Srđan Šimac attacked because he wants to publish court decisions on the web
The system of publishing court decisions on web pages will
allow complete control of the work of commercial court judges and will also
decrease the number of cases since the parties dealing in shady affairs in
commercial courts will think twice if it is worth to see their cases in media
Anybody who is serious about poking around or restoring
order may expect a counterattack. Whether it is physical, like in the case of
journalist Dusko Miljus or director Igor Radenovic, or it is through media, like in
the case of Srdan
Simac, the President of the High Commercial Court. The potential recall of Srdan Simac due to his ruling in
benefit of the members of his own family would only increase the chances of
stopping the reform of Croatian commercial judiciary. The beginning of the
system for publishing all decisions of the High Commercial Court on the web
site announced for September, which is realized in cooperation with Drazen
Komarica and Judge's Web, is most likely the real motive behind anonymous
actions against Simac.
Anonymously
against changes
Around 160 commercial court judges, of which especially
29 in the High Commercial Court will be totally opened to the public after
their court decisions have been published on the web page. The system for
publishing court decisions on the internet will allow fast access to judicial
practice for analysts. It will allow full public control over the work of
commercial court judges and will also decrease the number of cases since the
parties dealing in shady affairs in commercial courts will think twice if it is
worth the risk of publishing their cases in the media. Additionally, there is a
number of judges who are afraid of publishing their decisions on the web page
and revealing their oversights, questionable decisions, incompetence and
illiteracy. There are many of those who would eagerly stop the start of the
functioning of the web page where all decisions of the High Commercial Court
will be available to the public. For the purpose of realizing the web page
where all decision of the High Commercial Court will finally be published, the
process against Srdan
Simac should be suspended and the real motives for this anonymous attack
analyzed. It is one question whether Srdan Simac should be recalled for his ruling in favor of
his family and entirely another whether it should be allowed to stop the
changes which are happening in commercial judiciary since Simac came to the
position in the beginning of 2006. It is a long list of the changes which many
in commercial judiciary would like to stop. Apart from the web page with all
the decisions of the High Commercial Court planned for September, the
electronic distribution of cases to the judges was introduced (excluding the
human factor in case distribution). The possibility of one-sided replacement of
a missing court council member with another judge has also been prevented. Only
in exceptional cases the court president may authorize that a case can be
solved ahead of its turn. The work of judges in the Department for monitoring
and analyzing judicial practice who check the correctness and legality of the
content of decisions before they are sent to the parties has been made
stricter. In cooperation with Judge's Web the specialized web page "Web
Bankruptcy was established. The electronic register of the High Commercial Court
was activated that enables each party to check the status of its case. The
electronic case management system has also been established. All these measures
have significantly limited the possibilities for corruption.
The anonymous charge is nothing to fall over since its form clearly
shows it was written by a court employee. The information provided in it is not
available outside of any commercial court. It has been delivered almost two
years after it occurred. It is in question whether this is corruption or
conflict of interest considering the negligible value of the disputed case of
only 26,726 kuna. An never before did anybody from commercial courts react when
commercial court judges ruled in cases where they had family, business or other
relations with the parties.
In response to the civil action for causing "psychological
pain" to Ivan Sivak, judge of the Commercial Court in Zagreb, the
undersigned author of this text has demonstrated in vain that this judge has
ruled against the law in cases of Prva obrtnicka stedionica, with which he
had business relations (P-4748, P-9055, P-3672, etc.). The cases against the
undersigned journalist and his HTV colleague have been covered up, but the
proceedings against judge Sivak for failing to exempt himself from the court
council have never been instigated. Until now not one case was recorded against
judges for avoiding the obligation of exemption. By publishing court decisions
on web pages, the failure of exemption in cases where it is prescribed will be
prevented.
Enforcements
moving to commercial courts
Commercial courts are not yet included in the plan of closing down
courts. The Act on Amendments to the Civil Procedure Act widened their jurisdiction
on which basis a significant inflow of new cases is expected. After the range
of that legal amendment in relation to the number of cases is assessed, it will
be decided whether there is a need to close some commercial courts.
Those courts, according to the adopted amendments, will decide in
first-instance civil procedures in disputes arising from commercial contracts
and disputes for damages arising from those contracts between persons who
perform economic activities. They will also decide in disputes relating to the
establishment, functioning and termination of companies as well as disputes
concerning membership and membership rights in a company. Additionally, they
will solve disputes between company members and between company members and the
company relating to the management of the company and management of its
activities as well as rights and obligations of company members arising from
their position within the company, disputes between the president and members
of the management or supervisory board of the company or its members which
arise in relation to their performance in or on behalf of the company.
