CC BY
42Justice / Правосудие
Научная статья УДК 347.99
DOI: 10.37399/2686-9241.2021.3.68-82
Essence and Specifics of the Magistrate's Court and Conciliation Proceedings
Mihail Mateev
Sofia University "St. Kliment OkhridskiSofia, Bulgaria For correspondence: [email protected]
Abstract
Introduction. The article is an attempt at a theoretical understanding of the following concepts: conciliation procedures, magistrate's courts and magistrate's justice. The research aims to analyse the genesis and nature of the models of magistrate's justice that have developed in the practice of national legal systems, and in particular in the judicial practice of the Republic of Bulgaria.
Theoretical Basis. Methods. The article provides a brief historical and comparative legal analysis of well-known models of magistrate's justice. These include foreign legislations, and countries belonging to the continental legal family and the countries of the Anglo-Saxon legal family. This made it possible to assess the diversity of the essential elements of the institute of magistrate's justice, and highlight their main models.
Results. Based on the study of the place and role of justices of the peace in the judicial system, the author concluded that there is an emergence of justice according to the principles established during the thousand-year history of the development of justice in Europe. The classification of the types of magistrate's justice has been carried out. Alternative methods of dispute resolution, conciliation and litigation in the resolution of disputes are also considered.
Discussion and Conclusion. Scientific conclusions are formulated concerning the legal nature of the analyzed institution, and its place in the justice system.
Keywords: magistrates, conciliation, mediation, judicial organization, judiciary, judicial
For citation: Mateev, M., 2021. Essence and specifics of the magistrate's court and conciliation proceedings. Pravosudie/Justice, 3(3), pp. 68-82. DOI: 10.37399/26869241.2021.3.68-82.
reform
© Матеев М., 2021
Суть и специфика мирового суда и примирительного судопроизводства
М. Матеев
Софийский университет имени святого Климента Охридского,
г. София, Болгария
Аннотация
Введение. Статья представляет собой попытку теоретического осмысления некоторых понятий: примирительная процедура, мировой суд и мировая юстиция. Исследование имеет целью анализ генезиса и природы моделей мировой юстиции, сложившихся в практике национальных правовых систем, и в частности в судебной практике Республики Болгария.
Теоретические основы. Методы. В статье дан краткий исторический и сравнительно-правовой анализ известных моделей мирового правосудия; зарубежного законодательства, причем как стран, принадлежащих к континентальной правовой семье, так и стран англосаксонской правовой семьи, что позволило оценить разнообразие сущностных элементов института мировой юстиции, выделить основные их модели. Результаты исследования. Автор на основе исследования места и роли мировых судей в судебной системе сделал выводы о том, что появление мирового судьи обусловлено не только результатом конкретных исторических обстоятельств в отдельных государствах, но и объективно закономерной необходимостью создания судебного органа, соответствующего общепринятым правовым и христианским ценностям, традициям и принципам, установленным в ходе тысячелетней истории развития правосудия в Европе. Проведена классификация типов мировой юстиции. Рассмотрены альтернативные способы разрешения споров, примирение и судебное разбирательство при разрешении споров.
Обсуждение и заключение. Сформулированы научные выводы, касающиеся правовой природы анализируемого института, его места в системе правосудия.
Ключевые слова: мировая юстиция, мировой суд, примирительная процедура, медиация, судебная система, судоустройство, судебная реформа
Для цитирования: Матеев М. М. Суть и специфика мирового суда и примирительного судопроизводства // Правосудие/Justice. 2021. Т. 3, № 3. С. 68-82. DOI: 10.37399/2686-9241.2021.3.68-82.
Introduction
T he magistrate's court (sometimes called a justice of the peace court) and the jurisdiction or magistrates originated in the medieval states. They expanded in the 19th century and then declined in the 20th century, only to expand once again in the last decades. This type of court institution still exists in 43 of all 194 states in the world (that is, in 22% of the states). Magistrate's courts have also existed in Bulgaria for a relatively long period of our modern statelegal history (from 1880-1934).
