scholarly journals INSTITUTE OF EXCLUSION FROM EVIDENCE AT THE STAGE OF PRE-TRIAL INVESTIGATION: CURRENT PROBLEMS AND WAYS TO SOLVE THEM

2021 ◽  
pp. 48-53
Author(s):  
S. Prylutskyi
Keyword(s):  
Self Control ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Legal Structure ◽  
Legal Nature ◽  
The Subject ◽  
The Right ◽  
Legal Mechanism ◽  
Illegal Evidence ◽  
Factual Data

The study focuses on both theoretical and applied aspects of evidentiary law. The subject of this study is the legal institution of admissibility of evidence in criminal proceedings, as well as the legal mechanism for declaring evidence inadmissible. The author relies on the constitutional postulate (Part 3 of Article 62 of the Constitution of Ukraine) according to which the accusation cannot be based on evidence obtained illegally, as well as on assumptions. Based on this constitutional imperative, it is stated that the prosecution has no right to form charges and go to court if the accusation is based on illegal evidence or subjective assumptions, and emphasizes that the subject who forms the prosecution must operate on legal evidence. Thus, a legal contradiction is revealed between the provisions of the Constitution of Ukraine and Part 2 of Article 23 of the CPC of Ukraine regarding the legal nature of evidence in the pre-trial investigation. Given that according to the domestic legal structure, factual data must be recognized as evidence at the stage of pre-trial investigation, there is a legal need to guarantee the right of a person to a fair trial, the introduction of a clear mechanism for verifying factual data for admissibility at the stage of pre-trial investigation. The author argues that such a mechanism should provide effective tools for self-control and neutralization of illegal sources of factual data by both the prosecuting authorities and the court, during the implementation of judicial control over pre-trial investigation in making key decisions to restrict guaranteed rights and freedoms. Keywords: evidence, accusation, suspicion, admissibility of evidence, exclusion from evidence.

scholarly journals MAKING A NOTARY'S WRIT OF EXECUTION ON LENDING: CURRENT PROBLEMS

2021 ◽  
pp. 16-20
Author(s):  
N. Horban ◽  
Keyword(s):  
Civil Rights ◽  
Comprehensive Analysis ◽  
Self Control ◽  
Legal Structure ◽  
Consumer Lending ◽  
The Right ◽  
Online Lending ◽  
To Receive ◽  
Factual Data ◽  
External Form

The paper provides a comprehensive analysis of the notary's writ of execution as a way of protecting civil rights by a notary and as an executive document. It is determined that the procedure for making a notary's writ of execution on online lending, microcredit, and consumer lending agreements is not perfect. The notary, the executor, and other participants in the relevant notarial and enforcement proceedings perform in the specified proceedings different acts in their external form and direction creating consequences only for the lender and the borrower. Emphasis is placed on the fact that the notary, before making a writ of execution, must establish the affiliation, admissibility, and authenticity of all evidence on the basis of which s/he establishes the indisputability of the debt presence and the existence of all grounds for the writ of execution. It has been suggested that it is necessary to provide for the notary's liability for making a writ of execution, which will later be recognized by the court as unenforceable. Upon receipt of the notary's writ of execution by the enforcement authorities or a private executor, the executor is only obliged to check the presence of all mandatory details specified in part one of Article 4 of the Law of Ukraine "On Enforcement Proceedings". Concerning the fact that under the national legal structure, the factual data contained within the notary's writ of execution are used by the executors as the basis for enforcement proceedings, it is considered a legal necessity to guarantee the borrower the right to receive notification from the notary of the creditor in relation to the request on making a writ of execution on the debt document. Thus, even at the stage of making a writ of execution, the notary must check and establish the indisputability and recognition of the borrower's presence or absence of debt. The author substantiates that such a mechanism should provide effective tools for self-control of the notary and neutralization of illegal sources of factual data, which form the basis of executive inscriptions made by notaries and then recognized in court as unenforceable.

scholarly journals On the Powers of an Investigating Judge in the Application of a Preventive Measure in the Form of Detention in Criminal Proceedings of the Kyrgyz Republic

2021 ◽  
Vol 7 (2) ◽  
pp. 291-296
Author(s):  
A. Kalygulova
Keyword(s):  
Preventive Measure ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
The Subject ◽  
The Right

