19セイキ コウハン オーストリア ニ オケル ミンジ ソショウ リッポウ サギョウ ト アントン メンガー
Anton Menger: On Making the Austrian Code of Civil Procedure in the Late 1800s
上田, 理恵子 ,
ウエダ, リエコUeda, Rieko
39 , 2015-12-18 , 熊本大学
The purpose of this paper is to clarify the idea of Anton Menger in making the Austrian code of the civil procedure. The Austrian Code of Civil Procedure of 1895 is in force today and famous for strengthening the initiative of judges to speed the suit and to help the poor parties, on the basis of social thought. Franz Klein, the drafter of the Code of 1895, was one of student of Anton Menger, professor of law of civil procedure at the University of Vienna and later one of the famous socialists for his works Civil Law and the Poor (1890) or The right to the whole produce of labour (1865) etc. It is often said that Menger's idea influenced on Klein's Code. When Menger was the professor of law of civil procedure, however, Menger supported the bill of 1876, which not cleared the Diet. Inspired by the liberal thought of the French Revolution, this bill was with rather liberal principles of court procedure; the initiative law-suit must be held by the parties, in the open court under the oral proceedings. Through analysing papers written by Menger in the 1870s and comparing his later statements, it is clarified firstly whether he changed his opinion, and secondly how he influenced on the principles of the Code of Civil Procedure of 1895.