Abolishing the right to rely upon new facts on appeal will surely be an important step towards removing possible abuses. These changes could contribute more sig- nificantly to the general efficiency of the trial if appropriately accepted and applied in practice. However, some other potential problems in relation to appeals and mo- tions for retrials will still have to be overcome. The impossibility of introducing new facts on appeal could lead to an increased use of motions for retrial. The motion for retrial is a remedy that can be sought only after appeal, if the appeal was launched for procedural reasons. For example, retrial based on new facts will have to wait un- til appellate proceedings are over. The effectiveness of this reform will depend to a great extent on the ability of the judicial system to resist a potential wave of motions for retrial. Otherwise, instead of acceleration, the opposite effect could be reached with additional negative consequences (e.g., a further reduction in the authority and firmness of res iudicatae).
The strengthening of procedural discipline
New sanctions for the abuse of procedural rights
The main political slogan on the reform of civil proceedings related to the need to strengthen procedural discipline. According to the prevailing assessment of the re- formers, the long duration and inefficiency of the trial are determined to a signifi- cant extent by the ability of the parties in proceedings to use their procedural rights to obstruct and even block the proceedings and to remain unpunished for such be- haviour. The cause of the current abuses was not completely uncontroversial in the legislative debate: while some assigned the main guilt for obstruction to the parties (more precisely, to their lawyers), others argued that the greater fault lay with the judges who had failed to use existing mechanisms to fight abuse. In any case, one of the main ideas behind the reform was to emphasize the right and duty of the court to ensure procedural discipline, if necessary by stronger measures for fighting pro- cedural abuses.
The new text of the law supplements the old, general formula that parties have a duty to use their rights conscientiously with new instruments aimed at enforcing such a duty. The court is now authorized to fine parties or their representatives for ‘significant abuses of their procedural rights’.44 If a decision to impose such a fine is made, however, the sanctioned party may appeal the decision and thereby suspend its enforcement. But, as an indirect sanction, the court can oblige the abusing party to the pay expenses caused by the party’s fault independently of the outcome of the litigation, and such a court decision may be executed immediately, without delay.
At first sight these amendments may to a certain extent invoke the Anglo- Saxon concept of contempt of court. It seems, however, that in this respect the reform still went only half way. In other words, an appeal that may suspend enforcement in the case of fines could significantly limit the efficiency of this measure. Although maximum fines are not small (up to about € 1500 for individuals), their minimum is
See the text of Articles 9 and 10 Code of Civil Procedure.