scholarly journals Possessórias e petitórias coletivas de posse velha se transmutam em "ações estruturais" com "diálogo institucional": mais um passo na publicização do direito civil contemporâneo / Collective possessories and petitories of old possession transmuted into 'structural actions' with 'institutional dialogue': another step in publicizing contemporary civil law

2020 ◽  
Vol 12 (3) ◽  
pp. 149-186
Author(s):  
Ana Luiza Lacerda Amaral ◽  
Jefferson Carús Guedes
Keyword(s):  
Public Interest ◽  
Constitutional Law ◽  
Civil Law ◽  
Public Law ◽  
Civil Procedure ◽  
Public Institutions ◽  
Public Interest Litigation ◽  
Social Interests ◽  
The Subject ◽  
Collective Litigation

ResumoAs ações possessórias e as ações petitórias coletivas de posse velha passam a partir do CPC 2015 a ter função diversa, pois se transmutam em ‘ações estruturais’ ou ações com ‘diálogo institucional’, direcionando-se ao que se pode denominar de publicização do direito civil introdução. O presente texto analisa a propriedade privada, posse e seus conflitos coletivos na atualidade brasileira diante da função social, dada pela  deformalização objetiva e subjetiva das ações sobre posse no CPC 2015, com chamamento de entes públicos, com equiparação procedimental entre ações possessórias (interdito proibitório, manutenção de posse, reintegração de posse) e petitórias (reivindicatória e imissão de posse) e com a ‘publicização’ do direito civil pela incorporação de instituições e de entes estatais nos conflitos possessórios e petitórios. O  diálogo institucional dá-se pela incorporação de entes administrativos estatais nos conflitos privados pela posse em possessórias e petitórias.  Para isso, faz-se a diferenciação entre litígios, ações e processos estruturais e aqueles de litígios de interesse público ou que envolvem políticas públicas com conteúdo de posse em demandas possessórias e petitórias e a definição das complexidades e influências recíprocas entre o direito civil e o processo civil com a expansão procedimental do art. 565 a outros procedimentos especiais e comum (fundíveis).Palavras-chaves: Possessórias coletivas. Diálogo institucional. Direito Civil contemporâneo AbstractThis article confronts the changes brought in art. 565, § 4º, of CPC / 2015, which alter, from a new political-ideological conception, the view that has long had of possessory and petitionary lawsuits. According to the new text, in collective litigation for ownership of property (when the expropriation occurred more than a year ago), public institutions that are not part of the process are called upon to express their interests in the process and in the possibility of resolving the conflict. This subjective expansion can be interpreted as: Institutional Dialogue, Structural Processes or Public Interest Litigation, since they affect collective or social interests and those initiatives that are the subject of public policies. The article opposes classic concepts of Private Law in general and Civil Law, now under new influences from Public Law or even from Civil Procedure Law of “public interest”, thus meaning another step towards the publicization of Contemporary Civil Law. The methodology used was the comparison between doctrinal concepts of Civil Law and those of Constitutional Law, capable, according to part of the doctrine, to originate a Contemporary Civil Law.Keywords: Collective possessory lawsuits. Institutional dialogue. Contemporary civil law

scholarly journals The Role of Public Interest Litigation in the Achievement of Sustainable Waste Management in Ethiopia

2018 ◽  
Vol 10 (12) ◽  
pp. 4735 ◽  
Author(s):  
Merhatbeb Gebregiorgs
Keyword(s):  
Waste Management ◽  
Public Interest ◽  
Command And Control ◽  
Civil Procedure ◽  
Environmental Tax ◽  
Sustainable Waste Management ◽  
Public Interest Litigation ◽  
Procedure Code ◽  
And Control