Nonetheless the terms "magistrate", "magistrate's court", and "magistrate's jurisdiction" are to a great extent unclear not only to the ordinary citizen, but also to the lawyers.
In the Bulgarian legal-scientific literature this complex and multifaceted institute of the judicial system and procedural law has not been subject of a complex scientific research and reasoning.
In fact, in the process of searching the bibliography in reference to magistrate's jurisdiction in Bulgaria, we were surprised to discover that in our entire legal-historical, theoretical-legal and judicial-procedural literature, we could find only one comprehensive historical-legal research. This is by Prof. Dimitar Tokushev [Tokushev, D., 1978]. There are also a few articles, mostly from the end of 19 th and the beginning of 20th century.
There are hardly any scientific papers, which, besides the main research subject, examine individual aspects of the magistrate's jurisdiction which has existed in Bulgaria or in other states. Moreover, we often we see statements and conclusions repeated in these papers, which have been made by some other scientific predecessors - without any comprehensive research and which are contrary to the actual historical facts and circumstances.
Meanwhile, in foreign literature, the issues of the origin, development, problems and perspectives of the magistrate's jurisdiction in the respective states not only have been, but still continue to be, studied thoroughly and systematically by many authors. In the last two decades, the magistrate's court and the magistrate's jurisdiction have been the subject of multiple scientific studies in Russia. The reason for this strong interest is the reestablishment in 1998 of the magistrate's court in the Russian Federation. A number of monographs, essays and articles on the historical and theoretical aspects, as well as on the recent/ contemporary problems of the magistrate were published by A. Z. Akopyan, A. S. Aleksandrov, E. N. Aleshkina, N. N. Apostolova, G. A. Boeva, E. A. Volosa-tykh, A. G. Galkin, L. V. Golovko, N. I. Gorskaya, E. V. Danilevskya, V. V. Demi-dov, V. V. Doroshkov, A. F. Efimov, V. M. Zhuikov, A. F. Izvarina, A. V. Ilukhin, V. A. Ilukhina, N. N. Kovtun, V. I. Kononenko, S. V. Lonskaya, S. P. Serebrova, V. A. Oustuzhaninov, N. A. Chechina, and A. S. Yakovlev.
The research on the issues of the genesis, nature, the historical development of the world models and the Bulgarian national model of the magistrate's court and the magistrate's jurisdiction is relevant not only as regards the historical-legal but also the theoretical-legal aspect. It has also a practical importance, considering the contemporary condition of the Bulgarian judiciary and the efforts to reform it.
This knowledge about both Bulgarian and foreign historical experience and the theoretical-legal consideration of the justice of the peace jurisdiction (as well as the Bulgarian and world models of justice of the peace jurisdiction) is important. It could be helpful in solving the existing issues in the system of Bulgarian jurisdiction - namely that the courts are overwhelmed by civil and criminal cases. There is public mistrust of the judicial system, notably as regards art. 145 para 3 of the Code of Civil Procedure (CCP)2 which whilst
2 Граждански процесуален кодекс - Code of Civil Procedure, Promulgated, State Gazette No. 59/20.07.2007. Article 145 (3). Thereafter, the court shall invite the parties
legally in force is in fact dead, the mediation measures, and the unsuccessful attempts to optimise the jurisdiction by adopting new procedural laws and laws concerning the judicial system.
Evolution of the Concept of the Magistrate
Amongst the first social notions, realised by mankind alongside notions such as origin, tribe, and elder, are the notions of correctness, rightness, justice, and righteousness (in Bulgarian - прав, правда, правилно, праведен; in Russian - прав, правда, правильно, праведный). The etymology of these words is in the proto-Slavonic "pravb" and the proto-historical Indo-European "рго-vos" (right, correct, forward looking)3. From these we also see from where the cognate words in the European languages originate. For example, the Latin "probus" (good, fair, honest), the old Indian "prabhus" (superior in. strength and abundance), the Anglo-Saxon "fram" (strong, active, brave), and the Old Irish "framr" (staying ahead, striving ahead). Gradually, the general term "justice" gained a particular meaning - notably including the exhortations of "don't kill", "don't steal", "respect the gods and your ancestors" to name but three.
