La distinción entre esclarecimiento probatorio y esclarecimiento preparatorio en el proceso civil

Vogt Geisse, Thomas Franz
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This paper proposes to adopt the distinction between proof and preparatory access to information when taking a comparative approach to civil procedure. Such a distinction provides means for functional differentiation of procedural rules regarding factual decision-making. It also allows identifying rules aimed at the factual decision making by a judge or a jury (proof ) as dis-tinctive from rules aimed at providing information to the parties and enabling them to understand the strength of their positions and to make informed decisions on how to further proceed with the case (preparatory access to information). This paper will show how failing to distinguish these two categories can lead to faulty comparative reflections, such as equating the measures of the pre-trial of the common law countries (preparatory tools) and the documentary exhibits of the continental civil procedure (evidentiary tools). By way of illustration, this paper will show that Rule 102 of the European Rules of Civil Procedure is an example of how to preserve the benefits of pre-trial information exchange in a way that is compatible with the continental procedural structure ​
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