Part VI Providing and Obtaining Assistance, B Obtaining Assistance, 21 Judicial Cooperation Including Obtaining Evidence

2017 ◽  
Author(s):  
Peddie Jonathan
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Large Degree ◽  
Civil Procedure ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Evidence Gathering ◽  
Criminal Matters ◽  
Over Time

This chapter argues that there is potential for conflict between common and civil law jurisdictions where the approach to preparation for trial, and through that the taking of evidence, differ to a large degree. In common law jurisdictions, where it is usual for private parties to be proactively involved in the evidence gathering process, it will not seem irregular for evidence to be taken by an agent of a foreign court for the purpose of proceedings on foot in that court. Such an approach may, however, offend the rules of civil law jurisdictions, where the obtaining of evidence, at least in criminal matters, is primarily the role of the judiciary. To address this potential for conflict, a number of pieces of legislation and bilateral and multilateral civil procedure conventions have evolved over time to facilitate official intervention in order to obtain cross-jurisdictional assistance in the gathering of evidence for the purpose of both civil and criminal proceedings. The various ways in which assistance may be sought by or obtained from the English courts are explored in this chapter.

scholarly journals Precedentes e jurisdição constitucional no novo Código de Processo Civil

2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Adriano Gonçalves Feitosa ◽  
Bernardo Silva de Seixas ◽  
Jhennifer Cristine Souza Pinto
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Federal Court ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Procedural Law ◽  
The Supreme Court ◽  
Legal Innovation

Precedentes e jurisdição constitucional no Novo Código de Processo CivilPrecedents and constitutional jurisdiction in the new Brazilian Code of Civil Procedure Adriano Gonçalves Feitosa[1]Bernardo Silva de Seixas[2]Jhennifer Cristine Souza Pinto[3] RESUMO: Este trabalho pretende demonstrar a realidade inaugurada pelo NCPC – Novo Código de Processo Civil (CPC/2015) –, apontando-lhe as inovações pertinentes ao exercício jurisdicional, à medida que o novo código, em consonância com o moderno direito processual constitucional, reforça a vinculação de certas decisões e as adequa à teoria dos precedentes judiciais. Paralelamente, é necessário comentar, em linhas gerais e numa perspectiva histórica, a respeito da interação entre os sistemas do Common Law e do Civil Law no sistema brasileiro e sua influência ao longo da trajetória de consolidação da jurisdição constitucional e processual pátria. Afinal, melhor se compreende o NCPC diante das reformas processuais promovidas ainda durante a vigência do CPC/1973. Por fim, evidencia-se o papel do Supremo Tribunal Federal como Corte Constitucional e a motivação que isso representa para a força dos precedentes no CPC/2015. PALAVRAS-CHAVE: Precedentes. Novo Código de Processo Civil. Controle de Constitucionalidade. Supremo Tribunal Federal. ABSTRACT: This paper aims to show the news introduced by the new Brazilian Code of Civil Procedure (CPC/2015), pointing out the relevant innovations in the judicial exercise, so far as the legal innovation, in line with the modern constitutional Procedural Law, reinforces the binding quality of certain judicial decisions based on a theory of legal precedents. At the same time, it had to be commented, very briefly and in a historical perspective, on the interaction between the systems of Common Law and Civil Law in the Brazilian legal system and its influence over the consolidation path of constitutional and procedural jurisdiction. After all, the NCPC can be understood through the procedural reforms promoted during the term of the old procedural law (CPC/1973). Finally, this paper highlights the role of the Supreme Court as a Constitutional Court and what this represent for the precedents in the New Brazilian Code of Civil Procedure. KEYWORDS: Precedents. New Brazilian Code of Civil Procedure. Judicial Review. Brazilian Supreme Federal Court.[1] Graduando em Direito (Universidade Federal do Amazonas – UFAM).[2] Professor da Universidade Federal do Amazonas (UFAM) e do Centro Universitário de Ensino Superior do Amazonas (CIESA). Mestre em Sistema Constitucional de Garantia de Direitos (Instituição Toledo de Ensino – ITE, 2014). Especialista em Direito Processual (Centro Universitário de Ensino Superior do Amazonas – CIESA, 2013). Graduado em Direito (Centro Universitário de Ensino Superior do Amazonas – CIESA, 2011).[3] Graduanda em Direito (Universidade Federal do Amazonas – UFAM).