But while justice was perceived and accepted, human society inevitably encountered non-justice (the universal semantic opposition "right - not right" for example), as there have always been particular individuals, who are law disobedient. From here the practical issue arose as to how and by what means to protect ones who suffered from injustices caused by such disobedience to the law? How to resolve the disputes which arose, and which disputes somehow or other, affected not only the parties in the conflict, but also the society as a whole.
All states are continuously experimenting with various organisational models of the judiciary and the jurisdiction, together with various institutional solutions, principles and approaches. There has never been a moment in history, where an individual society or state has been confident that they have succeeded in establishing a fair, just and impartial court system and have found the ideal way of resolving those disputes which arise in society. Even now, this remains a permanent goal in the continuous process of re-framing the judicial system and the legal proceedings. The magistrate's court and the magistrate's jurisdiction are a result of this continuous search.
The Magistrate's Court and Jurisdiction in Modern Times -Characteristics and Essence
In comparative-legal and historical aspects the magistrate's court and the magistrate's jurisdiction are the result of many years of development of the judicial systems in Great Britain, France and Russia. These countries established their original models of this court institution on the basis of their historical conditions.
to reach a settlement and shall specify the consequences thereof. If no settlement is reached, the court shall make a report which shall be included in the judicial record. Български етимологичен речник. Т. V. Българска Академия на науките - Институт за български език. София : Академично издателство "Проф. Марин Дринов", 1999. C. 581.
Despite the fundamental differences of the particular historical models and their evolution within the frameworks of the individual judicial systems, there are a number of features, which can serve as a basis for creating a general theoretical model of the magistrate's court and the magistrate's jurisdiction.
In the foreign legal-scientific literature many definitions exist concerning the essence, features, functional and structural characteristics of the magistrate's jurisdiction, which could be shaped into two conceptual approaches, namely the institutional and social-functional.
In the case of the first approach, the focus is on the place of the magistrate's court in the judicial system as a first instance court of the lowest level. Further, its local nature, its limited jurisdictional competence (civil cases with low value of the claim, and criminal trials for minor offences), the single judge court and settlement of the cases and the simplified procedures of the legal proceedings themselves.
In the case of the second approach, attention is given to the magistrate's methods, under which the major part of the legal disputes before the magistrate's court are resolved, as well as their accessibility.
In the Bulgarian legal literature, a summarised definition of the magistrate's court and the magistrate's jurisdiction is provided only by E. Tanchev and M. Belov [Tanchev, E. and Belov, M., 2009, р. 602]. Their qualification of the magistrate's court and the magistrate's jurisdiction as "a substituent of the first instance courts" cannot be accepted. This is because in all judicial systems, in which such an institution exists (irrespective of whether it is considered a unit of the general courts or it is a special court) the magistrate's court exists as a real first instance court, and not a substitute. Except for the limited competence in subject and territory and the simplified summary proceedings, its judicial activities do not differ from the activity of the typical general court of first instance. It is also incorrect to consider this court, in a conceptual manner, as being a fast track, easy, accessible and cheap court for the parties.
Much more correct is the description of the significant characteristics of the magistrate's court by Prof. D. Tokushev [Tokushev, D., 2003, р. 174]. Though the author's goal is to define only the essence of the Bulgarian magistrate's court according to the Law on the Organisation of the Courts adopted in Bulgaria in 1880, the above-mentioned features can refer also to the other historical systems of magistrate's jurisdiction.
