De eigen(aardig)heid van de kantonrechter: Over de verschillen tussen het proces(verloop) bij de kantonrechter en de civiele rechter en de betekenis daarvan

Abstract

The research aims to reveal the similarities and differences between subdistrict-court judges (kantonrechters) and civil-court judges (civiele rechters) based on empirical research, in order to examine any consequences for quality and to present recommendations for improvement. The research is based on case files of cases regarding amounts of between € 5,000 and € 25,000, and on interviews with judges. Although through the years the subdistrict-court judges and the civil-court judges have moved closer together, it is believed that differences still exist between subdistrict-court judges and civil-court judges. These presumed differences largely tie in with the historical differences. The research of the files revealed many more similarities than differences between subdistrict-court judges and civil-court judges when it comes to the manner in which they apply procedural law and how proceedings are conducted. The research did not show or hardly showed any differences in judges’ interpretation of their duties. It seems that a distinction between the two types of judges has lost its meaning. It is therefore recommended to remove this distinction altogether and to create one single type of civil-court judge. The study shows that in general, both for subdistrict-court judges and for civil-court judges, practice differs from theory – at least, the legislator’s theory – on various points. This is because the parties’ manner of conducting proceedings (procesvoering) is different from how it was intended, because the judge does not always use his or her degree of discretion as envisaged by the legislator and at times acts beyond it, and because the procedural provisions relevant to this PhD thesis are not sufficiently effective to achieve their intended objectives. The performance of the subdistrict-court judge seems slightly better than that of the civil-court judge when it comes to some quality criteria. The research revealed two significant elements. Firstly, it shows that the element of organisation strongly influences quality. Secondly, it shows that merging the subdistrict court and the civil-law court does not automatically result in a win-win situation, or ‘the best of both worlds’. Based on the foregoing and on earlier proposals to amend procedural law, suggestions are presented for improvement for the legislator and for courts and judges, and recommendations for further research.