Recodification: The Architecture of Implementing Legislation
Otherwise, certain legal matters may prove difficult, if not impossible, to resolve. The implementing legislation should lend a helping hand in that respect. In this article Prof. Jan Dědič, one of the recodification’s co-authors, describes the bills that are currently under preparation.
We can perhaps be thankful that drafts of several implementing bills were submitted to the government’s legislative bodies by the Ministry of Justice in December of last year. Although some much needed bills have not yet appeared, a substantial number have now been prepared and submitted. The draft bills seek to address the consequences of adopting the new Civil Code and the Commercial Corporations Act and their impact on procedural rules and in various other fields of law. The recodification legislation, as well as the implementing bills, should come into effect on 1 January 2014.
Civil procedure in two acts
In the field of procedural law, a fundamental change in the system of civil procedure was proposed, since traditionally civil court proceedings are divided under two separate statutes. “Non-contentious” proceedings will no longer fall under the Civil Procedure Code but will be regulated instead by a separate special court proceedings act. The Civil Procedure Code will, however, continue to apply subordinately to such proceedings, unless the special court proceedings act provides otherwise.
The separate act will regulate certain procedural issues concerning individuals (such as supporting measures and legal capacity, guardianship, the disappearance or death of a person and protection against restrictions of personal freedom), certain proceedings regarding legal entities and trust funds (such as issues regarding the status of legal entities, including the winding up and liquidation thereof, the appointment of an expert and trusteeship of legal entities), estate proceedings, proceedings in family law matters, and a number of other special proceedings, in particular depositary proceedings, proceedings on the redemption of securities, proceedings concerning capital markets, and others.
The special court proceedings act does not regulate matters relating to the Commercial Register or any other public register of legal entities. A bill in that respect was included in the draft of a separate act, which I refer to below.
Another important procedural regulation is the proposed amendment to the Civil Procedure Code and several other acts, namely the Act on Court Fees, the Act on the State Attorney’s Office, the Administrative Court Procedure Code and the Act on Senior Court Clerks and Senior Clerks of the State Attorney’s Office. In addition to the fact that provisions concerning indisputable proceedings will be deleted from the Civil Procedure Code, which will give greater clarity, changes concerning terminology as well as substantive changes will be made, including reflecting the basic principles of the Civil Code and the abolition of the duality of private law (special regulation of trade obligations) within the powers and jurisdiction of the courts.
As mentioned above, the implementing legislation also includes a new bill on public registers of individuals and legal entities. The bill covers the existing Commercial Register, the Foundation Register, the Register of the Common Owners of Apartments and Commercial Premises, and the Register of Charities, and, newly, the Register of Institutes and Associations of Municipalities. The Register of Associations, which should be regulated by a special act, will also be considered a public register.
However, the Register of Political Parties and Movements, the Register of Schools, the Register of Public Research Institutions, the Register of Associations of Legal Entities and the Register of Churches of Religious Societies, Unions of Churches, and Religious Societies and Churches will not be regulated by the Act on Public Registers of Individuals and Legal Entities.
The bill basically takes over the existing regulation anchored in the Commercial Code (the substantive-law part) and the Civil Procedure Code (the procedural part) in respect of the commercial register. The fundamental change is that now both registry courts and notaries will be entitled to make entries into those public registers regulated by the new bill, provided the details registered are based on what is termed an “evidential notarial deed”, all requirements set forth by legal regulations for making the entry are fulfilled, and all required documents are submitted.
The most extensive bill submitted by the Ministry of Justice is the one amending acts in connection with adopting the recodification. The bill contains amendments to an astounding 124 acts and addresses the regulation of small trades, business transformations, multinational companies (in particular European Companies (Societas Europaea)), bookkeeping, valuation of assets, banking, capital markets, the insurance business, public auctions, consumer protection, advertising, tourism, social areas, school systems, culture, employment relationships, certain areas of the state administration and self government, a number of profession regulations, and much more.
The bill does not, however, contain all the changes brought about by the recodification. For example, it does not regulate insolvency law, tax regulations, civic registers or the cadastral register. Such necessary changes will be performed under separate acts. The bill focuses on substantive changes with regard to the new institutes of private law and changes to existing regulations. It attempts to change the terminology, but only in the case of material changes to the regulations. In other cases, the existing terminology is not amended and will be amended gradually by subsequent amendments.
The need for new legal regulations in connection with the private law recodification does not end there. A bill on public benefits and on arbitration proceedings, on which the new Civil Code expressly relies, still need to be drafted. It is thus necessary to prepare ourselves for a “legislative tornado” in order to establish the new recodification. We can only hope that the legislative bodies will negotiate the implementing legislation in time. Even so, the time for studying it will be brief. If possible, the recipients of the bills will need to go through them continuously as they will be dealt with one by one. Hopefully, this article and further information on the recodification that we plan to communicate throughout the year will help.