scholarly journals The Recognition of Punitive Damages in Italy: A commentary on Cass Sez Un 5 July 2017, 16601, AXO Sport, SpA v NOSA Inc

2018 ◽  
Vol 9 (1) ◽  
pp. 104-122 ◽  
Author(s):  
Angelo Venchiarutti
Keyword(s):  
Civil Liability ◽  
Case Law ◽  
Punitive Damages ◽  
Damage Compensation ◽  
Lower Courts ◽  
Legislative Framework ◽  
Injured Party ◽  
Equivalent Sources ◽  
The Right ◽  
First Time

AbstractFollowing the decision of the First Division of the Court of Cassation issued on May 16, 2016, the United Section of the Italian Court of Cassation delivered a very important ruling on 5 July 2017 deciding – for the very first time – in favour of the enforceability of US punitive damages in Italy.The decision of the Joint Divisions of the Court of Cassation was based on the following arguments: a) more than one provision of the Italian legislative framework already attributes to damage compensation a scope that goes far beyond the mere restoration of the prejudice suffered by the victim; b) recent case law on the matter excludes the incompatibility of the punitive scope of civil liability with the Italian legal system; and c) several doctrinal contributions have promoted the possibility of granting the injured party the right to obtain compensation, beyond the patrimonial loss suffered, assuming that civil liability may also have a deterrent effect.On these premises, the Plenary Session of the Italian Court of Cassation recognised that civil liability may serve different functions: it primarily grants compensation to the injured party, in line with the previous connotation of civil liability as restoration of patrimonial loss, but it may also ensure deterrence and sanction the wrongdoing of the tortfeasor.Given this comprehensive nature of civil liability, the decision stated that foreign decisions granting punitive damages are not against public policy in principle and, thus, can be enforced in Italy, but only under certain preconditions.A foreign ruling providing the payment of punitive damages may be executed in Italy only in the case where foreign legislative provisions, or equivalent sources, grant the competent judge the power to award punitive damages based on typical and predictable circumstances. Moreover, the amount of punitive damages due shall be limited.A decision of the Joint Divisions of the Italian Court of Cassation—which is entitled to provide an uniform interpretation of the law— represents a significant precedent, which lower courts and subsequent judgments are likely to follow, in terms of which courts will be required to recognise and enforce foreign decisions implying a compensation of punitive damages.

Prestaţia compensatorie în Codul civil român

2021 ◽  
Vol 2021 (2021) ◽  
pp. 164-179
Author(s):  
Flavius Antoniu BAIAS ◽  
◽  
Stela STOICESCU ◽  
Keyword(s):  
Case Law ◽  
Social Utility ◽  
Legal Institution ◽  
Legal Regime ◽  
Procedural Law ◽  
The Social ◽  
Legal Nature ◽  
Legislative Framework ◽  
The Right ◽  
Compensatory Payment

This study aims to describe the legal regime of the compensatory payment, with reference to the legislative framework, the sources of inspiration of the regulation, as well as to the current national case-law in this matter, which confirms, by the large number of cases solved after the entry into force of the Civil Code, the social utility of this legal institution. On the basis of the case law examples provided, the authors analyze the legal nature of the compensatory allowance by distinguishing it from similar institutions – the maintenance obligation between ex-spouses or the right to compensation – the conditions to be fulfilled when granting compensatory payment, the criteria used to impose, modify or terminate the obligation, and the substantive and procedural law difficulties of these disputes.