Furthermore, they will handle disputes concerning the responsibility of a
company member, management or supervisory board member in regard of the
obligations of the company
Closing of
commercial courts
The courts will also decide in matters where a party is the person in
bankruptcy, regardless of the function of the other party and the time of
instigating proceedings as well as all disputes related to bankruptcy, unless
law prescribes that other courts have material jurisdiction for particular
types of disputes. They will also adjudicate in disputes concerning ships and
maritime and inland water transport as well as disputes where maritime law applies
(maritime disputes), excluding passenger transport disputes.
Commercial courts shall also have jurisdiction over disputes relating to
the protection and use of industrial property rights, copyrights or similar
rights and other intellectual property rights as well as the protection and use
of inventions and technical improvements, unless otherwise prescribed by a
special law, followed by disputes pertaining to the acts of unfair market
competition, monopolistic agreements and infringement of equality on the single
market of the Republic of Croatia.
They will also have jurisdiction over disputes between legal persons,
legal persons and craftsmen including individual tradesmen, if the disputes
concern their activity. All of this means that from now on any disputes where
companies are involved shall be resolved by commercial courts and until now
disputes between natural persons and companies were under the jurisdiction of
regular courts. Since July this year, larger commercial courts shall also take
over enforcements from regular courts, which means that enforcements based on
commercial court decisions shall be executed by
commercial courts themselves or that part of commercial
court employees will be "re-qualified" to enforcement officers. Until
the end of the year, all commercial courts have to take over the execution of
enforcements on movable and non-movable property. Until now commercial courts
have executed enforcement only on debtors' accounts. In Croatia there are 13
first-instance commercial courts and the High Commercial Court as
second-instance. In Rijeka, Split, Osijek and Zagreb there are, for Croatia,
larger commercial courts and in nine smaller towns - Dubrovnik, Sibenik, Zadar,
Pazin, Sisak, Varazdin, Bjelovar, Slavonski Brod and Karlovac - the
"dwarf" courts. Highest value disputes decided in commercial courts
are commercial, maritime and inland water traffic, air traffic, copyright
disputes and disputes concerning the protection and use of inventions, discoveries,
samples, models and trademarks, rights to use a company name and in automatic
law disputes, and also implemented are enforcement and bankruptcy proceedings,
liquidations, commercial violation procedures, court registries for
registration of companies are maintained, etc. For such disputes judges must be
trained and specialized and, contrary to the opinion "for businessmen it
is excellent to have at least small commercial courts for the purpose of
realizing court protection", it is not good that three judges in a "dwarf"
court do everything (there has to be at least three of them so they could
adjudicate in a council, regardless of the number of cases in a "dwarf'
court).
Every time there is an affair in commercial courts, it is seriously
suggested that they should be closed and their cases transferred to the
jurisdiction of regular courts. Specialized courts for commercial disputes have
been closed in Slovenia and Macedonia but, due to bad experiences, it is
already thought about returning commercial courts after all. When the list of
topics which are handled by commercial courts is compared with the proposal to
remove them and give their cases to regular courts, it becomes clear that, in
spite of the affairs in commercial courts, this would not be a good solution
after all. Rather then closing them, it seems much more useful to start
publishing all commercial court decisions on the web page and in this way make
the work of those courts available for public control.
Wider competencies
of commercial judiciary Commercial judges
- will decide in cases arising from commercial
contracts
- will decide in disputes for damages arising
from those
contracts between persons who perform economic activities
- will decide in disputes relating to the
establishment,
functioning and termination of companies
- will solve disputes between company members
- will decide in disputes between the president
and
members of the management or supervisory board of the company or its
members
- will resolve disputes pertaining to the
responsibility
of a company member, management or supervisory board member in regard of
the
obligations of the company
- will decide in disputes in which a party is the
person
under bankruptcy proceedings
- will decide in disputes relating to the
protection and
use of industrial property rights, copyrights or similar rights as well
as
other intellectual property rights
will take over disputes between companies and
natural
persons from regular courts
larger commercial courts will take over
enforcements
from regular courts
Types of disputes
in commercial courts
More than two thirds of all the cases in the High Commercial Court are
civil procedures and they are slowest to be solved. In the first year after
their receipt, the clearance rate is only 14.3 percent. Fastest to be solved
are bankruptcy cases with 81.6 percent in the first year. Also, enforcements
are solved quickly, 60.3 percent in the first year. Also, rare non-contentious
civil claims and registry procedures are solved quickly. Among the most numerous
civil cases, the majority of them relate to delivered, but unpaid goods or to
performed, but unpaid services. Cases due to non-payment make up even 50
percent of the total number of all cases in commercial courts. Priority is
given to cases which are prescribed as urgent under the law. These are
bankruptcy procedures (which are not civil procedure), enforcement procedures
and different measures of insurance. The solving of these priority cases takes
up to 30 percent of the capacities of commercial courts. Simultaneously, it is
also tried to speed up the solving of cases older than ten years or cases whose
proceedings are lasting longer than ten years.
www.liderpress.hr | Lider, 20.08.2008.
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