious cases being taken to court due to the need to deal with new types of societal situations by means of non-contentious cases. One reason for this is also that the legislature has recently delegated more of its decision power to the courts. Kuuliala 2004, p. 646, 648 and 658.

315Recommendation No. R (86) 12. The Committee of Ministers of the Council of Europe.

In Sweden, the development has been similar. In 2011, many types of cases in the voluntary jurisdiction category were moved from the district courts to the competence of the administrative authorities. The idea was that the courts should focus on adjudication and the other authorities should handle purely administrative issues. However, the Act on Non-Contentious Cases is still very significant because a substantial number of cases are handled similarly to adoption or guardianship cases316.

316Lindell 2012, p. 149.

§ 5.3 The Actors and Fora

In Finland and Sweden, the main actors and fora are district courts and administrative authorities like local register offices and National Land Surveys. In Finland, the main distinction is that non-contentious cases belong to the courts and registrations to the administrative authorities. In Sweden, the allocation of cases is somewhat less clear because both courts and administrative authorities deal with non-contentious cases (registrations, however, are most often dealt with by the administrative authorities both in Sweden and in Finland). For example, in Finland rehabilitative insolvency procedures are dealt with by district courts, whereas in Sweden such cases belong to the national executive authority.

Mostly, registration matters belong to the administrative authorities in both countries. For instance, the registration of title to a property and mortgages are handled by National Land Surveys both in Sweden and in Finland. This reform has been realized quite recently while earlier those matters belonged to district courts317.

317On this development and earlier tradition in the Nordic countries, see Niemi 2008, pp. 69, 71–77.

§ 5.4 The Nature of Voluntary Jurisdiction

Opinions of the nature of voluntary jurisdiction vary rather a lot, especially in the Finnish legal doctrine. Some see voluntary jurisdiction as administration while others view the concept almost entirely equivalent to civil proceedings. However, one clarification of these varying opinions could be that different people are looking at different types of voluntary jurisdiction, emphasizing, for instance, either the nature of registration matters or the nature of the non-contentious civil cases in family law318 where the latter type may often become disputed during proceedings. It is obvious that the first group belongs mostly to the administration authorities while the latter – especially when disputed – is almost identical with normal civil proceedings.

318In Sweden, family law issues are mostly handled as civil proceedings whereas in Finland comparatively more family law issues are handled as non-contentious civil cases.

Lappalainen has written that non-contentious cases differ so much from the normal procedure that they cannot be classified under civil procedure as a subclass; indeed, if anything, they are mostly comparable to administration issues. Still, there is a connection to civil proceedings because the issues belong to private law and the district court has the jurisdiction to decide in such cases319.

319Lappalainen 1995, p. 9.

Kuuliala is of opinion that many non-contentious cases rightly belong with the public administration authorities. They differ from the civil cases because in non-contentious cases the parties usually do not have any concrete need of legal protection. However, the non-contentious cases also differ from administration because in pure administration matters the case concerns the relation between the private and the public spheres where in non-contentious cases the context is one of private relations320.

320Kuuliala 2004, p. 639.

Linna has stressed that it is impossible to classify non-contentious civil cases by their nature given the very large number of different types of cases in this category. The cases may belong to so many different substantive fields of the law, varying e. g. between family law cases and insolvency law cases. The only common factor is that they belong under non-contentious civil proceedings. In addition, the same substantive law (or act) can include non-contentious civil cases, civil cases, criminal cases and administrative cases. Linna therefore classifies the case types only on a procedural basis. All cases which are initiated by an application instead of a law suit and which follow the procedure of non-contentious civil cases belong to that class regardless of their substantive nature. This, according to Linna, is the wide(est) definition of non-contentious cases. In narrower interpretations, non-contentious cases refer only to cases which are dealt with under the rules of the Chapter 8 of the Code of Judicial Procedure321.

321Linna 2009, p. 3–4.

Referring to Linna’s two classifications, it is still possible to ask how voluntary jurisdiction is classified under the given framework. Can voluntary jurisdiction be defined as non-contentious cases in the widest sense – or is jurisdictio voluntaria something else still, a unique concept as such? Linna, for one, sees the non-contentious civil cases clearly as part of civil proceedings. However, she seems to cover mostly only non-contentious civil cases, which are dealt with by district courts, and not registration matters as such. Linna also emphasizes the differences between the Finnish and Swedish non-contentious civil cases and says that the Finnish cases are of a distinctly civil, procedural nature compared with the Swedish cases where, for instance, the connection between the cases and public administration is clearer322. All this seems to indicate that Linna concentrates on mostly non-contentious cases and not the whole field of voluntary jurisdiction. If we think about the whole field, there does not seem to be very many and not any fundamental differences in the nature of the cases when comparing Finland and Sweden – even if the scope of the matters does vary.

322Linna 2009, p. 13, 16 and 24.

The nature of voluntary jurisdiction323 is a hybrid, then. In the registration cases, the nature is purely administrative324. In the non-contentious civil cases, where the application is left to the district court, especially in Finland and to some extent even in Sweden, the nature of the concept is mostly adjudication325. Especially when a non-contentious case is disputed, the nature of the matter is identical with civil cases and the matter evidently becomes a question of adjunction. I would consequently not classify disputed non-contentious civil cases as “voluntary jurisdiction” or even as “non-contentious cases” simply because there is no voluntariness left in those situations. Many scholars nonetheless classify such cases as non-contentious even after they have become disputed326. The reason for using this term is probably that the decision in such cases is called a court order instead of a judgment, and of course there is no law suit as such because the case started as an application. These cases e. g. include disputes over child custody and visiting rights, which can be extremely difficult and extensive when disputed. In those situations, proceedings follow civil procedural order and only the name of the decision (it is a decision not a judgment327) and the way in which the proceedings were initiated (through an application and not a suit) differ. In disputed non-contentious civil cases the classification into non-contentious cases instead of civil cases is however rather an academic question, in the sense that there is very little non-contentiousness left in the nature of those cases. Generally, non-contentious cases of this kind ought to be classified as adjudication and as one specific part in civil, criminal, or administrative proceedings. Conversely, especially registration issues, due to their nature, clearly most often end up belonging to the administration category. That being said, all voluntary jurisdiction and all non-contentious cases have administrative characteristics. How much they approximate a pure administration matter depends on the type of the case.

323Traditionally, voluntary jurisdiction is characterized by the following basic parameters: the aim is to clarify the factual situation for future purposes. There is no dispute. Usually there is not even multiparty relationship but the applicant is alone without any opposite party, and even if there is an opposite party, s/he cannot participate in the procedure with her/his own claims. The only thing that a given opposite party can demand is the dismissal of the application. Heuman 2007, p. 105 and Lindell 2012, p. 149–150.

324For further academic discussion on this topic, see Mähönen 2003, pp. 808–828. The English translation of the title of this article is “Registration issues – adjudication or administration?” On the same discussion, see also Niemi 2008, p. 78. Niemi infers that registration matters belong to public administration and that nowadays there is enough expertise and safeguards to deal with those issues at administrative authorities instead of courts. Niemi 2008, p. 81–82. According to Wrede, the main reason why registration issues have traditionally belonged to the courts has been that the institution of public notaries has not existed in the Scandinavian countries. Wrede 1922, pp. 32 and 36. Kuuliala shares the same opinion. Kuuliala 2004, p. 641.

325However, the main and traditional distinction is to divide issues into two groups: adjudication and voluntary jurisdiction. From that perspective, voluntary jurisdiction has not been seen as adjudication. See for instance Heuman 2007, p. 105.

326Kuuliala 2004, p. 640.

327This has been a tradition in Sweden too already before the current legislation. Hassler 1972, p. 147.

§ 5.5 Statistics

In Finland, non-controversial jurisdiction covers people´s everyday life in most situations. Divorce, for instance, (including children´s custody, maintenance, and visiting rights) is a pertinent example of a non-contentious civil case. Debt cases, however, even if settled mostly by means of summary proceedings, are categorized as civil proceedings and therefore the number of civil cases is much higher in Finland than the number of non-contentious civil cases. Due to the economic crisis, the number of debt cases increased significantly between 2005 and 2010. 2010, then, proved a more “normal” year, but in 2011 the number was on the increase once again, while in 2013 there were only about 2000 new debt cases compared to 2012. In 2013, 68 % of civil cases were debt cases and district courts made decisions in 299,000 debt cases in 2013 – that is 11 % more than in 2012328.

328http:+][+//tilastokeskus.fi/til/koikrs/2013/koikrs_2013_2014–04–02_tie_001_fi.html, visited 2015–08–11.

In 2014, there were 41,585 new non-contentious civil cases in total in the Finnish district courts – 18,542 of which were divorce cases. This is more than in 2013. 10,362 of these were insolvency cases and 5053 cases involved the loan arrangements of private persons329.

329OMTH 23/2015, p. 34.

Statistics on the number of closed non-contentious civil cases in the Finnish district courts in 2008–2013 follow below:330

330http:+][+//tilastokeskus.fi/til/koikrs/2013/koikrs_2013_2014–04–02_tau_002_fi.html, visited 2015–08–11.

~.
p={color:#222221;}. 2008
~.
p={color:#222221;}. 2009
~.
p={color:#222221;}. 2010
~.
p={color:#222221;}. 2011
~.
p={color:#222221;}. 2012
~.
p={color:#222221;}. 2013

The number of inhabitants in Finland is about 5.47 million331 compared to 9.78 million332 in Sweden. The total number of non-contentious civil cases, however, is almost the same. Allowing for the population size, the number is therefore about 50 % lower in Sweden. The reason for that is not the real difference in the number of cases, but the different classification into civil and non-contentious civil cases in Finland and Sweden. For instance, as I have already mentioned, family law cases are classified as normal civil cases in Sweden whereas in Finland they belong to the non-contentious civil case category. Moreover, the Swedish statistics do not include bankruptcy cases which are included in the Finnish statistics. Consequently, comparative studies between the numbers are virtually impossible. Below follow court statistics of non-contentious cases in Sweden 2008–14.

331http:+][+//vrk.fi/default.aspx?+][+docid=8801, visited 2015–08–12.

332http://www.scb.se/hitta-statistik/statistik-efter-amne/befolkning/befolkningens-sammansattning/befolkningsstatistik/, visited 2015–08–12.

Non-contentious civil cases in Sweden:333

333http:+][+//www.domstol.se/Publikationer/Statistik/Domstolsstatistik%202012.pdf, visited 2013/03/18 and Domstolsstatistik 2014, p. 14.

| p={color:#222221;}. Year | p={color:#222221;}. Filed cases

(Number of cases) |
p={color:#222221;}. Closed cases

(Number of cases)


§ 5.6 The Regulative Basis

In Finland, Chapter 8 in the Code of Judicial Procedure covers non-controversial civil cases at the district courts. However, it does not cover voluntary jurisdiction in criminal cases or administrative matters like registrations. In those cases, the rules are found in the specific legislation depending on the type of case. In addition, precautionary measures are covered by Chapter 7 of the Code of Judicial Procedure. Those cases are likewise initiated by an application and can be classified as non-contentious cases and as one part of the voluntary jurisdiction.

In Sweden, a special act, the Act on Non-Contentious Cases (lag om domstolsärenden)334, covers voluntary jurisdiction at district courts in civil cases while other matters like criminal issues and registrations are regulated under specific legal acts, like in Finland.

334The regulation is not as specified and detailed as it is in civil and criminal cases where the procedure is governed by the Code of Judicial Procedure. In addition, in some situations it is unclear whether the Act on Non-Contentious Civil Cases should be applied or not. Heuman 2007, p. 105.

§ 5.7 The Scope

The scope of voluntary jurisdiction varies between Finland and Sweden. Moreover, the concept can cover both civil and criminal cases and even administrative issues. This starting point is common for both countries even if the range of issues which are covered by voluntary jurisdiction does otherwise vary quite a lot between Finland and Sweden. In Finland, for instance, family law issues are mostly covered by voluntary jurisdiction whereas in Sweden such issues335 quite often classify as normal civil procedure. Contrastively, debt collection is nowadays covered only by summary civil proceedings in Finland and no system for payment orders exists any longer, while in Sweden an executive officer deals with this kind of debt collection of undisputed debts. In both countries the registration of real estate and mortgage issues are dealt with by the National Land Surveys, which are national administrative authorities.

335Lindell 2012, p. 139–146.

The most important cases covered by voluntary jurisdiction in Finland are family law issues like divorce and any secondary claims connected with divorce cases, as well as registration cases like registration of title to a property. This goes for Sweden, too. Subsequently, the collection of undisputed debts is the most important group of cases handled under voluntary jurisdiction.

Bankruptcy starts by an application and therefore these cases too could be classified as non-contentious. However, bankruptcies are usually classified as special proceedings (in Sweden) or as insolvency proceedings (in Finland). The same goes for companies” rehabilitation procedures and loan arrangement procedures involving private persons. In Finland, these procedures are initiated by an application at the district courts and regulated by specific acts. In Sweden, the national executive authority effectuates these kinds of procedures.

In Sweden, the collection of undisputed debts is effectuated by means of a payment order served by an executive officer. In Finland, however, undisputed debt collection is facilitated by summary procedures at district courts, which are not seen as a type of voluntary jurisdiction because the case is initiated by someone bringing a suit to court. This is one example of the practical differences between neighbouring countries as regards the scope of voluntary jurisdiction. In addition, EU payment orders and small claims procedures exist in both countries. These too are initiated by applications. Especially until the debt collection cases become disputed, these can be seen as belonging to the voluntary jurisdiction system except for the Finnish summary proceedings, which are initiated through suits that have been brought to court and which have the characteristics of a civil case.

§ 5.8 The Procedure

The main difference compared with normal civil proceedings is that the voluntary procedure starts with an application and not a suit. Accordingly, the eventual decision is called a court order instead of a judgment. Furthermore, the composition of the court is simpler and issues can be decided e. g. by secretaries, trainee judges or assistant judges. If the non-contentious case does not become disputed, the procedure is simple and written. The court order is given in the registry of the court. If and when the non-contentious case becomes disputed, the procedure, however, is identical with civil proceedings; only the composition of the court may vary (one legally trained judge will preside as a main rule, as explained above) and the decision is then called a court order and not a judgment. Beyond this, there are no differences.

Non-contentious cases will be decided by secretaries336, trainee judges337 or by only one professional judge at court. Only in very exceptional cases will the non-contentious case be decided by three legally trained judges in Finland:338

336The secretary can decide divorce cases when both parties have domicile in Finland and some other cases which do not belong to the adjudication. Cf. the Act on District Courts, Section 19.

337The Act on District Courts, Section 17.

338According to Chapter 2, Section 5 of the Code of Judicial Procedure, a District Court shall have a quorum with only the chairman present. Cf.:

(1) in a non-contentious civil case the consideration of which shall not be continued in accordance with the procedure for civil cases;

(2) in the preparation of a case;

(3) in a main hearing of a civil case if the judge is the same as the one who considered the preparation of the case and the nature or scope of the case do not require that it be considered with the full composition;

(4) in admitting evidence outside of a main hearing; and

(5) in a separate hearing on precautionary measures referred to in chapter 7.

(2) The District Court shall reserve the parties an opportunity to state their views on the necessity of the full composition referred to in subsection 1(3). If a party considers the full composition necessary, the case may be decided in a main hearing with only the chairman present only for a special reason.

According to Section 3, in cases other than those referred to in section 1(section 1 covers criminal cases), a District Court shall have a quorum with three legally trained members present. Therefore, if the non-contentious case becomes disputed and continues into the main hearing, the court must be composed of three legally trained judges, especially when the parties so wish and if there is no special reason to continue with just a chairman. Otherwise, a chairman decides also disputed non-contentious cases.

According to Section 3 of the Code of Judicial Procedure, (1) a non-contentious civil case shall be considered in writing in chambers or orally in a session for non-contentious civil cases.

(2) A non-contentious civil case shall be considered in a session for non-contentious civil cases if a participant in the case, a witness, or another person, is to be heard in person.

(3) A contested non-contentious civil case shall be considered in a session for non-contentious civil cases if a participant requests this or if the District Court considers consideration in a session for non-contentious civil cases necessary in order to clarify the case or a part thereof.

According to Section 4, consideration of the case shall be continued in accordance with the procedure for civil cases if the case has been contested and it concerns:

(1) a case involving the ending of cohabitation, a divorce or maintenance for a spouse;

(2) guardianship of a child, visiting rights or the maintenance of a child;

(3) adoption; or

(4) a case referred to in the Guardianship Act (442/1999).

(2) In other contested non-contentious civil cases the District Court may decide that consideration of the case shall be continued in accordance with the procedure for civil cases.

(3) Regardless of the procedure applied in the case, however, section 7 on the consequences of an omission by a participant and section 10 on the decision in the case apply.

According to Section 10, a non-contentious civil case is decided with a court order or by carrying out the other measure intended in the application.

In Sweden too, non-contentious cases are initiated by an application and not by a suit339. In addition, some situations may cause the court to take up the case ex officio340. And sometimes, the case continues to the district court by appellation even if the first decision is made by administrative authorities. In those cases, the district court follows the Act on Non-Contentious Cases.

339Act on Non-Contentious Cases, Section 4.

340Fitger 2004, p. 156 and Heuman 2007, p. 106.

In Sweden, the procedure is usually written and there is no need for oral preparation, either. However, an oral session is allowed if it serves to clarify the case and its circumstances; if it can enable a quick decision, or, for instance, to present oral evidence. If one party asks for an oral session, it should be organized if there are no obvious contradictions that make the oral session unnecessary341. The three important procedural principles, namely orality, immediacy and concentration, are thus not followed in cases which are managed according to the Act on Non-Contentious Cases342.

341Cf. The Act on Non-Contentious Civil Cases, Sections 13 and 14.

342Heuman 2007, p. 105.

The decision of a case should be based on the case material and what has been clarified. If the case has been initiated by an application or an appeal, the decision may not go beyond what has been demanded and claimed in the application or in the appellation. However, when there are special reasons, the Court may include further material if it is better for a private party and if it does not conflict with any other private interest343.

343Act on Non-Contentious Cases, Section 27.

§ 5.9 Effects, Appellation and Execution

In Finland and in Sweden, the court order in a non-contentious civil case has exactly the same effect as a judgment in controversial cases. The res judicata effect344 is usually identical as such345, and the execution of the court order happens according to the same rules as those applied in all civil cases346. This applies to[_ all_] non-contentious civil cases. In other cases, the situation may vary. For instance, in registration matters which mostly classify as administrative cases, there is no need for executing the order because the register entry guarantees the same effect. In those cases, the appellation system varies. The case can, for instance, continue to the land court as is the case with the register procedure of real estate347 or to the administrative court as is the case in certain other registration cases that are dealt with through local register offices348. The appellation procedure can therefore vary and be organized differently according to the appellation in the relevant civil proceedings, special proceedings, or administration authority.

344The same applies to Sweden and has traditionally been so. Hassler 1972, p. 148.

345Only the changing of circumstances can cause the non-contentious case to be reconsidered. This is very common, especially in children law issues in Finland.

346The execution ruling is in the Enforcement Acts and the Codes of Judicial Procedure in the both countries.

347The Code of Real Estate, Chapter 9, Section 1.

348See, for instance, the Act on Guardianship, Chapter 9, Section 87, the Act on Names, Chapter 4, Section 22.

In Sweden, reconsideration is also allowed in non-contentious cases, where an earlier decision made by the district court is rendered decidedly wrong due to new circumstances or other reasons; where the reconsideration can happen quickly and in a simple way, and provided that the new decision will not cause any negative effects to any private party. The reconsideration is not possible if the non-contentious case has started as an appellation at the district court or when the decision has been appealed and the court has already passed the case files on to the next instance349. Otherwise, the normal rules on appellation in procedural law cover non-contentious cases, too350.

349The Act on Non-Contentious Cases, Section 34.

350The Act on Non-Contentious Cases, Sections 37, 38 and 40.

§ 5.10 Reforms and Future Vision

In Finland and Sweden, there are no pending reforms just now in the field of voluntary jurisdiction. On the one hand, the recent trend has been that courts and judges should concentrate on more difficult and disputed civil and administrative cases as well as criminal cases while voluntary jurisdiction – and especially registrations – is increasingly handled by court secretaries or administrative authorities. One example of this development in both countries is the recent transfer of all registrations of title to a property and all mortgage cases from the district courts to the National Land Surveys.

On the other hand, the scope of voluntary jurisdiction has become wider because new fields in society require legal protection, like e. g. modern rehabilitative insolvency procedures. In such situations, the solution has often been to start with a new type of non-contentious case.

Nowadays it is emphasized that legal services should be cheap, simple and expedient for individuals to use. Voluntary jurisdiction and non-contentious cases easily fulfil these requirements351. As such, it may even be recommendable that a growing number of cases be resolved by means of voluntary proceedings. On the other hand, the expansion of voluntary jurisdiction also seems to make the legal system incoherent and thus less transparent and more difficult to control.

351Kuuliala 2004, p. 659.

From a more theoretical or societal perspective, scholars have argued that the reason why the scope of voluntary jurisdiction and non-contentious civil cases has recently become wider is because the legislator has delegated more and more final decision power to the courts, who, in turn have to cover new fields of jurisdiction through their decisions and procedures. This arguably corresponds well with modern social process description and therefore voluntary jurisdiction indeed fits rather well into the current procedural picture and needs352.

352Kuuliala 2004, p. and 648–649 and 658–660. See also Heinonen 1998, p. 960.

§ 5.11 Problems and Outcomes

Some more specific problems, especially in Sweden, arise when in some instances it becomes unclear whether the Act on Non-Contentious Cases should be followed or not353. This question is often related to the substantive legislation354, which may make the scope of application of a voluntary procedure complicated and unspecific. It is far from always regulated in the legislation if the Act on Non-Contentious Cases should be followed or not, and ultimately the court must make the decision in the borderline cases355.

353Lindell 2012, p. 149.

354Lindell 2012, p. 149.

355Lindell 2012, p. 149.

In Sweden, it has also sometimes been problematic to realize the right to be heard in non-contentious cases where it is sometimes unclear if there are any opposite parties or not. The other problematic situation connected with the right to be heard becomes relevant if an authority acts as an opposite party. In such cases, it is not always clear if the authorities should be heard or not. According to the Act on Non-Contentious Cases, Section 15, the right to be heard applies to situations where an opposite party exists. However, this rule does not cover situations where the decision has no negative effects on the other party. The same exception applies when the opposite party is an authority and the case concerns the appellation based on the authority´s decision. Then there is no specific need to hear the authority. For instance, where the case covers general interests and this is the reason why the case has to be handled at court, then the “opposite party” is an authority as per legislation and there is usually no need to communicate with that authority. In cases where, for instance, registration is needed to make a situation clear for future stakeholders, there are not yet any opposite parties at all. Such scenarios too fall under the category of voluntary jurisdiction where the main idea is to obtain legal protection to avoid disputes and any mutual party situations arising in the future. It is therefore quite typical for voluntary jurisdiction that the opposite party does not “exist”, making its role and nature very different compared with normal civil, administrative or criminal cases. All these characteristics can cause problems and bring about “borderline cases” where it is unclear if there are any opposite parties at all, or, if an opposite party can be identified, who this is. Hereupon, it can even be difficult to determine if s/he should be heard or not356.

356Heuman 2007, p. 106–107 and Palme 1943, p. 5–14.

One of the more general problems is that the field of voluntary jurisdiction is very heterogeneous in both the countries under examination here. First of all, the terminology is not established or settled. With the concept of voluntary jurisdiction it is possible to refer to the non-contentious civil, criminal and administrative cases – in other words, to very different sorts of adjudication. In addition, the concept usually also includes pure administration matters, like registrations. Thus, the very nature of voluntary jurisdiction can vary on a continuum between adjudication and administration.

Moreover, the scope of the issues covered by voluntary jurisdiction varies quite radically between Finland and Sweden even if the legal systems, legislation, and the societies are otherwise very similar and in many cases even identical. For instance, in Sweden divorce (including any potential secondary claims) classifies as normal civil proceedings whereas in Finland such cases are dealt with as non-contentious civil cases. This comparative fact is one clear indication of how differentiated the field, scope and contents of voluntary jurisdiction can be. It also underpins how very difficult these practices can be for the general audience to understand and follow; how difficult they are to interpret in relation to how to act and react in different situations of daily life.

Because the scope of voluntary jurisdiction covers so many different types of issues and because they are dealt with by means of such different and varying procedures, by many different authorities and courts, and regulated under different acts, it is extremely difficult for an individual to find information on the current and valid system, rules, proceedings, appellation possibilities, and so on. Everything; the forum, the procedure, etc., depends on the type of case and varies significantly between the different types of issue at stake. Voluntary jurisdiction can currently include almost everything.

Aside from these concerns, it is of course reasonable that undisputed cases and registrations are dealt with outside the courts – by other authorities or at least by means of lighter procedures – so that the legally trained personnel can focus on more difficult legal problems in the courts and there decide mostly only disputed civil and administrative cases and criminal cases.

References

Domstolsstatistik 2014. Domstolsverket 2014. Available on the web: http://www.domstol.se/Publikationer/Statistik/domstolsstatistik_2014.pdf

Fitger 2004

Fitger, Peter: Lagen om domstolsärenden. En kommentar. Andra upplagan. Nordstedts Juridik 2004.

Hassler 1972

Hassler, Åke: Specialprocess. Norstedt & söners förlag 1972.

Heinonen 1998

Heinonen, Olavi: Tuomioistuinlaitos turbulenssissa. Lakimies 1998, pp. 954–961.

Heuman 2007

Heuman, Lars: Specialprocess. Utsökning och konkurs. 6: e upplagan. Norstedts Juridik 2007.

Jokela 1988

Jokela, Antti: Yleisen alioikeusmenettelyn suullisuudesta, välittömyydestä ja keskityksestä. Oikeustiede – Jurisprudentia 1988, pp. 53–169.

Koulu 1996

Koulu, Risto: Kommentti Peter Fitgerin teoksesta Lagen om domstolsärenden. En kommentar. Defensor Legis 1996, pp. 652–656.

Kuuliala 2004

Kuuliala, Matti: Hakemuslainkäytön alasta yleisissä tuomioistuimissa. Lakimies 4/2004, pp. 639–663.

Lappalainen 1995

Lappalainen, Juha: Siviiliprosessioikeus I. Lakimiesliiton Kustannus 1995.

Lindell 2012

Lindell, Bengt: Civilprocessen. Tredje upplagan. Iustus 2012.

Linna 2009

Linna, Tuula: Hakemuslainkäyttö. Talentum 2009.

Mähönen 2003

Mähönen, Juhani: Kirjaamisasiat – lainkäyttöä vai hallintoa? Lakimies 2003, pp. 808–828.

Niemi 2008

Niemi, Matti Ilmari: Miksi kiinteistöjen kirjaamisasiat on siirrettävä maanmittauslaitokselle? Defensor Legis 2008, pp. 68–90.

OMTH 23/2015

Tuomioistuinten työtilastoja vuodelta 2014. Oikeusministeriö, toiminta ja hallinto (OMTH) 23/2015.

Palme 1943

Palme, W. A.: Lyhyt esitys Suomen vapaaehtoisesta oikeudenhoidosta. Söderström 1943.

SOU 2003:111. Lantmäteriet nya vägar för ökad samhällsnytta. Statens offentliga utredningar 2003:111.

Tuomioistuimet 2000-luvulle – ajatuksia ja ideoita kehittämisvaihtoehdoista. Oikeusministeriön perusselvitys 1998.

Tuomioistuinlaitoksen kehittämiskomitean mietintö 2003:3. Oikeusministeriö.

Työryhmän mietintö 11.1.2001. Eräiden hakemusasioiden siirtäminen käräjäoikeuksista maistraattiin. Oikeusministeriö 2001.

Wrede 1922

Wrede, R. A.: Finlands gällande civilprocessrätt. Första bandet (1). Tredje omarbetade upplagan. Schildt 1922.

Webpages

http://www.domstol.se/Publikationer/Statistik/Domstolsstatistik%202012.pdf, visited 2013–03–18.

http://www.om.fi/Etusivu/Ajankohtaista/Ministerinpuheita/Puhearkisto/Puheet2007 Brax/1175668844738, visiting date 26.3.2013.

http://www.scb.se/hitta-statistik/statistik-efter-amne/befolkning/befolkningens-sammansattning/befolkningsstatistik/, visited 2015–08–12.

http://tilastokeskus.fi/til/koikrs/2013/koikrs_2013_2014–04–02_tie_001_fi.html, visited 2015–08–11.

http://tilastokeskus.fi/til/koikrs/2013/koikrs_2013_2014–04–02_tau_002_fi.html, visited 2015–08–12-

http://vrk.fi/default.aspx?docid=8801, visited 2015–08–12.

SECTION 3

Voluntary Jurisdiction in South America and USA

Chapter 1

VOLUNTARY JURISDICTION IN ARGENTINA: National Report

Carlos Enrique Camps

Abstract

In Argentina, matters related to “voluntary jurisdiction” depend on the Judges of the different judicial jurisdictions – provincial and national-. It is one of several activities of judges and it is governed by civil and commercial procedural codes in each jurisdiction.

Even though, there are opinions that propose changes in this subject, this is the situation – as regards intervening bodies – of matters of extra contentious jurisdiction.

The debate in cases of “voluntary jurisdiction” is not about “parties” in technical terms but petitioners who use their constitutional right to resort to a judge in order to request measures on behalf of their own interest and without the presence of any “contender”.

The idea is that the Judiciary pronounces about any circumstance so that certain juridical relation or situation is integrated, constituted or made effective. Through this “application”, “requirement” or “presentation” -not a lawsuit – an individual seeks that a judge supports his extra contentious or voluntary pretension and so the judge pronounces to allow said individual to acquire certain rights respect to a determined legal situation. Rights or prerogatives that are not accessible to said person without this state intervention in accordance to the regulations established by the laws applicable to this matter.

