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ADMINISTRATION OF JUSTICE.
321
to these there exist in other statutes clauses bearing upon a number of
special questions connected with this topic.
The section of the administration of justice that, for each action that
is begun, is engaged in determining which of the two parties to it is in the
right, so-called judicial proceedings, is entrusted as a rule to courts of
law, though in exceptional cases to official bodies exercising functions
mainly administrative.
Judicial proceedings in lower courts are as a rule conducted publicly,
in superior courts in camera. In the former courts the conduct of the
cases is mainly by oral pleadings, but records of what is said are made
and they form the basis of the decision of the court. In the superior
courts, on the other hand, the cases are dealt with in the main by means
of written documents.
Moreover civil procedure presents essential differences from criminal
procedure.
The mode of procedure in civil-law cases is dominated by the discussional
method. It always rests with the individual to call in the protection of the law,
and that protection is not accorded beyond the extent demanded by the
complainant. It also devolves on the parties to effect such inquiry and establish
such proof as may be necessary. Up to that point the judge remains for the
most part an unparticipating actor in the scene. Inasmuch, however, as the
parties are always entitled to plead their cause in person before the court, the
judge does exercise extensive functions as the conductor of the proceedings.
Thus he has the duty more especially of so managing the conduct of the case,
independent of the parties to it, that clearness and order shall emerge and be
maintained in the proceedings, and has also to intervene if necessary during the
progress of the case to insure that definiteness and completeness may be attained
in what the parties have to state. Indeed it is undoubtedly often the case that
the judge’s active share in the proceedings extends much farther than has been
here indicated.
Civil cases are almost without exception commenced by the issue of a writ of
summons by some public authority, which, however, it is the business of the plaintiff
to serve upon the defendant. There is no provision for any preliminary discussion
of the case or for any passing to and fro of briefs before the trial begins in
the court. The parties are at liberty to plead their own cause before the court.
A subdivision of the evidence by means of preclusive restrictions, with a view
to allotting certain portion;, of it to the different stages of the trial, is but
seldom resorted to.
The various forms of evidence are: actual observation, sworn evidence of one
party, admission, evidence of witnesses, documentary evidence, and the evidence
of experts specially called in. The relative amount of importance to be attached
to the various forms of evidence is laid down to a large extent in the law
itself. The elaborate system of rules as to the persons who are excluded
from being witnesses are of especial importance from a practical point of
view. There is nevertheless a tendency noticeable in the courts for the
judges to set aside the restrictions imposed upon them by the legal theory
of evidence. Evidence may be adduced not merely for the immediate
confirmation of the conclusive facts brought forward in the case, but also for
so-called circumstantial proof.
The court can pronounce a decision during the progress of the trial upon any
21—133179. Sweden. I.
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