There are major deficiencies in the attempts of the modern Russian researchers [Doroshkov, V. V., 2004, p. 11; Lonskya, S. V., 2000] as they try to define the magistrate's jurisdiction. They fail to emphasise the essence of the magistrate's court, and fail to specify the features which constitute it as a different court amongst all other courts in a given judicial system.
An Alternative Expression of Characteristics and Essence
Based on an analysis of these materials and their deficiencies, the essence and the short definition of the term for the magistrate's court and the magistrate's jurisdiction could be expressed by two key features, which
could be synthesised in one short definition - "a court whose goal is not to sentence".
The first characteristics is that this is a court and it comprises all generic features of this term regarding the volume and contents and in accordance with the recognised principles of the times (body of judicial power, independent jurisdiction, procedural forms, mandatory forms for execution, right to issue acts with res judicata, institutional control of the acts etc.). Compared to the other courts of the respective judicial system, the magistrate's courts may have some specific features in their organisation and activity (for example electability and mandates of their magistrates, simplified summary proceedings, special order of appealing the acts, ex-officio initiation), but these specificities do not determine the fundamental difference between the general courts and the justice of the peace courts.
This fundamental difference is contained in the specific aim and means of the magistrate's jurisdiction - to reach a settlement of the arisen dispute mostly by conciliation of the parties, that is reaching an agreement between them, a compromise of mutual acceptance. This may not meet the full volume of the parties' claims and the subjective rights and obligations, arising from the objectively existing factual and legal circumstances under the case and the substantive norm.
Regardless of how convincing the ideological justification of the thesis is, (for example that the law is an expression of the general consent of the citizens in the name of the common development and welfare [Montesquieu, Ch., 1876, p. 99], and regardless of the extent of real participation of the people in the state governance through the forms of the direct and representative democracy), the norm of the written law has always been a product of the subjective experience, conceptions, interests and assumptions of a strongly limited circle of people.
This way of practising rule-making shows how difficult it is to match positive law with such fundamental social values and concepts as justice, good, common good, and the formal-dogmatic legal science places them as meta-legal concepts. [Frolova, E. A., 2020, pp. 90-91]. The armchair abstract modelling of public relations, fixed in the norms of the law and implemented in practice, very often does not withstand the test of time, and subsequent amendments are needed, as well as annulments and the adoption of new normative provisions.
This establishes prerequisites for disrupting the stability of the normative system of society and - more essentially - disunites the society, creating a sense of unfairness and improperness of the law in certain, sometimes major, parts of the society. As one author puts it "the disappointment at the effectiveness of the law creates among the majority of the members of the society a distrust of the formal prescriptions of the state and, as a result, legal nihilism and an alienated (if not hostile) attitude towards the actions of government officials" [Frolova, E. A., 2011, p. 19].
In contrast to the customary norms, the norms of the written law are not and could not be perceived by the people as being generally acceptable and
unconditionally enforceable. So inevitably, the willingness to deviate from the rules of the law is encouraged - through its interpretation and practical adjustment to the customs established in society, to the moral values, as well as through the obvious non-implementation and infringement of the normative provisions. This leads to a growing number of disputes and conflicts between the individual citizens, who start seeking the cooperation of the law-enforcement and tribunal bodies of the state.
The courts of the common law (notably in Great Britain, USA) are able to overrule a precedent judgment, (to correct the non-correspondence of the effective legal norm in the particular case and even to recognise as anti-constitutional a particular law or particular provisions of that law. In contrast, the courts in Continental Europe, including in Bulgaria, are obliged to implement the provisions of the law even if they come to the conclusion, that these provisions contradict the generally accepted legal principles, the fairness and the sound logic of life. The courts only have the power to interpret the provisions of the laws, which provides an extremely limited opportunity for avoiding obviously unfair court acts that comply with the law, but are incorrect on their merits.
The issue about the emerging discrepancy between the law and the justice has been perceived already in ancient times [Aristotle, 1993]. However, the legal caselaw of the ancient Hellenes does not establish any mechanisms for the practical coordination of the law and the justice.