Legislators have been questioned for attributing the judge of the Judiciary with said activity that lacks the essence of jurisdiction – the conflict-. It has been said that, for instance, this activity might be assigned to administrative bodies in order not to overload the courts with petitions not correspondent to their duty. However, those who raise their voice in favor of the attribution of “voluntary jurisdiction” to judges state that this is advisable when cases of this kind are initiated as voluntary but, due to frequents requirements or problems which turn the case into controversial, the litigation is no more voluntary but contentious and so, the intervention of a judge with [_imperium _]is required.

§ 1.1 The concept of voluntary jurisdiction and brief sketch of its history

One of the most important sources of Procedural Law in Argentina is the Spanish legislation. Regulations of this voluntary jurisdiction can be found in this legislation.

In this context, Professor Victor Fairén Guillén – in his work “Jurisdicción “Voluntaria” (Voluntary Jurisdiction) the summary trials: confusions in history and its evolution. Possible solutions”357- stated in reference to Civil Procedure Laws (CPL) of 1855 and 1881 that “in these Laws “contentious jurisdiction” were almost contrary to “voluntary jurisdiction””. Both Laws stated and currently state, referring to the general rules of voluntary jurisdiction, that “from the moment any party opposes to the petition of another party, the file shall become contentious and, by the time it is initiated, the legal status of the parties shall not be altered nor the subject matter thereof and it shall be subject to the proceedings for the correspondent trial according to the amount of the demand” (art. 1208, chapter 7., 1855 and 1881 CPL)”.

357Communication to the XVII Meeting of “Associazione Italiana fra gli studio del processo civile”, Palermo, October 1989.

The Argentine Isidoro Eisner mentions, in a critical tone, that “the incongruence between the content and the name of these proceedings is expressed in the same definition stated in some Codes like the Spanish CPL of 1855 in its article 1207: “Every act of voluntary jurisdiction shall be deemed so when the intervention of a judge is necessary or requested, and any matter between known and determined parties shall not be determined or promoted””358.

358Eisner, Isidoro, Voz [_Jurisdicción voluntaria (Juicio de), _]en Enciclopedia Jurídica Omeba, t. XVII, Bibliográfica Omeba editores, Buenos Aires, 1963, p. 607.

Therefore, said procedural legislation, the Spanish CPL of 1855, constituted the legal basis of the institute that the Argentine legislation adopted afterwards.

Lino E. Palacio considers said Spanish body of rules as one of the models in which the Act 50 is based on, norm that establishes the proceedings before the Argentine Federal Justice and gives birth to “the age of procedural codification”359. This Law was approved in 1863, however, no case of voluntary jurisdiction has been included yet. The “Procedural Code on Civil and Commercial Matters” was enacted in the Federal Capital of the Nation in 1878 and reformed in 1880 (applicable in said jurisdiction with the approval of the Act 1144). This Code comprised regulations of succession proceedings under the title “Testamentary” in its articles 626 to 717, but there is no reference here to any “proceedings of voluntary jurisdiction”. The three important laws that reformed this code (Act 4128, Act 14237 and decree-law 23398/1956) did not mention said matter.

359Palacio, Lino E., “Derecho Procesal Civil”,[_ _]v. I, 3 rd. Ed. updated by Carlos E. Camps, Abeledo Perrot, Buenos Aires, 2011, p. 70 y ss.

Indeed, we found the proposal to include litigations filed within this category in the project of the Civil and Commercial Procedural Code of Dr David Lascano elaborated during the years 1933 and 1934 and submitted the following year to the Dean of the Faculty of Juridical and Social Sciences of the National University of La Plata. Even though it was submitted to the National Legislature, it was not passed as a Law. Nevertheless, it shall inspire several norms contained in the aforementioned 14237 Act. Another project containing proceedings of voluntary jurisdiction belonged to Dr Fernández, who was appointed to write said project by decree 5818/1958, which did not become law.

There is a special section of the 17454 Act of 1967 established in the “Civil and Commercial Procedural Code of the Nation” -currently in full force and effect, with amendments – that refers to voluntary jurisdiction proceedings as they are presently known. In the note of the bill submitted to The Executive, the authors (among them, Professor Palacio) stated the following: “The Commission has contemplated the proceedings applicable to the authorization to get married, appointment of tutor or curator, copy and renewal of titles, authorization to appear before a judge and performing legal acts, examination of books by the partner and all matters related to the acknowledgment, acquisition and sale of goods (articles 801 to 811)”.

However, a similar regulation existed in the Province of Buenos Aires since 1905. Indeed, the 2958 Act (“Civil and Commercial Procedural Code”) that replaced the code of 1878 amended in 1880 aforementioned, annexes different voluntary jurisdiction proceedings (appointment of tutors and curators, authorizations and temporary permissions, replacement of public deeds, deposits, trade of goods, examination of books) even though not under said generic denomination. With the approval of the 7425 Act in 1968, the guidelines of the 17454 Act were included and, therefore, the Civil and Commercial Procedural Code was created. Presently, and after several reforms, this is the current ruling code in the Province of Buenos Aires.

§ 1.2 The voluntary jurisdiction in the legal system: doctrine and legislation

1.2.1 Legal nature of voluntary jurisdiction: jurisdictio, administratio or sui generis? Authorities responsible for considering voluntary jurisdiction cases

In Argentina, matters related to “voluntary jurisdiction” depend on the Judges of the different judicial jurisdictions – provincial and national. It is one of several activities of judges and it is governed by civil and commercial procedural codes in each jurisdiction.

Even though, as shown below, there are opinions that propose changes in this subject, this is the situation – as regards intervening bodies – of matters of extra contentious jurisdiction.

The idea is to analyze the debate in terms of the nature of the subject “voluntary jurisdiction”. For this purpose, it is necessary to contextualize this subject.

As previously stated360, according to the scope of procedural norms in Argentina, the task of judges is beyond the resolution of conflicts or controversial cases. In certain cases, judges” activity is required without the existence, unless at the beginning, of a controversy between people.

360Camps, Carlos E., Civil and Comercial Procedural Code of the Province of Buenos Aires. Annotated, 2 nd Edition, enlarged, ammended and udpated. V. III, pages 2051–2053.

The debate is not about “parties” in technical terms but petitioners who use their constitutional right to resort to a judge in order to request measures on behalf of their own interest and without the presence of any “contender”.

The idea is that the Judiciary pronounces about any circumstance so that certain juridical relation or situation is integrated, constituted or made effective. Through this “application”, “requirement” or “presentation” -not a lawsuit – an individual seeks that a judge supports his extra contentious or voluntary pretension and so, by means of any channel established in the civil and commercial procedural code, the judge pronounces to allow said individual to acquire certain rights respect to a determined legal situation. Rights or prerogatives that are not accessible to said person without this state intervention in accordance to the regulations established by the laws applicable to this matter.

Legislators have been questioned for attributing the judge of the Judiciary with said activity that lacks the essence of jurisdiction – the conflict-. It has been said that, for instance, this activity might be assigned to administrative bodies in order not to overload the courts with petitions not correspondent to their duty.

However, those who raise their voice in favor of the attribution of “voluntary jurisdiction” to judges state that this is advisable when cases of this kind are initiated as voluntary but, due to frequents requirements or problems which turn the case into controversial, the litigation is no more voluntary but contentious and so, the intervention of a judge with [_imperium _]is required.

On the other hand, it has been said that the legal complexity of some extra contentious pretensions is so high that it justifies the intervention of judges to solve them since they are used to dealing with difficulties of this kind.

Moreover, the importance of the acts connected to voluntary proceedings demands judges of the magistracy to guarantee or dispose the integration, constitution or effectiveness of legal situations or relations in question.

We consider that only the first argument of all is worthy of consideration – the frequent transformation into contentious of the case originally posed as “voluntary”.

The distinguished Argentine Professor Lino Enrique Palacio states that “under the name “voluntary jurisdiction”, the origin of which is in the Roman law (Book, 1, 16, 2 pr.), the traditional role is assigned to judges with the purpose of integrating, constituting or making effective certain private legal states or relations”361.

361Palacio, Lino E., Civil Procedural Law, v. I, Chap. V, pages. 264/265.

Subsequently, he expresses his position respect to the intense doctrinaire debate towards the nature of this role. “As we mentioned before, it is a role not correspondent to the normal duty of judges and courts of justice, which consists of the resolution of conflicts or litigations between two or more people. The fact that judges are traditionally in charge of dealing with this kind of non contentious affairs is due to, among other reasons, their strictly legal nature, the ease with which they can turn into a real controversy and to the advantage of certain acts performed by individuals – in accordance with the importance of the effects to be produced – which are the object of a previous and safe verification or investigation. Therefore, said role can be taken away from judges” awareness and so transferred to administrative bodies without the intention to break any constitutional norm”362.

362Palacio, Lino E., Civil Procedural Law, v. I, Chap. V, pages. 264/265, with the quote of Lascano and transcription of part his opinion, in favor of transferring the knowledge of these affairs to other bodies.

Palacio believes that the intervention of a judge in voluntary jurisdiction affairs is not a jurisdictional but an administrative issue363: “the idea of jurisdiction, finally, must also be dismissed since the activity performed by judicial bodies in this kind of litigations has an administrative and not a jurisdictional nature…”364.

363“Legal jurisdiction is traditionally divided into contentious and voluntary, even though, as we shall see below, the latter does not have a jurisdictional but an administrative nature”, Palacio, Lino E., Civil Procedural Law, V. I, page 260. In page 265, footnote 81, the author transcribes the opinion of Lascano, who agrees that voluntary jurisdiction cases can be considered as of administrative nature.

364Palacio, Lino E., Civil Procedural Law, V. I, page 165.

Furthermore, “not every act performed by the Judiciary has a jurisdictional nature. Courts of justice, indeed, do not perform an activity of that kind when they dictate general resolutions (judicial regulations), appoint an officer or employee or take part in cases of “voluntary jurisdiction”. (…) Such interference between the roles performed by the different state bodies is enough to dismiss all those theories assigning the jurisdictional nature of a determined act to the quality of the issuing body or the extrinsic modalities of its performance. Carré de Malberg has achieved a particular dissemination of her concept which states that there is a jurisdictional act when this one is issued by a court magistrate and certain guarantees of independence and impartiality are fulfilled. However, these two notes concur respect to certain acts typically administrative, i. e., decisions made by committees or examination boards, and also in relation to every act fulfilled by judicial bodies in voluntary proceedings”365.

365Palacio, Lino E., Civil Procedural Law, V. I, pages 240/241.

Either based on the nature of the mission assigned in these cases to Judges or the application of the theory of the division of roles of the State – opposed to those of powers-, Professor Palacio has been one of the most fervent supporters of the thesis that describes the nature of the activity of Judges of The Judiciary as administrative when they take part in the referred “voluntary jurisdiction”366.

366He has stated at this respect that “the fact that judges are those who are empowered to take part in voluntary proceedings, in some way allows to attribute a jurisdictional nature to decisions issued by them. Such decisions, in effect, do not suppose the existence of a conflict, according to the scope we have assigned to this expression when formulating the notion of jurisdictional act but, on the contrary, bring about the direct and immediate expression of a common juridical thought of judges. This circumstance, together with the type of body that issues the decision and the nature of individual norm it possess, rates judges” activity in voluntary proceedings as administrative. Decisions made by judges constitute, consequently, administrative acts through which the State, by means of judges and justice courts, cooperates in the constitution and integration of private juridical relations. Therefore, Calamandrei has properly defined voluntary jurisdiction as the public administration of private law performed by judicial bodies”. Palacio, Lino E., Civil Procedural Law, V. I, Chap. V, page 267, quote of Calamandrei and Guasp, respect of who makes a transcription of his opinion in the sense expressed in the text.

On the other hand, another important Argentine expert on procedural law, Professor Enrique Falcón, admits certain difficulty to rate the activity of judicial magistracy in this field.

In that regard, he expresses that “not having the doctrine still met the unambiguous concept of jurisdiction despite the multiple efforts made to achieve it, and not having accomplished either to fix the precise limits of separation that allows to distinguish clearly the jurisdictional activity from the administrative or executive one, we must confess at first that it is even harder the task to determine properly the sense and scope of that role of the State known long ago as voluntary jurisdiction and sometimes with the peculiar term of gracious or honorary”.

“Res judicata and the integration of the will of the State, seems to me – says Falcón – that they are the two present parameters in which the debate about this institution must be focused on. It must also be considered that this is not about a linguistic debate but a research of present facts to determine which is the adequate context of the institution. Notwithstanding that jurisdiction is unitary in the State field, lately a matter object of various discussions and significances, jurisdiction is divided into contentious and voluntary in order to mean contentious proceedings and non contentious or voluntary proceedings. It has been said that “voluntary jurisdiction” acts are not jurisdictional but administrative, that they are matters of that nature assigned to courts since they guarantee a higher effectiveness and impartiality”.

“Long ago, controversy has been considered not as an essential component of jurisdiction (and, in our opinion, of the proceeding) and that, definitely, it is the government body that solves the matter which gives the jurisdictional nature to these voluntary issues. In Italy, the majority supported that voluntary jurisdiction represented administrative acts assigned to courts, but in 1948, Allorio remarked with his research that the lack of controversy and res judicata were not essential components of jurisdiction which, ultimately, intensified the debate. In our case, the historical process is useless to solve the problem. Only the organismic or functional theory provides an element to consider voluntary jurisdiction as such. However, it cannot be included or excluded due to Allorio’s thesis. The fact that the controversy is not considered as essential in relation to jurisdiction does not imply in any sense voluntary proceedings are included in the jurisdictional field; neither the fact that proceedings are conducted through other procedures means that they are not proceedings since matters posed in the judicial sphere can also be excluded and taken to arbitration. In my opinion, only the legal course can be chosen presently. Nevertheless, it is necessary to identify the matter clearly. It is not about jurisdictional or administrative acts but proceedings with or without controversy. In order to follow the traditional thread of this issue, we can say that both controversial proceedings and acts, in which the law requires a judicial magistrate for the fulfillment thereof in order to make them effective with a due control, are jurisdictional” (i. e., proceedings that must be classified according to their jurisdiction). “This issue has modified the legislation, as Andreoli commented, and we have followed the same path. On the other hand, Michelli clearly advises: “those who search the formation of the category of voluntary jurisdiction and the tenet of its administrative nature shall easily realize that, together with the aforementioned motives and even the preceding and almost determining ones, other arguments of predominantly formal nature are offered all together (lack of conflicting, decision in Counsel’s Chambers, type of ruling and its rebuttals, etc.), and not all of them are always taken out from the nature of voluntary jurisdiction but, anyway, determine and affect it””.

“According to Eisner’s expression (…), the issue of voluntary jurisdiction is directly related to the idea of jurisdiction. This idea is quite clear when it is considered that extra contentious proceedings correspond to a different “jurisdiction” from the rest. In this sense, Morello, Sosa and Berizonce clearly state that “the debate is still open and there is a collective effort to support the respective thesis in order to place the blessed legal nature of voluntary jurisdiction in a proper quadrant of juridical maps, highlighting in said frame the datum of res judicata as a fundamental differential note”; however, Couture reminds us that res judicata is, in short, “a political but not strictly juridical demand: it is not of natural reason but of practical need””.

“Exploring other fields, De la Rúa has reminded us some issues to take into account: “when jurisdiction is defined on the basis of conflict, some people mix up conflict with dispute, and contentious with debate; the idea is: whenever a conflict of interest arises or not, it must turn into a contradictory dispute or be resolved peacefully without debate in a harmonic conciliation of the alleged pretensions… The proceeding is of voluntary jurisdiction when there is no conflict of interest and the aim is to integrate the personality of a subject, or a juridical act, with the intervention and decision of the judge. And I have the feeling that the “voluntarism” included in the name is, by rule, about acts of integration of the will through the concourse of the jurisdictional body””.

In this context, Professor Falcón concludes that: “Our opinion. Mentioning the aforementioned concepts, we must say that the proceeding is voluntary when there is no controversy throughout its development, there is no adversary to suit, there is no party to dispute a trial, and this is just because it is a proceeding that can be contentious or voluntary. The inclusion of the voice “jurisdiction” in the field of systems aimed at solving conflicts, either because there exists a counterpart or for the need to establish the rights claimed without the existence of that counterpart, does not seem appropriate to me. The so-called “voluntary proceeding” systems can be jurisdictional or administrative but, in any case, this situation depends on a matter of procedural policy of convenience and not on the substance of the institutions at stake, the organization of the state, etc.”367.

367Falcón, Enrique M., Código Procesal Civil y Comercial de la Nación. Comentado,[_ Concordado,][ Anotado,][ _]t. VI, 1 ª Ed., 1 ª reimpr., AbeledoPerrot, 2011, págs.960/963.

1.2.2 The scope and viability of con-contentious jurisdiction. Statistics

Statistically – except from succession proceedings – the volume of voluntary trials does not have much importance, taking as a parameter the totality of proceedings conducted before civil, commercial Judges or a family court Judge of Argentina368.

368Camps, Carlos E., “La “jurisdicción voluntaria” en nuestros días y la eficacia de la administración de justicia” (“The present “voluntary jurisdiction” and the effectiveness of justice administration”), in Access to Civil Procedural Law. Obra colectiva, Augusto M. Morello – Director-, Libreria Editora Platense, 2007.

1.2.3 The regulative basis

In Argentina, as it has been stated and despite the discussions and different doctrinaire opinions, the legal system applies the rules of civil and commercial proceeding to cases of voluntary jurisdiction.

The answer given continues in the following item.

1.2.4 Judicial procedure (s) for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious cases

Civil and Commercial Procedural Codes of the Nation and the Province of Buenos Aires – to show two cases of procedural regulations in full force and effect in Argentina – contain a Special Part of a book that regulates “Voluntary proceedings”369.

369Camps, Carlos E., “La jurisdicción voluntaria en nuestros días…” cit. (“The present “voluntary jurisdiction”…”, cit.)

Notwithstanding that the regulation of these proceedings is endless, there are other regulations of jurisdiction named extra contentious (for instance, succession proceedings) besides this special book of the Code. Legislative regulation of “voluntary jurisdiction” in Argentina is contained within the procedural law applied to contentious cases.

As stated aforementioned, the Special Part of Book VII of the Civil and Commercial Procedural Code of the Province of Buenos Aires regulates “Voluntary proceedings”.

Proceedings included are: authorization to get married, appointment of legal guardianship, copy and renewal of deeds, authorization to appear before a judge and perform legal acts, examination of books by the partner and acknowledgment, acquisition and sale of goods (arts. 812 to 826).

“Voluntary jurisdiction” does not end in the regulation of the Code.

The doctrine also includes succession proceedings in this category – general uncontested proceedings – divorce, legal separation by agreement of facts, adoption proceedings, summary information together with relatively new proceedings added to this category as are written consent to body organ removal and implant and declaration of absence for kidnapping, among others370.

370Camps, Carlos E., “La jurisdicción voluntaria en nuestros días…” cit. (“The present “voluntary jurisdiction”…”, cit.)

A special case in voluntary proceedings – considered the most important in this subject – is succession proceedings.

There are two reasons: first, it is the most frequent proceeding in this field and, second, a lot of work has been done on the idea of “the removal of it from the judicial system” in order to leave it in charge of other individuals371. However, even when succession proceedings constitute the largest volume of voluntary proceedings, they do not amount to a great number compared to the great mass of pretensions that civil and commercial jurisdiction has to deal with (damages caused by illegal acts or breach of contract, executions, proceedings related to real estate – evictions, collection of rent, repossessions, dividing walls, etc. –, writs of protection, bankruptcy proceedings, etc.)372.

371Camps, Carlos E., “La jurisdicción voluntaria en nuestros días…” cit. (“The present “voluntary jurisdiction”…”, cit.)

372Camps, Carlos E., “La jurisdicción voluntaria en nuestros días…” cit. (“The present “voluntary jurisdiction”…”, cit.)

Land survey proceedings are also included, and they are regulated separately – like succession proceedings-, though they are always within the Procedural Code.

Palacio comments that the “Procedural Code of the Nation and the legislation adapted to it include voluntary proceedings related to authorization to get married (arts. 774 and 775), appointment of tutors and curators and appointment of a guardian of the respective position (arts. 776 and 777), the replacement of deeds (arts. 778 and 779), the authorization to appear before a judge and perform legal acts (art. 780), the examination of books by the partner (art. 781), and the acknowledgment, acquisition and sale of goods (arts. 782 to 784). It is important to highlight that, first, succession and land survey proceedings are also of voluntary nature even though they are not included in the correspondent book and, second, some of the cases comprised by arts. 774 to 784 can include the existence of a previous conflict which dismisses the strictly voluntary nature of the respective proceedings. They are: those referred to the authorization to get married or appear before a judge and perform legal acts, or the acknowledgment, acquisition and sale of goods”.

“The Civil Procedural Code of the Province of Jujuy, substantially according to the project of Professor Couture 1945, dedicates Title VII to “voluntary proceedings”, dividing it in three chapters titled “basic concepts”, “information” and “declaration of incompetence’373. As a general principle, it is established that the pertinent regulations are applicable “when it is necessary to prove the existence of facts that have caused or are called to cause juridical effects, and shall not inflict damage to any known individual” (art 411). The decisions that go to these proceedings do not imply res judicata (art. 412). The act leading to proceedings is called “petition” and must be requested “in accordance with the regulations relative to ordinary lawsuit, when applicable” (art. 413). In relation to the proceedings, the article 414 establishes the following: “The judge shall examine the petition filed and, should any information be offered, he shall notify. Even if no information has been offered, the petitioner shall be entitled to justify briefly the facts of his petition. The Justice Department shall be notified of the information and, should there be no notice of opposition, the judge shall approve said information if applicable”. Furthermore, article 415 states: “Should the Justice Department or a third party object the information, the judge shall examine and try the case if he deems it does not contradict the declaration requested and shall accept or decline the initial petition in accordance with article 412 (i. e., with no effects of res judicata). If the judge considers the objection is such that contradicts any pronouncement, he shall dismiss the proceedings and order the interested parties to file any lawsuit they deem pertinent”. In relation to legal recourses for this kind of proceedings, the article 416 states: “Proceeding rulings pronounced during the proceedings are only subject to appeal for revocation of judgment. Decisions approving or rejecting the information request and those dismissing voluntary proceedings are subject to appeal in relation”. Norms related to “informations” are applied to those which the law requires for the accomplishment of certain acts like the granting of court permissions and judicial authorizations, correction of certificates and similar issues (article 417). In the initial writ, the petitioner must mention his personal attributes, the subject matter of his petition, the facts or circumstances and the elements of information supporting his petition. The witnesses may sign the petition and shall have their signature verified at the moment of the filing, in compliance with legal formalities, before a notary public and the intervention of the Justice Department if required by law (article 418). The judge orders the notary public the immediate reception of the proof not presented when filing the petition, and the judge must issue the corresponding ruling, prior notification to the Justice Department, in three days as of the reception of the proof (article 419)”.

373Professor Palacio states in his note: “But proceedings of declaration of mental incompetence pose, in our opinion, a contentious nature. Such conclusion arises, firstly, from the very content of the article 147, Civil Code, which states that “once the petition of mental incompetence is filed, a provisional curator must be appointed to represent and defend the defendant as a mental incompetent until the final judgment is rendered”. It seems clear, secondly, that the petition for mental incompetence implies the proposal before the judicial body of a conflict between the interests of both the plaintiff and the alleged mental incompetent, and that the judgment is ruled before the latter as the defendant. See “The parties in the process of declaration of incompetency for mental insanity” in the Revista del Colegio de Abogados de La Plata, 1959, n ° 2, pages 57 et seq. Likewise, SENTIS MELENDO, El proceso …, cit., pages 360 et seq.”

“The Civil and Commercial Procedural Code of the province of Santa Fe dedicates the Book IV to “voluntary jurisdiction acts”, establishing in the seven titles comprising said book the proceedings to be followed for the request of the record before notary of instruments and testaments (sealed, holograph and self-proved), reposition of public deeds, declaration and cessation of incompetency, appointment and removal of tutors or curators or the suspension or limitation of patris potestas, authorization to get married and the declaration of simple absence and with alleged death. Clearly, not all the aforementioned imply voluntary proceedings, particularly those related to the declaration of incompetence, the removal of tutors or curators and the suspension or limitation of patris potestas since they involve the existence of a conflict between the parties”374.

374Palacio, Lino E., Civil Procedural Law, V. I, pages 223/224.

Therefore, leaving aside the casuistic doctrine, categorizations of several issues that might be subject to voluntary jurisdiction proceedings have been proposed.

Professor Palacio375, in relation to the contents of the resolutions of those proceedings, proposes the categorization of voluntary jurisdiction acts into the following groups:

375Palacio, Lino E., Civil Procedural Law, V. I, pages 223/224.

1 °)[_ Acts of constitution, integration, modification and termination of rights._] Some examples are the order of registration of a partnership in the Public registry of Commerce; the appointment of a tutor or curator; the divorce decree by mutual agreement, etc.

2 °) Judicial approval of parties”[_ acts_], as it is the approval of the agreement proposed by the debtor in reorganization proceedings, the approval of the testament as regards its legal forms or the distribution account in succession proceedings, etc.

3 °) Acts of approval, which comprise, for instance, the declaration of poverty376 or of absence by alleged death and, in general, every resolution declaring the existence of a certain fact.

376As long as the party is not qualified to proceed without costs, the proceeding is totally controversial.

4 °) Acts of authorization. In this category, the request of judicial permission to transfer minors”, absentees” and incompetent people’s property, authorization to appear before a judge or examine the books of a partnership, etc. are included.

Falcón gives us his opinion about the matter377, which we consider appropriate.

377Falcón, Enrique M., Civil and Commercial Procedural Law of the Nation. Annotated, V. VI, Abeledo Perrot, 1 st Ed., 1 st reprint, 2011, pages 963/968.

He states that “a classification of voluntary proceedings may comprise different factors. Morello, Sosa and Berizonce divide them into acts of constitution of rights, judicial approval of parties” acts, acts of approval, and acts of authorization. Although I agree with this point of view, I believe that voluntary proceedings must be classified if they originally establish or not the possibility of a controversy due to the presence of a legitimized contradictory party in the proceedings. Consequently, we shall define voluntary proceedings in the strict sense and transformable voluntary proceedings”.

“Whereas, voluntary proceedings in the strict sense are created and terminated with that nature, without any possible contradiction between them, like the examination of books by the partner (art. 781), transformable voluntary proceedings carry the possibility of an eventual contradiction should a legitimized third party showed up (v. gr., payment of commercial documents, appointment of tutor and curator, motion to obtain an injunction ordering that possession of something be turned over to the petitioner, etc.) A third eventual category of heterogeneous voluntary proceedings could be established, in which, despite being regulated by Book VII of the Code, voluntary proceedings have the form of a “verbal judgment” (article 774, authorization to get married) or the parties are summoned to a “hearing”, “in which the proof shall be submitted” (art. 780, authorization to appear before a judge and perform legal acts), or records with notification to the other party (articles 782, 783 and 784, acknowledgment, acquisition and sale of goods). Palacio includes in disagreement proceedings the opposition to appear before a judge and the acknowledgment, acquisition and sale of goods as proceedings improperly regulated as voluntary”.

This remarkable Professor states378, in relation to the law system, that a series of proceedings called voluntary are included in the Nation’s Code, but there are others like succession, land survey proceedings, the motion to obtain an injunction ordering that possession of something be turned over to the petitioner, which are presented[_ prima facie_] as voluntary proceedings.

378Falcón, Enrique M., Civil and Commercial Procedural Law of the Nation. Annotated, V. VI, Abeledo Perrot, 1 st Ed., 1 st reprint, 2011, pages 963/968.

Likewise, he states other cases of this kind – some of them from substantive law – like payment of commercial documents (articles 89 to 95, dec. Act 6965/1963 and articles 746 et seq. of the Commercial Code) proceeding initially voluntary for the payment of stolen or lost documents, which can be turned into contradictory; registration of partnerships in the Corporate Records Office (where oppositions must be filed, this procedure is out of judicial scope and is regulated by different administrative norms); court summons to shareholders meeting; summary informations (that lack of own regulation); matters related to the name (change of name and full name of the person who obtains naturalization papers); expert witness admission in the Navigation Act (voluntary proceedings aimed at producing preliminary technical assessment of evidence); adoption proceedings (regulated by Act 24.779, is transformable into contentious when successors in ascending order show up).

Likewise, Falcón adds more elements contributing to the classification379. He proposes to divide theses proceedings into:

379Falcón, Enrique M., Civil and Commercial Procedural Law of the Nation. Annotated, V. VI, Abeledo Perrot, 1 st Ed., 1 st reprint, 2011, pages 963/968.

[_Patrimonial and extra patrimonial. _]Patrimonial proceedings are those in which the requested matter is related to material issues that pose a value or there is a dispute over the economic value of rights like succession, the sale of goods, corporate control, etc. The extra patrimonial proceedings are aimed at regulating juridical situations related to the condition of people and family relationships.

Particular and universal. A distribution of patrimonial proceedings classifies them into particular and universal, as per the object of the controversy comprises a limited number of goods or the whole of them.

Pure and transformable voluntary. Independent of prior classifications, we have a structure included in a gray zone since voluntary proceedings may arise and remain in this sphere or become contradictory, totally or partially, mainly or accidental.

Other kind of voluntary proceedings. The classification might establish a third eventual category of heterogeneous voluntary proceedings, in which, despite being regulated by Book VII of the Code, the voluntary proceeding resembles a “verbal trial” (art. 774, authorization to get married) or the parties are summoned to a “hearing”, “in which the whole evidence shall be rendered” (art. 780, authorization to appear before a judge and perform legal acts), or records with notification to the other party (arts. 782, 783 and 784, acknowledgment, acquisition and sale of goods).

