Part I The Doctrine of Res Judicata in Litigation, 1 The Doctrine of Res Judicata in Domestic Laws

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Res Judicata ◽  
Other Hand

This chapter analyses and compares the application of the res judicata doctrine in common and civil law countries. Res judicata is the principle that a matter may not, generally, be relitigated once it has been judged on the merits. The doctrine of res judicata is well established in common law jurisdictions, and allows for several res judicata pleas, namely the plea of cause of action estoppel, issue estoppel, former recovery, or abuse of process. On the other hand, the doctrine of res judicata in civil law countries recognises only one plea. In France, for instance, the doctrine of res judicata is referred to as ‘autorité de chose jugxée’. A judgment obtains ‘autorité de chose jugée’ when it is rendered, whether or not a means of recourse is available against the judgment.

The Influences of Common Law on the Brazilian New Code of Civil Procedure

2018 ◽  
Vol 46 (3) ◽  
pp. 176-180
Author(s):  
Lucas Alves Edmundo Gomes
Keyword(s):  
Legal System ◽  
English Language ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
The Other ◽  
Legal Systems ◽  
Other Hand ◽  
The World

AbstractMost legal scholars assume that there are only two “families” of legal systems in the world: common law and civil law. Briefly, common law is applied in all countries that speak the English language and has its origination from the “habits of society.” On the other hand, civil law is applied just about everywhere else, with a few exceptions, such as in tribal law areas, jurisdictions that follow Islamic law, and a few other smaller legal systems. Brazil's New Code of Civil Procedure was promulgated in 2015 and brought innovations to Brazilian law. Elements of common law were incorporated into the Brazilian legal system, particularly that of using precedent. The application of common law elements in Brazilian law is being studied by various legal specialists. This present study explains how common law can be applied in civil law jurisdictions, similar to the way it is being adapted and applied in Brazil.

ASAS TERBUKA UNTUK UMUM DAN KEHADIRAN FISIK PARA PIHAK DALAM SIDANG DI PENGADILAN NEGERI PASCA PERATURAN MAHKAMAH AGUNG NOMOR 1 TAHUN 2019

2020 ◽  
Vol 6 (1) ◽  
pp. 237-250
Author(s):  
Bernadette M Waluyo
Keyword(s):  
Supreme Court ◽  
Basic Principle ◽  
Civil Law ◽  
The Other ◽  
District Court ◽  
Procedural Law ◽  
Other Hand ◽  
Administration Of Justice ◽  
Law Courts ◽  
Court Proceedings

The Indonesian Supreme Court, in response to the information era, modernizes the civil procedural rules at the district court level.  This is done by issuing Supreme Court Regulation no. 1 of 2019 re. Administration of Justice at Civil Law Courts and Electronic-Court Proceedings. Undoubtedly, modernization of existing rules on the administration of justice is much needed.  On the other hand, these changes may violate a number of procedural civil law principles.  The author argues, from a civil procedural law perspective, that the above Supreme Court regulation violates the basic principle of transparency of court proceedings and physical attendance at court proceedings. 

Common Lawà l'americaine

1966 ◽  
Vol 1 (4) ◽  
pp. 562-579 ◽  
Author(s):  
A. M. Apelbom
Keyword(s):  
Common Law ◽  
The Other ◽  
British Occupation ◽  
Other Hand ◽  
Two Generations ◽  
The Common ◽  
English Law ◽  
Considerable Body ◽  
Clear Line

Eighteen years after attaining independence Israel remains essentially a common law country. Introduced by the British Mandatory administration to supplement the Ottoman legislation in force at the time of the British occupation of Palestine, the common law has been retained by the Israeli legislator, so far as not modified or replaced by local legislation. But this common law, far from being residual only, also embraces a considerable body of interstitial law developed by two generations of judges, British, Palestinian and Israeli, in the process of applying and interpreting statute law—whether Ottoman, Mandatory or Israeli—according to common law methods. On the other hand the importation of common law institutions was neither wholesale nor systematic and in a number of fields no clear line of demarcation can be drawn between domestic and English law.