Governing International Cooperation in Criminal Matters: The Role of the aut dedere aut judicare Principle

2018 ◽  
Vol 18 (2) ◽  
pp. 244-274 ◽  
Author(s):  
Andrea Caligiuri
Keyword(s):  
International Law ◽  
International Cooperation ◽  
Legal Nature ◽  
The Status ◽  
Criminal Matters ◽  
The Relationship ◽  
Over Time

The aim of the study is to ascertain how the original Grotian formula ‘aut dedere aut punire’ has been implemented and evolved in international law. The first step is to classify the multilateral conventions that have accepted an aut dedere aut judicare clause. The goal is to bring out peculiarities of the different treaty texts, describing the relationship between the two options dedere and judicare, and the different obligations that arise for the contracting states. We will then examine the content of the two options, to define the legal boundaries within which the contracting states shall or may operate. At this point, we will focus on the legal nature of the aut dedere aut judicare principle that over time may have risen to the status of customary rule. The study will conclude with analysis of reactions to the breach of the aut dedere aut judicare clause by non-complying countries.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

Rights and Methods to Challenge Evidence and Witnesses in Civil Law Jurisdictions

2019 ◽  
pp. 839-864
Author(s):  
Lorena Bachmaier
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Trial Courts ◽  
European Court ◽  
Rules Of Evidence ◽  
The Cross

This chapter examines the primary grounds for challenging the admissibility of evidence, the methods to do it, and the potential consequences of those challenges for civil law systems. It first provides an overview of the jurisprudence of the European Court of Human Rights (ECtHR) with respect to admissibility of evidence, before discussing the exclusionary rules of evidence, focusing on the methods for excluding unreliable evidence, irrelevant or unnecessary evidence, and illegally obtained evidence. It then considers the process for challenging the admissibility of evidence, the cross-examination of witnesses, and the role of trial courts in the questioning of witnesses. It also tackles the admissibility of out-of-court witness testimonies in European civil law systems and notes the convergence between common law and civil law systems with regard to methods for excluding evidence and for questioning witnesses.

The Place of the Prosecutor in Common Law and Civil Law Jurisdictions

2019 ◽  
pp. 138-163
Author(s):  
Katalin Ligeti
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Executive Power ◽  
Public Prosecutor ◽  
Prosecutorial Discretion ◽  
The Public ◽  
European Public ◽  
Institutional Positioning ◽  
Centralization And Decentralization

This chapter focuses on the place of the public prosecutor in common law and civil law jurisdictions. It first describes the institutional positioning of public prosecutors, particularly vis-à-vis the executive power, before discussing their role and powers in regard to the pretrial phase. It then considers the increasing tendency to entrust the public prosecutor with quasi-judicial sanctioning powers in the context of out-of-court procedures (“prosecutorial adjudication”). It also examines the role of specialized law enforcement authorities in the exercise of investigative and prosecutorial functions, coercive measures and the need for judicial authorization, and prosecutorial discretion and alternatives to trial proceedings. Finally, it explains how independence, centralization and decentralization, legality and opportunity of prosecution, and the alternatives to trial proceedings have been translated to the supranational design of the European Public Prosecutor’s Office (EPPO).

scholarly journals Comparative Study of Civil Procedure in Common Law and Civil Law Systems

2016 ◽  
Vol 9 (5) ◽  
pp. 267
Author(s):  
Nader Ghanbari ◽  
Hassan Mohseni ◽  
Dawood Nassiran
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Judicial System ◽  
Specific Method ◽  
Legal Systems ◽  
Separate Branch ◽  
The Common ◽  
The Comparative Study

Comparing the legal systems is a specific method in which due to its important function is considered as a separate branch in law. None of the branches in law can place its knowledge merely on ideas and findings within the national borders. Several basic objections have been given regarding the definition and purpose of comparative study in civil procedure. In addition there are specific problems regarding studying practically the similar systems in a legal system like differences in purpose, definition and concept. In different legal systems like civil law and common law systems in which there is a divergence, even the judicial system`s organs and judges` appointment and judicial formalism are different, which add to the problems of the comparative study. Reviewing these differences could lead to a better understanding of these legal systems and recognizing the common principles in making use of each other`s findings considering these differences and indicate the obstacles of comparative study in this regard.