INTRODUCTORY NOTE

2020 ◽  
pp. 694-706
Author(s):  
Frans Viljoen
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Customary International Law ◽  
Human Rights Treaties ◽  
Introductory Note ◽  
The Status ◽  
The Right ◽  
First Time ◽  
Family Code

The African Court on Human and Peoples’ Rights is the newest of the three regional human rights courts. This brief analysis provides an overview of the most salient aspects of the Court’s 2018 case-law with respect to jurisdiction, provisional measures, admissibility, merits decisions, and reparations orders. Continuing its trajectory of increasing productivity, the Court in 2018 handed down the highest number of merits decisions in its brief history. As in previous years, most of these were fair-trial-related cases against Tanzania. The Court’s 2018 case-law contains a number of firsts. In Gombert v. Côte d’Ivoire, the Court for the first time ruled as inadmissible a case previously settled by an African subregional court, the Court of Justice of the Economic Community of West African States. In Anudo v. Tanzania, dealing with the right to nationality, the Court for the first time found a violation of the Universal Declaration of Human Rights, on the basis that the Declaration has attained the status of customary international law. In Makungu v. Tanzania, it for the first time ordered the applicant’s release as an appropriate remedy for serious fair trial violations. The Court’s most significant decision of 2018 is the Mali Marriage case, in which it held aspects of the 2011 Malian Family Code to be in violation not only of human rights treaties emanating from the African Union, but also the UN Convention on the Elimination of all forms of Discrimination Against Women.

scholarly journals Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

scholarly journals COMPENSATION OF DAMAGE AS A TOOL FOR APPLYING CIVIL LIABILITY FOR CORRUPTION OFFENSES IN THE SECURITY AND DEFENSE SECTOR

2020 ◽  
Vol 2020 (1) ◽  
pp. 74-82
Author(s):  
Kurylina О. V. ◽  
◽  
Zotova І. H. ◽  
Kalitnik M. S. ◽  
◽  
...  
Keyword(s):  
Criminal Liability ◽  
Civil Liability ◽  
Case Law ◽  
Functional Method ◽  
The State ◽  
Problem Analysis ◽  
Damage Compensation ◽  
Legal Method ◽  
General Scientific ◽  
Property Losses

The purpose of the article is to study the concept and legal nature of damages as a tool for civil liability for corruption offenses in the security and defense sector. The peculiarities of civil liability prosecution for violations of corruption in the security and defense sector are presented, the analysis is also carried out considering domestic anti-corruption legislation. In the process of problem analysis, the methods of scientific cognition were used as philosophical (general scientific) and special scientific one. Among the most important in the general scientific methods should be called dialectical and systemic ones. The use of the structural-functional method allowed to consider the types of obligations for damage compensation, to clarify their features and functional purpose. The comparative legal method is used in the analysis of a number of aspects of the problem. It is noted that today facing the growing threats of a military nature, acts of corruption cause significant damage, especially in the security and defense sector, and in such circumstances the state is responsible for protecting citizens who suffer property losses and need to protect their rights. Legislation on the prevention of corruption has changed significantly in recent years and there is a case law on the application of its provisions. According to the results of the analysis of the anti-corruption legislation of Ukraine, the authors pointed out the peculiarities of a civil servant prosecution, military official, other person performing public functions to civil liability for corruption offenses, which is resolved in court, as well as the damages compensation, moral compensation and other means of civil influence, as the most effective way to overcome the effects of corruption in the security and defense sector. It was found that in the case law on corruption acts the main consideration of cases and all court decisions were based on conclusions related to administrative or criminal liability for corruption offenses, and in civil cases, the provision on damage compensation caused by corruption and corruption offenses regarding the security and defense of the state, need further reformation. Key words: security and defense sector; civil liability; corruption offenses; offenses related to corruption in the security and defense sector; damage compensation; moral compensation.

scholarly journals Violations of Private Life

2022 ◽  
Author(s):  
Gabriela Nemţoi ◽  
Keyword(s):  
Case Law ◽  
Civil Code ◽  
Private Life ◽  
Human Being ◽  
Right To Life ◽  
Comparative Development ◽  
It Value ◽  
Legislative Framework ◽  
The Right ◽  
International Conventions