Such a mechanism was established later by the Romans [Novkirish-ka-Stoyanova, M., 2016]. True to their typical pragmatics, they provided the praetor with the function to correct and supplement the legal norms, established by the legislator (the so called Ius Civile - leges, plebiscita, senatus consulta, constitutiones), and not only as judgments ad hoc under individual cases, but also as rules, envisaged at the praetor's edicts and forming a parallel normative system - the so called Ius honorum. By this approach of rule-making they succeeded at reaching a reasonable compromise between the established values of the legality in the society and justice.
In the middle ages, the Anglo-Saxon legal system (the Common law system) reproduced generally this Roman technology of law making and law enforcement. Yet, upon the establishment of the first component of its normative system, known as a Common Law, priority was given to the norms, established by the court precedent, whereby the emphasis of the jurisdiction is shifted from the abstract "right" to the right in the particular case.
Subsequently, a parallel, "corrective" normative system was also established - the Equity law, the second component of the English legal system, which emerges as a result of the case law of the court of the Lord Chancellor, supplementing and amending the already existing norms of the Common law and in the essence of which the idea for coordination of the law and justice is again embedded [Kelly, J. M., 1998, p. 48].
Special attention has to be given also to the approach of the Christian church to resolving disputes, arisen in the society. Following the covenants of the Saviour, the Church established a new concept about the court, in which
the emphasis lay not on the external coercion on the person who has committed a violation, but on the encouragement of the internal understanding of the wrongfulness of one's own behaviour [Zaozerskiy, N. A., 1878, p. 3]. Canon law introduced a specific division of the court, unknown to the other religious and secular normative systems - namely, the division into internal court (forum internum) and external court (forum externum).
The basis and support of the internal court provides the norms of Christian morals granted to the human by God through the Evangelic law. This internal court is a court of the conscience. It consists of perceiving, recognising and being remorseful about the sin that has been committed. This is made personally in front of the victim or in front of the confreres from the religious community, or in front of the priest through the Christian sacrament of "repentance" (confession). At this court, there is no need of prosecutors, complex and formal procedures or evidence. The role of a prosecutor is fulfilled by the own conscience of the one who has made the sin, and the priest, who accepts the confession, plays the role of a witness of the confession, an assistant of the conscience of the person, who is making the confession, and an intercessor in front of the God, who alone has the power to judge.
The external ecclesiastical court is similar to a great extent to the secular state court, known to us. Yet contrary to the latter, the external church court is not a main, but a subsidiary means for resolution of the conflict. It has a role - "sessions" - only in cases, when for some reason or other the fraternal internal court has not reached a result. This might be because the person who has committed the offence has not made a voluntary confession, nor has he made a confession after it has been exposed, nor tSte-a-tSte nor in the presence of witnesses by the affected person, nor has he addressed it in an intermediary court. But even if an episcopal or a synodal trial is conducted, again the Christian doctrine rules, that before examination of the case, three attempts be made to persuade the accused in order to induce him to a voluntary repentance and confession of the committed sin. The main priority of the church court is the settlement of the conflict situation by conciliation of the parties. This concept of the ecclesiastical court is preserved to this day, both in Orthodox Christianity and in Catholicism4.
4 Codex Iuris Canonici. M. : Sancti Thomae Institutum, 2007. P. 527.
"Can. 1446 - § 1. Christifideles omnes, in primis autem Episcopi, sedulo annitantur ut, salva iustitia, lites in populo Dei, quantum fieri possit, vitentur et pacifice quam primum componantur.
§ 2. Iudex in limine litis, et etiam quolibet alio momento, quotiescumque spem aliquam boni exitus perspicit, partes hortari et adiuvare ne omittat, ut de aequa controversiae solutione quaerenda communi consilio curent, viasque ad hoc propositum idoneas ipsis indicet, gravibus quoque hominibus ad mediationem adhibitis.
