China's Guiding Cases System as the Instrument to Improve China's Case Guidance System, which Includes Both Guiding Cases and Typical Cases

2017 ◽  
Vol 45 (3) ◽  
pp. 230-243
Author(s):  
Fengping Gao
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Guidance System ◽  
Judicial Reform ◽  
The Supreme Court ◽  
Key Topics ◽  
The U.S

After the Supreme People's Court of China (the “Supreme Court”) issued the Provisions of the Supreme People's Court Concerning Work on Guiding Cases (the “Provisions”), which symbolized the establishment of China's guiding cases system, it attracted worldwide attention. Some institutes, like Stanford, launched programs on China's Guiding Cases. It is of importance to discuss the potential and possibility of establishing China's guiding cases system by promoting the Guiding Cases in the context of ongoing judicial reform. For international practitioners, it is helpful to know the civil jurisdiction where there is case law available as case guidance. Also, China judicial reform has become a keen topic for discussion in U.S.–China relations. “The efficiency and fairness in handling commercial cases and the use of Guiding Cases in the adjudication of commercial [cases]” was one of the key topics discussed during the first dialogue joined by the U.S. Departments of Justice and Commerce.

Slovo of the National School of Judges of Ukraine

2021 ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Judicial Reform ◽  
Council Of Europe ◽  
Judicial Practice ◽  
National School ◽  
The Supreme Court ◽  
Grand Chamber ◽  
The Impact

The special edition of the national professional scientific and practical legal magazine “The Slovo of the National School of Judges of Ukraine” was published, which contains reports delivered at the online conference "Ensuring the unity of judicial practise: the legal positions of the Grand Chamber of the Supreme Court and standards of the Council of Europe", held on the occasion of the third anniversary of the Grand Chamber of the Supreme Court. time of thematic sessions and webinars for judges of each of the courts of cassation in the Supreme Court, as well as joint sessions for judges of different jurisdictions at the end of 2020. The National School of Judges of Ukraine held these events together with the Supreme Court and in synergy with the Council of Europe projects "Support to Judicial Reform in Ukraine", "Further Support for Ukraine's Implementation in the Context of Article 6 of the European Convention on Human Rights", USAID New Justice Program, OSCE Project Coordinator in Ukraine. These are projects that support various aspects of judicial reform in Ukraine, compliance with Council of Europe standards and recommendations, offering best practices from member states to help make priorities in the national reform process. The conference and training events were attended by more than 550 participants - judges of the Supreme Court, other courts, leading Ukrainian and foreign experts, representatives of the legal community. Trainers and all structural subdivisions of the National School of Judges of Ukraine were involved, the training activities of which were identified by the CCEJ in one of its conclusions as one of the important tools to ensure the unity of judicial practice. Programs of activities included reports on the role of the Grand Chamber of the Supreme Court in ensuring the unity of judicial practice and the impact on the legal system; unity of judicial practice in the context of standards - improving access to justice in Ukraine: removing procedural obstacles and ensuring the right to an impartial court, approaches to identifying cases of minor complexity and cases of significant public interest or exceptional importance for a party in the context of access to court of cassation: practice the supreme courts of the member states of the Council of Europe and the European Court of Human Rights; key positions of the Supreme Court - application of the provisions of the procedural codes on the grounds for transferring the case to the Chamber, the joint chamber or the Supreme Court, the impact of its decisions on legislative activity, ensuring the specialization of courts and judges, the practice of the Supreme Court of the Supreme Court on administrative cases, the practice of considering cases of disciplinary liability of judges, conclusions on the rules of criminal law, review of court decisions in criminal proceedings in exceptional circumstances; the impact of the case law of the European Court of Human Rights on the case law of national courts and the justification of court decisions and the "balance of rights" in civil cases in its practice, the development of the doctrine of human rights protection; ECtHR standards on evidence and the burden of proof, the conclusions of the CCEJ and their reflection in judicial practice; judicial rule-making in the activities of European courts of cassation, etc. The issues raised are analyzed in the Ukrainian and international contexts from report to report, which, we hope, will be appreciated by every lawyer - both practitioners and theorists. As well as the fact that the depth of disclosure of each of the topics through the practice of application serves the development of law and contributes to the formation of the unity of judicial practice of the Supreme Court, the creation of case law is a contribution to rulemaking and lawmaking. The conversion of intellectual discourse into the practice of Ukrainian courts is an important step towards strengthening public confidence in the judiciary. And here the unifying force of the Supreme Court can be especially important, as the Chairman of the Supreme Court Valentyna Danishevska rightly remarked, speaking about the expectations of the society.

scholarly journals Functions of the Commercial Cassation Court in the Supreme Court in Ukraine