Private life it is essential is a right, along with other rights, shapes the human being, giving it value and identity. In this consensus, the legislator through the Romanian civil code sought to impose a series of deeds aimed at infringing on private life. Thus, the listed facts can be considered as violations of private life only subject to the presented of Civil Code (Romanian Civil Code, 2009). This means that the facts indicated in art. 74 of Civil Code they cannot be qualified under any circumstances as violations of private life, but only if they are not among the violations allowed by the international conventions and pacts ratified by Romania. More specifically, those acts do not attract civil liability (payment of compensation, etc.) if they have infringed the particular life allowed under the Convention and the jurisprudence of the ECHR. The private life must be protected and guaranteed by establishing and identifying actions that are prejudicial. The article is a study that in of regulations standards demonstrate violations of the right to life. Comparative development of ECHR case law pointed out that although there is a solid legislative framework, the right to life can be violated.

scholarly journals Access to the Highest Administrative Courts: between the Right of an Individual to Have a Case Heard and the Right of a Court to Hear Selected Cases

2020 ◽  
Vol 18 (1) ◽  
pp. 1-23
Author(s):  
Wojciech Piątek
Keyword(s):  
High Standard ◽  
Case Law ◽  
Reasonable Time ◽  
Constitutional Principle ◽  
Lower Courts ◽  
Administrative Courts ◽  
Court Proceedings ◽  
The One ◽  
The Right

Hearing a dispute by a court in a reasonable time is one of the crucial conditions for the existence of an effective judicial system as imposed by the European law and national legal orders. That requirement is contrary to the expectations of individuals to question the judgments of lower courts before the courts of the highest instance. The purpose of this article is to explore the question of values that should be taken into consideration by legislatures in a process of determining the access of administrative cases to the highest courts. The analysis is based on the example of Austrian and Polish legal systems. In both countries, there is a separate two-instance administrative judiciary. However, the conditions of the access to the Supreme Administrative Courts differ. In Poland, that access is unlimited, considering the constitutional principle of two-instance court proceedings. In Austria, the right in question is limited to cases deemed significant for broader interest, i.e. not only the one of the parties to the proceeding. An analysis of the normative consequences of each solution leads to the conclusion that procedural limitations concerning the access to the highest courts foster their role in preserving the uniformity of the case law and ensuring a high standard of its interpretation. A system with no limitations does not guarantee the determination of a concrete dispute in a reasonable time and thus cannot be considered effective.

scholarly journals Personalna subrogacija u odnosu prema pravu regresa osiguratelja i ustupanju tražbine – cesiji

2021 ◽  
Vol 11 (1) ◽  
pp. 79-90
Author(s):  
Jadranka Nižić-Peroš
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Civil Proceedings ◽  
Legal Position ◽  
The Subject ◽  
Injured Party ◽  
Court Proceedings ◽  
The Right ◽  
Court Expert ◽  
Insurance Compensation

The subject of this paper is a review of legislation and case law regarding personal subrogation, recourse obligation and recourse claim of the insurer for payment of insurance compensation as well as determining the amount of payment of recourse claim in civil proceedings before the court and assignment of the claim - cession. The paper starts from the point of view that the terms and institutes of subrogation, recourse and cession are very similar and that they are often identified, so we try to clearly distinguish what exactly the term refers to. In Croatian law, the right of subrogation of the insurer is most often understood as legal personal subrogation where by paying the insurance compensation the insurer assumes the legal position of its insured and consequently enabling the insurer to claim damages against the responsible person . In addition to the above, the paper also considers the statute of limitations for insurers’ recourse rights. Furthermore, the author starts from the point of view that in court proceedings initiated for recourse payment it is necessary for the court expert to clearly determine the parameters based on which the court will be able to assess in a certain percentage the possible contribution of the injured party to the damage towards the plaintiff, namely the insurer.

scholarly journals ODPOWIEDZIALNOŚĆ ‘AGRIMENSORES’ A ODPOWIEDZIALNOŚĆ GEODETÓW

2016 ◽  
Vol 14 (2) ◽  
pp. 123
Author(s):  
Bronisław Sitek
Keyword(s):  
Criminal Law ◽  
Civil Liability ◽  
Technical Skills ◽  
Roman Law ◽  
Material Damage ◽  
Individual Contribution ◽  
Full Compensation ◽  
Injured Party ◽  
The Right ◽  
Lack Of Knowledge