1.2.5 The decisions taken as a result of considering of voluntary jurisdiction cases: the problem of res judicata

In all the aforementioned cases within this procedural category, an individual makes a request to the magistracy380. He seeks the satisfaction of varied interests, all of them legally protected: from the determination of the heir’s condition to the custody of a child and his further adoption, the solicitude of judicial permission to get married or the examination of documents by a member of a partnership against the opposition of the other partners, among other situations.

380Camps, Carlos E., “La jurisdicción voluntaria en nuestros días…” cit. (“The present “voluntary jurisdiction”…”, cit.)

For this purpose, it is required the intervention of the body that by law shall fulfill these requirements. He is not a “claimant” since it does not exist – in general – initially a “defendant” in a technical sense – as Couture remarked. It is about a petitioner or requesting party who bears an extra contentious pretension based on his constitutional right of action – procedural manifestation of the right to petition to authorities stated in art. 14 of the Argentine Constitution.

However, this “peaceful” proceeding at the beginning may turn into controversial. The simple petition filed by an individual before a judge, initially “against nobody”, shall cause a change in the previous status of the case. Thus, the individual who was not formally the heir of another person, shall be so declared; the individual who was not authorized to get married, shall get permission to do so; there shall be a judicial order compelling a societal body to show their records to whom were denied; a child shall leave an institution or a biological family to live with his guardians, etc.

Clearly, the simple petition of an individual successfully accepted by a judge with jurisdiction shall be part of interest of third parties, either private or public subjects as is the case of the Justice Department – especially the office that assists minors and the mentally insane-.

The root of the conflict resides in this conjunction. Any of these other subjects, respect of whom a judicial order was issued at the request of the petitioner, may also have the right to oppose and, using his own and inalienable right to litigate, appear before the judge and pose any form of opposition or own requirement.

Therefore, “voluntary jurisdiction” turned into completely contentious.

This is a very frequent situation. It is more frequent in some voluntary proceedings than in others, but the possibility of conflict lies in absolutely all of them. In our opinion, this possibility causes that the aforementioned matters have to be decided by the judges, who are the only officers with imperium to resolve any controversy.

Palacio lectures about this issue – proceedings – that “… the pretension as a declaration of will posed against a different individual other from the author of this declaration, is not applicable within the sphere of voluntary proceedings, in which there are no conflicts between the parties, and the object of which is a mere petition to the judicial body. Finally, the idea of jurisdiction must be also dismissed since the activity performed by judicial bodies in this kind of proceedings has an administrative nature and not jurisdictional…”381. “In turn, there are one or more petitioners as primary subjects placed below the judicial body in terms of voluntary proceedings”382.

381Palacio, Lino E., Civil Procedural Law, V. I, page 165.

382Palacio, Lino E., Civil Procedural Law, V. I, page 167.

“The objective element of proceedings can be made up of a pretension or an extra contentious petition, either because the intervention of the judicial body is required to resolve a conflict or to constitute, integrate or accomplish effectiveness to a juridical relation. Consequently, the pretension and the extra contentious petition configure the objective, respectively, of contentious and voluntary proceedings. On the other hand, it is senseless to refer to availability or unavailability of petitions object of voluntary proceedings. Despite the last reference, which is obviously improper, the formulation of such petitions is generally necessary since the interested party cannot accomplish, doing without petitions and the subsequent judicial decision, the juridical effect pursued”383.

383Palacio, Lino E., Civil Procedural Law, V. I, page 168, including Couture’s quote.

Palacio states, in relation to the peculiarities of the steps of voluntary proceedings, the following:

“a) Normally, the proceeding tends to a resolution that resolves the conflict or dispute between two individuals in the quality of parties. In such cases, the proceeding is called contentious and its object is a pretension despite the opposition of the defendant or, on the contrary, he avoids discussion or controversy, either by consistently not appearing as regards proceedings (non-appearance), or by express acknowledgment of facts and the law pleaded by the claimant (search of premises under court order). In the last two cases, indeed, the lack of actual dispute does not exclude the existence of conflict or litigation that originated said proceedings”.

“b) Traditionally, however, judicial bodies play the role of integrating, constituting or accomplishing effectiveness to certain private juridical statuses or relations together with the role related to the resolution of controversial cases. These hypothesis have determined, since the age of Roman Law, that there are two types of jurisdictions called contentious and voluntary, and the difference is, as Caravantes states, “that the first one applied inter nolentes, this is, between individuals who are judged against their will because they do not agree with their respective pretensions, whereas the latter is applied inter volentes, this is, between individuals who agree with the proceedings or agree with the request of an individual who cares about the practice of an act in which there is no controversy that provokes the interest of a third party””.

“c) The aforementioned allows to consider the existence of voluntary proceedings, the object of which might consist of one or more petitions, and the private subjects thereof can be called [petitioners _]or[ requesters_]384”.

384ALCALÁ ZAMORA y CASTILLO call “participants” to private subjects of voluntary jurisdiction, and “petition” or “request”, the cause that originates the action, though he sustains the impropriety, in this sphere, of the term “proceeding”, proposing the substitution for the term “file” (Indications to determine the nature of voluntary jurisdiction, in “Revista de Derecho Procesal” [a law journal], year VII, 1949, 1 st part, page 287 et seq.).

“There is a common factor, as regards voluntary proceedings, about the fact that their initiation is determined, as it happens with contentious proceedings, by the goal of getting a decision declaring the existence of any juridical effect against an individual other than that claiming judicial activity, but by the need to get a pronouncement which is conditioned by law to the origin or effectiveness of a certain juridical relation; therefore, judicial decisions of voluntary proceedings are issued, eventually, in favor of the petitioner and not against a third party385”.

385“LASCANO states that the intervention of two parties is required in contentious jurisdiction: there is a pronouncement in favor of a party and a pronouncement against the other party because a conflict comprises two different interests of two different individuals. In turn, only one party intervenes in voluntary jurisdiction (according to our concept of petitioner), because the requiring party is the unique interested within the procedural relation” (Jurisdiction and competence, page 66). See, likewise, COUTURE, Fundamentals of Civil Procedural Law, page 48, and DEVIS ECHANDÍA, General Notions, cit., page 145.

“However, this matter does not exclude the possibility of voluntary proceedings to turn, totally or partially, into contentious if any dispute arises between petitioners, or a third party or the Justice Department poses opposition. During the proceeding to appoint a tutor or a curator, for instance, a third party might claim his right to be appointed in preference to the petitioner. In this case, the matter shall be substantiated in expedited summary judgment (art. 776, Procedural Code of the Nation); if, in the case of survey of plat proceedings, any individual, in relation to property line opposes to the procedure, the pretension must be substantiated and resolved by means of ordinary proceedings, etc. Partial transformation of voluntary proceedings into contentious may take place when one or some of the heirs oppose to the approval of inventory, appraisal or distribution account (arts. 724, 725, 731 and 732, Procedural Code of the Nation; in the case that, during the process of reorganization proceedings, credits are contested (arts. 34 and 36, Act 24.522) or the agreement proposed by debtor is objected (arts. 49 and 50, Act 24.522); etc”.

“Contrary to Podetti’s opinion, we understand that the aforementioned possibility of transformation, which is typical of voluntary proceedings, does not allow us to deny that these proceedings constitute an independent juridical category. On one hand, indeed, the existence of a pretension constitutes a contingent object, not necessary of this type of proceedings. On the other hand, unlike contentious proceedings, the individual who deduces said eventual pretension is, either a third party different from the one who claims judicial intervention or one of the petitioners who disputes with the rest about the validity or effectiveness of any act subsequent to the initiation of proceedings”386.

386Palacio, Lino E., Civil Procedural Law, V. I, pages 220/223.

Palacio considers that voluntary jurisdiction proceedings have the following characteristics:

“1 °) There is no conflict to be solved in this matter. As Lascano points out, “in contentious jurisdiction, it is the conflict of interests to be resolved the task that the judge must consider; in voluntary jurisdiction, the matter posed to the judge is a request of fulfillment of an act that the law deems necessary to create a new juridical relation or produce a certain juridical effect. There is a lawsuit in one case and there is no one in the other. That’s all”. This is why Carnelutti is right when he expresses that in this kind of proceedings the judge acts together with the interested party or his agent and not in the middle of two contenders. This circumstance, however, (…) does not exclude the possibility that, should any dispute arises between petitioners, or a third party or the justice department pose any opposition, voluntary proceedings turn totally or partially into contentious”.

“2 °) The consequence of the aforementioned characteristic is that voluntary proceedings do not comprise parties in the strict sense. As Couture states, “the private individual who poses a pretension does not request anything to anybody. Therefore, he lacks an adversary. He is not a party in a technical sense because he is[_ nobody_]’s counterpart””387.

387Fundamentals, cit., page 48.

“3 °) Finally, due to the lack of bilateral dynamics typical of these proceedings, and the fact that the judge, by resolution, issues a declaration based exclusively on supporting evidence submitted by the petitioner or petitioners in a unilateral way, said declaration does not produce effects of res judicata respect of third parties whose rights were affected by said declaration”388.

388Palacio, Lino E., Civil Procedural Law, V. I, chapter V, pages 266/267.

In most of cases, the resolution of the judge shall be issued notwithstanding third parties” rights, consequently, there is a future possibility that a contender shows up during the process.

Resolutions adopted in this context do not acquire the status of material res judicata since, as aforementioned, they are not issued “against any individual” but simply “at the request of someone” and, therefore, it is frequent that the judge in his sentence decides the petition “safeguarding the rights of third parties”.

This is clearly visible in succession proceedings, i. e., any individual, after the institution of heirs is decreed, can claim his right to request his part of the inheritance and reopens the succession obtaining an approval.

Even though it is a fact that the decision can change if the circumstances have merit, it is also certain that, if it does not, the decision compels those who are equally affected by decisions adopted in a fully contradictory proceeding. This is due to the imperium of the judge in both cases, making his resolutions applicable by force if necessary. Only the Judicial Magistracy counts on with this prerogative, foundation of social organization by which the monopoly of the force is delegated in the State. It contributes to social peace and defends – in our opinion – the thesis of the convenience that the aforementioned matters continue to be resolved by “judicial judges”389.

389Camps, Carlos E., “La “jurisdicción voluntaria” en nuestros días…” cit. (“The present “voluntary jurisdiction”…”, cit.)

Whatever the judge decides, the resolution of these cases shall define the matter “notwithstanding third parties” rights” since judge’s decision is built from the unilateral version posed and proved by a litigant390.

390Camps, Carlos E., Civil and Commercial Code of the Province of Buenos Aires. Annotated, 2 nd Edition, V. III, page 2052.

Analyzing the matter through procedural principles, Palacio states that “as a rule, the principle [of contradiction] is only applicable in contentious proceedings since the decrees thereof are the exclusive decrees of higher rank in authority than res judicata. It is, therefore, external to the process of voluntary proceedings in which, since there is no conflict or controversy between parties, it is impossible that a judge issues any decision with said attribute because decisions are revisable every time a legitimate contender challenges them. Thus, the art. 412 of the Procedural Code of Jujuy correctly establishes the following: “Judges” decisions in voluntary proceedings do not recite res judicata even when, said decisions were appealed, they have been ratified by superior judges. Once a fact is declared according to these proceedings, it is presumed conclusive unless there is a proof to the contrary, and third parties who acquire rights of those in whose favor a judicial declaration was made, are presumed of good faith unless there is a proof to the contrary”. The principle of contradiction, consequently, regains its full validity once any declaration issued in this kind of proceedings is opposed by any individual directly affected. The same occurs when any opposition is deducted to the right claimed by the petitioner during the substantiation of voluntary proceedings”391.

391Palacio, Lino E., Civil Procedural Law, V. I, pages 193/194.

Likewise, states the aforementioned author: the fact of sustaining that the declaration issued in voluntary proceedings does not produce effects of res judicata respect of third parties, does not stop said resolutions to be finally disposed of. Consequently, it has been concluded that the occurrence of a decree not turned into a contradictory proceeding does not prevent said decree from producing all of its effects, as long as the contrary is decreed by legal and formal means392.

392Palacio, Lino E., Civil Procedural Law, V. I, chapter V, page 267, footnote nº 86, citation of decree of CNCiv, courtroom D, LL 91:54.

1.2.6 The specificity of appellation and reconsideration procedures

In effect, civil and commercial procedural rulings in Argentina, in the specific paragraphs that regulate issues of voluntary jurisdiction, refer to general procedural rules that, in the same legal entity, are applied to contentious litigations and, among others, stand out probative and recursive subjects.

§ 1.3 The future of voluntary jurisdiction: main problems and planned reforms

The opinion circulating in our field is that the category of judicial proceedings that corresponds to this institute could be separated – totally or partially – from the competent role of judges and delegated to other individuals who are not part of the Judiciary and, consequently, relieve it in order to devote more time and dedication to the “real cases”: those that channel clearly contradictory pretensions.

Such criteria, in addition, are not exclusive of our field. Professor Morello states that, for some years now, justice tends to “get rid of matters of voluntary jurisdiction” when reviewing procedural tendencies of European countries with a history and development in procedural matters that constitute the sources of our law.

Proposals in this sense are not new, however, there is a constant intention of accomplishing a transfer (reduction) of legal jurisdiction, so the problem is constantly updated, doing emphases on the more frequent and important expression of this subject as is succession proceeding and observing which could be the future projections of the debate, always focusing the search for promptness and effectiveness of justice393.

393Camps, Carlos E., “La “jurisdicción voluntaria” en nuestros días…” cit. (“The present “voluntary jurisdiction”…”, cit.)

In the XX National Conference on Civil Law, held in September 2005 at “Facultad de Derecho de la Universidad de Buenos Aires” (a law school), there was an intense debate on a long discussed subject, which is taking voluntary proceedings totally out of courts. In this case, concretely, the possibility and convenience that succession proceedings should be managed entirely by notaries public was taken into consideration394.

394See the aforementioned work of Fairén Guillén in relation to the connection between notaries public and voluntary jurisdiction. On the other hand, Lucas R. Sarafián, in her article “About the so called voluntary jurisdiction”, presents the conclusions of the Tenth Notarial Conference in Argentina in which the stance of notaries public as regards this issue is shown: “… Therefore, the following is recommended: 1 ) Since the notary takes part in the State and, therefore, can confer authenticity to many documents, task that judges must presently do, because they are within the sphere of voluntary jurisdiction, it must be claimed from the government the acknowledgment of this right to notaries, promoting the corresponding legislative reforms. 2 ) That this notarial document shall be always formal, in written or affidavit. 3 ) That the limit of notarial records shall result from the existence of controversy between the parties, in the case of which the proceeding to be substantiated shall be exclusively of legal jurisdiction”. In Jus N ° 23, ed. Platense, La Plata, 1975, p. 197.

However, the initiative has not advanced, so the conclusion is that taking this voluntary proceeding (succession) out of the judicial sphere is neither feasible nor convenient with the present condition of civil, procedural and record keeping legislation.

Palacio’s point of view is that “if courts are relieved, lawyers could be competent to manage the extra judicial succession proceedings up to the decree of declaration of heirs or writ of approval of a testament with no intervention of a notary public, which would not be inconvenient if there were no controversy and the parties interested give their consent. There are no visible reasons impeding this solution to be adopted, the one which was instrumented in a project of the Public Bar Association of the Federal Capital a few years ago, approved by the Advisory Board on 11/13/1997, endorsed by the Argentine Federation of the Bar Association and submitted to the National Secretariat of Justice, and due to its wise choice should be taken into account when procedural laws are updated”395. Finally, the Commercial and Civil Code recently passed as a National Law of Argentina (Act 26.992 of 2014 which shall be in full force and effect by Act 27.077 on August 1 st, 2015) does not modify at all the judicial nature of succession proceedings.

395Ferrer, Francisco A. M. – Natale, Roberto M., “Notarial succession in the XX National Conference on Civil Law” cit., JA 2005-IV-1333.

Conclusions

The Judiciary has been held as one of the main problems that causes the attribution of competence as regards voluntary jurisdiction, the overload of tasks in relation to proceedings that could be taken to other spheres and managed by other officers. However, we understand that, as regards this strictly practical situation, other measures should be adopted instead of removing this subject from Judges” sphere. As Couture explains, “every non contentious act carries a potential dispute, either of the interested party or the bodies of the Justice Department, to which these proceedings are normally assigned”396. Therefore, we deem useful keeping the so called voluntary jurisdiction in the realm of the judges of the Judiciary in order to avoid unnecessary expenses if a proceeding must be moved to another sphere when contradictory stage arises. Apart from any other reason sustained397, this is the reason we deem fundamental and the one which clearly justifies the permanence of voluntary proceedings in the jurisdictional sphere398. Finally, in summary and through this analysis, we see the need to preserve the so called “voluntary jurisdiction” in general and succession proceedings in particular under the sphere of the Judiciary.

396Couture, Eduardo J., [_Fundamentals of civil procedural law _]cit., Depalma, Buenos Aires, 1993.

397For instance, the fact that the intervention of a judge is convenient due to his legal background – motive we consider futile-.

398Likewise, we share Ferrer’s and Natale’s statements when they point out that “as regards its contents, jurisdiction is not only the role assigned by our Supreme Law to the Judiciary to protect subjective rights, resolving conflicts of interests and controversies of juridical content, with the due process, with decisions which are granted the status of res judicata, but, lectures Fassi, the jurisdictional role also includes the intervention of a judge whose competence is fundamental for the legal system, as is succession transfer, the declaration of absence with presumption of death, the declaration of incompetence (injunction), the appointment of tutor and curator and the surveillance of their performance. In conclusion: jurisdiction exceeds the limits of contentious matters to expand to the field called voluntary jurisdiction, in the case of which, though the judge does not resolve a lawsuit because there is no one, he exerts an activity of juridical control which, despite this event, is still jurisdictional because it is about the action of the objective law, about the fulfillment thereof or its concrete precepts, and so, as Calamandrei states, there is a civil jurisdiction based on the mere objective law”. Ferrer, Francisco A. M. – Natale, Roberto M., “Notarial succession in the XX National Conference on Civil Law”, JA 2005-IV-1333.

Chapter 2

Voluntary jurisdiction in Brazil

Alexandre Freitas Câmara

Abstract

This paper describes the development of voluntary jurisdiction in Brazil since 1822, when Brazil got independent from Portugal, until the recently approved 2015 Civil Procedure Code. The author explains the most important controversies that can be found among Brazilian scholars about non-contentious cases, including the important question about its nature: jurisdictional or administrative. There is a description of voluntary jurisdiction proceedings, including the appeals system. The author also presents a short description of the recently approved (but not still in force) Brazilian Civil Procedure Code, pointing out the most important changes it can bring to Brazilian Law.

Introduction

This paper is an attempt to introduce to foreign readers the Brazilian system of voluntary jurisdiction. This system started to be written short after Brazilian independence, and its most recent chapter is the new Brazilian Code of Civil Procedure, that will be in force from March, 2016.

To reach this goal, there is a short description of voluntary jurisdiction history; the description of the bodies that consider voluntary jurisdiction matters, an argument about voluntary jurisdiction nature, its analysis on civil procedure point of view, a description of the cases that are considered, in Brazil, as voluntary jurisdiction matters, a short description of voluntary jurisdiction proceedings and some final remarks.

If this text is able to introduce Brazilian voluntary jurisdiction system to foreign scholars, its goal is reached.

§ 2.1 Short history of voluntary jurisdiction in Brazil

Brazil started to legislate short after getting independent from Portugal, in September, 1822. In 1850 got into force the first Brazilian important procedural bill, known as Regulamento 737 (Regulation 737), which regulated commercial proceedings. In this bill there was a chapter about voluntary jurisdiction that was called “On voluntary and administrative jurisdiction of commercial judges”.

This Regulation became the Brazilian Civil Procedure bill in 1890, one year after the Proclamation of the Republic.

After the Brazilian Constitution of 1891, which transformed Brazil into a Federation, each State became competent to approve procedural laws. Brazil only changed the competences distribution system when the Federal Constitution of 1934 came into force. In 1939 the first Brazilian Civil Procedure Code was approved (and it came into force in February 1 st, 1940).

In this Code, voluntary jurisdiction was mixed with some contentious cases in a Book called “special proceedings”.

In 1973, however, a new Civil Procedure Code was approved (and it came into force in January 1 st, 1974). In this Code – which is, till nowadays, the most important Brazilian Civil Procedure bill399, there is a whole Title about voluntary jurisdiction, called “special voluntary jurisdiction proceedings”400.

399There is a new Civil Procedure Code recently approved by Brazilian Parliament. It will come into force on March, 2016. For some information on the Code draft, see Alexandre Freitas Câmara, The new Brazilian Civil Procedure Code project: brief analysis, [in _]Revista de Processo, vol. 199, 2011, pp. 205[ et seq_].

400Brazilian Civil Procedure Code of 1973 was divided into 5 Books. Each Book was divided into Titles. Titles may be divided into Chapters. Chapters may be divided into Sections and Sections may be divided into Subsections. The Title called “special voluntary jurisdiction proceedings” was Title II of Book IV (“Special Proceedings”). The Title I of this same book was called “special contentious jurisdiction proceedings”. In the new Brazilian Civil Procedure Code there is a completely different division of issues. The Code is divided in two Parts (“General Part” and “Special Part”). The Special Part is divided into three Books (Book 1: Cognitive proceedings and Sentence Enforcement; Book 2: Enforcement Proceedings; Book 3: Appeals and other Superior Court proceedings). Book 1 is divided into fifteen chapters, and Chapter XV is called “Voluntary Jurisdiction Proceedings”.

In the 1973 Civil Procedure Code there was special care with voluntary jurisdiction, which is regulated in 108 articles. There are eleven Chapters in the “special voluntary jurisdiction proceedings” Title. The first one is about general dispositions on voluntary jurisdiction. The others have rules on “judicial alienation of goods”, “non-contentious divorce”, “wills and other last will dispositions”, “unclaimed inheritance estates”, “properties of absent people”; “deposit of vacant things”, “curatorship of interdicts”; “guardianship and curatorship”, “organization and supervision of Foundations” and “specialization of legal mortgage”.

Recently, in March, 2015, a new Civil Procedure Code was approved. This statute will come into force in March 18 th, 2016. It is possible to find some rules about voluntary jurisdiction in it, as the new Code keeps Brazilian tradition of ruling voluntary jurisdiction together with contentious proceedings, in the same statute.

§ 2.2 Bodies that consider matters of voluntary jurisdiction

There is an old controversy among Brazilian scholars about what bodies consider matters of voluntary jurisdiction. Some specialists consider that only judicial courts can consider these matters, and if some matter is taken into consideration by any other body, like notaries, so this is not voluntary jurisdiction.

One of the most respected Brazilian proceduralists ever, Professor Alfredo de Araújo Lopes da Costa, in his book about voluntary jurisdiction, affirmed that there are many different bodies that can consider matters of voluntary jurisdiction, and judges were among them. But he pointed into many other bodies, such as the Economy Minister, district attorneys, officers of Civil Registry, notaries and consuls401.

401Alfredo de Araújo Lopes da Costa, A administração pública e a ordem jurídica privada (Jurisdição voluntária). Belo Horizonte: Editora Bernardo Álvares, 1961, pp. 72–72.

On the other side, other important scholars, like José Frederico Marques, used to say that only judicial Courts could consider voluntary jurisdiction matters. In his important work about voluntary jurisdiction, he affirmed that only acts submitted to judges could be considered real voluntary jurisdiction. Matters submitted to other bodies, like notaries, were public administration of private interests, but it was not possible to call them voluntary jurisdiction402.

402José Frederico Marques, Ensaio sobre a jurisdição voluntária. Campinas, Millennium, 1 st revised and updated edition, 2000, p. 99.

Nowadays, most of the Brazilian procedural doctrine affirms that only judicial courts can consider voluntary jurisdiction, adopting a subjective criterion to define what is, and what is not, voluntary jurisdiction403.

403Many Brazilian proceduralists could be cited. Among others, see Leonardo Greco, Jurisdição voluntária moderna. São Paulo: Dialética, 2003, p. 11; Alexandre Freitas Câmara, Lições de direito processual civil, vol. 1. São Paulo: Atlas, 25 ª ed., 2014, pp. 88–91.

If this subjective criterion is accepted, whenever a legislative reformation happens and switches judicial activity for non-judicial activity (as it happened in 2007, when a bill was approved to allow married couples that don’t have minor children to do their non-contentious divorce proceedings before notaries, without judicial intervention), the field of voluntary jurisdiction becomes smaller. And this seems to be, for Brazilian Law, the correct way of facing this phenomenon.

§ 2.3 Jurisdictional nature of voluntary jurisdiction

Another old controversy among Brazilian scholars is about the nature of voluntary jurisdiction. Is it jurisdictional? Or is it administrative activity?

Classic legal scholarship sustains the administrative nature of voluntary jurisdiction. One of the most important Brazilian proceduralists of all times, José Frederico Marques, once said:404

404José Frederico Marques, op. cit., p. 65.

“Administrative nature of voluntary jurisdiction, admitted by a large number of scholars, seems unquestionable. When State intervenes, through judges” work, to exercise functions of the so called voluntary jurisdiction, it doesn’t act aiming to observe legal order, nor aiming to solve a conflict or a pretension. So, it is evident that voluntary jurisdiction has nothing to do with jurisdictional activity, because the acts that are necessary to complete or to change a legal relationship are not founded on procedural interest, which is the needing of protection for a legal relationship due to a damage to an individual interest”.

On the other hand, modern scholars prefer considering voluntary jurisdiction as jurisdictional activity stricto sensu. An important Brazilian proceduralist of our days, Leonardo Greco, says that judicial acts that are performed during a proceeding in which are executed judicial decisional functions, inserted in a legal system of principles, guarantees, subjective rights and control rules, must be considered jurisdictional. It makes voluntary jurisdiction essentially a jurisdictional activity405.

405Leonardo Greco,[_ op. cit_]., p. 20.

In Brazilian Courts this matter is also considered. The Brazilian Superior Court of Justice406, the highest Court of the country for statutory matters, has affirmed the administrative nature of voluntary jurisdiction in a 2010 sentence407.

406Superior Tribunal de Justiça (STJ).

407STJ, REsp (special appeal) 898174, given in August, 12 nd, 2010. The decision was written by Judge Sidnei Beneti, who is a member of International Association of Procedural Law. There are other sentences of that Court that also sustain the administrative nature of voluntary jurisdiction, e. g., AgRg no Ag 985782, Judge Mauro Campbell Marques, given in October 28 th, 2008; REsp 312540, Judge Humberto Gomes de Barros, given in February 12 nd, 2008.

Although Brazilian Courts go on treating voluntary jurisdiction as an administrative matter, almost all the modern studies about this subject written in Brazil now affirm that it is jurisdictional activity408.

408Among others: Luiz Guilherme Marinoni, Teoria geral do processo. São Paulo: RT, 2006, p. 142; Cândido Rangel Dinamarco, Instituições de direito processual civil, vol. 1. São Paulo: Malheiros, 6 ª ed., 2009, p. 326.

§ 2.4 Relation between voluntary jurisdiction cases and contentious cases

When the Brazilian Civil Procedure Code was being written, at the late 1960’ s and the beginning of the 1970’ s, the author of its text, Professor Alfredo Buzaid, had some doubts about including voluntary jurisdiction in that important bill. In the report he wrote to Brazilian National Parliament, justifying the draft of that Code, Professor Buzaid said:409

409Alfredo Buzaid, Exposição de motivos do projeto de Código de Processo Civil (Brazilian Civil Procedure Code Project justification), n. 11, [_in _]http:+][+//www.ombadvocacia.com.br/acervo/CODIGOS/CODIGOPROCESSOCIVIL.PDF, accessed in May 25 th, 2013.

“O projeto está dividido em cinco livros. O primeiro se ocupa com o processo de conhecimento; o segundo, com o processo de execução; o terceiro, com o processo cautelar; o quarto, com os procedimentos especiais; e o quinto, com as disposições gerais e transitórias.

A matéria dos três primeiros livros corresponde à função jurisdicional de conhecimento, de execução e cautelar. A dogmática do processo civil moderno sanciona esta classificação. O processo cautelar foi regulado no Livro III, porque é um tertium genus, que contém a um tempo as funções do processo de conhecimento e de execução. O seu elemento específico é a prevenção. O quarto livro abrange procedimentos especiais, distribuídos em dois títulos: os de jurisdição contenciosa e os de jurisdição voluntária. Estará certa a colocação dos procedimentos de jurisdição voluntária no Livro IV? O tema tem sido objeto de larga controvérsia. No direito alemão constitui objeto de lei especial (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit, de 17 de maio de 1898), modificada por leis posteriores. Mas nem a lei alemã abrange toda a jurisdição voluntária, nem o Código de Processo Civil se absteve completamente de tratar dela. Na Áustria, a lei de 1 º de agosto de 1895, denominada Jurisdiktionsnorm, dedica o Capítulo III aos negócios não contenciosos (§ § 105–122), mas de modo também incompleto”.

In English:

“The draft is divided into five Books. The first deals with cognitive proceedings; the second with enforcement proceedings; the third with preventive proceedings; the fourth with special proceedings; and the fifth has final and transitory dispositions.

Matters on the three first books correspond to the jurisdictional functions of cognition, enforcement and prevention. Modern civil procedure dogmatic ratifies this classification. Prevention proceedings are regulated at Book III because it is a tertium genus that contains, at the same time, functions of cognition and enforcement. Its specific element is prevention. Fourth book contains special proceedings, divided into two Titles: contentious jurisdiction proceedings and voluntary jurisdiction proceedings. Is it correct to insert voluntary jurisdiction proceedings in Book IV? The point has been object of great controversy. In German Law it is matter of a special Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit, of May 17 th, 1898), altered by later bills. But neither the German bill contains all the voluntary jurisdiction dispositions nor the Civil Procedure Code refrains from regulating it. In Austria, in a bill from August 1 st, 1895, called Jurisdiktionsnorm, the whole Chapter III is about non-contentious matters (§ § 105–122), but it is incomplete too”.