The article is devoted to the issue of the powers of the investigating judge in the application of a preventive measure in the form of detention in criminal proceedings of the Kyrgyz Republic. The relevance of the study is due to the introduction of a new procedural figure of the investigating judge exercising judicial control in pre-trial proceedings, as well as applying measures and restricting the rights and freedoms of the suspect. The powers of the investigating judge to apply a preventive measure in the form of detention affect the right to freedom guaranteed by the Constitution of the Kyrgyz Republic. In this regard, the issue of considering the powers of the investigating judge regarding the application of the above preventive measure is relevant. The object of the research: an investigating judge-judge who applies measures restricting the rights and freedoms of a suspect, exercising judicial control over the legality of procedural actions and decisions of persons carrying out pre-trial proceedings and the prosecutor. The subject of the study: the powers of the investigating judge to apply, refuse restraint in the form of detention, as well as extend the period of detention.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals The protection of the preemptive rights of separate and pledge creditors in the case of sales of encumbered property by a direct agreement

2021 ◽  
Vol 38 (1) ◽  
pp. 1-12
Author(s):  
Marijana Dukić-Mijatović ◽  
Vladimir Kozar
Keyword(s):  
Purchase Price ◽  
Legal Practice ◽  
Damage Compensation ◽  
Legal Nature ◽  
Rules Of Procedure ◽  
The Subject ◽  
The Right ◽  
Secured Creditors

The article reviews the regulations of Republic of Serbia, domestic legal practice, as well as the opinions of jurisprudence on the exercise and protection of the preemptive rights of separate and pledge creditors in a bankruptcy proceedings. There has been clarified the legal nature of the preemptive right on the subject of the secured right or lien. There were also provided the details related to the significance of the right of a creditor to set off its secured claim with the purchase price, in the case of a creditor being the best bidder (credit bidding). The article aims to present the manner of exercise of preemptive rights in the case of the method of sales of encumbered property/assets by a direct agreement, as well as the legal instruments the secured creditors may use in the case of its violation. There have been analysed the rules of procedure per lawsuit for annulment of a sale due to the violation of the preemptive rights. The deadline for a lawsuit, the content of the lawsuit which protects the preemptive right as well as the damage compensation right were especially considered.

4. The course of the trial

Evidence ◽  
2019 ◽  
pp. 140-200
Author(s):  
Roderick Munday
Keyword(s):  
Criminal Proceedings ◽  
Criminal Cases ◽  
Trial Judge ◽  
The Core ◽  
The Subject ◽  
The Right

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: the right to begin; the role of the trial judge; the judge’s right to call a witness; examination-in-chief; hostile witnesses; cross-examination; re-examination; calling evidence relating to witnesses’ veracity; witness support; the Crown’s right to reopen its case; and special protections extended to various classes of witness in criminal cases. Many of the rules apply to civil and criminal proceedings alike. However, as elsewhere in this book, the accent will be on rules of criminal evidence.

Judicial Nature of Evidence in Criminal Proceeding

2019 ◽  
Vol 10 (7) ◽  
pp. 1976
Author(s):  
Valery P. GMYRKO ◽  
Mykola Ye. SHUMYLO ◽  
Viacheslav V. VAPNIARCHUK ◽  
Oksana V. KAPLINA ◽  
Vasily P. SHYBIKO
Keyword(s):  
Law Enforcement ◽  
Procedural Knowledge ◽  
Judicial Interpretation ◽  
Criminal Proceedings ◽  
Proper Understanding ◽  
Legal Structure ◽  
Procedural Law ◽  
Legal Nature ◽  
Human Thinking ◽  
Fact Finding

The urgency of the problem stated in the article is conditioned by the necessity to determine the legal nature of the evidence in criminal proceedings and the evolution of the views of domestic scientists on this legal phenomenon. The purpose of the article is to consider the legal nature of the evidence in criminal proceedings and to determine their legal structure. The main approach to the study of this problem was to conduct a methodological analysis of the phenomena of ‘concept’ and ‘definition’, on the basis of which it was argued that judicial evidence has no essence, and only the function of being a symbolic representative of a certain factum probans (from Latin – something that should be proved). The publication concludes that the evidence in criminal proceedings is the result of human thinking operations and can be represented by the methodological construction ‘composition of criminal-judicial evidence’, which includes regulatory-procedural, knowledge, fact-finding and judicial-interpretation segments. In addition, the opinion expressed the inappropriateness of fixing evidence in the criminal procedural law and proposed a pragmatic approach to this issue, which is in line with current European jurisprudence. The materials of the article represent both theoretical and practical value. They can be used for further scientific investigation of evidence in criminal proceedings, as well as for a proper understanding and enforcement of law enforcement criminal proceedings.  

scholarly journals Normatywne ujęcie czynności operacyjno-rozpoznawczych w aspekcie dowodu nielegalnego

