scholarly journals Functions of the Commercial Cassation Court in the Supreme Court in Ukraine

2019 ◽  
pp. 123-129 ◽  
Author(s):  
O. Ponomarova
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Judicial System ◽  
Judicial Reform ◽  
Main Function ◽  
The Supreme Court ◽  
Analysis And Synthesis ◽  
Lower Courts ◽  
Concept Of Function ◽  
The Law

During the judicial reform of 2016, the Law of Ukraine "On Judicial System and Status of Judges" was adopted from 02.06.2016 No. 1402-VIII, as well as amendments to the procedural legislation, which created the legal basis for the creation of a new Supreme Court as a whole and in its composition economic court, in particular. Established on the basis of the Supreme Economic Court of Ukraine, the Court of Cassation within the Supreme Court assumed the main functions of the court of cassation of economic jurisdiction and organizationally took the place of the structural unit of the Supreme Court, which operates within the unified system of interaction between the courts of cassation and the Supreme Court. As the cassation instance in the field of economic justice in accordance with the Law of Ukraine " On Judicial System and Status of Judges " of 02.06.2016 No. 1402-VIII has changed, in particular, it is currently acting in the form of the Court of Cassation within the Supreme Court, so the author has a need more detailed study of their functions, which is the purpose of the article. The author has made a thorough analysis of scientific approaches to understanding the essence of the concept of "function". In addition, the article deals with the classifications of the functions of the cassation instance ..., given by domestic scientists, and on their basis proposed its own classification of the functions of the Court of Cassation within the Supreme Court. In particular, the author substantiates the concept of dividing the functions of the Court of Cassation within the Supreme Court into two groups: main and derivative. The main function of the Court of Cassation in the Supreme Court, according to the author, is the function of justice, which is manifested through the functions of cassation and appeal review cases. In its turn, the author of the article refers to the following functions: 1) supervision of the activity of lower courts and control over the observance of the rules of law; 2) ensuring the unity of case law; 3) interpretation function; 4) explanatory function; 5) analysis and synthesis of case law. On the basis of a comprehensive analysis of theoretical developments in national science and a practical approach to the definition of functions, the author concluded that all functions of the Court of Cassation are closely related to each other, and they are inherently complex in the administration of justice.

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.

CONSTITUTIONAL AND LEGAL STATUS OF THE SUPREME COURT AS A COURT OF LAW IN UKRAINE

2021 ◽  
Author(s):  
Ruslan Skrynkovskyy ◽  
◽  
Vasyl Khmyz ◽  
Svitlana Hlushchenko ◽  
Mariana Khmyz ◽  
...  
Keyword(s):  
Supreme Court ◽  
Legal Status ◽  
Judicial System ◽  
Professional Activity ◽  
Constitutional Court ◽  
Main Function ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Law ◽  
Grand Chamber

The article reveals the features of the constitutional and legal status of the Supreme Court as a court of law in Ukraine. It has been established that the constitutional and legal status of the Supreme Court is regulated by the provisions of the Constitution of Ukraine, the Law of Ukraine «On the Judicial System and the Status of Judges» and the Code of Administrative Procedure of Ukraine. Analysis of the legislation allows us to note that the Supreme Court is the highest court in the judicial system in Ukraine. The composition of the Supreme Court is formed by the Grand Chamber of the Supreme Court, the Administrative Cassation Court, the Criminal Cassation Court and the Civil Cassation Court. It has been established that the President of the Supreme Court is elected to office, and also dismissed from office based on the results of a secret ballot held by the Plenum of the Supreme Court. The constitutional and legal status of the Supreme Court makes it possible to single out such basic functions of the Supreme Court as: the function of administering justice, during which the Supreme Court acts as a court of cassation; the function of analyzing judicial statistics, as well as summarizing judicial practice; the function of providing conclusions on draft legislative acts directly related to the judicial system; the function of providing an opinion on the presence or absence of signs of committing high treason or other crime in the acts for which charges are brought against the President of Ukraine, for committing high treason or other crime; the function of providing appellate and local courts with proper methodological information on law enforcement issues, etc. It has been determined that the professional activity of the Supreme Court contributes to ensuring the observance of the principle of equality of all before the law and requires ensuring at the same time the achievement of the unity of judicial practice. It is noted that the prospects for further research in this direction are the study of the legal status of the Constitutional Court of Ukraine as a body of constitutional jurisdiction, the main function of which is to ensure the supremacy of the Constitution of Ukraine.

scholarly journals Current Judicial Reform in Ukraine and in Poland: Constitutional and European Legal Aspect in the Context of Independent Judiciary

2019 ◽  
Vol 2 (3) ◽  
pp. 5-35
Keyword(s):  
Supreme Court ◽  
Legal Aspect ◽  
Judicial Independence ◽  
Judicial System ◽  
International Standards ◽  
Constitutional Court ◽  
Judicial Reform ◽  
National Council ◽  
The Supreme Court ◽  
The Law

