scholarly journals On the implementation of the principles and features of the appointment of judicial examination in civil judicial proceedings

2021 ◽  
pp. 33-38
Author(s):  
Larysa Bielik ◽  
Antonina Cheremnova
Keyword(s):  
Court Order ◽  
Forensic Examination ◽  
Civil Proceedings ◽  
The Supreme Court ◽  
Expert’S Opinion ◽  
Judicial Proceedings ◽  
Special Knowledge ◽  
Characteristic Features ◽  
The Right ◽  
The Relationship

The article is devoted to the aspects of the implementation of the principles and the specifics of the appointment of forensic examination in civil proceedings. The system of normative legal acts on forensic examination in civil proceedings has been investigated. The relationship between the concepts of "expertise" and "forensic examination" have been determined and analyzed. The characteristic features of forensic examination have been studied: first, forensic examination is determined by a specific procedural form; secondly, it can be carried out on the basis of a court order; thirdly, forensic examination is carried out by a forensic expert; fourthly, a correctly drawn up expert opinion is a means of proof in civil proceedings; fifth, the results of the forensic examination are used by the court. Highlighted and analyzed are the principles of forensic examination in civil proceedings, provided for by Art. 3 of the Law of Ukraine "On Forensic Expertise", namely the legality, independence, objectivity and completeness of the study. Separately, the set of conditions for which, in accordance with Art. 103 of the Civil Procedure Code of Ukraine, the court appoints an examination of the case: firstly, to establish the circumstances that may be significant for the case, for the sake of which special knowledge is required in a field other than law, without which it is impossible to establish the relevant circumstances; secondly, in the case when the parties or the party did not present the expert's opinion on a specific issue or the expert's opinion raises doubts about its correctness. A list of specific actions that the court at the stage of deciding on the appointment of a forensic examination has the right to implement in accordance with the Resolution of the Plenum of the Supreme Court of Ukraine dated May 30, 1997 No. 8 "On forensic examination in criminal and civil cases" is provided. The aspects of the appointment and conduct of forensic examination in civil proceedings are analyzed. The facts are highlighted that should be taken into account when deciding on the advisability of appointing an examination in a civil case

scholarly journals Forensic Examination as a Condition for the Realization of the Right to a Fair Trial of a Civil Case

2020 ◽  
Vol 6 (3) ◽  
pp. 324-331
Author(s):  
M. Kochetkova ◽  
K. Shumova
Keyword(s):  
Fair Trial ◽  
Civil Case ◽  
Forensic Examination ◽  
Civil Proceedings ◽  
Special Knowledge ◽  
Civil Cases ◽  
The Right

This article is devoted to forensic examination as a condition for the realization of the right to a fair trial of a civil case in the context of changing legal reality. The study of forensic examination as a form of using special knowledge in civil proceedings is relevant and promising. The article discusses the conditions and guarantees of the right to a fair trial, sets out the theoretical problems of forensic examination, the procedural procedure for the appointment and conduct of forensic examination in civil proceedings, features of the appointment of forensic examination for certain categories of civil cases.

Experts and expert reviews on the pages of literary works

2021 ◽  
Author(s):  
Elena Chubina
Keyword(s):  
Federal State ◽  
Law Schools ◽  
Legal Proceedings ◽  
Educational Standard ◽  
Forensic Examination ◽  
Training Plan ◽  
History Of ◽  
Judicial Proceedings ◽  
Special Knowledge ◽  
State Educational

The textbook presents a system of case tasks, the purpose of which is to form a circle of necessary knowledge among students about the nature of expert activity, about the history of the use of special knowledge in legal proceedings, about the variety of existing types of forensic examinations, about the possibilities of using the results of forensic expert activity in law enforcement practice. The tasks are compiled in accordance with the requirements of the Federal State Educational Standard for Higher Education (3++) in the specialty 40.05.03 "Forensic Examination". The presented cases can be used in practical classes in the disciplines "Theory of forensic examination" and "Participation of a specialist in procedural actions". The textbook will also be useful as part of the course "Expertise in judicial proceedings", which is included in the training plan 40.03.01 "Jurisprudence" (bachelor's level), specialty 40.05.01 "Legal support of national security" (specialty level), specialty 40.05.04 "Judicial and prosecutorial activities" (specialty level). For students, postgraduates and teachers of law schools.