2019 ◽  
pp. 123-129 ◽  
Author(s):  
O. Ponomarova
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Judicial System ◽  
Judicial Reform ◽  
Main Function ◽  
The Supreme Court ◽  
Analysis And Synthesis ◽  
Lower Courts ◽  
Concept Of Function ◽  
The Law

During the judicial reform of 2016, the Law of Ukraine "On Judicial System and Status of Judges" was adopted from 02.06.2016 No. 1402-VIII, as well as amendments to the procedural legislation, which created the legal basis for the creation of a new Supreme Court as a whole and in its composition economic court, in particular. Established on the basis of the Supreme Economic Court of Ukraine, the Court of Cassation within the Supreme Court assumed the main functions of the court of cassation of economic jurisdiction and organizationally took the place of the structural unit of the Supreme Court, which operates within the unified system of interaction between the courts of cassation and the Supreme Court. As the cassation instance in the field of economic justice in accordance with the Law of Ukraine " On Judicial System and Status of Judges " of 02.06.2016 No. 1402-VIII has changed, in particular, it is currently acting in the form of the Court of Cassation within the Supreme Court, so the author has a need more detailed study of their functions, which is the purpose of the article. The author has made a thorough analysis of scientific approaches to understanding the essence of the concept of "function". In addition, the article deals with the classifications of the functions of the cassation instance ..., given by domestic scientists, and on their basis proposed its own classification of the functions of the Court of Cassation within the Supreme Court. In particular, the author substantiates the concept of dividing the functions of the Court of Cassation within the Supreme Court into two groups: main and derivative. The main function of the Court of Cassation in the Supreme Court, according to the author, is the function of justice, which is manifested through the functions of cassation and appeal review cases. In its turn, the author of the article refers to the following functions: 1) supervision of the activity of lower courts and control over the observance of the rules of law; 2) ensuring the unity of case law; 3) interpretation function; 4) explanatory function; 5) analysis and synthesis of case law. On the basis of a comprehensive analysis of theoretical developments in national science and a practical approach to the definition of functions, the author concluded that all functions of the Court of Cassation are closely related to each other, and they are inherently complex in the administration of justice.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

scholarly journals Life After Bilski

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Supreme Court ◽  
Real World ◽  
Subject Matter ◽  
Case Law ◽  
Patent Law ◽  
District Courts ◽  
The Supreme Court ◽  
Federal Circuit ◽  
Abstract Ideas ◽  
New Applications

In Bilski v. Kappos, the Supreme Court declined calls to categoricallyexclude business methods - or any technology - from the patent law. It alsorejected as the sole test of subject matter eligibility the FederalCircuit’s deeply-flawed "machine or transformation" test, under which noprocess is patentable unless it is tied to a particular machine ortransforms an article to another state or thing. Subsequent developmentsthreaten to undo that holding, however. Relying on the Court’s descriptionof the Federal Circuit test as a "useful and important clue', the U.S.Patent and Trademark Office, patent litigants, and district courts have allcontinued to rely on the machine-or-transformation test in the wake ofBilski: no longer as the sole rule, but as a presumptive starting pointthat threatens to effectively become mandatory. In this Article, we suggesta new way to understand the exclusion of abstract ideas from patentablesubject matter. No class of invention is inherently too abstract forpatenting. Rather, the rule against patenting abstract ideas is an effortto prevent inventors from claiming their ideas too broadly. By requiringthat patent claims be limited to a specific set of practical applicationsof an idea, the abstract ideas doctrine both makes the scope of theresulting patent clearer and leaves room for subsequent inventors toimprove upon - and patent new applications of - the same basic principle.Recasting the abstract ideas doctrine as an overclaiming test eliminatesthe constraints of the artificial machine-or-transformation test, as wellas the pointless effort to fit inventions into permissible or impermissiblecategories. It also helps understand some otherwise-inexplicabledistinctions in the case law. Testing for overclaiming allows courts tofocus on what really matters: whether the scope of the patentee's claimsare commensurate with the invention’s practical, real-world contribution.This inquiry, we suggest, is the touchstone of the abstract ideas analysis,and the way out of the post-Bilski confusion.

scholarly journals Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Basic Method ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Basic Characteristics ◽  
The Right

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.

scholarly journals ON SOME HYPOTHESES OF FILLING A CLAIM AGAINST A DECEASED DEFENDANT

2020 ◽  
Author(s):  
Svetoslav Pandilov ◽  
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
General Assembly ◽  
The Supreme Court

