scholarly journals Certain Issues Concerning the Romanian Regulation of the Good Faith Principle in Civil and Civil Procedural Matters

2016 ◽  
Vol 18 (32) ◽  
pp. 28-38
Author(s):  
Daniela Cristina Creţ

Abstract One way for individuals and legal entities to pursue legitimate rights and/or interests is the judicial path. The civil proceedings as a form of settling civil litigations is governed by different principles. Among these stands out the principle of good faith, which involved the exercise in good faith of rights in both civil and procedural matters, the exercise in good faith of procedural rights, a principle which has gained new meanings after the entry into force of the new Code of Civil Procedure, as well as the new Civil Code.

2021 ◽  
Vol 1 ◽  
pp. 25-29
Author(s):  
Nikolay D. Gribov ◽  

The purpose of this article is to highlight the specific procedural obligations of the parties in the civil proceedings. Based on the results of the study, the author identifies the following obligations: use procedural rights in good faith, show respect for the court or other persons involved in the case, inform the court about the change of name, address during the proceedings, disclose evidence, prove the circumstances, to which the person participating in the case refers, provide the required evidence, perform all procedural actions on time, submit procedural documents that meet the requirements of the procedural codes for form and content, notify the court of the reasons for failure to appear at the court session and provide evidence of valid reasons.


2020 ◽  
pp. 117-127
Author(s):  
Oleksandra KOROL

In this article, a comparative legal and empirical study of the principle of good faith in law and the prevention of abuse of procedural rights as one of its element are conducted. These phenomena should be recognized as relevant objects for research, given that in civil procedural Ukraine specific measures were taken to prevent abuse of procedural rights for the first time, during the reform of the legislation in 2017, and unfortunately such actions occur as a habits of legal reality of Ukraine. in court practice quite often. Given the need to ensure effective protection of rights through timely and proportionate consideration of the case by the courts, their proper application is essential for science and practice. The article analyzes the provisions of the civil procedural law of Ukraine, where for the first time this institute was reflected in the legislation in the wording of 2017, as well as other states (Italy, England and Wales, France, Australia). It also analyzed the practice of the Supreme Court of Ukraine, which reveals the concept of bona fide as a principle of law, as well as examines the institute of abuse of procedural rights as one of the manifestations of implementation of this principle, specific manifestations of unfair behavior of participants of the process, taking into account the practice of the European Court of Human Rights. The analyzed provisions of the civil procedural legislation, which stipulates the ways of overcoming the abuse of procedural rights, as well as the doctrines, allowed the conclusions to substantiate more rational approaches to the prevention of abuse of procedural rights in civil proceedings. In particular, ensuring the cooperation of judges and parties and defining their roles not from the standpoint of antagonistic approaches, but based on the ideas of sustainable development, will overcome the major pressing problems of modern civil justice. The introduction of rational measures to prevent abuse of procedural rights and to encourage parties to act in good faith will ensure the efficiency and accessibility of justice. Keywords: civil justice, principle of good faith, the principle of court cooperation with the parties, abuse of procedural rights, reconciliation of the parties.


2021 ◽  
Vol 10 (6) ◽  
pp. 193-223
Author(s):  
V.O. PUCHKOV

The article examines the issue of the procedural status of various aliens (individuals and legal entities, international organizations and states) in the international civil procedure of Russia and the United States of America. The author comes to conclusion that the determination of the composition of the parties of international commercial dispute (as well as the qualification of their claims and forms of legal protection) should be determined on the basis of lex (processualis) causae, reflecting the essence of the substantive disputed relationship and the peculiarities of its qualifications from the point of view of national law. The study analyzes the features of the procedural position of specific categories of actors (individuals and legal entities, international organizations and states), as well as persons facilitating justice in international commercial disputes. The article states that the limits of foreign procedural law application to the procedural status of an alien in Russian civil proceedings is mediated by his connection with the essence of the substantive disputed relationship. Depending on the nature of such a connection, the author proposes to divide aliens as actors of international civil procedure into two groups: persons directly related to the disputed legal relationship and, therefore, subordinate lex processualis personalis (parties, third parties and their representatives) and persons, communication which with a controversial legal relationship is of an indirect nature and the procedural status of which is therefore regulated by lex fori (witnesses, experts, specialists and translators). Also, the study pays attention to the problems of jurisdictional immunity of a foreign state and conflict aspects of fraudulent joinder.


2019 ◽  
Vol 2 (3) ◽  
pp. 53-85

The article discusses the abuse of procedural rights in Polish and European civil procedure law and the notion of private and public interest. The issue of abuse of procedural rights is a category of applying the law. At the current stage of development there is no simple transposition of the issue of legal interest on the institution of abuse of procedural right; undeniably, the lack of current and real interest, with the assumption of fulfillment of other prerequisites, may be contemplated in categories of abuse of right by the court under ius dicere. In the Polish law it is not sufficient to analyse this phenomenon solely in the sphere of procedural locus standi and there shall be the interest in taking a specific step. There also shall be the awareness of the party taking the step as to its inadmissibility and intention to harm the other party, as e.g. in case of fictitious actions. In the European area it is additionally necessary to create methodology and general approach to abuse of right in European civil proceedings and finding compromising approach towards understanding of the notion of the interest in Roman and Germanic law systems. Because application and development of the law due to lack of procedural fairness and good faith is rather difficult to verify and to define, the advantage of adopting admissibility of a separate international institution of abuse of procedural right would lie in the possibility of applying a universal approach towards abuse of procedural right in all member states. Thiswould mean that each court of the member state would apply the same standard of the test. Finally, the alternative use of exclusively national concepts of abuse of procedural right cannot be continued. It can be assumed that confirmation of the existence of the abuse of European procedural right in a given case would require existence of objective and subjective factors.