After these words, Professor Buzaid, cited scholars as Alfredo de Araújo Lopes da Costa, José Frederico Marques (Brazilian scholars who considered the Civil Procedure Code is the right place to insert dispositions about non-contentious proceedings) and Niceto Alcalá-Zamora y Castillo (Spanish proceduralist who considered voluntary jurisdiction as a matter to be dealt in a special bill, as in Germany). And he concludes explaining that Book IV of 1973 Brazilian Civil Procedure Code has rules about voluntary jurisdiction because it is an old tradition to submit these cases to judges. The recently approved new Civil Procedure Code keeps this tradition alive and rules voluntary jurisdiction proceedings in articles 719 to 770.

As voluntary jurisdiction statute is inserted into the Civil Procedure Code, so the regulation of non-contentious matters follows civil procedure rules.

Of course there are some rules that are exclusively applicable to voluntary jurisdiction cases. For instance, when someone applies for a non-contentious provision, all interested must be summoned of the claim and they have a fifteen-day term to present their replies (New Brazilian Civil Procedure Code, article 721). In contentious proceedings the term for the defendant’s reply is also fifteen days (New Brazilian Civil Procedure Code, article 335). But there are many rules that are applicable to both contentious and non-contentious cases. As an example, we can remember the possibility of appealing against the sentence in a fifteen-day term.

As it was said, voluntary jurisdiction is regulated at the ordinary civil procedural bill, the Code of Civil Procedure. There are, however, some non-contentious cases that are regulated in other bills.

One good example could be the proceeding designed to the rectification, restoration or supply of Public Records. This special proceeding is regulated on articles 109 to 113 of another important bill, the Public Records Act (bill n. 6.015, from December 31 st, 1973).

The major part of non-contentious proceedings is regulated by the Civil Procedure Code. And there is an important characteristic of this bill that must be understood to get possible to know how non-contentious proceedings develop.

The new Brazilian Civil Procedure Code has a first part to rule general dispositions. As it was said before, this Code is divided into two parts (one “General Part” and one “Special Part”). It means that the general rules found in the “General Part” will apply to the non-contentious proceedings, except whether there is a specific rule created to the special proceeding.

For example: in the “curatorship of interdicts” special proceeding there is a rule according to which the sentence can produce its effects immediately, despite of a pending appeal (art. 1.012, § 1 º, VI). If this rule did not exist the pending appeal would be an obstacle to the immediate production of effects of the sentence (as this is the general rule: New Civil Procedure Code, art. 1.012, caput).

§ 2.5 Voluntary jurisdiction proceedings in Brazil

As it was said before, Brazilian Civil Procedure Code has rules about some non-contentious proceedings: “notifications and interpellations”, “judicial alienation of goods”, “non-contentious divorce or dissolution of unmarried couples”, “wills and other last will dispositions”, “unclaimed inheritance estates”, “properties of absent people”; “deposit of vacant things”, “curatorship of interdicts”; “guardianship and curatorship”, “organization and supervision of Foundations” and “non-contentious admiralty proceedings”. Beyond these special proceedings there are some others in other bills, such as the special proceeding designed to the rectification, restoration or supply of Public Records.

The most important – and most common – of them all is the special proceeding for non-contentious divorce (and dissolution of unmarried couples). Brazilian legislation about divorce is very liberal and it is very easy for a couple to get divorced. If it is a non-contentious divorce and the couple has no children under 18 there is no need for a judicial proceeding (and so there is no need for voluntary jurisdiction). In this case all they have to do is look for a notary and, assisted by an attorney, celebrate a divorce agreement.

If there are children under 18 years old (or if it is a contentious divorce, but this is not voluntary jurisdiction) the couple needs to use this special voluntary jurisdiction proceeding called “non-contentious divorce”. In 2013 there were 166+974 non-contentious divorces in Brazil410.

410According to IBGE (Brazilian Institute for Geography and Statistics). The information is available at http:+][+//www.ibge.gov.br/home/estatistica/populacao/registrocivil/2013/default_xls.shtm.

Just to compare: Brazilian Superior Court of Justice, the most important Brazilian Court for non-constitutional issues, that was created in 1989, has rendered, till 2013, only ten sentences on proceedings about judicial alienation of goods (that is a relatively common type of voluntary jurisdiction proceeding).

Another sort of voluntary jurisdiction proceeding that can be compared to the non-contentious divorce is the one that aims the “curatorship of interdicts”. This is the special proceeding used to nominee a curator to someone that is mentally ill and has no capacity to administrate his estate. In 2012 the Brazilian Superior Court of Justice has decided just one case of this nature. In the same year the most important Brazilian Court of Appeals (São Paulo Court of Appeals) has decided about 800 cases on curatorship of interdicts. Just to compare, São Paulo Court of Appeals has decided in 2012 more than one thousand cases of non-contentious divorces (and it is important to remember that in most non-contentious divorce cases there are no appeals).

§ 2.6 Short description of voluntary jurisdiction proceedings and its main differences from controversial jurisdiction proceedings

There is an ordinary voluntary jurisdiction proceeding in Brazil, which is regulated by articles 719 to 725 of the New Civil Procedure Code. According to these rules the ordinary voluntary jurisdiction proceeding shall be used whenever there is no special proceeding designed for any sort of non-contentious case.

The ordinary proceeding starts with an application presented by the interested party, the Public Advocacy Body or by the Public Attorney411. This application must be presented to the judge with all the documents required for producing evidence. It is also necessary to point out exactly what is the claimed provision.

411In Brazil the Public Attorney acts not only as a prosecutor in criminal matters but also has civil functions and among these is applying for non-contentious provisions.

All other interested parties must be summoned of this application. If the claimant is not the Public Attorney he must be summoned too. The lack of these summonses shall void the proceeding.

Once summoned the interested parties have a fifteen-day term to reply.

All interested parties can take evidence and the judge is allowed to take evidence ex officio.

After taking evidence the judge must pronounce the sentence.

Comparing this ordinary voluntary jurisdiction proceeding to the ordinary contentious proceeding in Brazilian law it is possible to say that there are no important differences between them. Contentious and non-contentious proceedings develop in very similar ways from initial application to the final sentence.

In Brazilian Law voluntary jurisdiction cases are decided by sentences just like the contentious cases. Most part of Brazilian scholars, however, considers that the voluntary jurisdiction sentences do not become res iudicata412. Nonetheless, it does not mean that voluntary jurisdiction sentences can be easily modified.

412Leonardo Greco, Jurisdição voluntária moderna, cit., p. 38; José Frederico Marques, Ensaio sobre a jurisdição voluntária, cit., p. 12.

After the sentence (and after the judgment of all possible appeals) the sentence said in a non-contentious proceeding is somehow steady. The solution of the case gets settled and usually it is only possible to change it if some new fact happens.

Notwithstanding, there are some cases in which the judge is authorized to change the decision based only on his consideration on what is better for the case. This is what happens on guardianship cases. In this special proceeding the sentence nominees a guardian to an orphan and it is absolutely possible that, after the sentence, the judge changes the orphan’s guardian because it is convenient to do so (and the minor’s convenience must be taken into account in cases like that even after the sentence).

If there is no supervening fact the sentence shall not be altered (except in that cases where it is possible to change it for convenience reasons, as before explained). But it is possible to figure out the hypothesis in which one of the interested parties wants to void the final resolution of the proceeding. In this case it shall be necessary to apply for its nullification. This application will start a completely new, contentious proceeding, where the judge will examine the validity of the voluntary jurisdiction sentence.

§ 2.7 Appeal proceedings in voluntary jurisdiction

According to the New Brazilian Civil Procedure Code (article 724) it is possible to appeal against voluntary proceeding sentences. As there are no special rules about this appeal, it is a consensus that it follows the same rules predicted to the appeals on contentious cases413. As the appeal against the sentence is admitted, so it is also possible to appeal against the judgment rendered by the Court of Appeals (and both special appeal _]– to the Superior Court of Justice – and [_extraordinary appeal – to the Supreme Court – can be admitted)414.

413José Olympio de Castro Filho, Comentários ao Código de Processo Civil, vol. X. Rio de Janeiro: Forense, 5 ª ed., 2004, p. 64.

414The Superior Court of Justice explicitly admitted the special appeal in voluntary jurisdiction proceedings in an important precedent: STJ, REsp 4810/PR, reported by Judge Ruy Rosado de Aguiar, decided on August 20 th, 1996.

§ 2.8 Recent reforms implemented in the area of voluntary jurisdiction

There was an important reform in Brazilian voluntary jurisdiction some years ago. An important bill (n. 11.441, from January 4 th, 2007) made possible the ongoing of some non-contentious cases without the participation of a judge.

Since this bill entered into force it is possible to make a non-contentious divorce (if the couple does not have minor children) before a notary. Before this bill it was absolutely forbidden and even in cases like that there was a need for a judicial proceeding (voluntary jurisdiction).

This same bill made possible the ongoing of probate proceeding before notary if there was no will, no minor heirs and all the successors agree about how to share the inheritance.

This reform shows that there was a reduction of voluntary jurisdiction field (as in Brazil it is considered that cases taken to non-judicial bodies are not voluntary jurisdiction).

Besides this recent reform, it is important to remember that Brazilian National Congress has recently approved a New Civil Procedure Code. This new bill has some propositions about voluntary jurisdiction that are quite new.

According to the New Civil Procedure Code there will be a Chapter about voluntary jurisdiction. This Chapter is divided into twelve Sections.

First Section (articles 717 to 723) rules the general dispositions about voluntary jurisdiction. Comparing this Section to the general dispositions of the Brazilian Civil Procedure Code of 1973 (that is still in force) there are two new propositions. First of all, there is a proposition to allow the Public Advocacy Body to claim for voluntary jurisdiction provisions415. Nowadays Public Defenders can act as lawyers when the claimant is a poor person. What the new bill intends to make possible is the Public Advocacy Body to be the claimant.

415In Brazil there is a Public Advocacy Body, composed by members called Public Defenders, that advocate to the poor. They are public servants, so their clients do not pay any fees for this service.

The other new proposed rule changes the term the interested parties have to present their pleas. In 1973 Civil Procedure Code they had ten days after summons. The new Code changes this term into a fifteen-day one.

The Second Section rules “notifications and interpellations”. This special proceeding still exists, but the 1973 Civil Procedure Code does not consider it a voluntary jurisdiction proceeding (although proceduralists usually assure its correct nature)416.

416Among the scholars who explicitly assure that “notifications and interpellations” proceeding is a voluntary jurisdiction, non-contentious proceeding, Humberto Theodoro Júnior, Curso de direito processual civil, vol. II. Rio de Janeiro: Forense, 45 ª ed., 2010, p. 622.

Section III rules the “judicial alienation of goods”, and Section IV rules non-contentious divorce and judicial separation. This fourth Section also rules the consensual dissolution of unmarried couples (which are called in Brazil “stable unions”) and the change of the marital property system.

This is the first time there will be a procedural statute about the proper proceeding in these two last cases. Unmarried couples have been assimilated to married ones by the 1988 Federal Constitution but till our days there is no proper proceeding to rule the dissolution of these important family units417. There is also no proceeding to the change of marital property system, although this change became possible due to the new Civil Code (that was implemented in January 2003).

417In Brazil approximately one third of the couples are unmarried (stable unions).

Section V rules “wills and other last will dispositions”, and Section VI rules “unclaimed inheritance estates”, special proceedings that already exist in the 1973 Civil Procedure Code. There are no innovations here.

There are no innovations on Sections VII (“properties of absent people”), VIII (“deposit of vacant things”), IX (“curatorship of the interdicts”) and X (“guardianship and curatorship”). The same can be said about Section XI (“organization and supervision of Foundations”).

The last Section (Section XII) rules “ratification of maritime protest” and “witness examination taken on board”. Those are two admiralty proceedings that are nowadays ruled by an old statute, implemented in 1939.

§ 2.9 Final remarks

Voluntary jurisdiction has been studied in Brazil for a long time. Many jurists have written about it and there are many important recent scientific studies about this issue. So, there are not important scientific problems about it in our country.

However, there are some practical problems. And the most important is the lack of statistic information. There are no statistic data about voluntary jurisdiction in Brazil. Scholars and practitioners cannot know if non-contentious proceedings work well in practice, as there is no such data. Do we have proper structure to deal with voluntary jurisdiction in Brazil? Are there too many non-contentious cases, demanding the creation of a special body to deal with them? Would it be worthwhile to create special judicial bodies in larger towns to proceed non-contentious cases? Those are questions without answers so far.

Chapter 3

Voluntary jurisdiction in Venezuela

Jorge I. González Carvajal

Abstract

One of the matters within the scope of civil justice is the so called non contentious/voluntary jurisdiction (jurisdicción voluntaria), which is basically denoted by the absent of a disputed matters to resolve by Courts or officials (Judges). Venezuela has a legislative tradition in recognizing these kinds of specialist procedures within the Code of Civil Procedure. This essay gives a general view about voluntary/non contentious jurisdiction in Venezuela and how it has evolved since the first Code of Civil Procedure (1836) until current Code of Civil Procedure (1986) having into account that in the last years the task at first trusted to Courts has been delegated or outsourced to other legal professionals with the primary aim of reduce the overall caseloads in civil courts.

§ 3.1 The concept of voluntary jurisdiction and brief sketch of its history

For voluntary jurisdiction we understand the function developed by judges or officials in whom they can create concrete conditions in the scope of satisfied interests of particulars in cases where is not admitted the contentious litigation418. As a part of the so called jurisdiction, this kind of function has many forms of manifestation in the Venezuelan legal system. At the beginning, it was named as [non-contentious proceedings _]and not as _voluntary jurisdiction, the change of denomination happened in the reform of the current Civil Procedure Code (1986). The main difference between the contentious/voluntary jurisdiction and [_non-contentious jurisdiction _]is that in the last one, there is not a disputed matter to be resolved by Courts.

418Rengel-Romberg, Arístides. 1991. Tratado de derecho procesal civil venezolano. Según el nuevo Código de 1987. Caracas: Ex Libris. I. p. 77.

Prior to the current Code of Civil Procedure (1986) in Venezuela there was no specific regulation regarding to “voluntary jurisdiction”. The first Civil Procedure Codes stated various proceedings which are currently included in a whole “Book” under the heading “voluntary jurisdiction”. The very first Civil Procedure Code issued by Francisco Aranda in 1836 stated in its “Eighth Title” under the heading “Proceeding where there is not contested matter” many procedures which currently belong to the well known voluntary jurisdiction (“jurisdicción voluntaria”)419. This Code recognized the difference between contentious proceedings _]and [_non-contentious proceedings but not yet under the name of “voluntary jurisdiction”.

419Leyes y Decretos de Venezuela. 1830–1840. Nº 1. 1982. Academia de Ciencias Políticas y Sociales: Caracas. pp. 339–342.

The Civil Procedure Code issued on February 7 th, 1873 which came into force on July 5 th had no systematic structure regarding non contentious proceedings. For example: the “Third Section/Book” (Libro Tercero) of the Code established, without distinction, different legal proceeding regulations under the heading of Specialist Proceedings (“Procedimientos Especiales”) in which we can also find contentious procedures and non – contentious procedures420.

420Leyes y Decretos de Venezuela. 1870–1873. Nº 5. 1982. Academia de Ciencias Políticas y Sociales: Caracas. pp. 760–766.

In the same way, the Civil Procedure Code issued on December 10 th 1880 which came into force on April 27 th 1881 stated the same structure as was done in the previous Code regarding “Specialist proceedings”, specifically the “Third Section/Book” of the above-mentioned Code established also, without distinction, different legal proceeding regulations under the heading of Specialist proceedings in which we can also find contentious procedures and non – contentious procedures (arts. 341 to 560)421.

421Leyes y Decretos de Venezuela. 1880–1882. Nº 9. 1989. Academia de Ciencias Políticas y Sociales: Caracas. p. 149.

Things began to change under the Civil Procedure Code issued on May 14 th, 1897422, which stated, under the heading of Specialist proceedings, “Third Section/Book” of the above-mentioned Code, two different sections; the first one regarding [_contentious proceedings _](arts. 485 to 723) where we can find “Arbitration”, “Special enforcement procedures”, “Rules regarding marriage” where we can find opposition to marriage, suspension of marriage, annulment and divorce; “Rules regarding tutelary counsel, guardianship proceedings and legal incompetence”, where we can find opposition and preferences to appointment of tutelary counsel, interdiction and legal incompetent declaration procedures and tutelage removal; “Rules regarding inheritance successions”, where we can find opposition to division of inheritance and division of inheritance procedure; “Rules regarding writs of possession”; “Creditors meeting” where we can find transfer of assets and arrangements with creditors; “Demarcation of lands”; “Accountability procedure” “Pretrial preservation of evidence proceeding”; “Family maintenance obligation procedure”; “Tax proceedings”; “Rectification of documents”; “Verbal trial procedure”; “Tort claims against judges because of judicial error”; “Action to nullify (invalidate) a trial”, “Proceeding to enforce international judgments (Exequatur)”.

422Leyes y Decretos de Venezuela. 1987. Nº 20. 1992. Academia de Ciencias Políticas y Sociales: Caracas. pp. 163–192.

And the second section regarding [_non-contentious proceedings _](arts. 724 to 767), where we can find “Rules regarding marriage” licenses, prohibition to marriage and authorization to married women; “Rules regarding tutelary counsel and guardianships”, where we can find appointment of tutelary counsel and authorizations to the father or guardianships to act in name of the legal incompetent individual; “Rules regarding inheritance successions”, where we can find opening of written will instruments, inventory and estate of deceased individuals and “Delivery of sold goods and certificate of perpetual record”.

In this sense the above-mentioned Code began to recognize, as did the very first Code, the difference between contentious proceedings _]and [_non-contentious proceedings but not yet under the name of “voluntary jurisdiction”.

In the same way, the Civil Procedure Code issued on April 11 th 1904 which came into force on April 18 th 1904 stated the same structure as was done in the previous Code regarding “Specialist proceedings” (“Third Section/Book”), recognizing in two different sections, contentious proceedings _](arts. 487 to 732) and [_non-contentious proceedings _](arts. 733 to 776) but still not yet under the name of “voluntary jurisdiction”423. The Civil Procedure Code issued on July 4 th 1916 which came into force on December 19 th 1916 did the same as its predecessor Code, by recognizing in two different sections of the “Third Section/Book”, [_contentious proceedings _](arts. 502 to 756) and [_non-contentious proceedings (arts. 757 to 797) and adding on a few proceedings424.

423Leyes y Decretos de Venezuela. 1987. Nº 27. Vol. I. 1992. Academia de Ciencias Políticas y Sociales: Caracas. pp. 450–477.

424Leyes y Decretos de Venezuela. 1916. Nº 39. 1992. Academia de Ciencias Políticas y Sociales: Caracas. pp. 440–467.

In the current Civil Procedure Code issued in 1986 which came into force in 1987 the lawmaker built a structure where the “voluntary jurisdiction” was regulated expressly. In this sense the “Fourth Section/Book” of the above-mentioned Code, under the heading of “Specialist Proceedings” have divided in two Sub-Sections its regulations, on the one hand the regulations regarding “Contentious specialist proceedings” arts., 608 to 894, and on the other hand regulations regarding “Voluntary jurisdiction” arts. 895 to 939. In the “voluntary jurisdiction” section we would find the same proceedings that were established in previous Codes regarding non-contentious proceedings, with the difference that the current Code has a “General Provisions” chapter (art. 895 to 902) as a common regulation applicable to all voluntary jurisdiction proceedings.

§ 3.2 The voluntary jurisdiction in the legal system: doctrine and legislation

As we noted previously the so called voluntary jurisdiction is regulated in the current Civil Procedure Code from articles 895 to 939. The “General Provisions” of the sections of the Code defined in general terms the competence and procedure to act in voluntary jurisdiction, given to judges inherent power to intervene in the creation and development of situations according to the legal regulations (art. 895) but with the particularity that all those resolutions handed down in voluntary jurisdiction matters can not affect the sphere or situation of persons that do not participated in the proceeding (art. 11) and without produce [_res iudicata _]but a rebuttable presumption (art. 898) and given the possibility to appellate the resolution handed down by judges in voluntary jurisdiction matters (art. 896).

The doctrine since the 19 th Century did not discuss about these kinds of proceedings, because as we noted, under the Codes issued before the current Civil Procedure Code there was not a defined concept of “voluntary jurisdiction”425.

425Sanojo, Luís. 1981. Comentarios al Código de Procedimiento Civil. Caracas: Fabretón. I. pp. 353 ss., and Id., 1981. Comentarios al Código de Procedimiento Civil. Caracas: Fabretón. II. pp. 645 ss. See also Borjas, Arminio. 1979. Comentarios al Código de Procedimiento Civil venezolano. Caracas: Piñango. VI. pp. 299 ss.

In the book of Humberto Cuenca [Derecho procesal civil _]published in 1965426 the author included the topic of the _voluntary jurisdiction,[_ ]also called by him as “the amusing or honorary jurisdiction”, in contraposition to the _contentious jurisdiction. Suggesting that the difference between voluntary and contentious jurisdiction must disappear due to the heterogeneity of the first one. In the opinion of this Author, this heterogeneity gives the idea that when the legislator has a doubt about the nature of a procedure the lawmaker includes this procedure as a voluntary jurisdiction matter. Consequently, the voluntary jurisdiction is a kind of “Noah’s Ark” because there is not a systematic and scientific criterion that gives a distinction.

426Cuenca, Humberto. 2005. Derecho procesal civil. La competencia y otros temas.[_ _]9 th Edition. Caracas: Universidad Central de Venezuela. I. pp. 86 ss.

The doctrine in Venezuela has discussed about the voluntary jurisdiction, for example, A. Rengel-Romberg427, M. Pesci-Feltri, R. Ortiz-Ortiz428 or V. Puppio429 highlighting the contradiction of the nomen iuris, a different approach gave to the issue in the Western system of law which have influenced the current Venezuelan Civil Procedure Code and the lack of a systematic and scientific criterion to identify the voluntary jurisdiction.

427Rengel-Romberg, Arístides. 1991. Tratado de derecho procesal civil venezolano. Según el nuevo Código de 1987. Caracas: Ex Libris. I. p. 70 ss.

428Ortiz-Ortiz, Rafael. 2004. Teoría general del proceso. 2 nd Edition. Caracas: Frónesis. pp. 130 ss.

429Puppio, Vicente. 2008. Teoría general del proceso. 7 th Edition. Caracas. UCAB. pp. 131 ss.

3.2.1 Legal nature of voluntary jurisdiction: jurisdictio, administratio or sui generis? Authorities responsible for considering voluntary jurisdiction cases

One of the most problematic issues not yet resolved about voluntary jurisdiction is its legal nature and Venezuela is not an exception. In this regard there is no unanimous opinion and we find scholars who demand jurisdictional treatment to voluntary jurisdiction matters, so they consider that there is actio, procedure and iurisdictio in all [voluntary jurisdiction _]matters. A part of the scholars considers that the voluntary jurisdiction is _iurisdictio which means that it does not matter that the issue/problem to be resolved by the judges could be qualified as a non-contentious or a contentious because the thing that matter is that it is necessary the intervention of the judge. In this regard Cuenca is of the opinion that in the most of cases of voluntary jurisdiction proceedings regulated in the Code of Civil Procedure there is always a potentially contested matter involved and a public interest needed to be protected by judiciary bodies430 with the only exception of the proceedings of authentication of documents and certificate of perpetual record considers by the Author as proceedings strictly documentary that do not belong to the voluntary jurisdiction classification but to the notary law. In this sense – in his opinion – the difference between voluntary jurisdiction and contentious jurisdiction should disappear in order to have a unisonous concept of jurisdiction431.

430Cuenca, Humberto. op. cit. p. 88.

431Cuenca, Humberto. op. cit. p. 88.

On the other hand, we find those scholars who consider voluntary jurisdiction as an administrative matter, rejecting expressly any jurisdictional consideration. For this theory the voluntary jurisdiction is considered as administrative activity and no jurisdictional, and is defined as “public administration of private law issued by judicial authorities”. It is said that the voluntary jurisdiction, by its contents, can be classified inside that branch belonging to the administrative function called public administration of private law, comprising activities where the State get involved to satisfies individual interests. In their opinion the will of each individual is not enough to produce certain effects in some cases being mandatory the intervention of an authority of the State which acts as a collaborator of each particular in order to permit them to satisfy their interests and protect public interest too. Therefore, the voluntary jurisdiction becomes administrative activity issued by judicial authorities, in other words “in an activity that only organic is likely jurisdictional but essentially or substantially is administrative activity”432.

432Rengel-Romberg, Arístides. op. cit. pp. 76–77.

A different opinion is expressed by Ortiz-Ortiz who considers three different kinds of proceedings within the Code of Civil Procedure: 1) contentious proceeding, 2) [non-contentious proceedings _]and 3) _voluntary jurisdiction proceedings. The difference between non-contentious proceeding and voluntary jurisdiction proceeding is that in the non-contentious proceeding the claim is not formally contentious, but the decision handed down by the judge has characteristics of a contentious decision that produces [res iudicata _]effects[._] The Author gives as example the non-contested divorce and separation “orders” which produce [_res iudicata _]effects. While in [_voluntary jurisdiction proceedings _]there is not a contested matter and the decision handed down by judges can be changed if the circumstances change433 that is there is not [_res iudicata _]effect.

433Ortiz-Ortiz, Rafael. op. cit. p. 133 ss.

In principle, the current Civil Procedure Code establishes that civil and commercial judges are competent to hear all matters of voluntary jurisdiction (arts. 11 and 895) and in practice it works in this way, so judges are fully entitled to hear these matters. However, currently the competence to hear matters of voluntary jurisdiction in Venezuela has been delegated by the legislator to Notaries Public, which means that judges and Notaries share voluntary jurisdiction competence. In this sense the current “Public Registry and Notaries Public Act” issued on November 19 th 2014, gives competence to Notaries Public in matters of voluntary jurisdiction, as stated in a general way its article 72: “The Notary Public, as an official authority of voluntary jurisdiction, will act upon request by a party”. Furthermore, article 75 of said Act placed some specific competences in the control of Notaries Public in order to execute their voluntary jurisdiction competence. For example, “Certificate of perpetual record” (Art. 75, 4 °), “Rules regarding inheritance successions” (art. 75, 6 °-8 °), “Non-judicial inspections/views” (art. 75, 10 °), etc.

3.2.2 The scope and viability of non-contentious jurisdiction. Statistics

The explanatory report of the current Civil Procedure Code gives us an idea that the drafters of the Code had the intention to considerer voluntary jurisdiction matters as a part of true jurisdiction. Indeed in the explanatory report we can read as follow: “The Title I of this Second Part of the Fourth Book contents, in the opinion of this commission, a complete set of rules regarding this matter, without precedents in the procedural law in Venezuela, set down with the intention to cover as well as procedural rules and most characteristics principles of the voluntary jurisdiction… Without prejudice of a scientific concept, the simplicity of the concept gives a clear idea about the voluntary jurisdiction and mainly about one of its fundamental characteristics which is the constitutive scope within the voluntary jurisdiction”434.

434Exposición de motivos. 1986. Conferencias sobre el nuevo Código de Procedimiento Civil. Ciclo ordinario de conferencias de la Academia. Caracas: Academia de Ciencias Políticas y Sociales. p. 513.

In the Supreme Court, in Civil Division, opinion, voluntary jurisdiction is considered jurisdictional as a part of a wide concept of jurisdiction: “The scope of voluntary jurisdiction is not to guarantee strictly the observance of law, but to hear, within the limits of law, those privates interests, which the situation or relation refer to in order to creates or modifies it with the intervention of judicial authority…” (SCC-TSJ. Sent. N ° 0035. 10/03/1999, Carlos Bacchin Zago _]v [_Gisela Berrizbeitia).

The share of non-controversial matters in Caracas-Venezuela is bigger than the one of controversial matters. For example, the Metropolitan Area has a circuit of Courts that monopolize, as happen in each Province of the State, competences to hear non-controversial matters and share with other Courts competence to hear controversial matters. In Caracas these Courts are the so-called Municipalities Courts of the Metropolitan Area of Caracas; composed by 24 Courts/Judges who are the small claim courts in the structure of the judiciary system. From July 1 st 2012 to December 31 st 2012 Municipalities Courts of Caracas received 5.481 applications in non-controversial matters while in contested-matters they received 1.275 (1.105 [Civil matters] and 170 [Commercial matters]). As far as we know the share of non-controversial cases is quite superior in comparison with the number of controversial cases in Venezuela thus non-controversial protection of Courts is more requested than controversial.

Questions resolved in voluntary jurisdiction, as the current Civil Procedure Code stated, are: “Rules regarding marriage” licenses and authorization to marriage (arts. 903 to 905); “Rules regarding tutelary counsel and guardianships”, where we can find appointment of tutelary counsel and authorizations to the father or guardianships to act in name of the legal incompetent individual (arts. 906 to 912); “Rules regarding inheritance successions”, where we can find opening of written will instruments, inventory and estate of deceased individuals (arts. 913 to 926); “Rules regarding authentication of documents”, judges and Notaries share competence to execute authentication of documents (arts. 927 to 928); and “Delivery of sold goods and certificate of perpetual record” (arts. 929 to 935).

In the Venezuelan legal system most common voluntary jurisdiction questions heard by judges are the so-called “certificated of perpetual record” where we find “Possessory title proceeding” (art. 937) which is a common petition issued by any possessor or an owner of any rights regarding goods in front of a judge in order to guarantee his legal situation against any other person and obtain an “order” issued by a judge that declares and confirms the fact of the possession or right alleged by the applicant with demonstrated given proof. It should be said, that eventual rights of third subjects are always saved and the resolution can not affects them.

Another kind of “certificated of perpetual record” commonly used in the Venezuelan legal system regard to “extra-judicial inspections/views” (art. 938) which is a pretrial view issued by a judge in order to secure some evidence which it is about to disappear because any justified reason.