scholarly journals The prerequisites for changing the mechanism of implementation of adversarial principle as the backbone of justice in the information and communication society

2021 ◽  
pp. 51-59
Author(s):  
Anastasiya Ivanovna Tomak
Keyword(s):  
Social Relations ◽  
Information Society ◽  
Information Technologies ◽  
Legal Enforcement ◽  
New Information ◽  
Global Trend ◽  
Civil Proceedings ◽  
Information And Communication ◽  
Judicial Proceedings ◽  
The Right

The advancement of informatization leads to the information society, which is a global trend of information civilization. Present time marks the new information stage of social development, which should be defined as information society, where information and knowledge are the key object of labor of the majority of population, and information technologies are a direct instrument of labor. In this regard, civil proceedings, which is founded on the adversarial principle, also takes the vector towards the information component. The adversarial principle, is in turn is influenced by objective factors (social relations) and subjective factors  (attitude towards the right of subjects), which is the basis for changing the mechanism of its implementation. This directly affect the conduct of judicial proceedings and legal enforcement of adversarial principle. The author determines the key trends in adaptation of the means of implementation of adversarial principle in civil proceedings in the conditions of the use of information technologies. The author suggest dividing the means of implementation of adversarial principle into two groups: for creating an environment of trust and communication interaction between the participants and the court. Based on this, the article analyzes the possible impact of information technologies upon the adversarial principle in civil proceedings, as well as the mechanism of its implementation. The conclusion is made that the adversarial principle in civil proceedings can fall under influence of information technologies, since its essence is formed from objective and subjective factors; while the means of its implementation, which comprise the legal measures of its mechanism through adaptation of information technologies in justice, are susceptible to change.

Arms

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Academic Freedom ◽  
Free Speech ◽  
The Other ◽  
Second Amendment ◽  
The Supreme Court ◽  
The Right ◽  
Free Speech Rights ◽  
University Classrooms ◽  
The Relationship ◽  
Speech Clause

Chapter 7 addresses the relationship between the Free Speech Clause and the Second Amendment’s right to “keep and bear Arms.” Relative to the other non-speech rights examined in the book, recognition of an individual right to keep and bear arms occurred relatively recently (the Supreme Court recognized the right in 2008). As a result, the relationship between free speech and Second Amendment rights is still developing. The chapter focuses primarily on two aspects of their intersection. The first is the extent to which the nature and scope of Second Amendment rights ought to be modeled on Free Speech Clause doctrines and principles. The chapter considers the pros and (mostly) cons of “borrowing” the Free Speech Clause for this purpose. The second aspect of the relationship between the Free Speech Clause and the Second Amendment relates to potential conflicts between them. The chapter addresses two tension points—the effect on free speech of openly carrying firearms at public protests and demonstrations, and the effect on academic freedom and inquiry from the presence of firearms in university classrooms. The chapter argues that the future of the Second Amendment will not be determined by explicit borrowing of Free Speech Clause doctrines. However, in terms of constructing the modern right to keep and bear arms, there is much we can learn from the nation’s long experience with free speech rights.

The Nation and Its Queers

Out of Time ◽  
2020 ◽  
pp. 174-212
Author(s):  
Rahul Rao
Keyword(s):  
Great Power ◽  
Gender Transition ◽  
Indian Politics ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Colonial Archive ◽  
Gender Trouble ◽  
The Right ◽  
Caste Groups ◽  
The Relationship

In 2014, the Supreme Court of India endorsed the demand of trans petitioners for recognition as a ‘backward’ class, entitling them to constitutional guarantees of affirmative action. The equation of transness with backwardness seems to reiterate the ascription of primitiveness to the queer in the colonial archive. In Indian politics, backwardness has different connotations arising out of the struggles of subordinate caste groups. This chapter explores the perils and potentials of the trans claim to backwardness, asking what an appeal to Dalit leader Ambedkar’s politics of futurity means for trans politics. On a parallel register, the chapter explores the relationship between gender identity and backwardness in the imagination of the nation itself, demonstrating how an elite drive for great power status is articulated through the idiom of gender transition. Finally, the chapter reflects on the potentials of gender trouble on both the right and left of the Indian ideological spectrum.

