Tsiviilkohtumenetlus versus alternatiivne kohtuväline tsiviilasja lahendamine Eesti Vabariigis

Abstract

John Rawls, a social philosopher from the 20th century, has said, ‘There are long periods in the history of any society during which certain basic questions lead to deep and sharp conflict and it seems difficult if not impossible to find any reasoned common ground for political agreement.’ He gave the post-Reformation wars of religion that took place in the 16th and 17th centuries as an example. To this day, we still see armed conflicts where the participating states cannot be brought to the negotiating table for peace talks. International armed conflicts undoubtedly also threaten the security of other states and the sense of safety of their citizens. These situations lead us to question why international law is so ineffective in the modern world order. Throughout history, legal disagreements that needed resolving have also arisen in civil matters. Many different methods have been used to solve these conflicts, including vigilante justice. In contrast, the German legal historian Professor P. Oestmann has explained the main features of court and procedural law history as follows: ‘Any person who wants to impose their presumed legal interests arbitrarily and takes justice into their own hands, or uses self-help, violates the boundaries set by law.’ Nevertheless, what he described is permitted in certain situations of the German Civil Code (Bürgeliches Gesetzbuch), such as in BGB subsection 229. Disagreements may also arise between companies when it comes to the interpretation and fulfilment of contracts. In these situations, the most viable solution is not always obvious. Is it better to take the issue to court or seek an agreement out of court? Different legal relationships may also create disputes between natural persons. In short, conflicts (lat. conflictus) may occur between states, legal entities and natural persons. It is the subject of this sociological research paper. Tallinn University’s doctoral student K. Palts defines conflict as a ‘Disagreement or misunderstanding that creates tension, which prompts partners to act against each other’s interests. Conflict requires at least two sides and areas where their interests collide. But what lies behind a misunderstanding? In short, it is resources, which are limited by nature, and differences in needs, values, stances, interests or goals.’ Mediation theorists A. Trossen, R. Hofmann and D.B. Rothfischer are of the opinion that specialised literature lacks a unifying definition for conflict. The word stems from the Latin conflictus, which means to collide. ‘The goal of targeted conflict management is to reach a situation where the conflict is no longer progressed by the conflict itself but by its participants.’ This means that conflicts, regardless of the participating sides, need to be solved. One important solution for defending one’s position is to go to court. According to subsection 15 of The Constitution of the Republic of Estonia, ‘Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before a court, to request for any relevant law, other legal act or action to be declared unconstitutional.’ Societal changes have a direct impact on the development of law. After the Estonian restoration of independence and joining with the European Union, the country undertook a judicial reform, which also impacted its substantive law and procedural law. Nowadays, disagreements can be solved using a variety of alternative methods, such as negotiations, expert opinions, arbitration, mediation and conciliation. The goal of this article is to highlight the benefits of solving civil disputes outside of court compared to civil proceedings and what the possibilities are for speeding up civil disputes at court.