As we said before, some matters regarding non-contested divorce and separation are included by scholars and the Courts as matters of voluntary jurisdiction ([_V. _]Civil Code, arts. 185-A and 188–190).

3.2.3 Judicial procedure (s) for considering voluntary jurisdiction cases and its main differences from the procedure for considering contentious cases

Special proceedings cases handled by Courts in Venezuela are governed by a special chapter of the Civil Procedure Code in its “Fourth Section/Book” under the heading of “Special Proceedings” divided in two Sub-Sections, as was mentioned above. The “Sub-sections” regarding “voluntary jurisdiction” are established from articles 895 to 902 in which we find a previous chapter under the heading of “General Provisions” as common regulations applicable to all voluntary jurisdiction proceedings. Due to these “General Provisions” voluntary jurisdiction procedure has, in principle, an autonomous and a standard procedural iter but in some cases the legislator ordain to apply specific civil procedure rules regarding special voluntary jurisdiction proceedings; in other words, despite those “General Provisions” there are also special provisions for each specialist voluntary jurisdiction proceeding.

Procedures of voluntary jurisdiction are related to civil procedure only in some features and as we said there is a special chapter of the Civil Procedure Code which contains regulations regarding exclusively voluntary jurisdiction matters. As we stated above Public Notaries share with judges voluntary jurisdiction competence so in cases were the voluntary jurisdiction is executed by Public Notaries apply, in first place, regulations of the “Public Registry and Notaries Public Act” issued on November 19 th 2014 and in second place rules regarding voluntary jurisdiction of the Civil Procedure Code, where applicable.

Also one can find rules of voluntary jurisdiction proceedings in other laws, for example, matters regarding uncontested divorce and separation, which have been considered of voluntary jurisdiction nature are regulated in the current Civil Code (arts. 185-A and 188–190).

The voluntary jurisdiction procedure begins, as it happens in contentious proceedings – ordinary civil procedure (art. 340), with the filing of an application in which the applicant states the factual and legal grounds of his petition and where he should accompanying written evidence and all mean of proof applicable in order to support his petition; indicating, besides, any person that could be interested or be affected by the order of the Court (art. 899). After that judges should pronounce about the legality of the petition and admits it or refuses it. They can also open a stage of evidence if they consider so.

In voluntary jurisdiction matters judges have inquisitorial powers given to them due to the fact that there are not contested matters involved and they should protect “public interests”, in this sense i. e. judges can call to Court [_ex officio _]any third subject in order to hear him with regard to the petition (art. 900). Procedural times in voluntary jurisdiction proceedings are shorter than in the ordinary civil procedure, in this regard after the end of the stage of evidence, if it is applicable, the judge have three Court working days to issue an order about the matter but if he considerers that the petition belong to contested matters he must discontinue the petition, in others words, close the procedure.

3.2.4 The decisions taken as a result of considering of voluntary jurisdiction cases: the problem of res iudicata

The “General Provisions” chapter, as a common regulation applicable to all voluntary jurisdiction proceedings, does not state expressly which kind of judicial act is adopted after resolving non controversial cases. The legislator uses the words “determinaciones” (in Spanish) and “resoluciones” (in Spanish) to denote the act adopted after resolving non controversial cases. Having into account that these “determinaciones” and “resoluciones” are subject to appeal, except in cases where a special rules stipulate otherwise, (art. 896) one can deduct, taking into consideration that appeal is a remedy permitted against interim and final judgments (arts. 288 and 289), that those acts are likely judgments (in Spanish “sentencias”) in the opinion of the legislator.

Furthermore, those “regulaciones” and “determinaciones” have no [_res iudicata _]effect but establish a revocable presumption (art. 898). It happens in this way in order to safeguard rights acquired by third subjects in good faith who can not be affected by voluntary jurisdictions orders. But one of the most difficult problems nowadays is that most of the scholars and Courts in Venezuela consider that some special proceedings as the non-contested divorce and separation produce [_res iudicata _]effects. In this regard in our opinion this kind of specialist proceedings do not fit into the voluntary jurisdiction proceeding. The non-contested separation proceeding (art. 762 to 765) is set down in the “Fourth Section/Book – Specialist Proceedings” regarding the [_Contentious specialist proceedings _]and not in the sections of the voluntary jurisdiction while the non-contested divorce does not have a specialist proceeding in the Civil Procedure Code but in the Civil Code (art. 185-A Civil Code) which structure is properly a contentious one.

3.2.5 The specificity of appellation and reconsideration procedures

The article 896 states that: “Judge’s determinations concerning voluntary jurisdiction matters are appealable, unless a special provision establishes the contrary”. Appeal’s procedure for voluntary jurisdiction matters issued by judges is the same procedure applicable to controversial cases, that is, as far as the Code allows the appeal against voluntary jurisdiction “orders” without establishes a special proceeding applicable to this remedy one should consider applicable the contentious proceeding appeal rules (arts. 292 and 298).

In cases where the voluntary jurisdiction orders are issued by i. e., Public Notaries is not plausible to apply the Civil Procedure Code appeal rules due to the fact that Notaries do not belong to the Judicature and their acts are subject to another kind of remedies, as administrative and special contentious-administrative remedies, for example, the reconsideration administrative remedy and/or hierarchical remedy (i. e., arts. 94, 95 and 96 of the Administrative Procedure Act issued on July 1 st 1981). So in those cases verification of Notaries Public’s acts for non-controversial cases is not similar to controversial cases procedures.

§ 3.3 The future of voluntary jurisdiction: main problems and planned reforms

The main reform implemented in Venezuela came into force on March 18 th 2009 by Resolution 2009–0006 (G. O. Nº 39.152, April 2 nd 2009) issued by the Supreme Court which modified competences of Civil and Commercial Courts and gives to Municipalities Courts, who as we mentioned above are the small claim Courts in the judiciary structure, exclusive competence to hear all matters regarding voluntary/non-contentious jurisdiction. With this resolution the Supreme Court aims to release the civil judicial system from its excessive caseload and saturation excluding the overwhelmed First Instance Civil Courts from hearing such kind of matters.

One of the scientific problems regarding voluntary jurisdiction to be resolved could be the rationalization in the uses of the words “voluntary jurisdiction” due to the inconsistent way in which is regulated (and handle) by the legislator (and Courts), making difficult to achieve to an unanimous, or at least a more clear, conception of the phenomenon. For example, as we said before the “orders” of the Courts in voluntary jurisdiction matters, in principle, have no res iudicata effects; however in non-contested divorce and separation the “orders” produce [_res iudicata _]effects.

Chapter 4

Non-contentious Jurisdiction in the Courts of the United States

James E. Pfander – Daniel D. Birk435

435Thanks to the Yale Law Journal for permission to republish here in chapter form a trimmed down version of the lengthy article in which we first explored the exercise of non-contentious jurisdiction in the courts of the United States. See James E Pfander & Daniel D. Birk, Article III Judicial Power,[_ the Adverse-Party Requirement,][ and Non-Contentious Jurisdiction_], 124 Yale L. J. 1346 (2015).

Abstract

Scholars and jurists alike assume that the United States, with its commitment to the adversary system, entirely lacks the forms of non-contentious jurisdiction that make up part of the work of the judiciary in civil law systems. The Supreme Court of the United States has lent support to this assumption, proclaiming in recent years that the Constitution limits federal courts to the resolution of concrete disputes between adverse parties. Yet since the early days of the Republic, federal courts have agreed to exercise power, conferred by Congress, to hear a range of uncontested ex parte proceedings, such as the registration of claims to naturalized citizenship. Such proceedings fail to conform to the adverse party, dispute-resolution ideal and can best be understood as instances of non-contentious jurisdiction in the courts of the United States.

In this chapter, a shortened version of an article that appeared in the Yale Law Journal, we catalog the surprisingly wide range of ex parte and other non-contentious proceedings that have cropped up on the dockets of the federal courts and explain how those proceedings fit within an otherwise largely adversarial federal judicial system. We argue that “cases” arising under the Constitution, laws, and treaties of the United States encompass both “contentious” disputes and to “non-contentious” matters affecting federal law, such as naturalization petitions. “Controversies” (the other category of judicial authority conferred on federal courts) extend only to disputes between properly aligned opponents, often over matters of state law that federal courts lack the power to administer in non-contentious proceedings. By recovering the historic distinction between “cases” and “controversies,” our work explains the practice of the federal judiciary and helps to situate that practice in a civil law framework that was very much a part of the founders” conception of the judicial power of the United States.

§ 4.1 Non-Contentious Proceedings in the Federal Courts

Scholars and jurists in the United States often proceed on the assumption that their country altogether lacks non-contentious forms of adjudication. Indeed, one finds widespread acceptance of the proposition that the judicial power, and the federal judicial power in particular, can be exercised only when a court is presented with a concrete dispute between parties with adverse legal interests436. This “adverse-party requirement” complements other justiciability doctrines that limit the constitutional or prudential jurisdiction of American courts, along with such requirements as finality, standing, mootness, and the prohibitions on issuing advisory opinions and addressing political questions437. Many believe that the adverse-party requirement serves to circumscribe the role of courts and to prevent the federal courts from interfering with the prerogatives of the states and of the political branches of the federal government unless required to do so by the presence of a live dispute438. Adverseness is also said to protect the interests of absent third parties and to enable courts to make decisions with the benefit of a full record and a comprehensive understanding of the arguments bearing upon questions implicated by the case439. Indeed, the Supreme Court of the United States has treated decisions rendered without full adversarial briefing as entitled to less precedential weight than decisions rendered on fully developed records440.

436See, e. g.,[_ ]Bond v. United States, 131 S. Ct. 2355, 2361 (2011); Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240–41 (1937); _see also, e. g., Richard J. Fallon, Jr., et al., Hart & Wechsler’s Federal Courts and the Federal System 84–5 (6 th ed. 2009) (“Hart & Wechsler”) (stating that a “dispute that satisfies Article III [of the U. S. Constitution] . . . has at least two sides, each of which has a stake in winning”); Jonathan R. Siegel, A Theory of Justiciability, 86 Tex. L. Rev. 73, 77 (2007) (describing as part of fundamental justiciability doctrine the principle that “courts will act only on a matter involving adverse parties”); Martin H. Redish & Andrianna D. Kastanek, Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545, 567 n.80 (2006) (“The [Supreme] Court has widely held that the case-or-controversy language of Article III mandates litigant adverseness.”).

437Just how solid a place the adverse-party requirement occupies was cast into some doubt by United States v. Windsor, 133 S. Ct. 2675 (2013). The Supreme Court stated in that case that “concrete adverseness” is merely a prudential requirement rather than a limitation contained in Article III of the U. S. Constitution and also suggested that the lack of an adverse party could be mitigated by the presence of an amicus curiae advancing an adverse argument. Id. at 2687 (quoting Baker v. Carr, 369 U. S. 186, 204 (1962)). Justice Scalia strenuously objected to the Court’s characterization. See Windsor,[_ ]133 S. Ct.[ _]at 2701–02 (Scalia, J., dissenting).

438See, e. g., Redish & Kastanek, supra _]note 1, at 582–83; Michael T. Morley, [_Consent of the Governed or Consent of the Government:[_ The Problem of Consent Decrees in Government Party Litigation_], 16 U. Pa. J. Const. L. 637, 665 (2014); Ralph Avery, Article III and Title 11:[_ A_][_ Constitutional Collision_], 12 Bankr. Dev. J. 397, 449–50 (1996).

439See Baker, 369 U. S. at 204.

440[See _]Dist. of Columbia v. Heller, 554 U. S. 570, 623–24 (2008) (dismissing the reasoning of _United States v. Miller, 307 U. S. 174 (1939),[_ _]because the defendants in that case did not appear or present argument and so did not offer a “counterdiscussion” of the government’s position on the history of the right to bear arms); Steel Co. v. Citizens for a Better Env’t, 523 U. S. 83, 91 (1998) (characterizing “drive-by jurisdictional rulings” as entitled to no precedential weight).

But the reality of judicial practice in the courts of the United States often departs sharply from this adversarial ideal. In fact, since their establishment, federal courts have entertained a wide variety of ex parte and other proceedings lacking an adverse party and have consistently upheld the judicial role in such proceedings against constitutional challenges. State courts, too, exercise jurisdiction over non-contentious proceedings in a wide variety of settings, sometimes explicitly acknowledging that they are doing so. Moreover, non-contentious proceedings often call upon the courts to exercise core judicial functions, such as fact-finding, the determination of questions of law, and the application of the law to the facts of the case441. The sections that follow catalog non-contentious proceedings in the courts in the United States, with a particular focus on courts exercising the judicial power conferred in Article III of the U. S. Constitution442. As we will see, some non-contentious matters begin with an original application for relief, while others unfold in proceedings ancillary to a dispute between parties with opposing interests.

441[_See _]Printz v. United States, 521 U. S. 898, 905–09 & n.2 (1997) (characterizing the role of the courts under the 1790 Naturalization Act as “quintessentially adjudicative”). [_But see id. _]at 949–51, 952 n.11 (Stevens, J., dissenting) (questioning the judicial character of naturalization proceedings).

442Although the catalog provided here is lengthy, there likely are many other instances of federal non-contentious proceedings that we have overlooked. This catalog also focuses on the non-contentious dockets of federal courts and thus omits many practices unique to state courts.

4.1.1 Government Benefits

Ex parte[_ ]federal court[ _]proceedings were frequently used as a method for the determination of government benefit claims in the early Republic. The U. S. Congress apparently chose to rely on the federal courts to hear such claims in part because of the absence of the sort of federal administrative apparatus available today. Aside from the postal service, customs collectors, district attorneys, marshals, and lighthouse keepers, early Congresses had little administrative capacity at their disposal443 and understandably turned to the federal courts to evaluate claims of entitlement to government benefits.

443See Leonard D. White, The Federalists: A Study in Administrative History 199–200 (1948). For a comprehensive account of the executive and administrative organs of the federal government in the early Republic, see Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law 29–78 (2012).

a) Naturalization Proceedings

Applications for citizenship appeared on federal dockets shortly after the adoption of the nation’s first naturalization statute in 1790. The 1790 Act provided for an applicant to submit a petition for naturalization to “any common law court of record.”444 This formulation was broad enough to encompass both state and federal courts, and federal judges issued naturalization judgments under its authority445. Later, the 1795 Act expressly conferred concurrent authority on the state, lower federal, and territorial courts to entertain naturalization petitions446. Along with the petition, the applicant was required to submit evidence sufficient to satisfy the court of the applicant’s good character and residence in the United States447. Assuming the applicant made these showings, the Act called upon the “court,” not the judge, to administer an oath in which the applicant pledged to support the Constitution448. Finally, the Act provided for the clerk to record the application and the proceedings, memorializing the court’s conclusion449. The Act made no provision for the prospective citizen to name the government (or its officers) as an opposing party. Nor did it specifically allow for the government to intervene or seek the cancellation of a naturalization judgment450.

444See Act of March 26, 1790, ch. 3, 1 Stat. 103 (repealed 1795). On the framing of the Constitution’s Naturalization Clause and the drafting of the 1790 Act generally, see James E. Pfander & Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic:[_ Prospectivity,][ Uniformity,][ and Transparency_], 96 Va. L. Rev. 359 (2010).

445[_See _]Pfander & Wardon, [_supra _]note 444, at 394 n.155.

446See An Act to Establish a Uniform Rule of Naturalization; and to Repeal the Act Heretofore Passed on that Subject, ch. 20, §  1, 1 Stat. 414 (1795) (repealed 1802) (authorizing naturalization proceedings before any “supreme, superior, district, or circuit court” of the states, any such court of the territories, and any circuit or district court of the United States).

447Id.

448Id.

449[_Id. _]at §  §  1–2.

450These features were added in 1906, apparently after Congress grew concerned that federal courts were applying an insufficiently searching standard of review to naturalization petitions. [_See _]Naturalization Act of 1906, Pub. L. No. 59–338, §  11, 34 Stat. 596 (1906) (repealed by the Nationality Act of 1940, Pub. L. 76–853, 54 Stat. 1137).

The failure to require or provide for the appearance of an adverse party does not appear to have raised doubts in the minds of legislators or judges as to the judicial nature of the naturalization proceeding. Indeed, the Act’s referral of these matters to “courts of record” tends to underscore their judicial quality. Courts of record enjoyed a special status in Anglo-American law: they conducted open proceedings on “court” days451, and their judgments, part of the court’s formal record, were considered conclusive unless modified through some special proceeding452. The Supreme Court has long treated the ex parte consideration of naturalization petitions as an appropriate exercise of judicial power. In Ex parte Fitzbonne, an unreported decision from 1800, the district court resolved an issue of law that had arisen in a naturalization proceeding, namely, whether a statutory prohibition on the naturalization of citizens of a country at war with the United States applied to French citizens during the quasi-war with France453. The district court decided that the countries were at war, and Alexander Dallas, the Court’s reporter and the attorney for the petitioners, sought review by petitioning the Supreme Court for a writ of mandamus454. The Court agreed to hear the matter and ordered the district court to proceed with the naturalization proceeding, apparently concluding that French citizens were eligible for naturalization455.

451During the eighteenth century, court sessions in America occupied a few days each month, often corresponded to market days, and attracted a good deal of public participation. Not only would the local press (if any) attend and report on the proceedings, but members of the public would also attend-both as spectators and as potential jurors. On the public quality of court days in colonial and early statehood America, see A. G. Roeber, Authority, Law, and Custom: The Rituals of Court Day in Tidewater Virginia, 1720 to 1750, 37 Wm. & Mary Q. 29 (1980); see also Rhys Isaac, The Transformation of Virginia, 1740–1790, at 90 (2 d ed. 1999) (“In the monthly concourse at the courthouse the male part of Virginia county society became visible to its members in a manner similar to that observed at the parish church.”).

452See Arthur M. Alger, What Is a Court of Record?, 34 Am. L. Rev. 70, 71 (1900); see also _ 3 William Blackstone, Commentaries *24–25 (discussing the features of courts of record); [_cf. _]S. E. Thorne, _Courts of Record and Sir Edward Coke, 2 U. Toronto L. J. 24, 48–49 (1937) (concluding that Coke developed the construct of the court of record as a way to bolster claims of judicature by the Houses of Commons and Lords in England and placing these developments in the context of the constitutional struggles of the seventeenth century).

453For an account of Ex parte Fitzbonne, see 8 The Documentary History of the Supreme Court: 1789–1800 389–90 (Maeva Marcus ed., 2007) [hereinafter DHSC].

454On Dallas’s defense of the rights of those seeking naturalized citizenship, see James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills:[_ Indemnification and Government Accountability in the Early Republic_], 85 N. Y. U. L. Rev. 1862 (2010).

455The Court upheld the naturalization of French citizens, having concluded, in effect, that the quasi-war between the United States and France did not make the French citizens enemies of the United States within the meaning of the naturalization laws. On the quasi-war, see Pfander & Hunt, supra note 20, at 1877–80.

b) Revolutionary War Pension Claims and Hayburn’s Case456

4562 U. S. (2 Dall.) 409 (1792).

In 1792, Congress assigned the federal circuit courts responsibility for reviewing the pension applications of disabled war veterans457. The statute called for the claimant to file a petition with the court, along with supporting evidence of military service, rank, and related information458. The statute did not, however, require the veterans to join the government as an opposing party. In passing on these petitions, the circuit courts were to conduct a physical examination of the veteran, assess the extent of the injury, and prepare an opinion as to the degree of disability and the proper compensation459. The court’s decision, together with the veteran’s supporting evidence, were to be forwarded to the Secretary of War for review460. Assuming there was no “imposition or mistake”—as adjudged by the Secretary and reviewed by Congress-the petitioner would be added to the pension list for submission to Congress461. In Hayburns Case, three circuit courts rejected the pension scheme, in part because the Secretary’s revision power rendered the courts” decisions non-final, and in part for reasons that have been the cause of frequent speculation462.

457Disabled veterans began filing legislative petitions as soon as Congress convened in 1789, seeking benefits they had been promised by the old Congress under the Articles of Confederation. See William C. diGiacomantonio, Petitioners and Their Grievances:[_ A_][_ View from the First Federal Congress_], in The House and Senate in the 1790 s, at 29, 47–56 (Kenneth R. Bowling & Donald R. Kennon eds., 2002). For an account of the legislation, see James E. Pfander, Judicial Compensation and the Definition of Judicial Power in the Early Republic, 107 Mich. L. Rev. 1, 34–40 (2008).

458An Act to Provide for the Settlement of the Claims of Widows and Orphans Barred by the Limitations Heretofore Established, and to Regulate the Claims to Invalid Pensions, ch. 11, §  §  2–3, 1 Stat. 243, 244 (1792).

459Id.

460[_Id. _]§  4.

461See Hayburn’s Case, 2 U. S. (2 Dall.) at 411–14 (quoting letters from the judges of circuit courts).

462Two other grants of non-contentious jurisdiction appeared in the 1790 s. See An Act for the Relief of the Refugees from the British Provinces of Canada and Nova Scotia, ch. 26, §  3, 1 Stat. 547, 548 (1798) (providing for the judges of the district and supreme courts of the United States to take “proof of the several circumstances” entitling refugees from Canada to pursue land claims under the Act); An Act for the Government and Regulation of Seamen in the Merchants Service ch. 29, §  3, 1 Stat. 131, 132 (authorizing a crew to contest a vessel’s seaworthiness by petition to the district judge of the district and directing the district judge to commission a report by knowledgeable citizens and, after receiving the report, to “adjudge and determine … whether the said ship or vessel is fit to proceed on the intended voyage”); [cf. _]Mashaw, [_supra _]note 443, at 74 (opining that the seaworthiness procedure “effectively made courts (both state and federal) into administrators). The latter grant of authority appears to have derived from the practice by which the colonial vice-admiralty courts, following the “custom of all trading nations,” ordered surveys to ascertain the condition of vessels. _See Charles Andrews, The Vice-Admiralty Courts, in 4 The Colonial Period of American History 253 & n.1 (1938) (describing a colonial practice in which a captain whose ship had grown unseaworthy would submit a “public instrument of protest” against the ship in the vice-admiralty courts, asking for a warrant of survey that could result in the sale of the ship and its cargo by court order).

c) Remission and Mitigation of Forfeitures

The revenue laws of 1789 imposed duties on imported goods as well as a fee on the “tonnage” of the vessels engaged in the carrying trade463. Congress assigned collection of these taxes to a group of federal collectors, surveyors, and naval officers, all appointed by the President to work one of many revenue districts along the coast464. The revenue laws imposed strict rules of transparency: merchants involved in the import business were obliged to declare the goods they proposed to import and to pay the specified duties465. If they failed to do so, or if they attempted to smuggle goods into port, they were subject to fines and penalties enforced by the admiralty courts466. Informers were encouraged to bring suit for violations of the revenue laws against the offending vessels, seeking a forfeiture of ship and cargo for the use of the United States467. Informers were entitled to keep a portion of the value of any forfeited property468.

463An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandise Imported into the United States, ch. 5, §  1, 1 Stat. 29 (1789).

464Id. §  §  1–2.[_ _]On the history of the customs service, see White, [_supra _]note 9, at 199–200; [_see also _]Laurence F. Schmeckebier, Institute for Government Research, Service Monograph No. 33, The Customs Service: Its History, Activities and Organization 6 (1924) (reporting that the President in 1789 appointed some “fifty-nine collectors, thirty-three surveyors, and ten naval officers” to staff fifty-nine customs districts).

465An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandise Imported into the United States, ch. 5, §  §  13, 19–20, 1 Stat. at 39–42.

466On the role of federal admiralty courts in revenue collection cases, see William R. Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers,[_ Smugglers,][ and Pirates_], 37 Am. J. Legal Hist. 117, 149–51 (1993).

467See An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandise Imported into the United States, ch. 5, §  38, 1 Stat. at 48.

468Id.

Concerned with the relative harshness of these punishments, Congress adopted legislation in 1790 that conferred power on the Secretary of the Treasury to mitigate or remit penalties and forfeitures469. These powers came into play when, in the Secretary’s opinion, the violation had occurred without “wil[l]ful negligence or any intention of fraud.”470 The decision was to be made on the basis of a record assembled by the federal judge in the district where the forfeiture occurred471. To apply for relief from the forfeiture, the petitioning party was required to submit a petition for remission to the district court, along with a statement of the pertinent “circumstances.”472 Upon submission, the district judge was directed to notify interested parties, conduct a summary (that is, non-jury) inquiry into the matter, and attach a statement of the facts to the petition for transmission to the Secretary473. Although interested parties (usually, the customs officers who had a financial interest in the proceeds) could appear, their presence was not required; the district judge could proceed to assemble a factual record even where no adverse party came forward to contest the petition for remission474. As with naturalization petitions, federal courts have treated petitions for remission or mitigation as falling within the judicial power of the United States475.

469Act of May 26, 1790, ch. 12, §  1, 1 Stat. 122.

470Id. §  1, 1 Stat. at 122–23. For an account of practice under the remission statute, see Andrew Dunlap, A Treatise on the Practice of the Courts of Admiralty in Civil Causes of Maritime Jurisdiction; with an Appendix Containing Rules in the Admiralty Courts of the United States, and a Full Collection of Practical Forms 281–88 (New York, Jacob R. Halsted, 2 d ed. 1850).

471Act of May 26, 1790, ch. 12, §  1, 1 Stat. at 122.

472Id. (directing the judge, on petition for remission or mitigation of a forfeiture, to “inquire in a summary manner into the circumstances of [the] case”).

473Id.

474Id.

475[_See _]The Margaretta, 16 F. Cas. 719, 721 (C. C. D. Mass. 1815).

4.1.2 Transfers of Property

U. S. courts also exercised jurisdiction over ex parte[_ _]and non-contentious transfers of property. In the eighteenth and nineteenth centuries, before the advent of contemporary due process protections476, in rem proceedings in probate and admiralty were commonly brought in English and American courts to secure a transfer of title to property that was regarded, in the colorful parlance of the day, as binding on “all the world.”477 Often, these in rem proceedings began and even continued on an ex parte basis. Probate in the “common form” began with an application for the admission of a will to probate by the party named as the will’s administrator478. Similarly, the captors of a vessel claimed as prize would initiate proceedings by filing a petition (or “libel”) with the admiralty court479. While the probate and admiralty courts welcomed the appearance of adverse parties, the court’s power to transfer title in the property did not depend on their presence480.

476The Due Process Clause of the Fourteenth Amendment to the U. S. Constitution has been interpreted to impose an obligation on fiduciaries to give notice “reasonably calculated” to inform the beneficiaries of events pertaining to the administration of a trust. See, e. g., Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 318 (1950). In addition to imposing this notice requirement, modern due process forbids a state from adjudicating claims involving non-residents unless they have the requisite “minimum contacts” with the forum state. See Int’l Shoe Co. v. Washington, 326 U. S. 310, 316 (1945). Courts can no longer bind non-residents simply by asserting power over property located in the state; they instead must show that those with an interest in the property have such minimum contacts. See Shaffer v. Heitner, 433 U. S. 186 (1977).

477Grignon’s Lessee v. Astor, 43 U. S. (2 How.) 319, 342 (1844).

478On the English history of probate in the common (or non-contentious) form and in the solemn (contentious) form, see Lewis M. Simes & Paul E. Basye, Problems in Probate Law, including a Model Probate Code 388–91 (1946).

479[_See infra _]notes 487–493 and accompanying text .

480Issuance of letters testamentary empowered the executor to collect the decedent’s assets, pay off the debts, and distribute the legacies, often on the basis of little by way of judicial proceeding and often without contestation. Simes & Basye, [_supra _]note 478,[+ +]at 390.

It was possible, therefore, that an ex parte disposition could foreclose the claims of interested parties who had not received any personal notice of the pendency of the proceeding481. Yet the courts nonetheless took the position that such dispositions were conclusive judgments, binding in the absence of fraud482.

481As recently as 1945, Lewis Simes, a law professor and the reporter of the Uniform Probate Code, published a spirited defense of the traditional conception of probate as an in rem proceeding. See Lewis M. Simes, The Administration of a Decedents Estate as a Proceeding in Rem, 43 Mich. L. Rev. 675 (1945).

482Two cases from the nineteenth century illustrate the conclusive quality of proceedings in American probate courts. In one case, arising in the Wisconsin Territory, the administrator of the decedent’s estate filed an ex parte petition with the local court, requesting the court to approve the proposed sale of the decedent’s land to satisfy the estate’s debts.[_ See_] Grignons Lessee, 43 U. S. (2 How.) 319. The court duly granted its approval in an ex parte proceeding and issued what the Supreme Court described as a “license to sell.” [Id. _]at 340. Heirs of the decedent later moved to unwind the sale and to reclaim the land. But the Court concluded that the license to sell qualified as the judgment of a court of record that immunized the sale from subsequent challenge. [_Id. _]at 343–44. A similar result obtained in a case arising in Pennsylvania. An ex parte decree of the orphan’s court, authorizing the sale of a decedent’s land to support his children, was viewed as conclusive. _See McPherson v. Cunliff, 11 Serg. & Rawle 422 (Pa. 1824). Conclusive quality also was ascribed to proceedings in admiralty over title to vessels captured or salvaged at sea and claimed as lawful prize. See id. _]at 430; [_Grignons Lessee, 43 U. S. at 338 (noting that, as in rem proceedings, probate sales “are analogous to proceedings in admiralty”).

a) Prize and Salvage Cases

Although state courts hear most proceedings related to the administration of decedent’s estates483, federal courts sitting in admiralty possessed a considerable docket of often non-contentious property transfer actions in the form of prize and salvage cases. Prize claims were a commonplace of eighteenth – and nineteenth-century seagoing warfare; governments authorized both the officers of their navies and certain duly licensed privateers to intercept and claim as prize the merchant ships and naval vessels of opposing nations484.