Since the Revolution of Dignity in 2014, Ukraine has been carrying out revision and bringing to conformity with international standards of legislation in terms of judicial system and legal procedure. On 2 June, 2016 the law amending the Constitution of Ukraine in the part of justice, as well as the Law of Ukraine ‘On Judicial System and Status of Judges’ was adopted. On 13 July, 2017 a new Law of Ukraine ‘On the Constitutional Court of Ukraine’ was adopted. In the middle of December 2017, the election to the Supreme Court finished and its new composition was formed, at the same time the revision of all procedural codes took place. However, one on the main problems of the judiciary in Ukraine has been the problem of the judicial independence as a whole and in the part of independence of judges. The subject of this research is the question of judicial independence in the context of respective international standards. Similarly, the aim of part of the paper about the judicial system of Poland is to show the legislative changes regarding the judiciary which took place in Poland recently, i.e. within the last 3 years. As the ongoing changes of functioning, competence and organization of the Constitutional Tribunal, common courts, the Supreme Court and the National Council of Judiciary have been observed and commented upon by various European institutions, they will be shown in relation to the common European standards regarding the judicial independence presented in opinions and reports of Venice Commission, European Network of Councils of Judiciary and Consultative Council of European Judges.

Slovo of the National School of Judges of Ukraine

2021 ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Judicial Reform ◽  
Council Of Europe ◽  
Judicial Practice ◽  
National School ◽  
The Supreme Court ◽  
Grand Chamber ◽  
The Impact

The special edition of the national professional scientific and practical legal magazine “The Slovo of the National School of Judges of Ukraine” was published, which contains reports delivered at the online conference "Ensuring the unity of judicial practise: the legal positions of the Grand Chamber of the Supreme Court and standards of the Council of Europe", held on the occasion of the third anniversary of the Grand Chamber of the Supreme Court. time of thematic sessions and webinars for judges of each of the courts of cassation in the Supreme Court, as well as joint sessions for judges of different jurisdictions at the end of 2020. The National School of Judges of Ukraine held these events together with the Supreme Court and in synergy with the Council of Europe projects "Support to Judicial Reform in Ukraine", "Further Support for Ukraine's Implementation in the Context of Article 6 of the European Convention on Human Rights", USAID New Justice Program, OSCE Project Coordinator in Ukraine. These are projects that support various aspects of judicial reform in Ukraine, compliance with Council of Europe standards and recommendations, offering best practices from member states to help make priorities in the national reform process. The conference and training events were attended by more than 550 participants - judges of the Supreme Court, other courts, leading Ukrainian and foreign experts, representatives of the legal community. Trainers and all structural subdivisions of the National School of Judges of Ukraine were involved, the training activities of which were identified by the CCEJ in one of its conclusions as one of the important tools to ensure the unity of judicial practice. Programs of activities included reports on the role of the Grand Chamber of the Supreme Court in ensuring the unity of judicial practice and the impact on the legal system; unity of judicial practice in the context of standards - improving access to justice in Ukraine: removing procedural obstacles and ensuring the right to an impartial court, approaches to identifying cases of minor complexity and cases of significant public interest or exceptional importance for a party in the context of access to court of cassation: practice the supreme courts of the member states of the Council of Europe and the European Court of Human Rights; key positions of the Supreme Court - application of the provisions of the procedural codes on the grounds for transferring the case to the Chamber, the joint chamber or the Supreme Court, the impact of its decisions on legislative activity, ensuring the specialization of courts and judges, the practice of the Supreme Court of the Supreme Court on administrative cases, the practice of considering cases of disciplinary liability of judges, conclusions on the rules of criminal law, review of court decisions in criminal proceedings in exceptional circumstances; the impact of the case law of the European Court of Human Rights on the case law of national courts and the justification of court decisions and the "balance of rights" in civil cases in its practice, the development of the doctrine of human rights protection; ECtHR standards on evidence and the burden of proof, the conclusions of the CCEJ and their reflection in judicial practice; judicial rule-making in the activities of European courts of cassation, etc. The issues raised are analyzed in the Ukrainian and international contexts from report to report, which, we hope, will be appreciated by every lawyer - both practitioners and theorists. As well as the fact that the depth of disclosure of each of the topics through the practice of application serves the development of law and contributes to the formation of the unity of judicial practice of the Supreme Court, the creation of case law is a contribution to rulemaking and lawmaking. The conversion of intellectual discourse into the practice of Ukrainian courts is an important step towards strengthening public confidence in the judiciary. And here the unifying force of the Supreme Court can be especially important, as the Chairman of the Supreme Court Valentyna Danishevska rightly remarked, speaking about the expectations of the society.