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

scholarly journals ETHICAL PRINCIPLES OF SOCIETY AS REGULATORY FACTORS OF CIVIL LAW OF UKRAINE: THE ISSUE OF VALIDITY

2019 ◽  
pp. 16-20
Author(s):  
V. Кroitor
Keyword(s):  
Civil Law ◽  
The Other ◽  
Ethical Principles ◽  
Regulatory Requirements ◽  
Regulatory Factors ◽  
Other Hand ◽  
Moral Rules ◽  
The Law ◽  
The One

The article studies the issue of scientific and practical validity of applying ethical principles of society as regulatory factors of civil law of Ukraine. Taking into account the lack of validity of ethical principles of society as regulatory factors, the author attempts to make a correlation between the content of such principles of civil law as fairness, integrity and reasonableness, on the one hand, and ethical principles of the society, on the other hand. The author of the paper proves that it is inappropriate to apply the provisions of morality as regulatory factors for the regulation of civil relations. The conclusion on the objection to the civil regularity of ethical principles of society is based on several theses. Firstly, moral rules are not formalized, which creates a threat of arbitrary interpretation of their content. Secondly, ethical principles do not have a definite source of origin. Thirdly, the fundamental ethical rules have already been taken into account in the content of the principles of fairness, integrity and reason, which in turn create competition between the two types of regulatory factors. Unreasonable duplication of regulatory requirements reduces the functionality of the law, complicates the perception of its requirements. The competition between the principles of law and the ethical principles of society must be eliminated by refusing to give the latter the function of regulatory factors. The author of the paper does not deny the possibility of taking into account the ethical principles of society while regulating the relations that have been neglected by the "official law".

Introduction

Japanese Law ◽  
2021 ◽  
pp. 1-8
Author(s):  
Hiroshi Oda
Keyword(s):  
Legal System ◽  
Civil Law ◽  
The Other ◽  
Legal Consciousness ◽  
Other Hand ◽  
Japanese Law

Japanese law is part of the Civil law (Franco-German) legal system. There have been discussions on the ‘Japanese legal consciousness’, but now, it is agreed that there is no such ‘uniqueness’ of Japanese law. On the other hand, the approach of the courts in interpreting statutes and their role in interpreting contracts may represent some unique aspects of Japanese law.

The Last Forty Years of the Irish Bar

1929 ◽  
Vol 3 (3) ◽  
pp. 365-375
Author(s):  
Serjeant A. M. Sullivan
Keyword(s):  
Common Sense ◽  
Common Law ◽  
Good Deal ◽  
The Other ◽  
Old Order ◽  
Other Hand ◽  
The Law ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Doors

Forty years ago in my old country the legal world was in a state of transition. The old order was changing in a great number of ways. The Judicature Act had just got into swing and although four Courts still opened in the hall beside the Liffey they were soon to be fused into one. These were at that time the Court of Chancery, the Court of Queen's Bench, the Court of Exchequer, and the Court of Common Pleas, and the doors of these four opened on the Central Hall and their names stood over them. The Court of Chancery stood by itself, but it was thought in those days that you had your choice of three Common Law Courts in which to have your case tried. If you had some merit on your side but thought that the law was against you, you issued your writ in the Queen's Bench, which was presided over by Mickey Morris, as he was invariably called although he was a lord, because Mickey had a good deal of common sense, a great deal of humanity, but his ideas of jurisprudence were peculiarly his own. On the other hand, if you were strongly of opinion that however iniquitous your client was, he had the law on his side, you issued your writ in the Court of Exchequer, presided over by Christopher Palles, the greatest judge before whom I have ever appeared. Christopher Palles decided according to what he believed to be the law, and would pay no attention to any other consideration that might be advanced before him.

scholarly journals Verifikasi Identitas Biologis Menjelang Perkawinan dalam Perspektif Fikih

2012 ◽  
Vol 12 (2) ◽  
Author(s):  
Alimin Mesra
Keyword(s):  
Contemporary Problem ◽  
Civil Law ◽  
The Other ◽  
Identity Verification ◽  
Important Phenomenon ◽  
Other Hand

Abstract: Biological identity verification before marriage from a fiqh standpoint. This article treats falsifying biological identity for marriage as an important phenomenon that should be responded to academically. By way of analyzing discourse concerning this subject, this article reveals that weaknesses in how civil law and citizenry are administrated, if not fixed, will give rise to more such cases of it. On the other hand, the theory that love is the biggest motivation for falsifying biological identity is taken into account to clarify why this violation occurs. The conclusion reached in this article is to accommodate for the capacity to verify biological identity—when deemed necessary—before marriage. The author reinforces this idea by drawing upon several hadiths, applying al-maqâshid al-syâri‘ah theory, as well as calling to expand classical fiqh to the context of solving this contemporary problem.Keywords: biological identity, verification, contemporary problem, classical fiqh, contextualisationAbstrak: Verifikasi Identitas Biologis Menjelang Perkawinan dalam Perspektif Fikih. Artikel ini meletakkan fakta pemalsuan identitas biologis dalam perkawinan sebagai fenomena yang penting direspons secara akademis. Melalui analisis wacana atas berita yang terkait, tulisan ini menyingkap bahwa ada sejumlah kelemahan pada sistem administrasi keperdataan dan kependudukan yang jika tidak dibenahi akan melahirkan kasus-kasus serupa. Di sisi lain, teori bahwa cinta adalah motivasi terbesar untuk melakukan sesuatu dimanfaatkan untuk menjelaskan mengapa pelanggaran itu dilakukan. Kesimpulan yang direkomendasikan adalah mengakomodasi kebolehan melakukan verifikasi identitas biologis—jika dianggap perlu—sebelum perkawinan. Penulis menguatkan gagasan ini dengan melakukan kontekstualisasi atas beberapa hadis, penerapan teori maqâshid al-syarî’ah serta ajakan untuk mengembangkan fikih klasik dalam rangka mengatasi problematika kontemporer.Kata Kunci: verifikasi, identitas biologis, problema kontemporer, fikih klasik, kontekstualisasiDOI: 10.15408/ajis.v12i1.963