§ 3. Quod si circa privatum partium bonum lis versetur, dispiciat iudex num trans-actione vel arbitrorum iudicio, ad normam cann. 1713-1716, controversia finem habere utiliter possit".
Reform to the Judicial Systems
Amongst the many transformations, which followed after the French bourgeois revolution of 1789, one innovation in the judicial system and the jurisdiction emerged the institute of the magistrate and the magistrate's jurisdiction.
Compared to the church court, it is considered that to a great extent this court has followed the main principles of the latter, but in our opinion, it is not a result of a conscious decision. Despite the absence of academic documentation, and the lack of thorough justification, the magistrate's court in France became an extremely vigorous institution and the magistrate's jurisdiction - an effective way for resolution of legal disputes. It has become an exemplary model and has been adopted by almost all European states, including Bulgaria and Russia.
Thanks to the magistrate's court, the issue of settlement of civil disputes through conciliation plays a key role not only in the activity of the French magistrate courts, but also in the whole theory and practice of the jurisdiction since 1789 until now. Even today, the ideas of mediation of legal disputes and other alternative forms of the traditional jurisdiction attract more and more public attention, as well as that of legal scientists and the practicing jurists in the last decades.
Results of Analysis and Objective Differences in Models of Operation
Based on the analysis of the historical development of the different models of justice of the peace jurisdiction, as well as on the judicial systems and legal proceedings in a number of European states, we accept Joly-Hurard's classification [Joly-Hurard, J., 2003, pp. 159-168] with some clarifications and additions in relation to the magistrates and other proceedings in the jurisdiction. Specifically we can see:
1. Mandatory preliminary conciliation, conducted by specialised courts or special jurisdictions.
2. Mandatory preliminary conciliation, conducted by the general courts.
3. Facultative conciliation, integrated in the court proceedings of the general courts.
4. Alternative out-of-court conciliation, conducted by specialised non-judicial institutions (Mediation).
It has to be noted that in all four types, the conciliation is conducted only after the parties have addressed the existing dispute between them for examination by the court. Here are included the existing statutory opportunities for an existing legal dispute to be solved by means such as agreement, compromise, reached without or with the participation of third parties, with the goal to avoid the settlement of the dispute through court channels.
In the cases of the first and the second type, the conciliation takes place as an independent first stage of the legal proceedings, as upon reaching conciliation there is no need of conducting the procedural actions of the
typical hearing of the case. In this stage the court is obliged to cooperate with the parties in the collection and checking of the evidence. At the same time, it has to undertake active actions to make the parties enter into conciliation. These actions are not limited to offering the parties to resolve their dispute in such a way and to clarify for them the legal effects of doing that. The conduct of conciliation, even in the cases of failing to reach agreement is a mandatory precondition for the further development of the proceedings and its absence leads to serious judicial consequences.
In most cases the legislation in the field of the legal proceedings does not specify what particular actions the magistrate has to undertake for conciliating the parties, for example what procedural forms and in what procedural steps should these actions be made. The reason for this is that generally, the activity on conciliation of the parties in dispute is not subject to formalisation. Instead, it makes use of psychological means, aimed at the establishment of objective ideas about the situation, overcoming certain attitudes to the counterparty and creating alternatives, as well as mechanisms of rational and emotional impact which could be very different, depending on the personal peculiarities of the parties and the nature of the dispute, existing between them.
The difference between the first and the second type of the conciliation is in the practical means and skills of the court. It is not so important how this court shall be called (for example magistrate's, justice of the peace, district), nor how it shall be positioned within the structure of the judicial system (as part of the general courts or a special jurisdiction). The implementation of the functions of the magistrate and the peacemaker requires different approaches, different attitudes, knowledge and skills, and a different way of thinking - although they have a single objective. Just like the architect and the construction engineer. In reality there are few people, who could combine successfully these two roles in life. At the bottom we see the classical education in law, which nurtures in the professional jurist a cult to the formalism, a strict implementation of the provisions of the law and a phobia to any diversion from them, even in the cases, when this would satisfy both parties, and would be reasonable, justified and fair.
