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   Course Title    Civil Procedure Law
Lecturer    Biljana Djuricin
Institution    University of Montenegro
Country    Yugoslavia


" The law gets its determination at the court. The law must be proved. Judicial process puts the parties in the position that their proofs and legal reasons must prove their facts. A judge defines truth and then he makes a decision. On a such way we provide application of law. These steps are law, so their stream must be legal determined and they are also essential part of the jurisprudence."

Hegel

INTRODUCTION

Civil procedure law contents, norms: 1. litigation procedure, 2. executive procedure and 3. non-litigation procedure. This notion of civil procedure law is in an objective sense. Each of the procedures is determined by federal or republic codes. Some of them, as the Code of Civil Procedure, are determined by federal, together with republic codes.

The subject of civil procedure law is in protection of subjective rights. This protection is determined by a system of norms that regulate activities of courts and other organs of judiciary, parties (plaintiff and defendant), and other participants in a proceeding. After a proceeding of a second instance, the judgment becomes " res iudicata ", meaning already decided.

The judiciary plays an important role in defining private relationships. Civil litigation in the regular courts is the fundamental mechanism through which this role is performed. Civil cases are private disputes, such as automobile accident suits, proprietary and tenant disputes, commercial contracts' disputes, marriage disputes, paternal and maternal disputes and other family problems, etc. In these civil cases, an authoritative judge must determine the facts and law. According to the constitutional rule, independent of the court, the judge should be neutral as between the parties. The procedure must permit the parties to tender relevant evidence to the issues of facts and to suggest sources that are relevant to the issue of law. The court is obligated to give serious attention to both parties of the disputes. The procedure must have a definite decision.

Given these fundamental characteristics and requirements, the subject of science of civil procedure law is aimed at completely protecting subjective rights and other rights that are protected in this procedure. In this way, the science of civil procedure law establishes the perspectives for the evolution of judiciary. It is one of the most important parts of modern society and a logical necessity for the rule of law and state.

Civil procedure law is one of the fundamental law disciplines. At many European Universities, civil procedure law exists as part of the curriculum. Students are taught civil procedure law as a compulsory subject. The important practical part of this subject is civil law clinic. This form of legal education is new and it will develop in the curriculum in the future.

 

COURSE OBJECTIVES

The main goal of the course is to insure a systematic knowledge (theoretical and practical) of civil procedure law. Students have to acquire theoretical knowledge about civil procedure (litigation, non-litigation and executive), its institutes, method, sources, rules (constitutional and particularly for each of the proceedings), actions of the parties and the court, the science of civil procedure law. In this way, this subject gives students the possibility to apply knowledge in practice. Also, students have the possibility to estimate the role and place of civil procedure law in the system of legal norms, especially in the relation of form-content. One of the goals of the course is to enhance studentsí knowledge about the Yugoslav Code of Civil Procedure and other sources of this subject. Students have to acquire knowledge in divergence and convergence of civil law and common law procedures.

The main focus is on increasing practice and skills at the court. Students have to acquire practice through the civil law clinic. Students have the opportunity to go to the court. The court provides a better understanding of the theoretical aspects and problems of civil procedure law and substantive law. Students observe civil litigation ("live parties") and they must make a question to the judges after the first-instance proceeding. Students must also give their commentaries about the proceeding. The course aims at simulating this practice. At the end of the semester, students simulate litigation in which they are given the roles of judges, parties, attorney and other participants in the proceeding. In this way, students show their skills, facilities and knowledge in theory and practice.

The course is designed to teach students of fourth years of law school. Students of the third year take the tutorials at the civil law clinic. During an academic year, the teaching of civil procedure law is carried out in two semesters. Each year has two semesters, in the Winter and in Summer. Students have weekly classes :

Winter Summer       Lectures and tutorials Lectures and tutorials      4 + 1 4 + 1

The long-term development objectives of the course are oriented towards:

- innovating the curriculum of this subject
- continuously increasing skills and forms of clinical legal education of students in their further professional life as graduate lawyers
- assistance to the government in the reform of judiciary and other reforms of civil procedure
.