scholarly journals Realization of res judicata principle in civil proceedings: the experience of foreign countries

2020 ◽  
pp. 220-225
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Legal Certainty ◽  
Res Judicata ◽  
Foreign Countries ◽  
Negative Effect ◽  
The Subject

  The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.  The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved. It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties. In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.

scholarly journals A SENTENÇA DE MÉRITO PROLATADA COM A PRETERIÇÃO DO(S) LITISCONSORTE(S) NECESSÁRIO(S) UNITÁRIO(S): UMA ANÁLISE SOB A ÓTICA DOS PLANOS DOS ATOS PROCESSUAIS

2019 ◽  
Vol 16 (3) ◽  
pp. 220
Author(s):  
Lisiane Beatriz Fröhlich ◽  
Jonathan Iovane De Lemos
Keyword(s):  
Civil Procedure ◽  
The Other ◽  
Procedural Law ◽  
Res Judicata ◽  
Procedure Code ◽  
Other Hand ◽  
The Moment

RESUMOO presente estudo tem como objetivo geral compreender em qual dos planos dos atos processuais – existência, validade ou eficácia – reside o defeito que acomete a sentença de mérito prolatada com a preterição do(s) litisconsorte(s) necessário(s) unitário(s). A partir dos resultados obtidos com a pesquisa, constatou-se que, para o alcance de uma conclusão satisfatória a seu respeito, é imprescindível a verificação do momento em que é alegada a preterição do(s) litisconsorte(s) necessário(s) unitário(s). Assim, concluiu-se que, na eventualidade de a alegação ocorrer anteriormente ao trânsito em julgado, o defeito estará situado no plano da validade, tratando-se de uma nulidade absoluta. Por outro lado, após o trânsito em julgado, o que remanesce é o vício no plano da eficácia. Dessa forma, observa-se que a atual legislação processual civil não é incorreta, mas incompleta e carente de precisão. Isso porque, apesar da superlativa importância da definição do momento em que se está analisando o vício, o Código de Processo Civil de 2015 é omisso com relação a esse aspecto, potencializando as dúvidas a respeito do tema. Por fim, verificou-se que, devido à gravidade do defeito que acomete essa sentença – oriunda, sobretudo, da ofensa aos princípios constitucionais –, é possível que qualquer interessado o alegue. Além disso, pelos mesmos motivos, as vias processuais admissíveis para combater esse vício são variadas, podendo ser manejada a ação rescisória, a impugnação ao cumprimento de sentença, a querela nullitatis insanabilis ou, ainda, qualquer outro meio idôneo e compatível com a situação concreta.Palavras-chave: Litisconsórcio necessário unitário. Sentença de mérito. Inexistência. Invalidade. Ineficácia. ABSTRACTThe purpose of the present study is to understand in which of the plans of procedural acts – existence, validity or efficacy – is situated the defect that affects the judgment of merit prolated with the pretermission of the necessary unitary collegitimate. From the results obtained with the research, it was verified that, in order to arrive at a satisfactory conclusion about it, it is essential to verify the moment when is alleged the omission of the necessary unitary collegitimate. Thus, it was concluded that, if the claim occurs before it is formed the res judicata, the defect is situated in the validity plan, being an absolute nullity. On the other hand, after the res judicata is formed, what remains is the inefficacy. Therefore, it was verified that the current civil procedural law is not incorrect, but incomplete and lacking precision. This is because, in spite of the superlative importance of defining which moment the defect is being analyzed, the Brazilian Civil Procedure Code of 2015 do not consider this aspect, potentializing doubts about the issue. Finally, it was discovered that, because of the severity of the defect that affects this veredict – originated, principally, from the offense to the constitutional principles – it is possible that any interested subject of the process can claim it. Besides that, for the same reasons, it is admitted the use of several procedural means to combat this decision, like the rescissory action, the enforcement’s impugnment of the judgment, the querela nullitatis insanabilis or any other suitable procedural means and compatible with the specific situation.Keywords: Necessary unitary joinder of parties. Judgment of merit. Inexistence. Invalidity. Inefficacy.

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