This research assessed the role of public interest litigation in the achievement of sustainable waste management in the Addis Ababa Administration (AAA) of Ethiopia. It employed a single country case-oriented comparative research design, and data triangulation was used to establish the validity of the findings. The research first shows Ethiopia’s commitment to sustainable waste management, implementing environmental tax and the command-and-control instruments of the polluter-pays principle and public interest litigation within the context of environmental justice. Secondly, it shows that public interest litigation is one of the innovative techniques in the struggle against waste mismanagement across all legal systems. Thirdly, it demonstrates the potential role of public interest litigation in Ethiopia in encouraging the federal and regional environmental protection and management organs to implement environmental tax and command-and-control instruments. Fourthly, it uncovers that public interest litigation is not fully compatible with the Civil Procedure Code of Ethiopia. Fifthly, it shows the failure of the judiciary system of Ethiopia to accommodate environmental courts and tribunals that flexibly and innovatively adopt public interest litigation. Sixthly, it reveals that, in Ethiopia, the scope of public interest standing is highly restrictive for Civil Society Organizations (CSO). Finally, it implies that the legal viability and administrative feasibility of environmental public interest litigation in Ethiopia is in its infancy, and its crystallization is partly contingent on the cautious review of the Civil Procedure Code and CSO laws and on greening the judiciary system.

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 Polish civil procedure: yesterday, today nad tomorrow-Some remarks about recent changes of procedural law in poland

2019 ◽  
Vol 3 (1) ◽  
pp. 139-146
Author(s):  
Piotr Rylski
Keyword(s):  
Public Interest ◽  
Civil Procedure ◽  
Electronic Process ◽  
Civil Case ◽  
Procedural Law ◽  
Judicial Proceedings ◽  
The Subject ◽  
Legislative Changes ◽  
Electronic Delivery ◽  
Modern Technologies

Polish civil procedural law is still the subject of numerous legislative changes. Only in recent years the Code of Civil Procedure has been amended over 30 times. These changes resulted from various reasons. Firstly, from the need of implementation of EU procedural law. Secondly, they were the result of the introduction of provisions aimed at adapting the code to modern technologies. Thirdly, changes aimed at speeding up the hearing of a civil case and at introducing some instruments to strengthen the protection of public interest in judicial proceedings. This article focuses on three selected examples and presents the discussion of the disputable issues that they have already arisen. Firstly, the topic of electronic process activities. It presents electronic pleadings, electronic delivery in trial, electronic judicial protocol and the possibility of presenting grounds of judgment in electronic form. Secondly, the new institution of a judgement rendered at closed session (in camera) was discussed. Thirdly, the article describes a new extraordinary complaint against final judgement, which can challenge any !nal judgment of a common court as a result of a prosecutor’s or other public-interest entity’s initiative.

scholarly journals Legal and historical overview of the protection of possession in Serbian law

2020 ◽  
Vol 92 (3) ◽  
pp. 430-457
Author(s):  
Biljana Gavrilović
Keyword(s):  
Criminal Justice ◽  
Justice System ◽  
Civil Law ◽  
Civil Procedure ◽  
Civil Code ◽  
The People ◽  
The Subject ◽  
The Many ◽  
Kingdom Of Yugoslavia ◽  
Civil Procedures

The subject of this analysis are the mechanisms of possession according to the Serbian Civil Code and the Code of Civil Procedure from 1929, during the period between 1844 and 1941. The development of the protection of possession during this period is mostly reflected in the fact that possession in the Principality of Serbia and the Kingdom of Serbia was protected, first of all, by means of criminal justice, while in the Kingdom of Yugoslavia, this role was played by civil law. Although possession and its protection in the Principality of Serbia and the Kingdom of Serbia were also regulated by civil-law norms, the people were still relying on the criminal justice system to get protection. Beside the many ambiguities in the Serbian Civil Code related to it, the protection of possession was not regulated separately from standard civil procedures in the Code of Civil Procedure from 1865. Thus, only when the Yugoslav Code of Civil Procedure went into effect did possession get proper, civil-law protection on the territory of Serbia.

scholarly journals REGARDING THE SUBJECT OF THE CONTRACT FOR THE SUPPLY OF MATERIAL RESOURCES TO MILITARY UNITS (LEGAL ENTITIES UNDER PUBLIC LAW)

2021 ◽  
pp. 195-198
Author(s):  
O. Pavlovskyi
Keyword(s):  
Public Relations ◽  
Public Procurement ◽  
Civil Law ◽  
Legal Regulation ◽  
Public Law ◽  
The State ◽  
Material Resources ◽  
The Subject ◽  
Military Units ◽  
Legal Entities