 

READING LIST

The main textbooks : Cizmovic, Djuricin, Gradjansko procesno pravo ( Civil Procedure Law ), Podgorica, 1997; Djuricin, Gradjansko procesno pravo- prakticni dio (Civil Procedure Law - practical part ), Podgorica, 2001.

Other books used in this course are listed below. The literature for separate chapters is quoted at the end of the chapters in the main textbook. Relevant parts will be copied and handed out to the students together with the text of relevant international conventions and legislative. According to the possibilities of students they can read literature in German, France, English, Italian and other languages.

a) National

Arandjelovic,Gradjansko procesno pravo, ( Civil Procedure Law ) I-III, 1933-1934;

Blagojevic, Nacela privatnog procesnog prava ( Rules of Private Procedure Law ). 1936;

Djuricin, Utvrdjivanje istine u parnicnom postupku (Establishment of truth in civil procedure ), 1998;

Markovic, Gradjansko procesno pravo ( Civil Procedure Law ), I, 1957;

Najman Komentar gradjanskog parnicnog postupka ( Commentary of Civil Procedure ), I-II, 1935;

Poznic i ostali, Zakon o parnicnom postupku s komentarom ( Code of Procedure Civile with Commentary ), 1957;

Poznic, Vodinelic, Gradjansko procesno pravo ( Civil Procedure Law ), 1999;

Rakic-Vodinelic, Gradjansko procesno pravo Evropske Unije ( Civil Procedure law of European Union ), 1999;

Starovic, Komentar zakona o izvrsnom postupku ( Commentary of Enforcement Procedure Act ), 1987;

Starovic, Keca, Gradjansko procesno pravo ( Civil Procedure Law ), 1995;

Varadi, Medjunarodno privatno pravo ( International Private Law ), 1993;

b) International

Blomeyer, Zivilprozessrecht, 1963;

Blum, American Civil procedure, 1955;

Fasching, Lehrbuch Des osterreichischen Zivilprozessrechts, 1990;

Fazalari, Instituzioni di diritto processuale, 1975;

Hazard, Taruffo, American civil Procedure, 1993;

Holzhammer, Osterreiches Zivilprozessrecht, 1970;

Kamhi, Gradjanski sudski postupak ( Civil Procedure ),1967;

Lent, Zivilprozessrecht, 1970;

Le Ninivin, La jurisdiction gracieuse dans le Nouveau code de procedure civile, 1983

Rosenberg, Lehrbuch Des deutchen Zivilprozessrechts, 1966;

Schellhammer, Zivilprozess, 1987;

Solus et Perrot, Droit judiciaire prive, I, 1961;

Sajo, Western Rights? Post-Communist Application, 1996;

Triva, Bjelajac, Dika, Gradjansko parnicno procesno pravo ( Civil Procedure Law ), 1986;

Triva, Bjelajac, Dika, Sudsko izvrsno pravo ( Enforsement Law ), 1980;

Ude, Civilni pravdni postopek ( Civil procedure Law ), 1988;

Varady, Barcelo, Von Mehren, International Commercial Arbitration, 1999;

Zuglia, Gradjanski parnicni postupak FNRJ ( Civil Procedure of FNRJ ), 1957;

Zeiss, Zivilprozessrecht, 1971;

 

The Structure and Content of the Course

PART I

Chapter 1

A The subject and the structure of civil procedure law

B Procedural law as manifestation of law

C Form and formalism

D Organizational procedure law and functional procedure law

E The method of research of civil procedure law

F Legal sources of civil procedure law and their classification

G Norms of civil procedure law and their application in space, time and against persons