2021 ◽  
Vol 13 (24) ◽  
pp. 333-350
Author(s):  
Norbert Nowicki
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Roles And Responsibilities ◽  
Legal Nature ◽  
The Subject ◽  
Covert Activity ◽  
Effective Use ◽  
Illegal Evidence ◽  
Operational Methods ◽  
Practical Dimension

Zagadnienia omawiane w niniejszym artykule dotyczą statusu normatywnego czynności operacyjno-rozpoznawczych w kontekście ustawy o Policji oraz kodeksu postępowania karnego. Podjęto próbę wskazania warunków, które rzutują na legalny charakter inwigilacji, a co za tym idzie – na skuteczne wykorzystanie materiału operacyjnego w procesie karnym. W tym celu scharakteryzowano niejawną aktywność Policji, wyszczególniając dopuszczalne metody operacyjne oraz definiując czynności operacyjno-rozpoznawcze w świetle literatury przedmiotu. Aby w pełni zobrazować problematykę poruszoną w artykule, przeanalizowano relację prawną między dowodem nielegalnym, o którym mowa w art. 168a kpk, a dowodem z czynności operacyjno-rozpoznawczych, na przykładzie zarządzonej kontroli operacyjnej. Praktyczny wymiar tych rozważań omówiono z punktu widzenia postępowania dowodowego, z uwzględnieniem ról i obowiązków procesowych prokuratora oraz sądu. Normative approach to operational and reconnaissance activities in terms of illegal evidence The issues discussed in this article refer to the normative status of operational and investigative activities in the context of the Police Act and the Code of Criminal Procedure. Namely, an attempt was made to demonstrate the conditions that affect the legal nature of surveillance, and thus the effective use of operational material in a criminal trial. For this purpose, the covert activity of the Police has been characterized by listing acceptable operational methods and defining operational and reconnaissance activities in the light of the literature on the subject. Therefore, in order to fully illustrate the issues discussed, an analysis was conducted of the legal relationship between the illegal evidence referred to in Art. 168a of the Code of Criminal Procedure and the evidence from operational and reconnaissance activities, on the example of an ordered operational control. The practical dimension of these considerations is discussed from the point of view of evidence proceedings, taking into account the procedural roles and responsibilities of the prosecutor and the court.

scholarly journals Shareholders’ Lawsuit in Georgian Legislation and Case Law

2021 ◽  
Vol 17 (20) ◽  
pp. 1
Author(s):  
Khatuna Jinoria
Keyword(s):  
Case Law ◽  
Joint Stock Company ◽  
Legal Institution ◽  
Minority Shareholders ◽  
Stock Company ◽  
Legal Nature ◽  
The Right ◽  
Legal Mechanism

Obtaining shares in a joint stock company grants the owner important rights and imposes several obligations on them. In the list of shareholders’ rights, one of the most important subjects is the right to sue the shareholder’s lawsuit. The right to bring in front of courts certain aspects of company-related activities is the legal mechanism of protecting the shareholders other rights. Shareholders’ lawsuit plays an important role in the protection of minority shareholders. Shareholders’ lawsuit also includes two types of legal actions: direct lawsuit and derivative lawsuit. Georgian case law is not very advanced in this area. When shareholders bring matters in front of courts, the number of precedents adhered to is rare. As for the derivative lawsuit, the relative novelty of this legal institution in Georgian legislation causes the lack of deeper understanding. Georgian doctrine does not provide thorough analysis of legal nature and divergence of shareholders’ lawsuits when it comes to case law. As mentioned above, it is quite scarce.

scholarly journals Charakter prawny ograniczeń sposobu korzystania z nieruchomości w związku z ochroną zasobów środowiska – refleksje na temat art. 129 Prawa ochrony środowiska

2019 ◽  
Vol 16 (1 (3)) ◽  
pp. 185-198
Author(s):  
Sławomir Pawłowski
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Environmental Law ◽  
Public Law ◽  
Environmental Resources ◽  
Legal Nature ◽  
The Subject ◽  
The Republic ◽  
The Right ◽  
Right Of Property

The subject of the discussion is the legal nature of restrictions on the use of real estate in relation to the protection of environmental resources. Art. 129 of Environmental Law can have the effect that the use of a property or its part is impossible or substantially reduced. In doctrine, the dominant view is that such public-law interference in the right of property assumes the form of restriction referred to in Art. 64, par. 3 of the Constitution of the Republic of Poland. Another interpretation is also possible. Since the depth of the interference with property rights can lead to the effect that this property will become, as the Ombudsman has pointed out recently, “useless” to the owner, it would be reasonable to consider whether or not such property is de facto being expropriated. In such a case, the standard of constitutional control would be Art. 21, sec. 2.

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