In accordance with Part 2 of Art. 17 of the Constitution of Ukraine, military units, first of all, are the bearers of power and act in public relations as subjects of realization of the goal set by the state in the form of repulse of possible aggression from outside, and therefore the main tasks, internal structure, subordination, reporting and control in this area is governed by constitutional and administrative law. However, in some cases, the military unit for the implementation of its tasks may act as an independent entity in civil law, and therefore, certain relations are governed not only by constitutional, administrative, economic, but also civil law. This paper will deal with contractual obligations. The supply contract is extremely important in providing Ukraine, its subjects and state entities with the necessary goods, performance of works, provision of services. In essence, the institute of contract law is a legal means of implementing state policy in the field of industrial production, construction, national defense, social assistance, science, culture, the implementation of basic social and production tasks. Currently, there is a trend aimed at increasing the budget funds used through public procurement. In this regard, an urgent problem is the effective legal regulation of public relations related to the supply of goods for public use. The regulatory framework governing these legal relations must be transparent, understandable to all participants in trade and procurement operations, operational on changes in socio-economic conditions in the country, have an anti-corruption orientation. The quality of goods purchased for the state also remains a long-standing problem. One of the topical issues for the science of civil law is the question of the subject of the contract, with which the Central Committee of Ukraine connects the conclusion of the contract, its validity and some other significant circumstances. According to case law, disputes arising from the contract are usually complicated by non-compliance by the parties with the provisions of the Civil Code of Ukraine on the subject of the contract. The article analyzes the subject of the contract for the supply of material resources to military units. Military units are considered by the author as legal entities of a subject of public law.

Constitutional Law, Administrative Law, and Human Rights

2021 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
Social History ◽  
Constitutional Law ◽  
Administrative Law ◽  
Public Law ◽  
The European Union ◽  
Historical Sources ◽  
The United Kingdom ◽  
Core Elements ◽  
The Subject

Constitutional Law, Administrative Law, and Human Rights provides an in-depth cross disciplinary introduction to the subject of public law, covering the core elements of a constitutional and administrative law syllabus. In addition, it explores the latest ongoing debates around potential constitutional reforms. The book draws heavily on historical sources and on ideas from political science and political theory as well as legal and social history. It also includes detailed coverage of the UK’s proposed departure from the European Union after the 2016 referendum and the subsequent Miller litigations, as well as the negotiations on the terms of departure. It looks at the polarised positions of ‘soft brexit’ and ‘hard brexit’ and examines what brexit might actually mean for the United Kingdom.

scholarly journals HUMAN RIGHTS, INEQUALITY AND PUBLIC INTEREST LITIGATION: A CASE STUDY ON SANITATION FROM BRAZIL

2018 ◽  
Vol 4 (5-6) ◽  
pp. 149-171
Author(s):  
Ana Paula Barcellos ◽  
Marcia Castro ◽  
Ricardo Moura
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Public Law ◽  
Regional Inequality ◽  
Public Interest Litigation ◽  
The Public ◽  
Sanitation Services ◽  
Disaggregated Data ◽  
Public Law Litigation

Disaggregated data on the relative success of the UN millennium goals made clear that the progress achieved in many countries, Brazil included, was not equitable, positioning the question “How to address inequalities?” as the next pressing challenge in human rights. Public law litigation could be regarded as a tool to reduce inequality, particularly in Brazil, given a unique institution of its legal system, the Public Prosecutors Office. This paper uses public interest litigation discussing access to sanitation services to test this hypothesis. In 2013, only 58.2% of the households had access to sanitation, with significant regional inequality in coverage. Boolean analysis was applied to assess court orders (2003-2013) and results showed a disconnect between litigation and demand for sanitation, indicating that areas that were better off in various social and economic indicators were the ones receiving attention. The paper suggests reflections on how public interest litigation could target those most in need.

scholarly journals The Features of the Content and Subject Composition of Settlement Agreements in Cases of Invalidity of Transactions

2020 ◽  
Vol 17 (3) ◽  
pp. 310-319
Author(s):  
Valeriya Goncharova
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Legal Regulation ◽  
Public Law ◽  
Civil Code ◽  
Point Of View ◽  
Relevant Category ◽  
Settlement Agreements ◽  
The Subject ◽  
The Russian Federation