The magistrate in the continental legal system takes quickly the role of a magister, who stays above everybody in the court room and is ex cathedra by virtue of his or her high post and has power to use the statutory pattern towards all citizens and all their relations. For the magistrate such notions as reasonableness in life, justifications and fairness are meta-legal and even dangerous, because they create a risk for him to be blamed for arbitrariness and a lack of justice.
The professional magistrates try neither to undertake any actions, which are not regulated explicitly by the law, nor to rule judgments, which differ from the statutory pattern, because they can always be blamed for exercising coercion, manipulation, or even abuse. They instinctively try to not engage in active conciliation processes, even when the law obliges them to con-
duct such procedures, and the conciliation, as Jacques Poumaréde states, becomes their "unloved" [Poumaréde, J., 2013, p. 129-130].
There are indisputable successes in the conciliation of the parties, which are demonstrated by the French justice of the magistrate's court from the middle of 19th century, the Russian model of magistrate's jurisdiction of 1864-1917, as well as the English magistrates' courts. In our view, these are due to a great extent to their ability to establish and rule their own "conciliation case law" and create specific professional doctrines for resolving disputes through conciliation of the parties (despite the counteraction and the negative attitude of the magistrates of the general courts, the lawyers and the professional jurists). We would portray these courts as a good example for the first type of conciliation proceedings. In the most complete version, such conciliation proceedings were realised in the Russian model of magistrate's jurisdiction from 1864-1917, where the second-instance examination of the cases was also in the hands of a judicial body, specialised in the conciliation. This is sometimes referred to as the general meeting of the magistrates.
Typical examples of the second type of conciliation proceedings are the Bulgarian justice of the peace court from 1880-19345 and the modern Russian justice of the peace court6. Structurally, they are part of the system of the general courts (first court instance of the lowest level). In a personal aspect -the justice of the peace magistrates have to be persons, meeting the general requirements for holding a judge's post (including a higher education in law, and a qualifying length of service in the speciality). Any appeal from their decisions is made in front to the higher general courts.
There aren't any mechanisms or encouragement for specialised qualifications and establishment of some own "conciliation case law". The practical conduct of this type of conciliation shows, that under these conditions, the justice of the peace magistrates do not succeed in playing both roles - of the peacemaker and the judge, and the priority is for the second role. In the course of time, the justice of the peace court remained such only by name and has turned into an ordinary first instance court with dominating judicial function.
The third type of justice of the peace proceedings was established later from a historical point of view and started dominating in the continental legal systems and legal proceedings from the middle of the 20th century. The long lasting and systematic fight between the general courts and the justice of the peace courts led to a gradual loss of effectiveness and degradation of the justice of the peace jurisdiction. As a result, in many states the institute of the justice of the peace magistrates was completely abolished (Russia in 1917,
Courts Organization Act of 1880 - Закон за устройство на съдилищата 1880 г. Приет от II ОНС, I РС, стр. (1/326), I - 1/355, II - 1/411, 418, 436, 443, 460, III - I/465. ДВ, бр. 45 от 28.V.1880, бр. 47 от 2.VI.1880, отменен със Закона за устройство на съдилищата ДВ, бр. 16 от 12.11.1883.
Federal Law "On Justices of the Peace in the Russian Federation" of 17.12.1998 No. 188-FZ.
5
Bulgaria in 1934, and France in 1958), as unified systems of judicial systems and legal proceedings were established. At the same time, the ideas of a resolution of the disputes through conciliation of the parties was not fully abandoned. The conciliation was preserved as a facultative opportunity for settling the dispute by reaching a court agreement. However, the practice shows that in such (similar) normative frameworks, the conciliation in legal proceedings becomes dead in fact, or in the best case, an extremely rarely functioning institute.
