Electronic Technology and Civil Procedure: New Paths to Justice from Around the World

401 Pages·2012·4.07 MB·English

by  Miklós Kengyel

Miklós Kengyel and Zoltán Nemessányi (eds.), Ius Gentium: Comparative
Perspectives on Law and Justice, Electronic Technology and Civil Procedure,
2012, New Paths to Justice from Around the World, DOI: 10.1007/978-94-007-
4072-3, © Springer Netherlands 2012
15
Ius Gentium: Comparative Perspectives
on Law and Justice
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For further volumes: http://www.springer.com/series/7888
Editors Miklós Kengyel and Zoltán Nemessányi
Electronic Technology and Civil ProcedureNew Paths to Justice from Around
the World
Editors
Miklós Kengyel Department of Civil Procedure and Law Sociologie, University
of Pécs, Pécs, Baranya, Hungary
Zoltán Nemessányi Department of Civil Procedure and Law Sociologie,
University of Pécs, Pécs, Baranya, Hungary
ISBN 978-94-007-4071-6 e-ISBN 978-94-007-4072-3
Springer Dordrecht Heidelberg New York London Library of Congress Control
Number: 2012942329
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This volume is based on the lectures of the 2010 IAPL conference
Contents
Part I Adapting Systems of Civil Procedure to Electronic Technology
1 Electronic Technology and Civil Procedure – Applicability of Electronic
Technology in the Course of Civil Procedure
Masanori Kawano
2 The Impact of Digital Information on American Evidence-Gathering and
Trial – The Straw That Breaks the Camel’s Back?
Richard L. Marcus
3 Technology and Civil Litigation in the United States in the Twenty-First
Century
Paul D. Carrington
4 The Future of the Traditional Civil Procedure
Petrônio Calmon
5 Electronification of Civil Litigation and Civil Justice – The Future of the
Traditional Civil Procedure Facing the Electronification
Nikolaj Fischer
6 Proceedings on the Web
José Eduardo de Resende Chaves Júnior
7 Digital Technology and the Character of Civil Procedure
Viktória Harsági
Part II Specific Applications of Electronic Technology Applications to Court
Proceedings: Service and Other Applications of Communications
Technology Issues
8 Electronic Service of Documents National and International Aspects
Fernando Gascón Inchausti
9 Enforcement of a Claim with the Support of the New Information
Technology. Protection of the Creditor and the Debtor
Michele Angelo Lupoi
10 Remarks on the Polish Electronic Proceedings by Writ of Payment
Robert Kulski
11 Enforcement of a Claim with the Support of the New Information
Technology in the European Union, Romanian Case Study
Pantilimon Rikhárd-Árpád
Part III Specific Applications of Electronic Technology Applications to
Court Proceedings: Documentary Evidence and Other Applications of
Information Technology
12 Electronic Documents. Security and Authenticity
Helmut Rüßmann
13 Modern Communications and Information Technology and the Taking of
Evidence
Georg E. Kodek
14 Some Remarks Concerning the Probative Weight of Electronic
Documents
Dimitris Maniotis
15 Applied Technology in Litigation Proceedings (The Electronic Discovery
Reference Model)
Zoltán Ambrus
16 DNA Databases: Methodological Approach, Family Searches and DNA
Data Protection System in the EU
María José Cabezudo
17 Applications and Trends of Digital/Electronic Evidence in Chinese
Litigation
Baosheng Zhang and Huangxun Chen
About the Contributors
Part 1
Adapting Systems of Civil Procedure to
Electronic Technology
Miklós Kengyel and Zoltán Nemessányi (eds.), Ius Gentium: Comparative
Perspectives on Law and Justice, Electronic Technology and Civil Procedure,
2012, New Paths to Justice from Around the World, DOI: 10.1007/978-94-007-
4072-3_1, © Springer Netherlands 2012
1. Electronic Technology and Civil
Procedure – Applicability of Electronic
Technology in the Course of Civil
Procedure
Masanori Kawano1
(1) Nagoya University Graduate School of Law, Nagoya, Japan

Masanori Kawano
Email: [email protected]
Abstract
The author worries about drawbacks if the immediacy of a court proceeding with
the personal presence of the participants were to be abandoned. Introducing
some ET for communication, especially by introducing a video conference
system for plenary hearings, contributes to reduce some difficulties in traditional
civil procedure, but its unlimited introduction through the use of a virtual court
would change in some fundamental aspects the traditional civil procedure based
on face-to-face relationships in civil litigation. Surely, it must be necessary to
introduce ET into civil procedure to some extent, but it must be questioned
whether it would be welcomed by litigants, and it must be considered whether
the use of monitor technology, eliminating the human element from litigation, is
a necessary development. Its introduction must be, on one hand, a financial
problem and a cost-benefit analysis might be necessary, but the factors of
personal contact civil procedure would not be ignored.
This is a general report for the International Conference of Procedural Law in
Pécs, Hungary, on September 23–24, 2010.
1.1 Introduction
Over nearly the last two decades, the rapid development of electronic technology
(ET) for communication, and its prevalence in our contemporary society has
been startling1; nowadays highly developed, sophisticated and compactly
constructed electronic communication equipment is regarded as a necessity of
our daily life. ET has dramatically altered our methods of daily communication,
both in private and in public. Such remarkable changes caused by the rapid
development of ET for communication have also had an impact upon the civil
procedures of many countries. Because of their extreme convenience and
effectiveness, the application of newly developed ET for communication to the
civil justice process is now regarded as an inevitable and appropriate
improvement and already now in many countries its introduction into civil
procedure is accelerating, with future developments planned. The legal
implications of applying ET for communication to the civil process have been
discussed on many occasions and now these plans are being realized, by
successive amendments of the law of civil procedure in many countries.2 Such
tendencies have been extended not only in domestic, but also in international
civil procedure, especially in the member states of the European Union.
Civil procedure is a social system which is composed of a collection of
mutual communications exchanged between the court, on one hand, and the
parties, other interested parties to the litigation and their representatives3 on the
other hand. Such activities should be authorized and regulated by procedural
provisions based on fundamental principles or requirements of civil procedure,
either explicitly or implicitly. Such principles have been developed by long
tradition and are based on the fundamental importance of keeping and
guaranteeing various procedural and constitutional rights of citizens. Well-
established communication must also be an indispensable part of civil procedure,
by which mutual understanding of the pending case between the court and
litigants can be promoted in the course of proceedings. Such communication
should be effective and convenient. Its improvement might be one of the most
important steps to bringing about effective justice.4
The newly developed ETs for communication have such a radical and
profound influence on our daily life that their application to civil procedure
might bring about some significant changes or influences upon the fundamentals
of our traditional civil process. Any significant changes brought to the
fundamentals of civil procedure by the introduction of a new system of
procedural communication would have to be examined with reference both to
principle and to practice.
Civil procedure is a social institution to obtain a final adjudication by the
judgment of a national court to resolve private disputes by a series of mutual
activities on the part of the court, both parties and any other persons affected.
The court’s judgments are preceded by the course of proceedings which is of
fundamental importance for the legitimacy of the final decision by the court