483Under what is known as the “probate exception,” federal courts refuse to exercise jurisdiction over certain matters related to estate administration and domestic relations. [See generally _]James E. Pfander & Michael J. T. Downey, _In Search of the Probate Exception, 67 Vand. L. Rev. 1533 (2014) (describing and analyzing the probate exception to federal jurisdiction).

484[See _]Casto, [_supra _]note 466, at 123–24. For an overview of English practice in prize cases, describing the use of privateers and government naval vessels to intercept enemy commerce and the reliance on colonial vice-admiralty courts in British North America, see Steven L. Snell, Courts of Admiralty and the Common Law: Origins of the American Experiment in Concurrent Jurisdiction 171–77 (2007); _see also Pfander & Hunt, supra note 20, at 1916 (noting that naval captains were compensated for taking prizes during the quasi-war with France in 1798–1800); Kevin Arlyck, Forged by War: The Federal Courts and Foreign Affairs in the Age of Revolution 234 (unpublished dissertation Sept. 2014) (noting the reliance of the United States on privateers during the War of 1812).

The administration of prize claims occupied the lion’s share of the dockets of the colonial vice-admiralty courts and, later, of the state admiralty courts and the federal Court of Appeals in Cases of Capture under the Articles of Confederation and the federal admiralty courts of the early Republic485. Salvage was awarded to a crew that helped to save a stranded or damaged vessel or re-took a friendly ship that the enemy had claimed as prize486.

485See id. at 123–29, 149–53;[_ see also_] Frederick Bernays Wiener, Notes on the Rhode Island Admiralty,[_ 1727–1_]790, 46 Harv. L. Rev. 44, 47 (1932) (describing the heavy prize business in the Rhode Island colonial court of admiralty during King George’s War with France). On the role played by the Court of Appeals in Cases of Capture, [_see _]Henry J. Bourguignon, The First Federal Court: The Federal Appellate Prize Court of the American Revolution 1775–1787 (1977).

486Andrews, supra note 462, at 253; Steven L. Snell, Courts of Admiralty and the Common Law 160–61, 160 n.128 (2007).

Much like probate proceedings, prize and salvage claims began with the ex parte submission of a petition (again, here called a “libel”) to the proper court, seeking an order that would institute the condemnation process. Condemnation was an inquisitorial process-characteristic of admiralty proceedings-in which the court would demand all of the ship’s records and issue commissions to take deposition testimony from those involved in the vessel’s capture487. If, on the basis of the evidence collected, the court found that the vessel qualified as one subject to capture or salvage, the court would enter a decree authorizing the sale of the vessel and its cargo488.

487[_See _]Dunlap, [_supra _]note 470, at 368–76.

488See id.

The legal effect of prize decrees did not depend on the appearance of any opposing party, and indeed section 30 of the Judiciary Act of 1789 recognized that no adverse party might even be named;489 on many occasions, presumably, the captured vessel was so obviously a good prize that no one bothered to contest the fact. But the court would nonetheless proceed to decree in such a case490.

489An Act to Establish the Judicial Courts of the United States, ch. 20, §  30, 1 Stat. 73, 89 (1789).

490[See _]Arlyck, _supra note 484, at 264. Arlyck attributes the lack of adverse party presentations to the simple notion that the owners had nothing to litigate. Id. _]For descriptions of prize condemnation proceedings in England and the American colonies, see Matthew P. Harrington, [_The Legacy of the Colonial Vice-Admiralty Courts (Part II), 27 J. Mar. L. & Com. 323, 329 (1996); and L. Kinvin Wroth, The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction, 6 Am. J. Legal Hist. 250, 256 (1962).

While the task of administering probate estates fell to the state courts, federal courts were assigned jurisdiction over claims of prize and capture491. Rules of procedure promulgated by the First Congress declared that “civil law” process was to govern proceedings in federal courts of admiralty (as well as in suits brought in equity)492.

491Casto, [_supra _]note 466, at 140.

492An Act to Regulate Processes in the Courts of the United States, ch. 21, §  2, 1 Stat. 93, 94 (1789).

Federal courts sitting in admiralty accordingly followed the inquisitorial model customary of admiralty proceedings in English and continental civil-law courts, decreeing good prize and ordering the sale of captured vessels493.

493See Dunlap,[_ supra _]note 470, at 200–02.

Given the widespread view that such matters of prize and capture were proper subjects of federal adjudication, no one appears to have raised doubts about the power of the federal courts to adopt an inquisitorial model or to entertain the proceedings on an ex parte basis494.

494Early admiralty courts adopted rules of procedure designed to facilitate an inquisition into prize and capture claims. See Dunlap, supra note 36, at 368–82 (setting forth rules of the Federal District Court for the Southern District of New York that required early notice to the court in cases of prize and capture, judicial collection of relevant papers, and an inspection of the vessel, all before any libel had been filed).

Indeed, providing dispositive legal decrees regarding naval captures played a crucial role in national defense and international relations in the early Republic495.

495[_See _]Casto, [_supra _]note 32, at 133–34.

b) Trademark Seizure Orders

Although prize cases have fallen by the wayside, Congress has relied on federal courts to exercise similar functions in contemporary forfeiture proceedings. In 1984, for example, Congress amended the Lanham Act to authorize federal courts to issue ex parte seizure warrants aimed at the sellers of goods infringing on a valid trademark496. Exercising this power, federal courts have issued broad ex parte seizure orders authorizing the owners of a trademark to take counterfeit goods off the market in the days surrounding major events497.

496[See _]Trademark Counterfeiting Act of 1984, Pub. L. No. 98–473, §  1503, 98 Stat. 2178, 2179; 15 U. S. C. §  1116(d) (2012). _See generally Daniel Grobman, Note, Preemptive Ex Parte Seizure Orders and Substantive Relief:[_ A_][_ Far Cry from Congressional Intent_], 33 Cardozo L. Rev. 1185 (2012) (describing the background and operation of trademark seizure orders). The statute specifies that “the court may, upon ex parte application, grant an order under subsection (a) of this section pursuant to this subsection providing for the seizure of goods and counterfeit marks…” 15 U. S. C. §  1116(d)(1)(a).

497[_See _]Grobman, [_supra _]note 62, at 1191–93.

The statute contemplates post-seizure proceedings during which the target of the seizure order may contest the order498 and provides for the award of compensatory and punitive damages and attorneys” fees in cases of wrongful seizure499. But many such seizures are never contested500.

498See 15 U. S. C. §  1116(d)(8).

499See 15 U. S. C. §  1116(d)(11).

500See Grobman, supra note 62, at 1194–95.

4.1.3 Bankruptcy

The administration of an estate by courts exercising equitable powers has long featured a combination of both adverse and non-adverse proceedings501. One can see this combination reflected in the wide range of familiar forms of estate administration, including the probate matters discussed above, equity receiverships, equitable trust supervision, and federal bankruptcy502. Although these forms have evolved in different directions, they apparently spring from common roots in the civil or canon law, and all feature administrative and ex parte elements in addition to formal adverse-party disputes503.

501In probate, for example, courts commonly distinguish between their power to administer the estate on an ex parte basis and their power to resolve disputed matters, or “inter partes.” See, e. g., John F. Winkler, The Probate Jurisdiction of the Federal Courts, 14 Prob. L. J. 77, 84–85 (1997). The so-called probate “exception” to the jurisdiction of federal courts has been interpreted to apply to administrative matters but leaves the federal courts free to hear disputes between parties. See Marshall v. Marshall, 547 U. S. 293, 310 (2006).

502On the mixed quality of bankruptcy cases, see Ralph Brubaker, On the Nature of Federal Bankruptcy Jurisdiction:[_ A_][_ General Statutory and Constitutional Theory_], 41 Wm. & Mary L. Rev. 743, 837 n.352 (2000) (recognizing that a “case commenced under the Bankruptcy Code differs substantially from a typical civil action commenced in state or federal court to resolve a two-party dispute” (quoting Lawrence P. King, Jurisdiction and Procedure Under the Bankruptcy Amendments of 1984, 38 Vand. L. Rev. 675, 676–77 (1985))). As Brubaker reports, the Advisory Committee on Bankruptcy Rules described “the bankruptcy case” as something different from “litigation involving a legal dispute in the traditional sense.” [_Id. _](quoting Committee on Rules of Practice and Procedure, Request for Comment on Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy Procedure, Judicial Conference of the U. S. 5 (1998)); [_see also _]Avery, [_supra _]note 3, at 450 (1996) (noting that, in bankruptcy, courts often act as “administrators of a congressionally mandated system rather than arbiters of disputes between litigating parties”).

503On the ecclesiastical, estate-administration origins of English bankruptcy, see R. H. Helmholz, Canon Law and the Law of England 292 (1987). On the English precursors to early American bankruptcy statutes, see Ralph Brubaker, A “Summary” Statutory and Constitutional Theory of Bankruptcy Judges”[_ Core Jurisdiction After _]Stern v. Marshall, 86 Am. Bankr. L. J. 121, 123–25 (2012).

a) Initial Appointment

Most estate proceedings begin with a petition that commences the administrative process through the appointment of an individual who will bear a fiduciary obligation to manage the affairs of the estate504. The names of these fiduciaries vary: trustees oversee estates, including those in bankruptcy; administrators conduct intestate successions; guardians serve on behalf of minors; receivers manage an equitable receivership; and executors handle the probate of wills and the distribution of the testators” property505.

504See Simes & Basye, [supra _]note 478, at 388–91; William M. McGovern, Sheldon F. Kurtz & David M. English, Wills, Trusts, and Estates 571–72 (4 th ed. 2010); James L. High, A Treatise on the Law of Receivers 2 (3 d ed. 1894). On the binding quality of the discharge in bankruptcy, even where the creditor fails to contest, see Francis Hilliard, A Treatise on the Law of Bankruptcy and Insolvency 241 (1867 reprint ed. 2003). For a discussion of the fiduciary duties imposed on trustees, see McGovern, Kurtz & English, _supra, at 530–624.

505Despite the difference in titles, the responsibilities of these fiduciaries overlap to a degree. They typically owe a duty of loyalty to the estate; they all must manage its affairs for the benefit of its participants, heirs, legatees, or beneficiaries; and they must all avoid conflicts of interest that might cast doubt on their loyalty to their fiduciary obligations. See George T. Bogert, Trusts 1 (6 th ed. 1987). In a departure from this model, the bankruptcy trustee represents the interests of the creditors, whereas the equity receiver acts on behalf of the court in administering an equitable remedy. On the duties of the bankruptcy trustee, see David G. Epstein & Steven H. Nickles, Principles of Bankruptcy Law 24–26 (2007). On the duties of the equity receiver, see See John W. Smith, The Law of Receiverships 3 (2 d ed. 1900) (noting that the receiver “is not the agent. . . of either party to the action, but is uniformly regarded as an officer of the court”). On the power of courts of equity to appoint guardians for minors, see Joseph Story, Commentaries on Equity Jurisprudence §  1338, at 926–27 (1835) (“Guardians appointed by the court are treated as officers of the court, and are held responsible accordingly to it.”). On the appointment of equity receivers, see James L. High, A Treatise of the Law of Receivers §  1, at 2 (1894) (describing the receiver as an impartial officer of the court, appointed by the court to receive and preserve the property “when it does not seem reasonable to the court that either party should hold it”).

Petitions for judicial involvement can be contested, but they are not required to be contested in order for the court to begin the proceeding and appoint a fiduciary. In bankruptcy, for example, the submission of an uncontested or voluntary petition may be filed in the absence of any dispute and will initiate the proceeding and occasion the creation of a bankruptcy estate506. In such an uncontested proceeding, the court has the power to distribute the non-exempt assets (if any) among the creditors507. If there are no assets, and no creditors appear, the court nonetheless has power to provide the debtor with a discharge (and fresh start)508.

506Avery, [_supra _]note 3 at 419.

507[_See _]11 U. S. C. §  726.

508[See _]Epstein & Nickles, [_supra _]note 91, §  16.9, at 21–20; [_id. _]§  16.10, at 223; [_see also _]Charles Jordan Tabb, The Law of Bankruptcy §  10.28, at 995 (3 d ed. 2014); [_id. _]§  10.1, at 937.[ _]A similar procedure obtained in probate proceedings. On the difference between contested and uncontested proceedings in probate, see Winkler, [_supra _]note 88, at 84–85.

b) Administrative Fees

The judicial administration of bankruptcy cases often entails the issuance of orders approving the payment of administrative fees509. Fees may be due to the trustee or to professional advisors (lawyers, investment managers, and accountants) hired to assist with the estate’s management and may generally be paid from the estate if “reasonable.”510 In many situations, no party to the estate’s administration has an incentive to contest these fees511. Perhaps as a result, bankruptcy law holds that the court has an independent duty to examine the fees, even in the absence of a specific challenge512.

509See 11 U. S. C. §  507; David G. Epstein et al., Bankruptcy §  7–11 at 463 (1993).

510[_See _]11 U. S. C. §  503(b).

511See Avery, supra note 3, at 434.

512See id. at 433.

c) Contract and Plan Approval

During the course of bankruptcy proceedings, courts grant formal approval to a variety of business decisions by debtors-in-possession that are agreed to in advance by interested parties513. For example, the parties may wish to adopt a pre-petition contract that has been profitable for the debtor and the bankruptcy estate514. In such a situation, the federal bankruptcy code requires the court to approve the contract before it can be given legal effect515. In addition, court approval of the debtor’s reorganization plan requires satisfaction of a laundry list of conditions516. The court must hold a hearing on the plan’s confirmation and take evidence and make findings on each item, regardless of whether the item has “been placed in issue by the parties.”517

513Id. at 422, 437.

514See id. at 422–23.

515See id.

516See id. at 437.

517Id.

4.1.4 Government Investigations

In a variety of situations, the government must secure the approval of the federal judiciary before completing one or more phases of its investigatory process, such as conducting a search or seizure or issuing a subpoena.

a) Warrant Applications

The Fourth Amendment to the U. S. Constitution assumes that courts and magistrates will conduct ex parte proceedings in the course of evaluating arrest and search warrants. The terms of the Amendment prohibit “unreasonable searches and seizures” and further declare that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”518 Jurisprudence regarding the Warrant Clause contemplates the submission of an application to a “neutral and detached magistrate,” typically in an ex parte proceeding in which a government officer offers sworn testimony in support of the proposed warrant519. The issuance of a warrant had genuine legal consequences at common law, in that a lawful warrant immunized an officer who stayed within its bounds and the bounds of the law from subsequent civil liability520.

518U. S. Const. amend. IV.

519See Gerstein v. Pugh, 420 U. S. 103, 117 (1975); Johnson v. United States, 333 U. S. 10, 14 (1948). See generally Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 120 (1937) (distinguishing between the “sober” judgment of a judicial official in issuing a warrant and the perhaps ill-informed judgment of the “ministerial” officer who executes the warrant, subject to the possibility of “civil and criminal liability” if he exceeds the authority conferred).

520In general, judges understood that warrants in the eighteenth century, when valid, conferred immunity from civil liability. [See _]Akhil Reed Amar, _Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 777–78 (1994).

In the early Republic, representatives of all three branches of government appear to have presumed that warrant applications were proper in Article III courts, as when Congress authorized “any court of the United States” to hear warrant proceedings to enforce Treasury Secretary Alexander Hamilton’s 1791 federal excise tax on distilled spirits, which for obvious reasons did not provide for advance notice to the warrant’s target521. Consider also the affair of Captain Barré, a French sailor who apparently found life in the United States preferable to the vagaries of the French Revolution522. Under a treaty with France, the United States had agreed to arrest deserters from French vessels and deliver them to the French consul for return to their country523. The French consul filed papers before Judge John Laurance in the United States District Court for the District of New York, seeking a warrant for Barré’s arrest following his desertion from a French ship524. Although the evidence tended to establish that Barré had in fact deserted, Judge Laurance refused to issue an arrest warrant until the consul produced evidence of Barré’s enlistment on the ship’s register or roll (as apparently contemplated in the language of the treaty)525. The consul, lacking the specific proof demanded, sought help from the executive branch, which filed a petition for a writ of mandamus to compel Judge Laurance to issue the warrant526.

521On Hamilton’s role in formulating the excise tax, see Ron Chernow, Alexander Hamilton 342–43 (2004).

522For accounts, see 6 DHSC, supra note 453, at 522–53; Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme:[_ In the Beginning There Was Pragmatism_], 1989 Duke L. J. 561, 613–16.

523See Consular Convention between the United States of America and the Republic of France, art. IX (1788); [_see also _]6 DHSC, [_supra _]note 453, at 522, 524–25 (specifying that proof was to be by “an exhibition of the register of the vessel or ship’s roll”).

524[_See _]United States v. Lawrence, 3 U. S. (3 Dall.) 42, 42–43 (1795).

525[_See _]6 DHSC, [_supra _]note 453, at 523.

526See Lawrence, 3 U. S. (3 Dall.) 42. For an account of the French consul’s efforts to secure the support of the executive, see Bloch, supra note 522, at 613–15.

In a unanimous decision, the Supreme Court refused to issue the requested writ527. Reasoning that Judge Laurance had acted in a “judicial capacity,” the Court said that it lacked power by way of mandamus to compel the judge to decide “according to the dictates of any judgment, but his own.”528 No one involved in the affair questioned the power of either the district court or the Supreme Court to proceed on an ex parte basis.

527Lawrence, 3 U. S. (3 Dall.) at 53.

528Id.

b) FISA Warrants

Warrant proceedings remain a commonplace feature of federal judicial practice today. To be sure, much of the workaday review of applications for search and arrest warrants now falls to federal magistrates rather than to Article III judges529. But Article III courts continue to assess ex[_ _]parte warrant applications in other areas. In the much-discussed context of national security, Article III foreign intelligence surveillance courts consider ex parte applications for warrants authorizing the U. S. government to conduct certain kinds of foreign surveillance530. Created by the Foreign Intelligence Surveillance Act (known as FISA), the Foreign Intelligence Surveillance Court (often called the FISC) and the Foreign Intelligence Surveillance Court of Review employ judges from the Article III judiciary who have been designated to serve for specified terms by the Chief Justice of the United States. As in the case of warrant proceedings associated with the 1791 excise tax, FISA makes no provision for notice to the targets of the application and provides them with no opportunity to contest the showing made in support of the warrant. The government presents its case for surveillance in a closed-door, ex parte proceeding531. In the event the FISC rejects the warrant application, FISA permits the government to appeal on an ex parte basis without joining an adverse party532.

529[See _]Note, _A Survey of the Qualifications of Magistrates Authorized to Issue Warrants, 9 Val. U. L. Rev. 443 (1975); [_see also _]Fed. R. Crim. P. 41(b) (assigning the power to issue search warrants to magistrate judges, if they are available).

530See _]Note, [_Shifting the FISA Paradigm:[_ Protecting Civil Liberties By Eliminating Ex Ante Judicial Approval_], 121 Harv. L. Rev. 2200, 2201–03 (2008).

531See Shifting the FISA Paradigm, [_supra _]note 530, at 2206.

532[_See _]50 U. S. C. §  1803(b).

c) Administrative Subpoenas

On occasion, federal courts serve as adjuncts to enforce discovery occurring in non-Article III tribunals or initiated in the course of administrative investigations. The organic statutes of many administrative agencies include provisions authorizing the agencies to invoke the subpoena power of the federal courts in connection with their efforts to compel the production of evidence and testimony by regulated parties533. In 1887, Supreme Court Justice Field, riding circuit, held in [_In re Pacific Railway Commission _]that federal courts have no power to play this adjunct role534. For Justice Field, the business of issuing a subpoena was a distinctly judicial function to be undertaken by the federal courts only in service of proceedings before the courts themselves535. Administrative and legislative investigations were to be conducted without the aid of federal courts536, in keeping with Justice Field’s belief that the federal courts were barred from acting as administrative assistants to coordinate departments537. Ultimately, however, the Supreme Court rejected Justice Field’s view and upheld the federal courts” role in issuing and enforcing subpoenas to further an agency’s investigation538.

533According to Robert A. Mikos, “Congress has passed more than 300 administrative subpoena statutes grant[ing] some form of administrative subpoena authority to most federal agencies.” Robert A. Mikos, Can the States Keep Secrets from the Federal Government?, 161 U. Pa. L. Rev. 103, 117 (2012) (alteration in original) (internal quotation marks omitted). For an example of such laws, see 29 U. S. C. §  161(1)-(2) (conferring subpoena power on the National Labor Relations Board (NLRB) to compel testimony and the production of documentary evidence and authorizing the NLRB to seek judicial enforcement in case of a refusal to comply with the subpoena).

53432 F. 241, 268 (C. C. N. D. Cal. 1887).

535Justice Field thus distinguished the supervision of grand jury proceedings, which often lead to the issuance of investigative subpoenas, on the basis that those proceedings were an inherent part of the process of adjudicating criminal charges against a certain class of offenders and required judicial support and oversight. Id. at 257 n.2.

536[Id. _]at 257–59. For years, Congress enforced its own subpoenas by arresting those who refused to appear as witnesses[. See, e. g._], Kilbourn v. Thompson, 103 U. S. 168, 205 (1880).

537Justice Field drew this conclusion from the circuit courts” handling of veterans” disability claims in Hayburns Case,[+ +]2 U. S. (2 Dall.) 408 (1792), and Chief Justice Taney’s interpretation of[_ ]the Supreme Court’s decision denying the legality of the courts” work as commissioners in handling those claims in [_United States v. Yale Todd _](unreported), as foreclosing judicial administration in _United States v. Ferreira, 54 U. S. (13 How.) 40, 52–53 (1851). See In re Pacific Ry. Commn, 32 F. at 258–59.

538See Interstate Commerce Comm’n v. Brimson, 154 U. S. 447, 489 (1894).

d) Immunized Testimony

When a witness claims her privilege against self-incrimination under the Fifth Amendment to the U. S. Constitution, she triggers a mechanism that allows the government to grant her immunity and compel her to testify539. Building on an approach first adopted in 1954 to regulate immunized testimony in the national security arena540, Congress in 1970 created a three-step mechanism in which the witness claims the privilege, the prosecutor or other government attorney procures from higher-ups in the U. S. Department of Justice a statement as to the importance of the testimony, and the federal district court then enters an order granting the requested immunity541. In many instances, none of the parties disagree: the witness and the government both prefer that the grant of immunity be extended, and no one opposes the result542. In Ullmann v. United States, the Supreme Court rejected the claim that no case or controversy existed in such a proceeding543. Although the decision triggered a spirited dissent, no Justices questioned the majority’s conclusion as to the power of the federal courts to pass on an uncontested application for the grant of immunity544.

539For an overview of the law governing immunized witness testimony, see Leonard N. Sosnov, Separation of Powers Shell Game:[_ The Federal Witness Immunity Act_], 73 Temp. L. Rev. 171 (2000).

540See Immunity Act of 1954, Pub. L. No. 600, 68 Stat. 745 (1954). For accounts of the Act, see Robert G. Dixon, Jr., The Doctrine of Separation of Powers and Federal Immunity Statutes, 23 Geo. Wash. L. Rev. 501 (1955); O. John Rogge, The New Federal Immunity Act and the Judicial Function, 45 Calif. L. Rev. 109, 127 (1957); Comment, Immunization of Congressional Witnesses Under the Compulsory Testimony Act:[_ Constitutionality of the Function of the District Courts_], 22 U. Chi. L. Rev. 657 (1955).

541See Organized Crime Control Act of 1970, Pub. L. No. 91–452, 84 Stat. 922 (codified as amended at 18 U. S. C. § 6003 (2012)). For an overview and criticism of the 1970 law, see Sosnov, supra note 130, at 182–205.

542Dixon emphasizes the fact of party agreement in the immunity cases, noting that the parties often both agree about the need for the testimony and the wisdom of immunity. Dixon, [_supra _]note 131, at 529–30 (describing the court’s role as reduced to “ratifying the government’s request for an immunity order”).

543350 U. S. 422, 434 (1956).

544Id. at 440 (Douglas, J., dissenting).

4.1.5 Prisoner Litigation

Prisoners often contest the fact or duration of their imprisonment, the conditions in which they have been confined, or, in death penalty cases, the manner in which their execution will be conducted. Both the nature of these challenges and procedural hurdles enacted by Congress to regulate them frequently give rise to ex parte[_ ]proceedings in the federal courts. For example, the general availability of the writ of habeas corpus, a judicial mode of securing a test of the legality of current detention, is implied in the Constitution’s Suspension Clause545, and was incorporated into the practice of the state and federal courts546. Although the prisoner obviously has an interest adverse to the interest of the custodian detaining him, petitions for habeas corpus begin in an ex parte[ _]manner, and a court hearing the petition may reject it even before demanding that the custodian file a return to the writ specifying the cause of confinement547. Similarly, the Prison Litigation Reform Act of 1995548 requires the federal district court to screen a complaint in a civil action in which a prisoner plaintiff is proceeding in forma pauperis and to dismiss any claim that is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief549. Still another example is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)550, which provides that a habeas petitioner seeking to appeal from the district court’s denial of habeas relief must first obtain a certificate of appealability (COA) from a “circuit justice or judge” but does not require the return of an adverse party551.

545[_See _]U. S. Const. Art. I, §  9, cl. 2.

546See _]Pfander, [_Jurisdiction-Stripping, [supra _]note 48, at 1443–44 & 1444 n.42.[ _]On habeas corpus in Britain, see Paul D. Halliday, Habeas Corpus: From England to Empire (2010).

547Halliday, [_supra _]note 137, at 39–41.

548Pub. L. No. 104–134, §  §  801–810, 110 Stat. 1321, 1321–66 to 1321–77 (1996).

549See 28 U. S. C. §  1915(e)(2)(B) (2012). Wright and Miller report that the district courts have complied with their screening obligation, dismissing frivolous petitions without demanding adverse presentations. See 13 Charles Alan Wright et al., Federal Practice and Procedure §  3530, at 676–82 (3 d ed. 2008) [hereinafter Wright & Miller].

550Pub. L. No. 104–132, 110 Stat. 1214.

55128 U. S. C. §  2253©(1) (2012).

Despite the initial absence of an adverse party in all such proceedings, federal courts are entitled to hear ex parte habeas applications as a prelude to the determination of the merits552. On appeal, however, matters grow more complex. In Hohn v. United States, the petitioner sought a COA as a prelude to pursuing review of his conviction for use of a firearm in violation of federal law553. When the application was denied, he sought review in the Supreme Court554. Invoking the habeas cases and other examples, the Court ruled that his ex parte application for a COA was a “case” in the court of appeals within the meaning of its statutory grant of certiorari jurisdiction555.

552Federal law authorizes prisoners to challenge their detention by filing applications for writs of habeas corpus. See 28 U. S. C. §  §  2241, 2254.

553524 U. S. 236 (1998).

554[_Id. _]at 240.

555See id.[_ _]at 241, 253. The relevant statute declares that “[c]ases in the courts of appeals” may be reviewed via certiorari. 28 U. S. C. §  1254 (2012).

Justice Scalia wrote a vigorous dissent, anticipating in certain respects his dissent in Windsor. Justice Scalia viewed the application for a COA as a threshold proceeding, separate from the dispute on the merits as to the propriety of habeas relief, and he evaluated its justiciability by seeking elements of adverse-party litigation556. For Justice Scalia, the COA did not seek to “remedy” any harm; instead, it operated only as a “threshold procedural requirement that a petitioner must meet in order to carry his § 2255 suit to the appellate stage.”557 As a result, the application for a COA did not constitute a “case” in the court of appeals within the meaning of the provision for certiorari review558.

556Hohn, 524 U. S. at 256 (Scalia, J., dissenting).

557Hohn,[_ ]524 U. S.[ _]at 258 (Scalia, J., dissenting).

558Id. at 256–57.

The Court’s response to Justice Scalia distinguished administrative work from judicial work. Citing United States v. Ferreira and Gordon v. United States, the Court acknowledged that it had previously refused to exercise appellate jurisdiction over decisions of lower courts that it viewed as administrative or legislative, rather than judicial, in character559. But petitions for COAs were different:

559[_Id. _]at 245 (majority opinion) (citing Gordon v. United States, 117 U. S. 697, 702, 704 (1864); United States v. Ferreira, 54 U. S. (13 How.) 40, 51–52 (1851)). In both cases, the Court declined to review the determinations of legislative courts on the ground that the Supreme Court cannot review decisions of special tribunals created by the legislature and dependent on the legislature for the execution of their determinations.

Decisions regarding applications for certificates of appealability, in contrast, are judicial in nature. It is typical for both parties to enter appearances and to submit briefs at appropriate times and for the court of appeals to enter a judgment and to issue a mandate at the end of the proceedings, as happened here560.

560Id.

The Court evaluated the judicial quality of COA applications in part by identifying characteristics that they share with adverse-party proceedings, such as the appearance of opposing parties and the submission of adversarial briefing. The Court also focused in part on the extent to which COA applications call upon the court of appeals to act within the usual forms of judicial proceedings, such as by entering a judgment and issuing a mandate561.

561As it did in Hohn, the Court recently found that an ex parte application for review of a district court order remanding a class action to state court qualified as a “case” in the Tenth Circuit for purposes of triggering the availability of its certiorari jurisdiction. See Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554–55 (2014) (application to appellate court for discretionary review was a case within the Court’s certiorari jurisdiction).

4.1.6 Public and Private Dispute Resolution

a) Default Judgments

Ex parte proceedings also occur in the context of the judicial resolution of disputes between adverse parties. In perhaps the most familiar example, federal courts have the power, based on longstanding practice before courts of law and equity, to enter default judgments on an ex parte basis if satisfied that the defendant has been duly served with process and that the plaintiff has a prima facie right to recover562. This practice has been codified in Rule 55 of the Federal Rules of Civil Procedure563. Rule 55 imposes some procedural safeguards, requires the district court to exercise broad inquisitorial powers to investigate the facts that bear on the proposed judgment564, and prohibits the court from entering the judgment unless the claim has been established through the submission of “evidence that satisfies the court.”565 But the rule does not condition the court’s power to issue a judgment on party opposition.