Author(s):  
Anna V. Ivkova ◽  
Yelizaveta S. Krotova

The "estoppel" concept and the issues of applying the "estoppel" rule in international law and Russian civil law are considered in this paper. Procedural legislation novels stipulated in the Concept of the Unified Civil Procedure Code of the Russian Federation, approved by the Committee on Civil, Criminal, Arbitration and Procedural Legislation of the State Duma of the Federal Assembly of the Russian Federation on December 8, 2014, are noted here. The authors propose amendments to the civil procedural legislation, which will allow to apply the "estoppel" rule in civil proceedings. Particularly the authors propose to supplement Article 12 of the Civil Procedure Code of the Russian Federation with part 3, including in it the obligation of the party to act in good faith in the exercise and protection of their rights and obligations. The authors indicate what exactly should be understood as unfair behaviour in this context.


Author(s):  
О. Korol

This paper studies the principles of good faith and the cooperation between judges and parties, which are considered as highly relevant in current civil procedural law. According to many scholars, a new approach to defining their roles allows to overcome the basic urgent problems of modern civil justice – duration, high costs and, to some extent, the complexity of the trial. At the same time, its implementation leads to a positive impact on ensuring the efficiency and access to justice, which are integral parts of the rule of law. The evolution of the idea of directing litigation to peaceful compromise of parties and settling their dispute, has become of tremendous importance since the middle of the last century and today is considered as one of the inherent features of modern litigation. The idea ofgood faith in participating in the process was much developed in the first codes of civil procedure in Europe, in particular, in Austrian Code of Civil Procedure of 1898 and in French Code of Civil Procedure of 1806. The national legal doctrine contains the reflection of F. Klein's research, in particular the loyal cooperation between a judge's and parties' ideas. Later the national legislation of most European states applied the abovementioned during the reforms. Within the ELI-Unidroit Project of European Rules of Civil Procedure the Working Group on Procedural Rights used the idea of court and parties cooperation as the main ground and proposed to joint responsibility introduce with the aim of fair and just trial and avoiding of the traditional problems of two procedure models (A. Uzelac). The provisions of civil procedural law of many states, in particular of Ukraine, have more fully realized the idea of inadmissibility of abusing the procedural rights, which are justly regarded as an element of the principle of cooperation of the court and the parties in civil proceedings.


Author(s):  
Barbara Cis ◽  

The possibility of private recording of the course of court hearings and other judicial acts performed with the participation of the parties or participants in proceedings despite its seemingly technical dimension is an important element of the openness of civil proceedings in its internal aspect and significantly implements the right to a fair trial guaranteed not only by the Polish Constitution but also by acts of international law. By the Act of 4 July 2019 amending the Act – Code of Civil Procedure and certain other acts (Journal of Laws of 2019, Item 1469, as amended), the legislator repealed the article 162 1 of the Code of Civil Procedure which had been added to the Code of Civil Procedure by the Act of 10 July 2015 amending the acts – Civil Code, Code of Civil Procedure and certain other acts (Dz.U. 2015, Item 1311, as amended). The abovementioned regulation has been replaced by the added regulation of article 9 1 of the Code of Civil Procedure. In the concept of the legislator, this amendment was to extend the possibility of recording the court hearings in order to meet public expectations regarding the transparency of the operation of the judicial system. However, the admissibility of the private recording of the course of the court hearing and other judicial acts still is the subject of relevant limitations in the form of the absolute exclusion of the possibility for the parties to record the hearings held in camera or to record the image. The considerations are aimed at presenting the amended regulations and attempting to assess its significance and impact on the implementation of the principle of transparency in civil proceedings in its internal sense.


2020 ◽  
Vol 9 (26) ◽  
pp. 28-35
Author(s):  
Roksolana Khanyk-Pospolitak ◽  
Inna Kovalchuk ◽  
Igor Bylytsia

The article is dedicated to investigation of counter-security as a novelty of the reform of Ukrainian civil procedure legislation. The analysis of rules of the current procedural legislation on counter-security as a novelty of the civil process in Ukraine was made in the article. The determination of features of the institute of counter-security in the mechanism of civil proceedings was given. The role of counter-security in the civil process was identified. The conclusion was drawn that through the institute of counter-security, the principle of equality of parties is ensured, which is manifested in the equal assignment of the defendant to such procedural rights which are effectively identical to the rights of the plaintiff. Therefore, the defendant was granted effective protection against the claim by virtue of the new institute. It is stated that the counter-security should be seen as a way of preventing the plaintiff's abuse of procedural rights and offsetting the potential consequences. The introduction of counter-security is a clear step forward to European standards of quality and efficiency in the administration of justice, however, by examining civil procedural law and jurisprudence, the conclusion was made that the institution is not regulated at this stage of its establishment and application.


Sign in / Sign up

Export Citation Format

Share Document