scholarly journals Problematic aspects of the appeal against the resolution by which a question of the acceptance of a statement of claim is resolved

2021 ◽  
pp. 146-161
Author(s):  
Roberta Biveinytė ◽  
Aušrinė Dambrauskaitė
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
The Republic

This article is dedicated to analyse problematic aspects of the appeal against the resolution by which a question of the acceptance of a statement of claim is resolved; the article also presents analysis of the Lithuanian case law from 2013 to 2020 on this matter and its compliance with the regulation enshrined in the Code of civil procedure of the Republic of Lithuania.

Tajemnica duszpasterska. Analiza na przykładzie rozwiązań odnoszących się do Kościoła Ewangelicko-Reformowanego w RP

2020 ◽  
Vol 29 ◽  
pp. 350-366
Author(s):  
Bernard Łukańko ◽  
Keyword(s):  
Common Law ◽  
Criminal Procedure ◽  
Case Law ◽  
Civil Procedure ◽  
Administrative Procedure ◽  
Reformed Church ◽  
The Republic ◽  
Seal Of Confession

The study presents and analyses solutions in common law relating to the protection of pastoral secrecy, and more precisely the secrecy of pastoral conversation in the Evangelical Reformed Church in the Republic of Poland, which stems from the Swiss branch of Reformation and which has a tradition of 450 years in Poland. The analysis covers the institution of pastoral secrecy as compared to the institution of the seal of confession which is clearly protected under the provision of the Code of Criminal Procedure, the Code of Civil Procedure, the Code of Administrative Procedure, the Tax Ordinance Act and the Supreme Audit Office Act. Furthermore, the study features a presentation of internal regulations of the Evangelical Reformed Church concerning pastoral secrecy and an analysis of the case law of Polish and German courts applicable to the protection of that type of secrecy.

IN NOVUM RESTRICTION IN LITHUANIAN CIVIL PROCEDURE LAW

2021 ◽  
Vol 11 (5) ◽  
pp. 260-275
Author(s):  
V. NEKROŠIUS
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Daily Work ◽  
Civil Proceedings ◽  
Long Time ◽  
The Law ◽  
The Republic ◽  
Grand Duchy Of Lithuania ◽  
The Right ◽  
Court Of First Instance

This article examines a relatively new institute of Lithuanian civil proceedings – legal restrictions on the late submission of evidence in both first instance and appellate courts. These restrictions were first established in the new Civil Procedure Code (CPC) which was adopted by Seimas of the Republic of Lithuania on 28 February 2002 (entered into force on 1 January 2003). Until then such restrictions in Lithuanian civil procedure law were not known from the time of famous Statutes of the Grand Duchy of Lithuania. Therefore, it seems natural that this innovation has paved the way for its real application in the courts for more than a decade. This article provides a consistent analysis of the case law (starting with the rulings of the Supreme Court of Lithuania in which the restrictions established in the law were practically denied, and up to the rulings of the last year, which already recognized the right of the courts in certain cases to refuse to accept evidence which was submitted too late). This article also reveals the aims of the CPC authors which were aimed at establishing the first instance court’s right to refuse to accept evidence which was submitted too late and system of limited appeal which establishes a general prohibition (with certain exceptions) to present evidence that was not examined in the court of first instance. One of the most important aims is the concentration of the proceedings, the prevention of abuse of procedural rights and the establishment of the first instance as the main judicial instance. The appeal procedure in the new CPC is already regarded not as a repetition or continuation of the proceedings at first instance, but as a review of the legality and validity of an existing, albeit unenforced, decision of the court of first instance. The author acknowledges that although it took a long time for the relevant provisions of the law to be actually applied in the case law, today their application is already noticeable in the daily work of courts. This leads to the conclusion that Lithuanian courts have adapted to the new CPC system and its philosophy.

scholarly journals The Admissibility of an Audio Recording in Lithuanian Civil Procedure and Arbitration

Teisė ◽  
2021 ◽  
Vol 120 ◽  
pp. 36-48
Author(s):  
Jurgis Bartkus
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Civil Procedure ◽  
Audio Recording ◽  
Legal Doctrine ◽  
Civil Proceedings ◽  
Audio Recordings ◽  
The Supreme Court ◽  
Per Se ◽  
The Republic

This article analyzes the issues related to the admissibility of audio recordings in Lithuanian civil proceedings and arbitration. The study critically evaluates the statutory law, case law and legal doctrine related to the admissibility of audio recordings. The study reveals that the case law of the Supreme Court of the Republic of Lithuania on the admissibility of audio recordings has to be improved on the application of the criteria of admissibility of audio recordings and on the protection of privacy. Meanwhile in Lithuanian arbitration law, it is suggested to waive the arbitration court’s discretion to decide on the possible approaches to the admissibility of an illegally made audio recording and to follow the view that an illegally made audio recording is per se inadmissible.

