Proposition de loi modifiant le Code judiciaire en ce qui concerne la requête civile.
General information ¶
- Authors
- VB Gerolf Annemans, Peter Logghe, Bert Schoofs
- Submission date
- April 17, 2013
- Official page
- Visit
- Status
- Rejected
- Requirement
- Simple
- Subjects
- civil procedure repeal judicial proceedings limitation of legal proceedings
Voting ¶
- Voted to adopt
- Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA LDD MR
- Voted to reject
- VB
Party dissidents ¶
- Ronny Balcaen (Ecolo) voted to reject.
Contact form ¶
Do you have a question or request regarding this proposition? Select the most appropriate option for your request and I will get back to you shortly.
Discussion ¶
Jan. 23, 2014 | Plenary session (Chamber of representatives)
Full source
Rapporteur Christian Brotcorne ⚙
I am referring to my written report which leads to the rejection of the proposal.
Bert Schoofs VB ⚙
Mr. Speaker, first of all, I would like to thank our French-speaking colleague for wanting to be a reporter, which is not so often the case with a proposal from the Flemish Interest.
It can happen that a court case is completely misrepresented or that a court case is assessed on the basis of incorrect data. The Judicial Code provides for a solution to this, in particular the revocation of the judgment in civil matters. I am not talking about the revision of the sacred in criminal matters, but merely about the abolition of the sacred in civil matters.
When mistakes are committed, in very strict and very limited cases can be passed to a revocation of the case. This can be done in six cases, under six conditions, which are listed in Article 1133 of the Judicial Code. I have laid them here in front of me, but I will not read them, so as not to delay the meeting too long.
However, the legislation shows a deficiency. When can such a case be reviewed on the basis of the cases set out in Article 1133 of the Judicial Code? This can only be done up to six months after the discovery of the fact that may give rise to a revocation. Thus, if a citizen discovers a mistake or a defect in a particular court case, if a case would have been misjudged, he or she must be able to report that mistake to the court within six months, of course through a procedure or by bringing it to court as described in the Judicial Code. This procedure is therefore very limited, not only the grounds, but also the procedural antecedents and the procedural remedies that may give rise to it.
So far, the ordinary judicial course of matters as it normally occurs.
My proposal aims at allowing the applicant, while the limitation period has not entered in a particular court proceedings, yet to have the case withdrawn. This was rejected in the committee. However, this would not give rise to a proliferation of legal proceedings; it would only benefit the legal certainty in those cases that were misjudged on a certain basis and it would, of course, be able to provide a right seeking soil as long as the limitation period has not entered for those cases which gave rise to the judicial dispute.
An important procedural measure in this case is the fact that one must find two lawyers with at least twenty years of experience at the bar – they must therefore have been registered on the bar of the Bar Association for at least twenty years – and another third lawyer to whom no requirement is made.
If a party believes that it has found a basis for the revision of a case, it appears that the applicant is not immediately alert or unable to see whether this is really a new fact. Of course, the proverb “nemo censetur ignorare legem” is true, or nobody is considered to not know the law, or everyone is considered to know the law, but it is known that in practice this can create difficulties and may be at the disadvantage of a party that is a lay in the matter and therefore has no knowledge of the law.
If, therefore, a party falls on a certain ground that may lead to the cancellation of a proceedings, it is not immediately certain that that party also thinks so and will also actually go to court or to a lawyer.
Therefore, consider the fact that a party going to a particular lawyer will have to try to persuade that lawyer. Of course, a lawyer does not like to question his good name and reputation: he must be prepared to see a certain ground as a possibility for revocation. This is, of course, very difficult for one party, but in addition, a second and a third lawyer must be found. The six-month period permitted solely by law when one believes to have discovered a reason for revocation does not guarantee that one can proceed to a revocation of the sacred within a six-month period.
You need to consult with lawyers and they must then make their advice valid. Lawyers with twenty years of billing experience are often lawyers with a lot of affairs and a very large office. The case must still flow through the office before it ends up with one of the titulators, but that is not evident.
Once the entire procedural mallmole has passed, one must therefore again get done within a period of six months what needs to be done. That is fucking impossible. I think that this procedure, as it is now included in the Judicial Code, can lead to nothing and does not provide the soil that parties can be offered in the event of an error in a particular procedure. Therefore, my proposal aims to simply extend the period until the end of the limitation period in the original case. This does not mean so much in practice, one should be aware of this.
Therefore, I ask to extend the revocation of the sacred until the obsolescence of the case, rather than six months after the discovery of the ground of revocation. If this is not done, this procedure remains ineffective. A minimum number of applicants would benefit from that adjustment and would still be able to find some soil in that scheme if it is approved. That all sounds legal-technical, but to the lawyers in our hemisphere I address the question of approving that proposal, because it is not against any practical or legal logic, nor against the legal certainty. It will only benefit the prosecutors who have a little more time to have their case withdrawn.