THE LIABILITY OF THE ‘AGRIMENSORES’ AND SURVEYORS’ LIABILITYSummaryThe agrimensores played an important role in the society of ancien Rome. They were highly respected for their technical skills and knowledge of mathematics. The grounds for the liability of the agrimensores were material damage caused intentionally by surveyor (dolus) and intent to deceive (fallere). An agrimensor was not liable for damage caused as a result of lack of knowledge or experience (imperitia). If several agrimensores onducted the surveying activities they were jointly liable (in solidum), regardless of their individual contribution to the damage. This type of liability could not be used when it was not possible to assign blame to one of the agrimensores. An agrimensor who had a slave to do the measuring held the liability and could not resort to noxal responsibility. Noxal responsibility could be applied if the shoddy work had been performed by a slave; in such cases the party suffering the damage could obtain dominion over the slave who had caused it or receive full compensation from the slave’s owner. The injured party could seek compensation on the grounds of a praetorian actio in factum. The injured party and his heirs had the right to submit a claim, which was subsidiary and therefore penal in nature, which meant it could not be brought against the heirs of the perpetrators. Actio in factum was used as an actio utilis and actio ad exemplum in other similar cases in surveying activities, such as when measuring wine or grain. Nowadays a surveyor’s liability is civil, criminal, administrative or disciplinary. The first two types are important when a specific injury or offence occurs. In such cases only a surveyor who carried out the surveying or cartographic activities on his own is liable. The study shows that, despite some similarities, there are differences between the liabilities of Roman agrimensores and of modern surveyors. Roman law used a system of praetorian civil liability which was penal in character, while today we have a stratified system of liability of up to four separate levels, where the injured party may use only one or submit a cumulative claim, seeking civil damages, and claiming punishment for the perpetrators under criminal law and/or disciplinary proceedings.

scholarly journals Juvenile Defendants’ Right to be Tried within a Reasonable Time in Cambodia: An International Human Rights Analysis

Youth Justice ◽  
2019 ◽  
Vol 19 (1) ◽  
pp. 42-62
Author(s):  
Aekje Teeuwen
Keyword(s):  
Human Rights ◽  
Juvenile Justice ◽  
Case Law ◽  
International Treaties ◽  
International Human Rights ◽  
Reasonable Time ◽  
Unique Position ◽  
Legislative Framework ◽  
International Human ◽  
The Right

A delay in proceedings pending trial has a significant impact on defendants, particularly juveniles. The majority of prominent human rights instruments and their governing bodies seek to address the right to be tried within a reasonable time. Nevertheless, the unique position of juvenile defendants in relation to this right is considered with substantial inconsistency. Cambodia has ratified several international treaties acknowledging this fundamental right and recently adopted the Juvenile Justice Law. Consequently, this article examines the extent to which the right for juvenile defendants to be tried within a reasonable time has been incorporated into the relevant international, as well as the Cambodian legislative framework, and case law.

18. Performance and breach

2018 ◽  
Author(s):  
Elizabeth Macdonald ◽  
Ruth Atkins ◽  
Jens Krebs
Keyword(s):  
Case Law ◽  
Breach Of Contract ◽  
Anticipatory Breach ◽  
Relevant Case ◽  
Injured Party ◽  
Anticipatory Breach Of Contract ◽  
The Right

This chapter covers the two contractual situations of performance and breach. First, it recognizes that most contracts are performed and completed, with the consequence that liability ceases and the obligations under the contract are discharged by performance. Some obligations may be classed as conditions precedent, or as conditions subsequent, and the order for performance may be provided for by contingent conditions. The relevance of the entire contracts rule is noted. Second, the chapter explores the injured party’s right to terminate for breach. The right to terminate for repudiatory breach and the right to terminate for anticipatory breach of contract, are both illustrated through the relevant case law which highlight the possible options available to an injured party and the consequences which may follow.

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