The fourth type of justice of the peace proceedings is a relatively new phenomenon in the legal proceedings and became popular towards the end of the 20th and the beginning of the 21st century. It is an obvious attempt for a new search for alternative forms of the traditional jurisdiction and reviving the idea for settling the legal disputes through conciliation of the parties7. The mediators and the mediation are implemented in all Member-States of the EU8 and in many other states in the world and they already have more than 3 decades of history. The statistical data about the mediation in Europe state that despite its strong popularisation, its practical results are highly modest and absolutely do not meet the expectations for an effective way of settlement of legal disputes [De Palo, G., et al., 2014, p. 126].
We see the reasons for that in two aspects: economic and procedural. Our researches show that the assertions for a major saving of funds by the parties in this way of resolving disputes do not meet the reality, especially in the disputes of low material interest. In the cases where as a result of the mediation agreement is not reached, all costs made for this mediation are pure loss of funds, efforts and time for the parties.
Moreover, the unsuccessful mediation is also an absolute waste of time for the parties, because all documents, facts circumstances and etc., discussed in the course of the mediation do not have any probative and procedural value in the subsequent legal proceedings.
In this aspect we see the most significant advantage of the justice of the peace jurisdiction compared to the mediation: it does not require any additional costs for the parties and does not lead to a waste of procedural time. Even if the preliminary conducted conciliation of the justice of the peace magistrate proves to be completely unsuccessful and even if the parties do not reached agreement, the justice of the peace magistrate may immediately take the role of a judge and proceed to ruling a judgment, as the main procedural
In France: Décret no 78-381 du 20 mars 1978, modifié notamment par un décret du 1er octobre 2010 et par le décret no 2012-66 du 20 janvier 2012 relatif à la résolution amiable des différends.
Loi n° 95-125 du 8 février 1995 relative à l'organisation des juridictions et à la procédure civile, pénale et administrative.
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters OJ L 136, 24.5.2008, pp. 3-8. Special edition in Croatian: Chapter 19 Volume 009. Pp. 281286.
7
work has already been done - the evidence is collected and checked, and the parties have made all their statements and objections. What remains to be done, is to formulate the legal qualification and to write down the operative part of the judgment.
The obvious lack of success of this innovation in the field of the jurisdiction and the permanent problems of the existing judicial systems prompted us to draw attention to the well forgotten justice of the peace court and to try to extract its rational, useful, working part in order to continue with the reforms of the judicial system.
Conclusion - Fresh Perspectives to Improve Effectiveness
It would be reasonable, instead of trying to experiment with different alternative ways for settling the legal disputes, to think over the gathered historical experience and to try to extract the multiple successful and rational solutions, which provides to us the true magistrate / justice of the peace jurisdiction, considering that the occurrence of the justice of the peace court is not only a result of the specific historical circumstances in the individual states, but also a judicial body, corresponding to the common, legal and Christian values, traditions and principles, established in the course of thousands of years in Europe. This is the subject of our ongoing research.
References
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Information about the author / Информация об авторе
Mihail Mateev, Dr. Sci. (Law), Chief Assistant Professor of the History of Law Department of the Law Faculty, Sofia University "St. Kliment Okhridski", Sofia, Bulgaria.
Михаил Матеев, доктор юридических наук, главный доцент кафедры истории права юридического факультета Софийского университета имени Святого Климента Охридского, г. София, Болгария. ORCID: https://orcid.org/0000-0002-4777-1019 E-mail: [email protected]
Автор заявляет об отсутствии конфликта интересов. The author declares no conflicts of interests.
Дата поступления рукописи в редакцию издания: 18.05.2021; дата одобрения после рецензирования: 25.06.2021; дата принятия статьи к опубликованию: 05.07.2021.
Submitted: 18.05.2021; reviewed: 25.06.2021; revised: 05.07.2021
