Bulgaria wakes up terribly slowly, rubs its eyes, turns to the other side again, shouts: "Let's get some sleep", but it is already clear that the sun has risen and is high. And that it will happen.
Christian Takoff
Jurist
The Bulgarian is a people who lived for years north and south of the Danube. According to an ancient historian, "Tribes across the Danube live so wildly that they even drink wine without diluting it with water." We have, of course, other shortcomings as a nation. We have never loved order very much, and therefore we have not loved our law too much. Furthermore, we hypocritically respect him, declare our affection for him, and by winking at each other, we go around him or just trample him where it will take us too long to go around.
Despite this nationwide desire not to respect the rules too much, or rather to be guided by deeply generic-municipal Shurobadzhan
and other similar normative regulators, the law surprisingly has its own self-defense forces. Some of these self-defense forces, which can be tentatively called the immune system of law, are concentrated in one type of mechanism - these are the legislative mechanisms. There are too many of these legislative mechanisms for me to list one by one. Remember the prohibition to terminate a contract when the default is insignificant in view of the creditor's interest. Remember the possibility of reducing the penalty when it is excessive compared to the damage suffered. Remember Article 152 of the CPA, which prohibits stipulations that the pledged property will become the property of the creditor if the debtor does not fulfill. Think only about the whole right of securities, not only the Law on Public Offering of Securities, but also more than a dozen laws and dozens of ordinances in this regard. These are all reactions of the legislature and the executive to abuses of rights, i.e. here the legislator decides that he will have to intervene with something very serious.
What I want to talk about today is the reaction of the judiciary, of the judiciary, to abuses of law, because this is the "living thing", so to speak, this is the daily work, without which we cannot imagine that the right will exist. Judges are the ones who are constantly confronted with every evil. That's why people come to them. Judges are the ones who have to react to any attempt to misuse the right. And these examples that I will give aim to prove my thesis. That's why I must have chosen them tendentiously.
1. One of the first examples is the record of an order. Since there are non-lawyers here, I will allow myself a very short diversion. A promissory note is a security that has one particular feature or, rather, several special features.
It originated in the Late Middle Ages in the commercial class in order to serve only its needs. It was issued by merchants. Furthermore, it was accepted by merchants. Its enforcement took place again in this territory - in trade relations. However, the Great French Bourgeois Revolution came with the idea of equality, in other words: "We are all equal. We are all the same. Everyone can do anything. We will not be divided into merchants, clergy, aristocrats, citizens, peasants, the poor, etc. Everyone can do anything. " This is the source of an evil that is inevitable in view of the democracy of today's law. Namely, institutes that are designed and conceived to work in one direction, in one respect, suddenly begin to appear in the most unexpected places, between people who have nothing to do with them. In this way, the promissory note begins to be used or abused by non-commercial persons.
And here I move on to the next important feature of the promissory note. According to the law in force until recently, until ten years ago, the promissory note had an interesting function - it was the so-called "Extrajudicial enforcement grounds". This means that you could start an enforcement process without first being burdened with the burdens of the whole cumbersome, difficult and lengthy civil process. Thus, in the repealed Code of Civil Procedure, Article 237 was repealed accordingly. While this possibility existed until 2007, namely, only on the basis of presenting the promissory note and protesting its enforcement, it was abusive. Probably some of you have memories or have heard stories of how pale debtors in the back seats of cars with tinted windows, pressed by fat-necked boys, obediently signed a promissory note, which was then endorsed to a third party - another boy with a thick neck. , who, already passing for a third bona fide person, to whom no objections can be made under the promissory note, has presented this promissory note for payment. And when he was not paid, he turned on the state machine of state enforcement in the service of his criminal purposes.
How does the law react to this? In court. Then, when the debtor tried to suspend the execution and filed a claim for non-existence of the claim under the promissory note, there the judges were faced with the prohibition to object to the promissory note against third bona fide persons (who appear to have been so). . Well, there is a legal obstacle here. Let's go this way!
Then the judges said, "Let's find him a defect!" And they are found such a defect. Every, even the slightest deviation, almost a spelling or grammatical error (colleagues did not get there, of course), but they were also inclined to look for it.
Incidentally, the German Supreme Court has heard a case in which the word 'Wechsel', the German term for a bill of exchange, was misspelled. And the question has been raised - is the bill of exchange in question null and void for this reason? The German Supreme Court said - "for this reason - no, but for others - it may be insignificant." Thus, judges sometimes searched "under an ox calf" and often found it. They found, for example, the accidental mention of the relationship secured by that promissory note, or the failure to mention the words 'promissory note' in the text of the document but only in the title, or, conversely, the mention of 'promissory note' only in the text of the document. the document, but the lack of a "promissory note" title, etc.