Political Business Cycles and Imprisonment Rates in Italy: Report on a Work in Progress

1987 ◽  
Vol 16 (1-2) ◽  
pp. 211-218 ◽  
Author(s):  
Dario Melossi
Keyword(s):  
Public Opinion ◽  
Business Cycles ◽  
Criminal Behavior ◽  
Common Law ◽  
Civil Law ◽  
Economic Conditions ◽  
Political Business Cycles ◽  
Work In Progress

Sociologists have shown the presence of statistically significant associations between changing economic conditions and rates of imprisonment in a number of countries characterized by common law systems. Furthermore, these associations do not seem to be mediated by changing rates of criminal behavior. This article considers the possibility that the same relationships exist in a civil law society, Italy, for the period 1896–1965. It then goes on to highlight an hypothesis and possible test to explain the nature of these associations, based on the intervening role of public opinion.

scholarly journals Admissibility of Lis Pendens in International Commercial Arbitration: A Comparative Insight of Different Legal Systems

2020 ◽  
Vol 13 (4) ◽  
pp. 134
Author(s):  
Ximei Wu ◽  
Abid Hussain Shah jillani
Keyword(s):  
Common Law ◽  
Effective Means ◽  
Civil Law ◽  
Deep Understanding ◽  
International Level ◽  
Legal Systems ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Domestic Level

An attempt has been made to investigate the role of the doctrine of Lis Pendens in international commercial arbitration while making a comparison of civil and common law traditions. Arbitration is regarded to be less painful and an effective means for resolving any type of commercial disputes. Sources of the law to investigate Arbitration's regulation on a national, institutional, and international level. However, it is known that the lis pendens doctrine has been rarely codified; thus, scholarly writings and case laws were consulted by the research for determining its adoption and content. It is important to note that the lis pendens is initially regarded as a tool, which has been developed to manage the proceedings of parallel court on a domestic level. The study concludes while arguing that when it comes to civil law tradition, lis pendens is regarded as an independent doctrine in international commercial arbitration since it shares the same claim of being tried in various forums simultaneously. In contrast, lis alibi pendens in the jurisdiction of common law is not known as a doctrine, but it is viewed as one of many factors whole applying the forum non-convenience principle. Both civil and common law need identity between various parties and their claims to constitute lis pendens in two proceedings, and therefore, they have a conform and deep understanding of the concept.

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 Wzmocnienie praw procesowych jednostki w postępowaniu karnym w Unii Europejskiej - propozycje Komisji Europejskiej z listopada 2013 r.

2015 ◽  
pp. 103-139
Author(s):  
Anastazja Gajda
Keyword(s):  
European Commission ◽  
Fundamental Rights ◽  
Presumption Of Innocence ◽  
Legal Regulations ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
The Right ◽  
Criminal Matters ◽  
The Eu

The aim of the study is to present the proposals of legal regulations presented by the European Commission in one of the fields of Area of Freedom, Security and Justice (JHA), i.e. within the framework of judicial cooperation in criminal matters. The European Commission’s proposals aim at strengthening of the rights of suspects/defendants in criminal proceedings in the EU. They consist of the right to a fair trial and include: strengthening of the presumption of innocence principle and the right to be present at the trial, special safeguards for children suspected or accused of a crime and the right to provisional legal aid for citizens suspected or accused of a crime. In the paper I analysed the most important provisions of the projects and showed that these proposals are intended to ensure the protection of fundamental rights within the JHA.

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