欧洲债务催收程序:没有还是没有?经验与展望

IF 0.6 3区 社会学 Q2 LAW American Bankruptcy Law Journal Pub Date : 2014-04-30 DOI:10.2139/ssrn.2507006
X. Kramer
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引用次数: 0

摘要

这份工作文件源于欧洲民事诉讼会议(乌普萨拉,2013年9月),预计将于2015年在会议书中发表。本文评价了欧洲付款顺序程序和欧洲小额债权程序引入5年后的经验。它讨论了对会员国适用这些程序的一般印象及其潜力的程度。根据判例法和实证研究,通过借鉴荷兰这些程序的实施和实践经验来说明讨论。它审查了委员会修订小额索赔条例的建议以及对该程序的使用和运作的潜在影响。报告的结论是,尽管过去五年的经验并非都是积极的,但人们应该认识到,程序法的任何变化和创新都需要很长时间来校准。对欧洲程序,尤其是ESCP的怀疑是可以理解的。然而,跨境交易的数量在增加,由此产生的纠纷也在增加,这是一个事实。欧盟委员会就ESCP提出的大多数修正案——在EOP修订中可能会遵循这些修正案——对于瓶颈是什么是现实的。然而,人们可能会争论,如何才能最好地解决这些问题,尤其是在金融危机时期。关于欧洲债务催收程序,在提高认识方面仍有许多工作要做。对于欧洲决策者和立法机构以及各成员国来说,现在是投资于进一步巩固、执行和评价这些文书的时候了。关于什么可行、什么不可行的经验证据至关重要,尤其是在欧洲理想主义和经济修辞不再足以作为推动力的情况下。成员国法官在适用欧洲民事程序时必须采取反应性办法,以填补日常实践中欧洲程序与国内程序之间的差距。此外,学者可以发挥作用,也应该为塑造新架构和连接欧洲民事诉讼程序的各个环节做出贡献。
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European Procedures on Debt Collection: Nothing or Noting? Experiences and Future Prospects
This working paper emanates from a conference on European civil procedure (Uppsala, September 2013), and is expected to be published in a conference book in 2015.The paper evaluates the experiences with the European order for payment procedure and the European small claims procedure, 5 years after their introduction. It discusses general impressions regarding the application of these procedures in the Member States and extent of their potential. The discussion is illustrated by drawing on the implementation of and practical experiences with these procedures in the Netherlands based on case law and empirical research. It reviews the Commission proposal to amend the Small Claims Regulation and the potential impact on the use and functioning of this procedure.It concludes that though experiences during the past five years have not all been positive, one should realise that any change and innovation in procedural law takes a long time to calibrate. Skepticism in relation to the European procedures, and particularly the ESCP, is understandable. However, it is a fact that the number of cross-border transactions is increasing and so are the disputes resulting from these. Most of the amendments that the Commission has proposed in relation to the ESCP − and that might be followed in the EOP revision − are realistic as to what the bottlenecks are. Nevertheless, one may argue as to how they may and can best be tackled, particularly in times of financial distress.As regards the European debt-collection procedures, there is still a great deal to do to raise awareness. For the European policy maker and legislature, along with the individual Member States, the time has come to invest in the further consolidation, implementation, and evaluation of the instruments. Empirical evidence concerning what works and what does not is of utmost importance, especially where European idealism and economic rhetoric no longer suffice as driving forces. Member States’ judges have to adopt a reactive approach in the application of the European civil procedures to fill in the gaps between European and domestic procedure in daily practice. Further, academics have a role to play and should contribute to shape the new architecture and to connect the dots of European civil procedure.
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