The Legal Status of Local Government in South Africa under the New Constitutional Dispensation

2018 ◽  
Vol 33 (2) ◽  
Author(s):  
Mbuzeni Mathenjwa
Keyword(s):  
South Africa ◽  
Local Government ◽  
Legal Status ◽  
Case Law ◽  
The Status ◽  
History Of ◽  
The Republic ◽  
First Time

The history of local government in South Africa dates back to a time during the formation of the Union of South Africa in 1910. With regard to the status of local government, the Union of South Africa Act placed local government under the jurisdiction of the provinces. The status of local government was not changed by the formation of the Republic of South Africa in 1961 because local government was placed under the further jurisdiction of the provinces. Local government was enshrined in the Constitution of the Republic of South Africa arguably for the first time in 1993. Under the interim Constitution local government was rendered autonomous and empowered to regulate its affairs. Local government was further enshrined in the final Constitution of 1996, which commenced on 4 February 1997. The Constitution refers to local government together with the national and provincial governments as spheres of government which are distinctive, interdependent and interrelated. This article discusses the autonomy of local government under the 1996 Constitution. This it does by analysing case law on the evolution of the status of local government. The discussion on the powers and functions of local government explains the scheme by which government powers are allocated, where the 1996 Constitution distributes powers to the different spheres of government. Finally, a conclusion is drawn on the legal status of local government within the new constitutional dispensation.

Legal Maxims: Summaries and Extracts from Selected Case Law

2018 ◽  
Author(s):  
Tarik Atmane ◽  
Simona Fanni ◽  
Adriana Fillol Mazo ◽  
Ana Cristina Gallego Hernández ◽  
Yolanda Gamarra ◽  
...  
Keyword(s):  
Case Law ◽  
Republic Of Moldova ◽  
The Republic ◽  
Grand Chamber

Case of Meier v. Switzerland, Application No. 10109/14, Third Section, Judgment, 9 February 2016Case of Mozer v. the Republic of Moldova and Russia, Application No. 11138/10, Grand Chamber, Judgment, 23 February 2016Case of Pajić v. Croatia, Application No. 68453/13, Second Section, Judgment, 23 February 2016...

scholarly journals L'inconstitutionnalité des pouvoirs du protonotaire spécial

2005 ◽  
Vol 22 (2) ◽  
pp. 429-454
Author(s):  
Serge Bouchard ◽  
Marie-Michèle Lavigne ◽  
Pascal Renauld
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
District Court ◽  
Privy Council ◽  
Labour Relations ◽  
Court Judge ◽  
Administration Of Justice

The office of special prothonotary was created in 1975 by an amendment to the Code of Civil Procedure. The main purpose of the change was to ease the administration of justice before the courts. For this reason, the special prothonotary received many assignments which were reserved until then to a judge sitting in chambers and even to the court itself. Such transfer of duties and powers may conflict with section 96 of the BNA Act, which acts as a bar to prevent the withdrawal of judicial functions from a superior, county or district court. This paper deals with the interferences between various sections of the Code of Civil Procedure and section 96 of the BNA Act. The first part of the paper deals with the approach adopted by the courts. The true test, according to the case-law, is to determine the nature of the function involved. Since only judicial functions are protected by section 96, it is intravires the Legislature of Quebec to confer on a board or tribunal administrative or ministerial powers. If the transfer involves judicial functions, the courts will use the test adopted by the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works and by Sir Lyman Duff in In re Adoption Act, and examine whether the transferee is analogous to a superior, district or county court. The courts will also have to apply the « 1867 statute books test » : was the particular function conferred to the prothonotary before 1867 ? If the results of each of the two tests are affirmative, then the function is one protected by section 96 of the BNA Act and its transfer is ultra vires the provincial Legislature. If the results are negative, the courts will examine if the provisions involved have the effect of vesting in the special prothonotary the powers of a superior court judge. If the courts conclude that it is so, then, the assignment is ultra vires the powers of the provincial Legislature. The second part deals with each of the assignments transferred to the special prothonotary. These are threefold in nature: 1. Actions by default to appear or by default to plead under article 195 C.C.P. ; 2. Jurisdiction under article 44.1(1) C.C.P. ; 3. Interlocutory or incidental proceedings, contested or not, but, if so, with the consent of the parties. The paper concludes that most of the provisions dealing with the duties and powers of the special prothonotary are unconstitutional

scholarly journals PROTECTION OF A FARM IN THE COURSE OF JUDICIAL ENFORCEMENT PROCEEDINGS BY A BAILIFF" ENFORCEMENT PROCEEDINGS - GENERAL ISSUES

2020 ◽  
pp. 120-128
Author(s):  
Адріан Яворський
Keyword(s):  
Civil Law ◽  
Civil Procedure ◽  
Climatic Conditions ◽  
Agricultural System ◽  
Agricultural Activity ◽  
Family Farm ◽  
Constitutional Protection ◽  
Lower Ranking ◽  
The Republic ◽  
Special Protection

In the Polish civil law, and in the civil procedure behind it, we are dealing with increased protection of farms, in particular farms run by individual farmers. Factors justifying this special protection of an agricultural holding are the variable economic situation on the agricultural market, conducting agricultural activity in specific conditions independent of the farmer (e.g. type of soils, climatic conditions), as well as the most important, constitutional protection of individual agricultural holdings. The basis of the agricultural system of the state is a family farm (Article 22 of the Constitution of the Republic of Poland), the legislator must adjust lower-ranking provisions to this constitutional primacy, hence the above restrictions have been introduced to the code of civil procedure. Key words: court, enforcement bodies, Enforcement of a farm by a bailiff, civil procedure.

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

scholarly journals Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Basic Method ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Basic Characteristics ◽  
The Right

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.

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