Judges have sought salvation in formalism and have found such salvation in formalism, seeking justice. This is very interesting, by the way, how we come to a positive result in a reproachful way. However, this way of reacting to the immune system comes at a price. You know that when the immune system reacts, we raise the temperature. When the immune system of the right reacts, the right also gets sick, also sweats, also throws, also falls into a fever. And that, colleagues, is the fever of formalism. Because where we have used it consciously, where it was justified and necessary to use it, it has been used, but it has continued to exist, and this formalism has been carried over secretly, slowly and illegally into other court decisions. , where, perhaps, an unfair result has already been reached.
2. We can remember another example. This is the case with the Venetian merchant from Shakespeare's play of the same name, which is what Rudolf von Yering2 is talking about. Remember that the stipulation is the moneylender Shylock, if he doesn't get his money, yes cut a pound of meat from the body of the borrower Antonio, i.e. to be able to kill him. Then the judge before whom the trial is pending says, "Okay. Okay. Okay ... Well, yes. You have the right to cut a pound of meat. Only nothing is written here about blood. So if you shed a drop of blood while cutting a pound of meat, I'll sue you for murder right after that. To know! Just to tell you. Not that anything ... ".
Rudolf von Yering opposes this and says that it is a disgusting formalism, it is shamelessness. According to him, the judge should have said that the contract was immoral and therefore null and void. From there he had to refuse protection, not, looking for gaps in formalism, to try to save the beautiful young man. However, this is how Shakespeare chose and everyone is happy. And so far we go to this play and enjoy it.
3. Another case. Recently, the administrative courts have annulled a number of building permits that have been issued since 2003. And this creates a lot of worries for investors who plan to build a garden in Mladost, Lyulin or anywhere.
Referring to many ambiguities in our administrative law theory, which lead to a not very precise distinction between a null and void individual administrative act, such as a building permit, the courts rule: "It is null and void!". And nothingness can always be relevant indefinitely in time, unlike destruction. In this way, the courts fight, instinctively, perhaps, and again on the path of formalism, with the evil that is called redevelopment of the urban environment.
4. And one last or penultimate example, depending on the time I will be able to deal with. There is a recent interpretative decision of the Supreme Court of Cassation regarding a claim brought, namely, the claim of the non-possessing owner against the possessing non-owner. The judgment in this action should not consist only in ordering the defendant to return the plaintiff's de facto power, but should have a declaratory part which establishes that plaintiff X is the owner and order the defendant Y to return the de facto power over the thing.
You will ask why this is necessary? After all, if it does not establish ownership in its reasons, the court should not have ruled on the conviction on the claim. Probably this case law is dictated by a heinous abuse of law, which already borders, even crosses, the limits of impudence. The specific case was as follows. A claim is being filed against the municipality. It is claimed the return of a building which, according to the plaintiff, the municipality owns and owns without legal grounds. Somewhere in the middle of the case, the legal counsel of the municipality appeared, who cheerfully showed two photos. One is of the process building, and the second photo is of the place where the building was located, but on it it turns out to be surprisingly empty. The municipal legal adviser says:
"Honorable Judges, let me tell you, we demolished the building for which the return of possession is claimed. And since we destroyed it, it no longer has an object to argue about, which is why I will ask you to reject the filed claim. "
In other words, after de facto malicious and bordering on criminal, or outright criminal, actions, the defendant asks the court to dismiss the claim against him. Here this formalism, the division of the operative part and the condemnatory part in the operative part of the court decision, is welcome to us. As they say, at least we will find that plaintiff X is the owner, no longer of the building, because it does not exist, but at least of the right to build.
5. A very recent example of a funny incident from a courtroom. Liability of a guarantor under a promissory note is claimed. The guarantor is a person who has ever transferred a promissory note to other persons. And because he transferred something that is not known whether it will be paid, the law provides that he is liable in exactly the same way as the original issuer of a promissory note.
A heavy trader, who is a guarantor and is brought to justice, sits in the courtroom and wonders what they want from him and what this nonsense is. He once acquired a promissory note, then transferred it, and he thinks it's over.
The judge says, "Yes, but your responsibility stems from this endorsement you wrote."
"Where does my responsibility come from?" The guarantor asks.
"The endorsement you put on the promissory note," the judge replied. Can I have a look? From this to follow? From what I wrote, not to me,
and to whom should you pay? Yes.
"Oh my God! Was that the problem? And crossed out the endorsement.
Alas, there is a horrifying text in the law that says that crossed out jiras are considered unwritten. The one who tells the story of the end of the 19th century in Germany does not say how the process ended.
I have an answer, of course. He is no longer in formalism. And it is in the meaningful understanding of law.
With these few examples, I wanted to assure you of the following. Perhaps, there is a university professor sitting somewhere in a Berlin clinic who will tell you how a certain disease is treated, according to the latest genetic research. But if there is a family doctor who saves your life in everyday life, this is the judicial system.
Keywords: justice, formalism, abuses of law, promissory note