562Rule 55 was first adopted as a blend of default procedures then available in actions in law and equity. See Fed. R. Civ. P. 55 advisory committee’s note (1937). In proceedings at common law, failure to respond resulted in the entry of a default judgment; courts of equity entered what were called decrees pro confesso. See Thomson v. Wooster, 114 U. S. 104 (1885); 10 Wright & Miller, [supra _]note 140, §  2681, at 399. In both instances, traditional practice called for the court to investigate the amount of damages if the figure was not liquidated. _Id. at 400. Today, as the text of the Rule confirms, a court may conduct a hearing to determine whether to enter a default judgment. See Fed. R. Civ. P. 55©. “The hearing is not considered a trial, but is in the nature of an inquiry before the judge.” 10 Wright & Miller, supra note 125, §  2688, at 443.

563Fed. R. Civ. P. 55.

564See Fed. R. Civ. P. 55(b)(2).

565Fed. R. Civ. P. 55(d); 10 Wright & Miller, supra note 125, §  2702, at 548. Courts sometimes refer to the assessment of damages in a default case as an “inquisition of damages” to capture this investigative role. See Proceedings of the Thirty-Fifth Annual Judicial Conference of the District of Columbia Circuit, 66 F. R. D. 233, 306 (1974); Paul H. Aloe, Civil Practice, 60 Syracuse L. Rev. 717, 730–31 (2010); see also Thomson, 114 U. S. at 113 (explaining that “a decree [_pro confesso _]is not a decree as of course according to the prayer of the bill, nor merely such as the complainant chooses to take it; but that it is made (or should be made) by the court, according to what is proper to be decreed upon the statements of the bill, assumed to be true.”).

b) Uncontested Equity Receiverships

In the latter part of the nineteenth century, with no federal bankruptcy law in place until 1898, railroads and their creditors often turned to the equity receivership to restructure their affairs566. In theory, the receivership was designed to protect the interests of creditors who could not otherwise enforce and collect their debts567. In practice, the railroads themselves often welcomed the initiation of a receivership to secure the stay of litigation triggered by such a proceeding and to secure an orderly administration and restructuring of their debts568.

566See _]Julie A. Veach, [_On Considering the Public Interest in Bankruptcy: Looking to the Railroads for Answers, 72 Ind. L. J. 1211, 1215 (1997). On the connection between bankruptcy and the stay of proceedings in connection with the initiation of an equitable receivership, see Ralph Brubaker, An Administrative Expense Odyssey, Bankr. L. Letter, June 2009, at 1, 7; see also In re Tyler, 149 U. S. 164, 181 (1893) (recognizing the role of the federal receivership court in controlling the degree to which other courts may entertain claims upon property in the custody of the court); People’s Bank v. Calhoun, 102 U. S. 256, 261–62 (1880) (same).

567See, e. g., Douglas G. Baird & Robert K. Rasmussen, Control Rights,[_ Priority Rights,][ and the Conceptual Foundations of Corporate Reorganizations_], 87 Va. L. Rev. 921, 930 (2001).

568[_See _]Veach, [_supra _]note 566, at 1215–16.

In one such proceeding, intervening parties contested the power of the federal court to entertain “friendly” receiverships569. The Supreme Court found no violation of the adverse-party requirement and upheld the friendly receivership, because the party initiating the receivership had an unsatisfied demand against the railroad that was neither denied nor paid570. That failure to pay, the Court held, was sufficient to ground the federal trial court’s jurisdiction571.

569[_In re _]Metro. Ry. Receivership, 208 U. S. 90, 107 (1908).

570Id.

571Id. at 108; see also Pope v. United States, 323 U. S. 1, 11 (1944) (“When a plaintiff brings suit to enforce a legal obligation it is not any the less a case or controversy upon which a court possessing the federal judicial power may rightly give judgment, because the plaintiff’s claim is uncontested or incontestable.”); Pac. R. R. v. Ketchum, 101 U. S. 289 (1879) (approving the defendant’s confession of judgment and the entry of judgment on the basis of stipulated facts).

c) Consent Decrees

The Supreme Court also has found that the lower federal courts have the power to enter consent decrees572. Typically, consent decrees represent the negotiated resolution of a dispute between adverse parties. Unlike purely private settlements, however, the parties to a consent decree condition their agreement on the willingness of the district court to enter the decree as part of their settlement. The decree operates like an injunction. It specifies what the defendant can and cannot do, and it often provides the district court with continuing authority to oversee compliance with its terms, punishing or threatening with contempt those who fail to comply with the decree573.

572[_See _]Swift & Co. v. United States, 276 U. S. 311 (1928).

573See Morley, supra note 3, at 647–52.

d) Guilty Pleas

Government enforcement proceedings often involve federal courts in the approval of a pre-negotiated settlement between the government and the enforcement target. Consent decrees are one example of such involvement. Plea agreements, which arose some 150 years ago as a capitulation to the demands placed on criminal dockets by mass society, are another574. Plea bargaining represents an “informal, administrative, inquisitorial process of adjudication.”575 In the typical case, the prosecutor and the defendant have agreed in advance on the sentence or its parameters in exchange for the defendant’s agreement to plead guilty to a particular offense576. Most guilty pleas do not occasion any adversary presentation to the court; both the prosecutor and the defense seek substantially the same disposition. But the agreement alone does not suffice to ensure the effectiveness of the plea bargain; the court must go along577. Thus, the agreement will not be effective unless the district court first conducts a colloquy with the defendant to ensure that the plea and associated waiver of constitutional rights were knowing and voluntary, enters a judgment of conviction on the basis of the plea, and agrees to impose a sentence consistent with the plea agreement and the sentencing guidelines578.

574On the history of plea bargaining, see George Fisher, Plea Bargaining’s Triumph: A History of Plea Bargaining in America (2003); Albert W. Alschuler, Plea Bargaining and Its History, 13 L. & Soc’y Rev. 211 (1979); George Fisher, Plea Bargainings Triumph, 109 Yale L. J. 857, 859–61 (2000).

575Gerald E. Lynch, Screening Versus Plea Bargaining:[_ Exactly What Are We Trading Off_]? 55 Stan. L. Rev. 1399, 1404 (2003); see also Gerald E. Lynch, Our Administrative System of Criminal Justice, 66 Fordham L. Rev. 2117 (1998) (plea bargaining means that the American criminal justice system looks much more like what common lawyers would describe as a non-adversarial, administrative system of justice than like the adversarial model they idealize”).

576For a summary of the process of accepting a guilty plea, entering a judgment of conviction, and imposing sentence, see 5 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure §  §  21.3(e)-21.4, at 145–92. 1 1.4© n.94 (2 d ed. 1999).

577[_See id. _]§  21.3(e), at 145.

578[_See id. _]§  §  21.4(a)-(e), 21.4(g).

e) Crime Victims” Rights

Under the Crime Victims” Rights Act, victims of federal crimes are afforded certain rights during criminal proceedings and may assert or enforce those rights through non-contentious proceedings579. The statute declares that a crime victim or his representative may assert his rights by motion to the district court and further provides that, upon the denial of such motion, the victim may petition for a writ of mandamus in the court of appeals580. The statute does not call for the person claiming to be a victim to name an opposing party in the motion, and although the victim’s status or the extent of the rights to which he is entitled might be contested by a target of the criminal proceedings or even the government581, there is no need or even likelihood that such a controversy will arise.

579See 18 U. S. C. §  3771(a).

580[_See _]18 U. S. C. §  3771(d).

581See Erin C. Blondel, Note, Victims”[_ Rights in an Adversary System_], 58 Duke L. J. 237, 260–62 (2008).

f) Class Action Settlements

Under Rule 23(e) of the Federal Rules of Civil Procedure, the district court must oversee and approve the terms of the settlement of any certified class action582. Settlement approval protocols have grown increasingly elaborate, as courts have come to recognize the threat that an inadequate settlement can pose to the interests of absentees583. In addition to the judicial role in approving the settlement of certified class actions, courts sometimes agree to entertain what have come to be known as “settlement class actions,” disputes that were resolved by party agreement before any litigation had been instigated584. When the parties agree, they may simultaneously file a complaint and a proposed settlement, inviting the court to approve a resolution of the claims on terms upon which they have previously agreed585. Such settlement class actions pose well-known threats of collusion and self-dealing, frequently advancing “only the interests of plaintiffs” attorneys, not those of the class members.”586

582See Fed. R. Civ. P. 23(e).

583Following certification and the associated finding that members of the class will be adequately represented by the named plaintiff and class counsel, counsel has presumptive authority to settle the case for the class as a whole. In 2003, the Rules were amended to require the district court to hold a hearing and approve the settlement only if the court is satisfied that the settlement is “fair, reasonable, and adequate.” See Fed. R. Civ. P. 23(e)(1)(C). For an overview of the 2003 amendments to the Rules, see 7 A Wright & Miller, supra note 125, at §  1753.1.

584See 7 B Wright & Miller, supra note 123, at §  1797.2.

585Although the Court refused to approve the pre-packaged settlement of asbestos claims in the well-known case of AmChem Products,[_ Inc. v_]. Windsor, 521 U. S. 591 (1997), it also refrained from articulating a per se prohibition of settlement classes in that case.

586John C. Coffee, Jr., Class Wars:[_ The Dilemma of the Mass Tort Class Action_], 95 Colum. L. Rev. 1343, 1348 (1995).

g) Letters Rogatory

Federal courts often play an ex parte role when parties to a foreign proceeding seek discovery of facts in the United States. Under longstanding international practice, parties to litigation in one country can apply through diplomatic channels for “letters rogatory” ordering the collection of evidence in another country587. Today, many such evidentiary requests are handled through the Hague Evidence Convention, which the United States joined as an original signatory588. The Convention directs such requests to a country’s designated “Central Authority” for submission to the proper court589. The application to a court of the United States for letters rogatory typically proceeds on an ex parte basis and may or may not lead to litigation, depending on the target’s response to the discovery request590. If the district court agrees with the evidentiary request, it will typically appoint a commissioner to take the deposition or collect the evidence591. While the target’s opposition to the discovery in any particular case can certainly create a measure of adverseness, many ex parte applications for letters rogatory proceed without any contest592.

587Letters rogatory, or letters of request, have deep roots in civil-law practice. For an overview of the practice on letters rogatory, see Andreas F. Lowenfeld, International Litigation and Arbitration 1016–18 (3 d ed. 2006). See also Harry Leroy Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L. J. 515 (1953) (offering a critical overview of the procedure that governed in the United States before 28 U. S. C. §  1782, the statutory provision that governs federal practice, was updated); Hans Smit, International Litigation Under the United States Code, 65 Colum. L. Rev. 1015 (1965) (describing 28 U. S. C. §  1782). For an account of current practice, see Walter B. Stahr, Discovery Under 28 U. S. C. §  1782 for Foreign and International Proceedings, 30 Va. J. Int’l L. 597 (1990).

588See Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, March 1-July 27, 1970, 23 U. S. T. 2555, 847 U. N. T. S. 231; cf. Société Nationale Industrielle Aérospatiale v. U. S. Dist. Court, 482 U. S. 522, 530 (1987). See generally Lowenfeld, supra note 173, at 1018 (describing practice under the Hague Convention); Harold G. Maier, Extraterritorial Discovery:[_ Cooperation,][ Coercion and the Hague Evidence Convention_], 19 Vand. J. Transnat’l L. 239 (1986) (same).

589Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, [_supra _]note 588, at art. II.

590For a representative example, see In re Letter of Request from the Crown Prosecution Serv., 870 F.2 d 686 (D. C. Cir. 1989).

591[See _]28 U. S. C. §  1782(a);[ _]Stahr, [_supra _]note 173, at 627.

592[_See _]Stahr, [_supra _]note 173, at 627–30.

§ 4.2 Scholarly Reactions to Ex Parte and Non-Contentious Proceedings

Non-contentious federal judicial proceedings have largely been overlooked or dismissed by American scholars, but when they have been noticed, they have served as a source of controversy and confusion. Of those few commentators who have encountered an instance of non-contentious practice and have identified a potential justiciability problem with the practice, some simply have denied the legitimacy of the exception, viewing it as a violation of the adverse-party or case-or-controversy requirements;593 others have dismissed the practice as an isolated departure or one that lies beyond the scope of their specific project594.

593See, e. g., David P. Currie, The Constitution in Congress:[_ The First Congress and the Structure of Government,][ 1789–9_]1, 2 U. Chi. Roundtable 161, 212–13 (1995) (characterizing mitigation as putting judges in the position of issuing advisory opinions).

594See, e. g., Joseph W. Mead, Interagency Litigation and Article III, 47 Ga. L. Rev. 1217, 1225 (2013) (listing matters that seem inconsistent with the adversary ideal but ultimately concluding that the task of deciding if those matters can be squared with the adverse-party requirement was “beyond the scope of the article”).

Scholarly treatment of ex parte[_ _]proceedings often tends to occur in the context of an encounter with a single non-contentious practice-for example, bankruptcy or naturalization proceedings595. Perhaps as a result, a common response has been to treat the encounter as an isolated and insignificant departure from the courts” otherwise broad-based commitment to adverse-party proceedings596. Another common response to encounters with non-contentious proceedings has been to treat the specific practice as a vestige of an earlier day-a vestige obviously inconsistent with the adverse-party rule but perhaps too well established to overthrow597. One could argue, for instance, that the federal courts” role in naturalization proceedings dates from early in the nation’s history and depends for its constitutionality on its pedigree rather than on its compliance with the demands of Article III598. Both responses are unsatisfying in light of the lengthy catalog of non-contentious proceedings identified above and the fact that such proceedings consistently appear on federal court dockets in new manifestations today, such as the FISA court and trademark seizure proceedings.

595See, e. g., Avery, [_supra _]note 3 (bankruptcy); Morley, [_supra _]note 3, at 668–69 (naturalization).

596See, e. g., Redish & Kastanek, [_supra _]note 1, at 587 n.157 (arguing that “the bankruptcy scheme is a narrow exception to the adverseness requirement”).

597See, e. g., Hart & Wechsler, [_supra _]note 1, at 84–85.

598See Robert J. Pushaw, Jr., Justiciability and Separation of Powers:[_ A_][_ Neo-Federalist Approach_], 81 Cornell L. Rev. 393, 458 n.309 (1996).

Some scholars attempt to explain non-contentious proceedings by drawing on what has come to be known as the “possible adversary” theory supposedly outlined in Tutun v. United States599. Under the possible adversary theory, the prospect of eventual adverse-party litigation in the future can justify the exercise of jurisdiction without an adverse party in the present. One finds the idea of a possible adversary expressed in a variety of contexts, as scholars have deployed this theory to address a surprisingly wide range of justiciability problems600. The possible adversary theory has some appeal, in that it offers a means of reconciling the adverse-party requirement with the reality of non-contentious practice, but it cannot bear the weight that scholars have placed upon it. To begin with, whatever the theory’s appeal in the isolated context of certain ex parte[_ _]proceedings, it is difficult to square with other elements of justiciability doctrine. Moreover, the prospect of a future adverse party does little to assuage the concerns that underlie the adverse-party requirement. Hypothetical adverseness does not improve the quality of the record presented to the court, and it does not allow for a balanced presentation of factual or legal propositions; nor does it prevent a court from deciding issues that could compromise the rights of third parties or from interfering with the prerogatives of the political branches of the government601.

599270 U. S. 568 (1926).

600For scholars who treat the possible adversary theory as central to Tutun, see Maeva Marcus & Robert Teir, Hayburn’s Case:[_ A_][_ Misinterpretation of Precedent_], 1988 Wis. L. Rev. 527, 542; and David P. Currie, The Constitution in the Supreme Court,[_ 1921–1_]930, 1986 Duke L. J. 65, 122.

601[_Cf. _]Redish & Kastanek, [_supra _]note 1, at 571–73 (describing the virtues of an adversary system).

Apart from questioning the coherence of the possible adversary theory, we have serious doubts that Tutun actually endorsed such a theory. Justice Brandeis did not contend that the congressional creation of a potential role for the United States was essential to make Tutun’s claim a case; after all, the history of naturalization to which Justice Brandeis referred did not feature an adversary, potential or otherwise. To be sure, beginning in 1906, applications for citizenship were to undergo relatively searching review602. In addition to the use of hearings at which the court took testimony from the applicant and witnesses603, the government could contest naturalization, both before and after the issuance of the certificate604. But before 1906, the various congressional enactments defining the role of courts in naturalization never provided for intervention by the United States or any other party to contest the petitioner’s application605. The most reasonable conclusion, therefore, is the one recognized by Henry Monaghan: that the reference to the government as a possible adverse party was not central to the Court’s holding that ex parte naturalization proceedings are cases within Article III606.

602[_See _]Naturalization Act of 1906, Pub. L. No. 59–338, §  11, 34 Stat. 596 (1906) (repealed by the Nationality Act of 1940, Pub. L. 76–853, 54 Stat. 1137).

603On the inquisitorial nature of the judicial task in early naturalization proceedings, see In re An Alien, 7 Hill 137 (N. Y. Sup. Ct. 1845) (viewing the statute as requiring the court to satisfy itself through some form of inquiry that the applicant for citizenship had made out an appropriate case).

604See Tutun, 270 U. S. at 577–78.

605[_See supra _]note 450 and accompanying text.

606See _]Henry Monaghan, [_Constitutional Adjudication:[_ The Who and the When_], 82 Yale L. J. 1363, 1374 n.68 (1973) (referring to the adverse-party discussion as a “makeweight”); see also _]Kenneth Culp Davis, [_Standing:[_ Taxpayers and Others_], 35 U. Chi. L. Rev. 601, 607 (1968) (“From the beginning, federal courts have performed many functions in addition to deciding “questions presented in an adversary context.” Federal courts often decide questions of law and fact and discretion in absence of an adversary context, as they do when they. . . admit aliens to citizenship when no issue arises. . . .”).

In a recent article, the authors of this Chapter argued that the explanation for non-contentious federal proceedings lies outside the adversary model, in the many non-contentious (or voluntary) forms of action that Britain, colonial America, and the United States borrowed from the Roman and civil law607. The failure of the early federal courts to curb non-contentious proceedings, we argued, resulted not from oversight or inadvertence but from an understanding shared by the Framers and the lawyers of the Founding generation that the “judicial power” conferred by Article III consists of two distinct dimensions: contentious jurisdiction and non-contentious jurisdiction. In our view, non-contentious jurisdiction is consistent with the delegation of federal judicial power outlined in the U. S. Constitution.

607[_See _]Pfander & Birk, [_supra _]note *.

The words of Article III extend the “judicial power” to “Cases” arising under the Constitution, laws, and treaties of the United States, and to “Controversies” between certain configurations of parties608. Although the terms are not actually linked in the text, since the twentieth century the Supreme Court has frequently conjoined them in its discussions of justiciability, referring to a “case-or-controversy” requirement in a manner suggesting that the two terms are wholly synonymous609. The case-or-controversy requirement has been invoked repeatedly by courts and scholars seeking a textual foundation for the adverse-party requirement610. The most careful and comprehensive attempt to ground the adverse-party requirement in the text, structure, and history of Article III – that of Redish and Kastanek in their investigation of settlement class actions-places particular emphasis on the term “controversy,” arguing that the adverseness inherent in that term should be imputed to the definition of “case” as well611. On this view, both terms imply the existence of opposing parties with adverse interests presenting their dispute for adjudication in a standard legal action.

608U. S. Const. art. III, §  2. The intended meaning of the terms “case” and “controversy” is a richly canvassed topic. For various accounts, see Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227 (1990); Anthony J. Bellia Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 800–12 (2004); William A. Fletcher, The “Case or Controversy” Requirement in State Court Adjudication of Federal Questions, 78 Calif. L. Rev. 263 (1990); Pushaw, supra _]note 184; Robert J. Pushaw, Jr., [_Bridging the Enforcement Gap in Constitutional Law:[_ A_][_ Critique of the Supreme Court_]’s Theory that Self-Restraint Promotes Federalism, 46 Wm. & Mary L. Rev. 1289,[_ _]1313–34 (2005).

609[_See _]Pushaw, [_supra _]note 184, at 451.

610See, e. g.,[_ ]Windsor v. United States, 133 S. Ct. 2675, 2701 (2013) (Scalia, J., dissenting); Hohn v. United States, 524 U. S. 236, 241–42 (1998) (listing adverseness as one of the “requisite qualities of a “case” as the term is used in . . . Article III of the Constitution”);[ ]Flast v. Cohen, 392 U. S. 83, 95 (1968) (“In part [the terms “case” and “controversy”] limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.”); Alexander M. Bickel, [_The Supreme Court,][_ 1960 Term,][ Foreword:][ The Passive Virtues_], 75 Harv. L. Rev. 40, 42 (1961) (arguing that, because the judicial power “may be exercised only in a case,” courts “may not decide non-cases, which are not adversary situations and in which nothing of immediate consequence to the parties turns on the results”).

611[_See _]Redish & Kastanek, [_supra _]note 1, at 564–65.

From the perspective of modern American lawyers steeped in the assumptions of their country’s adversary system and long accustomed to the Supreme Court’s conflation of “case” with “controversy,” the conclusion that a justiciable case requires the participation of an adverse party makes a fair amount of sense. Yet, judicial opinions conflating cases with controversies are of relatively recent vintage, and it is by no means clear that such a reading was shared by the Framers or by the early Supreme Court. In fact, important early definitions of the Article III term “cases” by Chief Justice John Marshall and Justice Joseph Story do not refer to adverseness and do not assume the appearance of more than one party to the proceeding. In Osborn v. Bank of the United States, for example, Chief Justice Marshall wrote:

This clause [extending jurisdiction to federal question “cases”] enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States612.

612Osborn v. Bank of the United States, 22 U. S. (9 Wheat.) 738, 819 (1824); see also Weston v. City Council, 27 U. S. (2 Pet.) 449, 464 (1829) (explaining that the term “suit” encompasses “any proceeding in a court of justice, by which an individual pursues that remedy … which the law affords him”); Cohens v. Virginia, 19 U. S. (6. Wheat.) 264, 408 (1821) (defining the term suits to include “all cases were [sic] the party suing claims to obtain something to which he has a right”).

Story’s Commentaries on the Constitution adopts the same formulation: “A case, then, in the sense of this clause of the constitution, arises when some subject touching the constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law.”613

6133 Joseph Story, Commentaries on the Constitution of the United States §  1640, at 507 (Boston, Hilliard, Gray, and Company 1833).

The Marshall-Story account provides a straightforward basis for the exercise of jurisdiction over both contentious and non-contentious cases. Consider the typical contentious federal question claim, one in which a party demands a remedy from an opposing party for the claimed violation of a legal right under federal law614. Such a claim for redress of violations would clearly qualify as an assertion of one’s rights within the Marshall-Story paradigm615. Yet the Marshall-Story definitions would also encompass non-contentious federal question claims. The definitions require only the assertion of claims by a single “party” and say nothing about the joinder of an opposing party. In addition, the formulations require only the assertion of one’s “rights,” and thus encompass claims in the nature of ex parte applications for pension benefits, naturalized citizenship, and other legal entitlements, such as warrants, conferred by law. As both Chief Justice Marshall and Justice Story would have understood, one can certainly assert claims of right on an ex parte basis without seeking redress from an opposing party616. Chief Justice Marshall and Justice Story were both familiar with the range of ex parte matters that had been assigned to the federal courts. Both Justices, moreover, upheld the exercise of judicial power in such matters617.

614This definition of contentious jurisdiction tracks that put forward by Pushaw. [_See _]Pushaw, [_supra _]note 184, at 472.

615We thus view the Marshall-Story definition as broad enough to encompass the “cases” for redress identified in early dictionaries but not as limited to them. See Redish & Kastanek, supra note 1, at 565 n.71 (reporting early legal dictionary definitions for the word “case”).

616[See _]Arlyck, [_supra _]note 484, at 265 (quoting Justice Story’s view that it was “not necessary that the adverse parties should be before the court,” for the court itself acted as the “general guardian of all interests which are brought before it”); [_cf. id. _]at 265 n.81 (quoting Justice Story’s opinion in _The Adeline, 13 U. S. 244, 284 (1815), which described prize proceedings as ““modelled upon the civil law”” and indicated that prize proceedings could not be ““more unlike those in the Courts of common law””).

617Chief Justice Marshall flatly rejected the argument that ex parte judicial proceedings to naturalize were merely ministerial and did not enjoy the conclusive quality of matters of record. See Spratt v. Spratt, 29 U. S. (4 Pet.) 393, 402 (1830) (argument of counsel) (contending that naturalization proceedings were not judicial but merely “ministerial,” and that there were no parties to the proceeding but that instead “[a]ll is ex parte”). Justice Story was equally convinced that ex parte petitions for the remission or mitigation of tax forfeitures were proper subjects of judicial cognizance. The Margaretta, 16 Fed. Cas. 719, 721 (C. C. D. Mass. 1815) (“In the performance of this duty, the judge exercises judicial functions, and is bound by the same rules of evidence, as in other cases.”).

Our construct of non-contentious jurisdiction helps to explain the conspicuous difference in usage between the terms “case” and “controversy” in a manner that accounts for the presence of ex parte[_ _]proceedings on federal dockets. On our view, and in keeping with the Marshall-Story definition of a “case,” federal courts have the power to exercise non-contentious jurisdiction in federal question proceedings that have been assigned to them by Congress. We think “cases” include both criminal and civil matters and at the same time contemplate a special function for federal courts. As this Chapter has noted, non-contentious matters crop up on both the civil and criminal sides of the federal docket. Just as federal bankruptcy proceedings require federal judicial administration of the bankruptcy estate, so too do federal criminal matters frequently lead to the issuance of ex parte search or arrest warrants and the entry of convictions on the basis of non-adverse guilty pleas618. The term “case,” particularly as defined by Chief Justice Marshall and Justice Story, extends broadly enough to encompass all such proceedings. Article III “controversies,” by contrast, require a dispute between designated opponents and exclude original petitions for the performance of the administrative functions associated with non-contentious jurisdiction619.

618We describe guilty pleas as “non-adverse” in the sense that both sides agree as to liability and the sentence to be imposed.

619For our suggested distinction between original and ancillary non-contentious jurisdiction, see infra Part III.A.1.

Regardless of the proper resolution of this scholarly controversy, non-contentious proceedings play and have always played an important role in American court systems and are consistent with the legal traditions inherited from England and continental Europe. Although non-contentious jurisdiction is not generally a part of the vocabulary of a modern American judiciary less well-acquainted with the civil law, non-contentious jurisdiction-like other concepts derived from the civil law-was a regular feature of the vocabulary of lawyers and judges in the early republic. To be sure, the common-law courts of England resisted, and largely prevented, Roman and civil law from usurping the central place of the common law as the foundation of the English legal system620, and the common law (eventually at least) was adopted as the primary source of law in much of the United States621. Nevertheless, many English and American courts adopted civil-law practices, and many exercised non-contentious jurisdiction622.

620On the reception of Roman law in England, see Brian P. Levack, The Civil Lawyers in England 1603–1641: A Political Study (1973). On the efforts of common-law courts to resist and circumscribe the jurisdiction of civil-law-based courts, see 5 William S. Holdsworth, History of English Law 423–30 (1926).

621See, e. g., Pfander & Birk Article III and the Scottish Judiciary, 124 Harv. L. Rev. 1613, 1628, 1646 (2011) (discussing adoption of common law in America and citing sources).

622Although the reception of Roman law was nowhere near as complete in England as it was in Scotland or on the continent, Roman and civil law nevertheless bore decided influences on the practices of non-common law courts in England and were regular features of the law of nations, conflicts of laws, and mercantile law. For an overview of civil-law practice in England, see Levack, supra _]note 185. On the influence of Roman law in England, see Thomas Edward Scrutton, [_Roman Law Influence in Chancery,[_ Church Courts,][ Admiralty,][ and Law Merchant_], in 1 Select Essays in Anglo-American Legal History 208, 212–14 (1907).

Many of these non-contentious practices took place in courts bearing the stamp of continental and civil influence-such as courts of equity and the ecclesiastical and admiralty courts-but the practices actually predated the Norman Conquest of England in 1066 and grew organically out of the common business of local courts well before William Blackstone wrote his [Commentaries on the Laws of England _]in the mid-eighteenth century623. For example, the courts of Anglo-Saxon England and the county courts of medieval England conducted the voluntary transfer of land and the sanctioning of documents through judicial process624. By witnessing these and other formal acts, such as marriages, the courts provided legal recognition and public legitimacy625. Later, British ecclesiastical courts consciously exercised non-contentious jurisdiction in a wide variety of proceedings, including the probate of wills and the issuance of marriage licenses626, and, as we already have noted, one of the chief functions of admiralty courts was the condemnation of prizes in what frequently were ex parte[ ]proceedings. Similarly, according to William Burdick, the non-contentious Roman procedure _in jure cessio was “undoubtedly the inspiration of the collusive or fictitious suits in early English law known as fine and common recovery,” a cognizable action in English common-law courts627.

623The witengamote, or “public moots,” of Anglo-Saxon England regularly exercised a voluntary jurisdiction in ceremonial acts that was influenced to varying degrees by custom and the proliferation of “Roman ideas and forms.” Paul Vinogradoff, Transfer of Land in Old English Law, 20 Harv. L. Rev. 532, 532, 546 (1907). England’s Statutes of Merchants of 1283 and 1285 called for merchants and their debtors to register their contracts in a non-contentious proceeding before the Mayor’s Court. The Statute gave these registered obligations the status of a matter of record and would trigger in cases of default the speedy seizure of debtor’s goods or the imprisonment of the debtor. See Statute of Merchants, 11 Edward I (1283); Statute of Merchants, 13 Edward I (1285), both cited in 1 Statute of the Realm 53, 98 (1235–1377), http://aalt.law.uh.edu/AALT1/H6/CP40no677/aCP40no677[+ fronts/IMG_0555.htm+] ; http://perma.cc/DQ4E-4NKQ.