Settlement agreements in civil and arbitration proceedings are one of the most convenient and effective ways to resolve disputes arising between participants in civil legal relations. At the same time, within the framework of some civil disputes, the content of settlement agreements has significant specificity, and sometimes – due to the peculiarities of the subject composition and the merits of the case – they cannot be applied at all for the purpose of reconciling the parties. An example of such disputes are cases related to the recognition of the transaction as invalid and the application of the consequences of the invalidity of the transaction, the legal regulation of which is unique. The economic reasons for the invalidity of transactions predetermine the peculiarities of the content of settlement agreements in the relevant category of cases, limiting it exclusively to the procedure for fulfilling restorative obligations and obligations to compensate for losses. This circumstance is due to the fact that, from the point of view of the dynamics of civil legal relations, an invalid transaction introduces uncertainty in the ownership of property and the distribution of rights and obligations of the participants in legal relations, which can be eliminated only by restoring the situation that existed before the conclusion and execution of the transaction with a defect. The current civil law regulation in this part (Article 4311 of the Civil Code of the Russian Federation), which allows the conclusion of analogues of amicable agreements in cases of invalidity of transactions involving other, in addition to restitution, the consequences of the invalidity of transactions, in this regard, cannot be recognized as satisfactory. Contestation of the transaction by “another person specified in the law” (Article 166 of the Civil Code of the Russian Federation), as well as in the interests of third parties by specially authorized entities (procedural plaintiffs), the possibility of participation in a completed and executed transaction of public law entities determine the raising of questions about the possibility of concluding amicable agreements by these entities. It is noted that these subjects, as follows from the analysis of domestic civil, civil procedural, administrative and family legislation, being interested in resolving the case on recognizing the transaction as invalid and on the application of the consequences of its invalidity, do not participate in its execution, and therefore cannot determine the procedure for the fulfillment of obligations arising from it.

scholarly journals “The Subject Matter of the Branch Gets its Actual Expression in the System:” Prof. Ekaterina I. Kozlova about the System of Constitutional Law and its Institutions

2020 ◽  
Vol 15 (3) ◽  
pp. 26-34
Author(s):  
K. A. Kononov
Keyword(s):  
Subject Matter ◽  
Constitutional Law ◽  
Public Law ◽  
State Law ◽  
Constitutional State ◽  
The Subject

The paper has analyzed the academic heritage of Prof. Ekaterina I. Kozlova in the part of her research of fundamental issues of the theory of constitutional (state) law, namely: the system of the branch under consideration and public law institutions. The author focuses on suggested by Prof. Ekaterina I. Kozlova innovative division of the system of the branch of constitutional law and the structure of the Constitution, the substantive approach to the construction of the institution of state law, consistent defense of the concept of unity of the system of constitutional (state) law. The author has determined the current significance of the conclusions made by Prof. Ekaterina E. Kozlova concerning the development of constitutional law institutions: complication of their structure, expansion and specialization of constitutional law norms and, as a consequence, the emergence of complex institutions and the problem of subsectors; an increase in the number of norms, i.e. principles and procedural rules in constitutional law.

scholarly journals Constitutional Law Basis of Parliamentary Law of Russia

Lex Russica ◽  
2019 ◽  
pp. 62-69
Author(s):  
A. S. Koshel
Keyword(s):  
Social Relations ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Public Law ◽  
Legal Doctrine ◽  
Legal Norms ◽  
Procedural Law ◽  
Constitutional State ◽  
The Subject ◽  
Independent Branch

The article deals with the constitutional and legal basis for determining the system of parliamentary law: The subject matter, methods, and sources. It is stated that legal norms characterized by common features, internal unity and different from the norms of other branches of law form an independent branch (a sub-branch of constitutional) law. For now, the institutions of parliamentary law are studied within the framework of the theory of state and law, constitutional (state) law, and, to some extent, administrative law, and parliamentary procedural law is distinguished. In this regard, the article notes that the development of democracy and parliamentarism, the increasing importance of Parliament in the implementation of the principle of separation of powers always compels the legal doctrine to separate parliamentary law. The author substantiates the conclusion that constitutional law, as the leading branch of public law, regulates social relations that are usually called basic (constitutional) — or fundamental — in each area of life, while parliamentary law has theoretical and legal prerequisites for being separated into an independent branch (sub-branch of constitutional) law without violating the organic unity of constitutional law. Thus, the author believes that at the present level of democracy development it is possible to state the presence of prerequisites for the formation of a new branch (sub — branch) of law — parliamentary law.

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