Principle of Availability vs. Active Role of the Court. Brief Practical Considerations

Abstract

The principle of availability outlines a specificity of civil proceedings that may seem to contradict the active role that the court must play in order to resolve the case fairly. The simultaneous application of these two defining rules for civil procedure in relation to the rights of defence and to a fair trial generates certain practical problems that we point out in this study, given that the court is bound to respect the limits of the judgment vested in it, but at the same time must resolve the dispute according to the applicable rules of law in order to deliver a legal and well-founded decision.

Keywords

• the principle of availability
• the active role of the court
• the right of defence
• elements of civil action