624[See _]Lolabel House, _The County Court in the Thirteenth Century, 49 Am. L. Register 284, 284 (1901). Transfer of land under old English law also was accomplished through judicial process, and the manorial courts of England later used voluntary jurisdiction to effect various transactions related to real property through the practices of surrender and admittance.[_ See ]Vinogradoff,[ supra _]note 188, at 533–36.

625Vinogradoff, supra note 188, at 543–47.

626[See _]Lewis M. Simes, _The Function of Will Contests, 44 Mich. L. Rev. 503, 505–11 (1945); see also _]Herbert Wood, [_The Destruction of the Public Records:[_ The Loss to Irish History_], 43 Studies: An Irish Q. Rev. 363, 374–75 (1922). Until most of their powers were abolished or transferred to the Court of Probate and the Divorce Court in the mid-nineteenth century, the ecclesiastical courts in England “exercised a very extended jurisdiction, comprising not only what we should ordinarily call ecclesiastical causes, but matrimonial suits and divorces a mensa et thoro, all testamentary causes and suits, suits for church rates, and suits for defamation.” The English Law Courts VI:[_ The Ecclesiastical Courts_], 8 Green Bag 330, 330 (1896). For a description of the types of cases commonly heard by English ecclesiastical courts during the fourteenth and fifteenth centuries, see David Millon, Ecclesiastical Jurisdiction in Medieval England, 1984 U. Ill. L. Rev. 621.

627Burdick, [_supra _]note 200, at 332.

The Court of Chancery also possessed a non-contentious jurisdiction, which it exercised in such matters as the appointment of guardians for infants, and, as noted previously, in the creation of equitable receiverships628. Much as an application for a receivership assumed the form of an often-fictional dispute629, courts of equity predicated the appointment of a guardian for a minor upon a fictional suit over property held in the district630. Supreme Court Justice and scholar Joseph Story reported on this development with some puzzlement, wondering why the fiction of a dispute was necessary to trigger a court’s equitable powers of appointment631. It should come as no surprise, then, that many of these same non-contentious proceedings made their way to the American colonies and were employed in the equity, admiralty, and probate courts of the early United States.

628See Story, [supra _]note 80, §  1338, at 927. Story explained that the “Court of Chancery will appoint a suitable guardian to an infant, where there is none other, or none who will, or can act, at least, where the infant has property. . . . Guardians appointed by the court are treated as officers of the court, and are held responsible accordingly to it.” _Id.

629[_See supra _]note 569 and accompanying text.

630Story, [_supra _]note 80, §  1351 n.4.

631Notably, the chancellor’s power to appoint conservators of the estates of “idiots and lunatics” derived from the Crown’s prerogative and authorized appointment without any need to invoke a fictional dispute. See A. Highmore, A Treatise on the Law of Idiocy and Lunacy 11–15 (G. Lamson, Exeter, N. H. 1822).

Indeed, although many of their judges had little formal legal training or education632, local American colonial courts often exercised jurisdiction over both contentious and non-contentious matters, and some even performed purely executive or legislative functions, such as maintaining county buildings, conducting inquests, raising taxes, and planning highways633. Many colonial courts were assigned quintessentially non-contentious tasks, such as recording land transfers and other instruments, conducting examinations for the admission of attorneys to the bar, and evaluating petitions for liquor licenses634. Colonies and territories established orphans” courts for the protection of the estates and welfare of orphans and invested courts with probate powers to administer estates635. Still others were granted wide-ranging and non-specialized jurisdiction over common law as well as probate, admiralty, and equity cases, thereby assuming the roles played by both the Court of Chancery and the ecclesiastical courts in England636.

632See, e. g., Erwin C. Surrency, The Evolution of an Urban Judicial System:[_ The Philadelphia Story,][ 1683 to 1968_], 18 Am. J. Legal Hist. 95, 109 (1974).

633See, e. g., Martin H. Redish, Federal Courts 14 (2 d ed. 1989); Warren M. Billings, Pleading,[_ Procedure,][ and Practice:][ The Meaning of Due Process of Law in Seventeenth-Century Virginia_], 47 J. Southern Hist. 569, 578 (1981); Hendrik Hartog, The Public Law of a County Court:[_ Judicial Government in Eighteenth Century Massachusetts_], 20 Am. J. Legal Hist. 282, 284 (1976). Despite their ability to exercise such powers, the county sessions courts of colonial Massachusetts were subject to the traditional limitation on courts: that they could only act when others brought public business before them. See id. _]For a description of the administrative powers exercised by the early Virginia colonial county courts, see George B. Curtis, [_The Colonial County Court,[_ Social Forum and Legislative Precedent:][ Accomack County,][ Virginia,][ 1633–1_]639, 85 Va. Mag. Hist. & Biography 274 (1977).

634See _]Curtis, [_supra _]note 243, at 275, 282 (registration of certificates of sale, payment or acknowledgement of debt, wagers, and indenture agreements); Alan F. Day, [_Lawyers in Colonial Maryland,[_ 1660–1_]715, 17 Am. J. Legal Hist. 145, 146–47 (1973) (bar admissions); Hartog, [supra _]note 243, at 288–91 (liquor licenses); George L. Haskins, _The Beginnings of the Recording System in Massachusetts, 21 B. U. L. Rev. 281 (1941) (land transfers);[_ ]John T. Hassan, _Land Transfer Reform, 4 Harv. L. Rev. 271, 272 (1890–91) (same).

635[_See _]Surrency, [_supra _]note 273, at 97.

636See, e. g., Billings, [supra _]note 243, at 572 (describing the “simplified system of inferior and appellate courts” in colonial Virginia “that combined the jurisdictions of such English courts as the leet, quarter sessions, the assizes, king’s bench, common pleas, chancery, and the admiralty, as well as that of the church courts”); Spencer R. Liverant & Walter H. Hitchler, _A History of Equity in Pennsylvania, 37 Dick. L. Rev. 156, 164–66 (1932–33) (describing the equitable powers conferred on the general common-law courts of Pennsylvania).

In noting this consistency with European legal traditions, we do not make specific claims about the process by which the tradition of non-contentious jurisdiction made its way to the new world. In some respects, governmental systems lacking a sophisticated administrative apparatus, such as Anglo-Saxon England and the early colonial American settlements, would understandably use courts to exercise jurisdiction over non-contentious business regardless of whether that business was seen as grounded in the Roman tradition of voluntary jurisdiction637. The sixteenth-century development of the administration of prize cases, moreover, seems to have grown organically out of the need of the state to provide conclusive legal title to the captures taken by privateers acting under the state’s authority rather than out of regular disputes over such matters or as a direct outgrowth of Roman law638.

637See supra notes 231–233 and accompanying text. We thank John Langbein for this insight.

638[See _]R. G. Marsden, _Early Prize Jurisdiction and Prize Law in England, 26 Eng. Hist. Rev. 34 (1911).

Perhaps, in generating or incorporating non-contentious jurisdiction, Article III simply responds to the actual needs of the federal system to administer its law. For example, the decision of Congress to bring the judicial power to bear on naturalization petitions by assigning them to “courts of record” made functional sense. Open proceedings would ensure a searching judicial inquiry into the status of the applicant and could help to prevent the naturalization of those with suspiciously limited ties to the community639. Such an assignment could also ensure the creation of a permanent and conclusive record of the alien’s admission to citizenship. A permanent record was of central importance in a world in which only citizens enjoyed the right to own land640. In addition, the conclusive quality of judgments “of record” protected citizenship decisions from attack in subsequent disputes over title to property641.

639On the nature of the inquiry required in naturalization proceedings, see In re an Alien, 7 Hill 137 (N. Y. 1845) (viewing the statute as requiring the court to satisfy itself through some form of inquiry that the applicant for citizenship had made out an appropriate case).

640On the connection between naturalized citizenship and the ownership of land (a right denied to aliens at common law), see Pfander & Wardon, supra note 10, at 366–68.

641In a variety of early-Republic disputes over property ownership, the official record was introduced to resolve questions about an alien’s admission to citizenship. See, e. g., Spratt v. Spratt, 29 U. S. (4 Pet.) 393 (1830) (quoting the naturalization record of James Spratt); Stark v. Chesapeake Ins. Co., 11 U. S. (7 Cranch) 420 (1813) (quoting the naturalization record of John Philip Stark). Thus, in Spratt, a dispute over the inheritance of land, the Supreme Court expressed great reluctance to look behind the record of a naturalization judgment. 29 U. S. (4 Pet.) at 408. See also Stark, 11 U. S. (7 Cranch) 420 (viewing the judgment of naturalization by the court of record as conclusive); Campbell v. Gordon, 10 U. S. (6 Cranch) 176 (1810) (same); McCarthy v. Marsh, 5 N. Y. 263 (1851) (same).

This practical response to perceived needs provides the best account of how these non-contentious proceedings arrived on federal dockets and how they fit with the practice of federal courts today. Nonetheless, we do see an obvious link between European developments and the non-contentious practices catalogued in Part I of this Chapter. The Framers and others of the Founding generation were well versed in Roman political history642, and many were close students of Roman and civil law643 and of the practices of the English admiralty, equity, and ecclesiastical courts644. Civil law was in fact central to the education of the more sophisticated American lawyers, including such luminaries as John Marshall, Thomas Jefferson, and John Adams645. In 1786, James Madison examined the practices of the Dutch and Belgian admiralty courts as part of his pre-constitutional study of confederacies646, and Alexander Hamilton and James Wilson, among others, were well familiar with principles of admiralty jurisdiction and practice647.

642[_See _]David J. Bederman, The Classical Foundations of the American Constitution 17–26 (2008); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the American Constitution 67–69 (1985).

643The deep familiarity of many Americans in the Founding generation with Roman and civil law has been canvassed exhaustively elsewhere. For a summary, see Pfander & Birk, [supra _]note 213, at 1629–31. For more in-depth discussions, see Paul M. Hamlin, Legal Education in Colonial New York (1939); M. H. Hoeflich, Roman and Civil Law and the Development of Anglo-American-Jurisprudence in the Nineteenth Century (1997); Thomas H. Lee, _The Civil Law Tradition in American Constitutional Jurisprudence, http; [+http:+][+//perma.cc/Q6[+ ][+EQ-HEDN] (manuscript in progress). [Cite YLJ Article]

644For a time, the civil law possessed a surprising amount of traction in the United States, particularly in those quarters that disdained the English legal tradition and hoped for the emergence of a distinctively American jurisprudence based on internationalist sources. For an overview, see Peter Stein, The Attraction of the Civil Law in Post-Revolutionary America, 52 Va. L. Rev. 403 (1966).

645See Pfander & Birk, [_supra _]note 213, at 1629–31.

646[_See _]Casto, [_supra _]note 466, at 139 n.114.

647[_See id. _]at 130–40.

The courts of the colonies and the early Republic often, implicitly or explicitly, looked to the courts of England in developing processes and procedures, including the procedures employed in local courts, courts of equity, and probate and prize proceedings. Application of the civil law in appropriate cases was assumed at the Constitutional Convention648, and the Process Act of 1789 prescribed that the forms and modes of proceedings of civil law would govern in cases of admiralty and equity jurisdiction649. Later, as Thomas Lee has noted, Edmund Randolph reported to Congress that “a federal judge in the early Republic had to be not only “a master of the common law in all its divisions” but also a “civilian.”“650 The judicial power with which federal courts were invested, in other words, surely encompassed both the common-law and civil-law traditions.

648[_See _]2 Max Farrand, The Records of the Federal Convention of 1787, at 431 (1911).

649Act of Sept. 29, 1789, ch. 21, 1 Stat. 93.

650Lee, [_supra _]note 235, at 7.

Regardless of whether the Framers specifically contemplated a link between the judicial power they conferred on federal courts and the voluntary jurisdiction of Roman and civil law, we have little doubt that non-contentious jurisdiction was a regular feature of the judicial proceedings in equity, admiralty, and probate with which the Framers were familiar from everyday experience. In this cosmopolitan legal world, the decision of Congress to assign non-adverse proceedings to federal courts does not present much of a mystery. Indeed, the uncontroversial decision to include equity and admiralty “cases” in the federal constitutional catalog provides solid evidence that non-contentious jurisdiction was considered an acceptable dimension of the business of Article III courts.

§ 4.3 Toward a Theory of Non-Contentious Jurisdiction

4.3.1 The Theory Sketched

a) Original and Ancillary Non-Contentious Jurisdiction

The non-contentious matters we have described in this Chapter can be separated into actions that are originally non-contentious and non-contentious features of actions that are ancillary to an actual or potential dispute. A statute conferring original non-contentious jurisdiction generally provides for the assertion of a claim of right. Typically, the party will claim an entitlement to a benefit created by law, such as the right to naturalized citizenship or to seek a mitigation of penalties or the waiver of fees. In other contexts, the party seeks legal validation of an act or status, such as in the application to register a will or for a warrant or for the condemnation of property. In still other contexts, the party claims a right to the invocation of administrative or judicial machinery for the disposition of an estate, as in bankruptcy proceedings or the appointment of an equity receiver.

Statutes also confer power on courts to entertain “ancillary” non-contentious proceedings. Many of the examples of non-contentious jurisdiction that we cataloged in Part I arise in connection with a dispute between actual or potential adversaries. Consent decrees settle disputes between contending parties, just as guilty pleas resolve criminal charges, and default judgments are entered in connection with litigation to secure an unmet demand upon a party who has failed to answer the court’s summons. In all these instances, the power of federal courts grows out of their duty, in any case properly before them, to provide parties with the relief to which applicable law entitles them.

b) The Elements of Non-Contentious Jurisdiction

In a previous article, we proposed a test for evaluating when the federal courts may assume responsibility for the adjudication or administration of certain claims brought without the presence of an adverse party651. Recall what Chief Justice Marshall said in defining power over federal question “cases” (but not “controversies”) in especially broad terms:

651[_See _]Pfander & Birk, [_supra _]note *, at 1441–44.

[The federal question grant] enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law652.

652Osborn v. Bank of U. S., 22 U. S. 738, 819 (1824).

Here, Chief Justice Marshall emphasizes three elements: the party must assert a claim of right, the claim must implicate federal law, and the claim must proceed in the “form prescribed by law.”653

653Id.

Although Chief Justice Marshall did not say so expressly, the second element of his definition-the requirement that cases must implicate the Constitution, laws, or treaties of the United States-imposes an important limit on the scope of original non-contentious jurisdiction exercised by Article III courts. While the federal courts may hear non-contentious “cases” that seek to vindicate a claim of federal right, the original non-contentious power does not extend to “controversies” defined by the alignment of the parties. Controversies really do require opposing parties. The paradigmatic example of such a controversy, a diversity dispute between citizens of different states, helped to define the early contentious work of the federal courts. Apart from the linguistic fact that a controversy connotes a dispute between parties, the federal courts have little business exercising original non-contentious jurisdiction over matters of non-federal law. The aforementioned “probate exception” to Article III, for example, might best be understood as an outgrowth of the principle that federal judicial power over controversies requires a dispute between adversaries and does not extend to original non-contentious applications for rights created by state law654.

654See Pfander & Downey, [_supra _]note 483.

But the inability of the federal courts to exercise “original” non-contentious jurisdiction over matters of state law does not preclude those courts” exercise of “ancillary” non-contentious jurisdiction in controversies otherwise properly before them. As long as a dispute within the contentious jurisdiction of the federal courts implicates the judicial power of the United States, the court may grant the full range of approved remedies. This means that a federal court may undertake the inquisitorial duties associated with entry of consent decrees and default judgments in any matter properly before the court, even in diverse-party controversies that do not seek to vindicate any federal right.

The final element of Chief Justice Marshall’s definition requires the party seeking to invoke the non-contentious jurisdiction of the federal courts to follow the form “prescribed by law.” This element of the definition properly captures the primacy of Congress in defining the scope of non-contentious jurisdiction. Congress can, as Justice Brandeis observed, assign administrative matters to federal agencies or to federal courts or create a system of shared responsibility among them655. In our view, while the federal courts presume that Congress intends to preserve contentious judicial review of final agency action656, no similar presumption should operate in favor of judicial resolution of non-contentious proceedings in the first instance. Federal courts should accept congressional assignments of non-contentious work but should not seek out such assignments by creating implied non-contentious rights of action that would enable private parties to choose a federal judicial proceeding instead of one in the proper agency (nor do we think it likely that federal judges would clamor to create such a doctrine).

655[_See _]Tutun v. United States, 270 U. S. 568, 576–77 (1926).

656See, e. g., Traynor v. Turnage, 485 U. S. 535, 542 (1988).

At the same time, the common-law tradition, as confirmed by federal practice, can provide a form “prescribed by law” within which a party or parties may pursue uncontested proceedings. Default judgments, both in law and equity, have deep roots in the legal tradition. From the power to issue default judgments, courts derive the power to register settlement agreements and enter guilty pleas. In all of these instances, the federal courts proceed in ancillary non-contentious jurisdiction and do so without any specific grant of authority from Congress. Yet congressional approval of these practices can be easily inferred from the available legal materials. In the case of default judgments, authorized by Rule 55 of the Federal Rules of Civil Procedure, the Rules Enabling Act confers rulemaking authority on the Supreme Court, culminating in the promulgation of rules that take effect unless Congress disapproves of them657. Judicial activity in uncontested bankruptcy proceedings, the entry of plea agreements, and the registration of settlements enjoy a similar foundation in positive law658.

657[_See _]28 U. S. C. §  2072.

658[_See _]28 U. S. C. §  157 (bankruptcy); Fed. R. Crim. P. 11 (pleas); Fed. R. Civ. P. 23(e) (settlements).

c) Other Requirements for the Exercise of Non-Contentious Jurisdiction

Apart from the elements embedded in the Marshall-Story formulation of a “case,” several other requirements deserve a place in the definition of the scope of federal non-contentious jurisdiction. First, the federal courts can exercise non-contentious jurisdiction only where their decisions will enjoy the finality demanded by Article III. The finality requirement emerges from Hayburns Case, in which various justices and district judges adverted to the prospect of revision of their judgments by the executive branch in refusing to accept the judicial role thrust upon them by Congress659. The Court has consistently reaffirmed the finality rule in various settings660, particularly in the context of ex parte proceedings. For example, finality concerns informed the Court’s approach to naturalization proceedings in Spratt v. Spratt661. Speaking through the Chief Justice, the Court emphasized that a decision granting a petition for citizenship was subject to review but was to be regarded as a binding judgment unless it was overturned through proper proceedings662. Justice Brandeis made much the same argument in Tutun, emphasizing that a judgment conferring citizenship was conclusive, although subject to proper forms of judicial revision663.

659See Hayburns Case, 2 U. S. (2 Dall.) 408.

660See, e. g., Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995).

66129 U. S. (4 Pet.) 393 (1830).

662[_Id. _]at 407.

663Tutun v. United States, 270 U. S. 568, 576 (1926).

Finality in the context of non-contentious jurisdiction does not require final judicial resolution of an entire dispute. That is the function of contentious jurisdiction. Instead, finality simply requires the conclusive determination of the issue that has been assigned to the federal courts for decision (subject, perhaps, to appeal to a higher Article III court). On this view, federal courts can determine a single issue in the context of a proceeding that will ultimately be resolved by a different institution. Consider the initial fact-finding preceding the resolution of a petition for remission of penalties; Justice Story explained that it was upon the district court’s “statement of the facts, and this only, that the secretary is authorized to proceed.”664 Consider as well the enforcement of discovery requests, whether in support of a foreign proceeding (through letters rogatory) or in support of administrative investigations (through administrative subpoenas). In such matters, the federal court conclusively resolves the right to discovery, but the court does so in support of another judicial or administrative institution’s proceeding665.

664The Margaretta, 16 F. Cas. 719, 721 (C. C. D. Mass. 1815); [_see also _]Part I. A.3, [_supra _](discussing remission proceedings).

665[_See supra _]Part I. F.6.

Second, non-contentious jurisdiction obligates the federal trial court to conduct its own investigation of the facts and law that govern the propriety of the proposed judgment. We saw in the example of prize cases, for instance, the robust role assumed by the admiralty court in determining the basis for condemnation666. An explanation for this role may lie in the concern that courts might have felt for the accuracy or completeness of cases presented to them on an ex parte[_ _]basis; as was seen in proceedings under the Naturalization Act of 1790, in cases of non-contentious jurisdiction, the court bears responsibility to test fully the legality of the claim.

666[_See supra _]Part I. B.1.

The inquisitorial duty that we propose can be illustrated in today’s terms by the rules governing the entry of default judgments, which require the district court to determine if the well-pleaded facts in the complaint support the entry of judgment and to fix the amount of damages based on the court’s own investigation667. A similar inquisitorial duty attaches to the judicial role in overseeing class action settlements, bankruptcy orders of various kinds, guilty pleas, and consent decrees668. The FISA court has taken important steps to improve the quality of its ex parte decisions, hiring a group of legal advisors to conduct thorough initial investigations of important petitions and inviting the U. S. Department of Justice to highlight and thoroughly brief any suggested changes in the law669.

667[_See supra _]Part I. F.1.

668[_See supra _]Part I.C; Part I. F.3–5.

669Inquisitorial proceedings also cast special duties of candor on the advocates who appear before the federal courts. Rule 3.3 of the American Bar Association’s Model Rules of Professional Conduct recognizes a duty of candor in ex parte proceedings: “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse”. Model Rules of Prof’l Conduct R. 3.3(d) (2013). As the comment to Model Rule 3.3 explains, “Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result.” Id. at cmt. [14].

Third, the federal courts may accept non-contentious assignments only where the task at hand involves the exercise of judicial, rather than ministerial, judgment. Here again is Chief Justice Marshall’s description of the judicial role in naturalization: “[The courts] are to receive testimony, to compare it with the law, and to judge on both law and fact. This judgment is entered on record as the judgment of the court.”670 Chief Justice Marshall’s description anticipates later comments from Justices Story and Brandeis. In discussing petitions for remissions of forfeitures, Justice Story worked hard to defend the judicial quality of the proceeding: in taking evidence and making factual findings, “the judge exercises judicial functions, and is bound by the same rules of evidence, as in other cases.”671 Justice Brandeis’s comment in Tutun was similar: the applicant seeking naturalization “must allege in his petition the fulfillment of all conditions upon the existence of which the alleged right is made dependent; and he must establish these allegations by competent evidence to the satisfaction of the court. In passing upon the application the court exercises judicial judgment.”672 In all of these instances, the Court confirmed the judicial quality of the judgment being exercised and the point that this quality is crucial to the propriety of the exercise of non-contentious jurisdiction673.

670Spratt v. Spratt, 29 U. S. (4 Pet.) 393, 408 (1830).

671The Margaretta, 16 F. Cas. 719, 721 (Story, Circuit Justice, C. C. D. Mass. 1815).

672Tutun v. United States, 270 U. S. 568, 578 (1926) (citation omitted).

673[_See also _]Hohn v. United States, 524 U. S. 236, 241–42 (1998) (holding that because of its procedural resemblance to other matters in the court of appeals, “an application for a certificate of appealability constitutes a case under” 28 U. S. C. §  1254, which permits the Supreme Court to review “[c]ases in the courts of appeals . . . . [b]y writ of certiorari.” 28 U. S. C. §  1254 (2012)).

The Supreme Court’s emphasis on the judicial quality of the work in these cases suggests that while some administrative assignments are proper subjects for the cognizance of the Article III judiciary, others might be considered ministerial in character and therefore appropriate only for assignment to another department or officer. The judicial/ministerial distinction has provided grounds for the Court to reject administrative assignments that were improperly ministerial or that simply required the rote performance of a duty and did not call for the exercise of judicial judgment674. One can get a sense of the intuition underlying this admittedly blurry line by considering the initial judicial reaction to the pension law in Hayburns Case: the Circuit Court for the District of Pennsylvania reportedly refused the assignment in part because the statute compelled the court to sit for five days to receive pension applications and thus abrogated the court’s discretion to close the court session when the work was complete. Such obligatory work was apparently viewed as not of a “judicial” nature. The nation’s first copyright law furnishes an additional example. An author seeking a copyright on a “map, chart, book, or books” was obliged to lodge a copy with the Secretary of State and to “deposit” a printed copy of the title of the work with the federal district court of the district in which the author resided675. In specifying the duty to record, no judicial judgment was contemplated. Instead of assigning the duty to the court itself, Congress provided that “the clerk of such court is hereby directed and required to record the same forthwith, in a book to be kept by him for that purpose.” Congress apparently held the view that work of a clearly ministerial character was properly assigned to the clerk, leaving the court to enforce the duty (if necessary) through a proper judicial proceeding676.

674[_See _]Morrison v. Olson, 487 U. S. 654, 677–78 (1988); United States v. Ferreira, 54 U. S. 40 (1851).

675Copyright Act of 1790, ch. 15, §  §  3–4, 1 Stat. 124, 125 (1790).

676Thus, the statute specifically provided that the clerk would give a copy of the copyright record to the author upon request. [_Id. _]§  3.

Although the judicial/ministerial distinction provides the federal courts with authority to reject proceedings that do not call for the exercise of judicial judgment, the practice of the federal courts has been to defer to Congress and accept ex parte assignments in doubtful cases677. This practice of deference poses a potential threat to the federal courts, since Congress has control over the assignment of a truly staggering array of federal administrative chores. The threat may appear more pointed given the implicit obligation of the federal courts in such cases to conduct their own investigation of the facts on which their determination will be made.

677For example, although U. S. District Judge Thomas Bee privately complained in 1800 of the ministerial or administrative nature of the district court’s role in assessing petitions for remission or mitigation of forfeitures, [see _]Pfander, [_supra _]note 24, at 26, courts nevertheless accepted the task and treated it as judicial in character. _See, e. g., The Margaretta, 16 Fed. Cas. 719, 721 (C. C. D. Mass. 1815).

While we recognize that a threat does exist, we remain fairly sanguine. Congress for the most part values the dispute-resolution and law-elaboration roles of the federal judiciary and generally works to support those roles678. Moreover, Congress can be expected to monitor the cost effectiveness of its administrative systems. It seems unlikely that a Congress already concerned with the cost of, say, administering social security benefit claims would turn that task over to the federal courts. However efficiently the courts might process the claims, the cost per claim would predictably far exceed that of the current administrative arrangement. Except when Congress decides that proper administration requires the high-powered (and high-priced) judgment of the federal judiciary, as in the case of the FISA courts, we can expect Congress to continue to rely on agencies instead.

678[See _]Tara Leigh Grove, _The Exceptions Clause as a Structural Safeguard, 113 Colum. L. Rev. 929 (2013).

Fourth and finally, as was the case under Roman law, non-contentious jurisdiction should end where the proposed judicial order or judgment threatens to encroach on the rights of third parties not before the court. This principle is central to the notion of non-contentious jurisdiction and, under the Due Process Clause of the Fifth Amendment, applies to all proceedings in federal court679. To the extent that a single party seeks to register or claim an individual federal right or benefit, third-party rights are unlikely to be implicated in most circumstances. More for one individual, such as a naturalized citizenship or pension benefit, does not necessarily mean less for someone else (except for the taxpayer, of course, who lacks standing to mount a federal court challenge to congressional decisions to distribute such largesse680). But in other circumstances, where the exercise of non-contentious jurisdiction does pose a potential threat to the rights of third parties (such as in the case of settlement class actions, the issuance of FISA warrants, and some bankruptcy proceedings), federal courts must be especially vigilant to ward off the entry of judgments that burden those who have not been brought before the court. Potential problems with third-party rights may not deprive the court of power to hear a case on the non-contentious side of its docket, but they certainly require a more searching investigation and may require those seeking to invoke the court’s jurisdiction to offer separate justification.

679[_See _]U. S. Const. amend. V; Hansberry v. Lee, 311 U. S. 32, 40 (1940).

680[_See _]Massachusetts v. Mellon, 262 U. S. 447 (1923).

Conclusion

We do not mean to praise all of the practices outlined in this Chapter; indeed, we believe Congress should think twice before expanding non-contentious jurisdiction, and federal courts might improve the way they manage their non-contentious work. But we do suggest that the theory of non-contentious jurisdiction explains much that was previously inexplicable or anomalous in non-adverse and ex parte federal judicial proceedings. Non-contentious jurisdiction, properly understood, enables the federal courts to entertain a range of uncontested and ex parte applications for the grant of a legal right or the entry of a judgment or as a threshold requirement before the government may take certain actions or institute certain proceedings against an individual. Properly limited, non-contentious jurisdiction should not pose a threat to the dominant role of the federal courts in resolving contested disputes and explicating the meaning of federal law. Indeed, by calling for the recognition of both contentious and non-contentious jurisdiction, we have expressed a preference for the preservation of many of the adverse-party rules that emerged in the last century. We have also suggested that federal courts should proceed cautiously when asked to make bold pronouncements in the context of an ex parte submission. Still, the federal courts provide a unique institution among administrative bodies; their independent judges offer a more meaningful check on executive branch activities than courts created within and beholden to the administrative state. While Congress should not assign administrative matters to the Article III judiciary that the agencies can handle more efficiently, we think Congress retains broad power to define the sort of “cases” that will make up the work of the lower federal courts. On accepting such non-contentious assignments as a legitimate part of the judicial power, moreover, courts may come to view their inquisitorial duties as an important complement to their role in dispute resolution on the contentious side of their dockets.

Ed. by V. V. Argounov

Voluntary (Non-Contentious) Jurisdiction

Around The World

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Voluntary (Non-Contentious) Jurisdiction Around The World

This book offers an analysis of the history, legal basis and developments in voluntary jurisdiction in a large number of jurisdictions. Authors discuss the terminology, the nature of voluntary jurisdiction, the recent development, the regulatory basis like actors and forums as well as the scope and procedure including effects, appellation and execution of voluntary jurisdiction in the named countries. In the end provides the fresh statistics, problems, outcomes, reforms and visions.

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Voluntary (Non-Contentious) Jurisdiction Around The World Voluntary (Non-Contentious) Jurisdiction Around The World