scholarly journals Legal Principles for the Use of Special Knowledge while Investigating Murders

2020 ◽  
Vol 76 (1) ◽  
pp. 107-111
Author(s):  
A. H. Vuima
Keyword(s):  
Practical Significance ◽  
Criminal Proceedings ◽  
Legal Principles ◽  
Forensic Examination ◽  
Basic Law ◽  
Procedural Code ◽  
Special Knowledge ◽  
The Law ◽  
First Time ◽  
The Relationship

Based on the analysis of the Constitution of Ukraine and the Criminal Procedural Code of Ukraine, the author has established the relationship between the general principles of criminal proceedings and some provisions of the Basic Law of Ukraine. According to the results of the analysis of the provisions of criminal procedural legislation and regulatory acts regulating the activities of experts in case of their involvement in criminal proceedings, it has been determined that the Criminal Procedural Code of Ukraine does not contain an exhaustive list of principles of applying special knowledge of experts, however some of them are defined as the principles of forensic activities in the Law of Ukraine “On Forensic Examination”. For the first time, the author has determined the very general principles of criminal proceedings define the activity of experts in criminal proceedings. The author has singled out two components in the studied category: legal and organizational ones. The author has determined what should be understood as the legal principles for the use of special knowledge of experts while investigating murders, as well as their list. It has been established that the concept of organizational principles includes procedural features of involving experts. The author has provided a brief description of the principles of forensic activity, defined in the Law of Ukraine “On Forensic Examination”. The author has suggested provisions that should supplement this Law. Besides, the author has provided examples on how the implementation of the principles established by the legislator is ensured. It has been established that the purpose of involving an expert in criminal proceedings is to clarify the circumstances relevant to criminal proceedings, for the solution of which special knowledge is required. The author has substantiated the provisions, according to which the involvement of an expert in criminal proceedings requires the existence of two grounds: legal and factual, the content of which is revealed in the provisions of the article. The formulated conclusions are theoretical categories that determine the direction and content of the activities of experts and law enforcement officers in case of the application of special knowledge in criminal proceedings, in particular during the investigation of murders. The practical significance of the obtained results is to ensure a prompt, complete and impartial investigation and is one of the guarantees of the tasks of criminal proceedings.

scholarly journals Forensic examination as a source of evidence in a separate proceedings

2020 ◽  
Vol 3 (3) ◽  
pp. 200-207
Author(s):  
Iryna Popovych
Keyword(s):  
Legal Status ◽  
Molecular Genetic ◽  
Active Role ◽  
Judicial Practice ◽  
Forensic Examination ◽  
Civil Proceedings ◽  
Expert’S Opinion ◽  
Genetic Examination ◽  
Evidence And Proof ◽  
Tools And Techniques

Modern judicial practice indicates how important, in the quality of cases, is forensic examination, which with its special methods, tools and techniques contributes to the solution of judicial problems. An expert opinion plays a significant role in the process of proving in separate proceedings, when the question of the obligatory application of special knowledge arises. The article deals with study of forensic science as a source of evidence in a particular proceeding, as well as highlighting the clear difference between individual and other types of proceedings in civil proceedings, forming an opinion on the active role of the court in resolving cases in a particular proceeding. on the problem of interpretation by courts of norms of the national legislation at application of such means of proof as the expert’s conclusion. Analysis of scholars’ opinions, national case law, ECtHR documents, current legislation and regu-lations governing the appointment of forensic examination, shows that, in addition to the general rules of the institution of evidence and proof, in cases of separate proceedings, the court may take into account all by law means of proof. The expert's opinion is admissible, sufficient, reliable and categorical evidence in cases concerning changes in the legal status of individuals; establishing facts that are legally significant for the realization of rights and interests in family and other legal relations (for example, establishing the zygote of twins as a result of merging male and female gametes, establishing kinship (kinship) through molecular genetic examination).