H The rule and place of civil procedure law

I Organization of the courts

J The constitutional principles and organization of judiciary

Chapter 2

A Litigation procedure

B Litispendence

C The theories and nature of litigation

D Presumptions of judicial proceeding

E The influence of criminal verdict on judgment on civil procedure

F Relation between administrative procedure law and civil procedure law

G The notion and selection of jurisdiction

H The principles in the litigation procedure

Chapter III

A The parties in the litigation procedure

B The legal profession and legal advice

C Lawyer as an attorney-in fact in civil procedure

E An action, its content and classification in litigation procedure

F About claim

G Summon

H Pretrial

I Time of actions

J Multiple claims

K Multiple parties

L Third personsí participation in the litigation

Chapter IV

A Change of claim

B Contraclaim

C Preliminary ( incidental ) issues

D Trial

Chapter V

A The law of evidence

B Nature of judicial evidence

C Classifications of judicial evidence

D The burden of proof

E The means of proof

F Principle of free interpretation of facts and its practical implementation

Chapter VI

A Temporary adjournment of litigation procedure

B Court settlement

C Termination of civil procedure without meritorious court decision

D The judgment, its content and classifications

E Notion and reasons of appeal

F Appellate procedure

G The validity and effect of judgments

H Extraordinary remedies

I Costs of civil litigation

Chapter VII

A Special litigation procedures

B Procedure in marriage disputes

C Procedure in paternal and maternal disputes

D Procedure in payment order

E Procedure in protecting possession

F Special characteristics of procedure before economic and military court

G Procedure before the arbitration courts and procedure before Permanent arbitration court of the Yugoslav chamber of commerce

H Procedure in small claims

I Procedure for recognition and enforcement of foreign judicial decision in civil procedure

PART II

Chapter I

A Non- litigation procedure

B Does in our legislative need non-litigation unification

C Principles in non-litigation procedure

D Judgment and its form in non-litigation procedure

E Special non-litigation procedures

PART III

Chapter I

A The notion and subject of executive procedure

B Legal sources of executive procedure

C Creditor, debtor and court

D Executions judgments

E Principles in executive procedure

F Classification of execution according to Law on executive procedure

G Temporary adjournment and suspension in executive procedure

H Remedies

Chapter II

A Preliminary injunction

B Preventive injunction

C Pawn law on immovable property

 

TEACHING METHOD

Topics will be introduced generally with lectures, practice classes (in the classroom and court), consultations, seminars, simulations and discussions of actual cases and hypothetical problems. The students will receive reading material for practice classes in advance and they are required to come prepared for each class. About half of the class time will be spent talking through major issues and highlighting parts of the required readings. In order to have a meaningful class discussion and in order for students to learn as much as possible, all of them will be encouraged to participate in the class discussion, especially when discussing actual, hypothetical or practical cases involving the legal issues discussed.

In the court, students will observe civil litigation and they will analyze it in discussion with judges and the professor. Students will talk about and analyze seminar papers. Students will also be required to defend their suggestions for the seminar papers. In this way students will contribute with exchange of ideas, experience, theoretical and practical information.

 

ASSESSMENT

The educational process of civil procedure law comprises lecturing, practice classes (civil law clinic), consultations, seminars, discussions and seminar papers. The legal practice classes are also held in the court. Ascertaining the acquired knowledge of students is done at colloquiums and examinations. Every student must have one seminar paper and colloquium during an academic year.

Assessment of student's performance in the course will be based on class participation, seminar paper and colloquium on the procedure issues covered by the course as follows:

General Class participation : 50%

Final Report: 50%

 

FINAL EXAM

The final exam includes two parts: writing an essay and an oral exam. In the first part, student must write an essay on a topic: an action of parties or court in litigation, such as claim, contraclaim, judgment, appeal, etc. When the student took the written exam, he or she will take an oral exam. This exam includes tree questions from the content of civil procedure law. The professor assigns the mark from 5 to 10.

 

EVALUATION

During an academic year, the professor and the students will talk through tutorials, seminars and consultations about important and interesting issues of the curriculum. At the end of an academic year, the course will be evaluated by means of studentsí reactions and notices of professor on the teaching method, the reading list and aims of the course. Students will be required to come up with suggestions to improve the subject matter for the next course.



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