Considering the substantive and procedural consequences related to the filing of a claim, its admissibility is of significant importance to the defense of the claimant's interests. Case law of the last few years raised the question of what are the consequences for the claim procedure when the defendant has died by the date of filing of the claim - irregularity of the claim motion filed or inadmissibility of the claim on the grounds of lack of procedural prerequisite. The exist-ence of controversial case law has been overcome by Interpretative Decision №1/2017 from 09.07.2019 on Interpretative Case № 1/2017 of the General Assembly of the Civil and Com-mercial Divisions of the Supreme Court of Cassation, which states that when the defendant who is indicated in the claim motion has died before the filing of the claim motion the claim proce-dure is inadmissible and should be terminated. The above mentioned interpretative decision is analyzed in this report, as well as some hypotheses when the solution provided by the interpreta-tive decision could cause significant issues to the claimant. The report also aims to provide a solution to these practical issues.

scholarly journals Patterson v. McLean: A Confirmation of the New Right at the U.S. Supreme Court

2005 ◽  
Vol 30 (4) ◽  
pp. 987-1009
Author(s):  
George M. Sullivan
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Reagan Administration ◽  
Ronald Reagan ◽  
The United States ◽  
National Elections ◽  
Presidential Appointments ◽  
The Supreme Court ◽  
The Impact ◽  
The U.S

In two consecutive national elections a conservative, Ronald Reagan, was elected President of the United States. When Justice Lewis Powell announced his retirement during the late months of the Reagan administration, it was apparent that the President's last appointment could shift the ideology of the Court to conservatism for the first time since the presidency of Dwight Eisenhower. President Reagan's prior appointments, Sandra Day O'Connor and Antonin Scalia, had joined William Rehnquist, an appointee of President Nixon and Bryon White, an appointee of President Kennedy to comprise a vociferous minority of four in many instances, especially cases involving civil rights. The unexpected opportunity for the appointment of a conservative jurist caused great anxiety in the media and in the U.S. Senate, the later having confirmation power over presidential appointments to the Supreme Court. This article examines the consequences of the Senate's confirmation of Justice Anthony Kennedy to the Supreme Court. The impact, which was immediate and dramatic, indicates that conservative ideology will predominate on major civil rights issues for the remainder of this century.

scholarly journals Le contrôle des prix et des revenus au Canada

2009 ◽  
Vol 52 (3) ◽  
pp. 271-310
Author(s):  
Richard G. Lipsey
Keyword(s):  
Supreme Court ◽  
Economic Crisis ◽  
Supreme Court Of Canada ◽  
Traditional Methods ◽  
The Supreme Court ◽  
The U.S

Abstract This paper is a summary of the Legal Factum submitted by the Canadian Labor Congress to the Supreme Court of Canada. It intends to demonstrate the irrelevance of the Anti-Inflationnary Act of October 1975. Three main questions are dealt with. First, was there an economic crisis in October 1975? Analysing various sets of data, the paper concludes that, by no stretch of imagination, could October 1975 be called an economic crisis. Second, was there a policy crisis in the sense that traditional methods had been tried and failed? It establishes here that no serious attempt had been made to contain inflation by traditional fiscal and monetary tools by October 1975. Third, what results can be expected from income policies? This part gives a summary of the voluminous evidence for the U.K. and the U.S., and concludes that the evidence of other incomes policies is that their effects on slowing the rate of inflation are small and often transitory.

The Company They Keep

2020 ◽  
Author(s):  
Lawrence Baum ◽  
Neal Devins
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Political Party ◽  
Political Polarization ◽  
Dominant Ideology ◽  
Partisan Polarization ◽  
The People ◽  
The Supreme Court ◽  
New Perspective ◽  
The U.S

Today’s ideological division on the U.S. Supreme Court is also a partisan division: all the Court’s liberals were appointed by Democratic presidents, all its conservatives by Republican presidents. That pattern never existed in the Court until 2010, and this book focuses on how it came about and why it’s likely to continue. Its explanation lies in the growing level of political polarization over the last several decades. One effect of polarization is that potential nominees will reflect the dominant ideology of the president’s political party. Correspondingly, the sharpened ideological division between the two political parties has given presidents stronger incentives to give high priority to ideological considerations. In addition to these well-known effects of polarization, The Company They Keep explores what social psychologists have taught us about people’s motivations. Justices take cues primarily from the people who are closest to them and whose approval they care most about: political, social, and professional elites. In an era of strong partisan polarization, elite social networks are largely bifurcated by partisan and ideological elites, and justices such as Clarence Thomas and Ruth Bader Ginsburg live in milieus populated by like-minded elites that reinforce their liberalism or conservatism during their tenure on the Supreme Court. By highlighting and documenting this development, the book provides a new perspective on the Court and its justices.

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