scholarly journals Comparison of Subrogation With Cession and Regression

Law and World ◽  
2021 ◽  
Vol 7 (4) ◽  
pp. 6-29
Keyword(s):  
Supreme Court ◽  
Practical Significance ◽  
Insurance Law ◽  
Distinctive Features ◽  
The Supreme Court ◽  
The Difference ◽  
The Right ◽  
The Given ◽  
The Relationship ◽  
Legal Consequences

The purpose of this article is to present one of the most problematic issues in the Civil Code of Georgia, which is manifested in the confusion of the institution of subrogation in insurance law with such institutions as cession and the condition of regression. They are close in content to each other, and this fact makes it difficult to see differences between them. Seeing the difference in content between them has not only theoretical but also practical significance, as each institution is characterized by a different legal outcome, and in each specific case the proper qualification of the relationship is crucial. One of the most practical different legal consequences of the given institutions is revealed in the different terms of the statute of limitations. For example, until 2012, it was unknown to the Georgian court that the statute of limitation of a subrogation starts from the period when the insurer has the right to claim damages against the insurance underwriter. Before then, it was an unknown fact that, different from regression, only legal relationship is established with one obligation in subrogation. In this article, we have discussed the distinctive features of subrogation, cession, and the condition of regression, and the accompanying legal consequences. We have discussed the decisions of the Supreme Court of Georgia, which discuss the differences in the content and results of the above-mentioned institutions. As a result, it was revealed that the practice of the Civil Court of Georgia before 2012 was unknown about the institution of subrogation, which is a really significant problem. It can be said that a uniform practice of the Supreme Court has been established at the Subrogation Institute and the problems that existed before have been solved.

PASSIVE PROCEDURAL POSITION AND THE PROBLEM OF DISHONESTY OF THE PARTIES IN CIVIL PROCEEDINGS

2020 ◽  
Vol 6 (4) ◽  
pp. 172-191
Author(s):  
Nadezhda V. SUKHOVA ◽  
Faniya F. Chamaletdinova
Keyword(s):  
Good Faith ◽  
Scientific Development ◽  
Legal Proceedings ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Judicial Proceedings ◽  
Methodological Assessment ◽  
The Right ◽  
Abuse Of Law

This article examines the approach of legal science and law enforcement to the issue of abuse of rights. The authors emphasize that the reform of procedural legislation in the first two decades of the 21st century corresponds to the tendencies of internationalization of the civil process, within the framework of which the principle of accessibility of justice in its true understanding as a legal value is concretized. In this sense, the authors state that the abuse of the right to sue is one of the most important problems of civil procedural law, requiring a solution in order to increase the fairness and efficiency of national legal proceedings. The analysis of a passive procedural position is carried out in the path of abuse of law. The authors acknowledge that, in connection with the COVID-19 pandemic, the need to severely punish dishonesty of the parties in court in order to promote good faith in civil proceedings is a response to the established jurisprudence. In addition, this article draws attention to the fact that the most important problems today are related to the improvement of mechanisms for encouraging the execution of procedural laws and rules of civil proceedings, and not just the system of punishment for dishonest behavior. This formulation of the practical problem determines the research methodology. According to the authors, the solution of serious problems associated with the dishonesty of the parties should be based not only on a theoretical (and monistic) approach, but on a pluralistic and communicative approach. And in this sense, this study is new. This article concludes that the failure of the procedural theory in the study of the phenomenon of abuse of rights and the explanation of conscientiousness in the civil proceedings is a fact of scientific development, subject to methodological research — a methodological assessment of this fact; the question arises about the essence of the phenomenon; special purposes of civil procedure — the directions of development of procedural law inevitably give rise to their own legal interpretations, in particular, this is observed in the case of assessing the good faith in the judicial proceedings for purposes of other branches of law.

Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives

2011 ◽  
Vol 44 (1-2) ◽  
pp. 63-89 ◽  
Author(s):  
Miriam Gur-Arye ◽  
Thomas Weigend
Keyword(s):  
Human Dignity ◽  
Constitutional Law ◽  
Case Law ◽  
Special Treatment ◽  
Constitutional Review ◽  
Basic Law ◽  
The Supreme Court ◽  
Intermediate Solution ◽  
The Right ◽  
The Relationship

Criminal laws must conform to each state's constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys “absolute” protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel, by contrast, human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any “special treatment” by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted “absolute” protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.

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