Thomas Alexander Heiß: Privatrechtssystem und summarischer Rechtsschutz, Gebunden

Klappentext

Summary proceedings are a mode of enforcing subjective rights that deviates in characteristic ways from the general standards of legal enforcement.

This particular, "abridged" form of legal protection-confined to the field of private law-is the subject of this book. It examines its intellectual and institutional history in Roman and ius commune civil procedure, its epistemological and legal-theoretical foundations, its principles and inherent structural rules, as well as the system of procedural and substantive configurations it has produced in contemporary German private law. Particular attention is given to documentary, bill of exchange, and cheque proceedings, interim relief, intermediate substantive rights, default rules in civil procedure, and the order for payment procedure.

Reducing these individual forms to a common underlying pattern requires identifying and explaining that from which summary proceedings deviate. A theory of summary proceedings is therefore only possible within the framework of a coherent theory of legal protection. Many of the questions raised in explaining summary forms directly concern the foundations of the entire private law system, in particular the relationship between substantive individual rights and their procedural enforcement, as well as the legal system's handling of uncertainty. As a borderline case of legal protection, summary proceedings cast these fundamental issues in a new light: if summary protection is to be understood as part of the private law system, some of its foundational structures must be conceptualized differently than is typically done with regard to "standard" cases. It is here that the greatest potential of summary proceedings for civil law doctrine lies.

This study seeks to unlock that potential. It lays the groundwork for a coherent doctrinal reconstruction of summary remedies that avoids systemic inconsistencies, while also providing guidance for the development of new instruments of this kind.