Glosa aprobująca do wyroku Sądu Najwyższego z dnia 16 listopada 2017 r., V CSK 81/17

2021 ◽  
pp. 413-424
Author(s):  
Krzysztof Świątczak
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Legal Person ◽  
Personal Interest ◽  
The Supreme Court ◽  
The Law ◽  
Starting A Business

In the judgment of November 16, 2017, Ref. V. CSK 81/17, the Supreme Court ruled that starting a business in the form of running a go-go club in the commune does not violate its good name, even if some activities in its activity are contrary to the law. In addition, there are no grounds to distinguish the personal interest of a legal person in the form of a credible image. The purpose of this opinion is to evaluate the above resolution of the Supreme Court. The author intends to compare the judgment of the Supreme Court with the views of representatives of the doctrine of Polish judicial law and previous case-law.

O caso Enka Insaat v. Insurance Company Chubb e a questão relativa à lei aplicável à cláusula arbitral: entre a lex contractus e a Lei da Sede

2021 ◽  
Vol 3 (5) ◽  
pp. 159-194
Author(s):  
Nadia de Araujo ◽  
Caio Gomes de Freitas
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Insurance Company ◽  
Party Autonomy ◽  
The Supreme Court ◽  
The Law ◽  
The Uk ◽  
The Way

When negotiating a contract, parties usually establish that future and eventual disputes arising out and related to the performance of their obligations shall be resolved by arbitration. Such a choice, a clear expression of the principle of party autonomy, is embedded in a contractual clause, commonly referred to as arbitration agreement. The way by which the agreement is written and, to some extent, how it is construed can, and most commonly will, result in extensive and costly disputes. In the UK, the Supreme Court has recently decided a case related to the construction of an arbitration agreement, specifically to the law applicable to its validity, scope and effectiveness. According to the Court, in the absence of an express choice made by the parties, the system of law chosen to govern the substance of the contract will apply to the validity and scope of the agreement to arbitrate. Where no such choice is expressly or implied made by the parties, it will be the law of the seat of arbitration since it represents the system of law most closely connected to the agreement. This article reviews the case-law and provides some relevant excerpts of the case.

China's Guiding Cases System as the Instrument to Improve China's Case Guidance System, which Includes Both Guiding Cases and Typical Cases

2017 ◽  
Vol 45 (3) ◽  
pp. 230-243
Author(s):  
Fengping Gao
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Guidance System ◽  
Judicial Reform ◽  
The Supreme Court ◽  
Key Topics ◽  
The U.S

After the Supreme People's Court of China (the “Supreme Court”) issued the Provisions of the Supreme People's Court Concerning Work on Guiding Cases (the “Provisions”), which symbolized the establishment of China's guiding cases system, it attracted worldwide attention. Some institutes, like Stanford, launched programs on China's Guiding Cases. It is of importance to discuss the potential and possibility of establishing China's guiding cases system by promoting the Guiding Cases in the context of ongoing judicial reform. For international practitioners, it is helpful to know the civil jurisdiction where there is case law available as case guidance. Also, China judicial reform has become a keen topic for discussion in U.S.–China relations. “The efficiency and fairness in handling commercial cases and the use of Guiding Cases in the adjudication of commercial [cases]” was one of the key topics discussed during the first dialogue joined by the U.S. Departments of Justice and Commerce.

scholarly journals Judicial Law-making and Its Regulation in Independent Ukraine: Its History and Development

2021 ◽  
Vol 4 (3) ◽  
pp. 82-100
Keyword(s):  
Supreme Court ◽  
Legal Status ◽  
Legal Regulation ◽  
Judicial System ◽  
Judicial Power ◽  
Constitutional Court ◽  
Judicial Reform ◽  
The Supreme Court ◽  
History Of ◽  
Law Making

The article studies the history of the origin and development of legal regulation of judicial law-making in Ukraine. The analysis of doctrinal ideas about judicial law- making, as well as the peculiarities of its formation in Ukraine, allowed us to emphasise that our scientific research is relevant because of: 1) the duration of the domestic judicial system and judicial reform, which dates back to the proclamation of Ukraine’s independence (1991) and continues to this day; 2) the ambiguity of the legal support for judicial law-making in Ukraine, the high level of its variability, and the uncertainty of the legal status of the subjects of judicial power in the mechanism of domestic law-making; 3) the doctrinal uncertainty of the place of judicial law-making in the domestic legal system, the ambiguity of its scientific perception, and the understanding of its function in the domestic mechanism of legal regulation. This paper analyses the provisions of the legislation of Ukraine in terms of legal support for forms and procedures of judicial law-making, the legal significance of judicial law-making acts, and their impact on administering justice in Ukraine. Particular attention is paid to the activities of the judiciary in the areas of law enforcement and law-making, the relationship and interaction of which requires strengthening in the current context of reforming the judicial system and the judiciary in Ukraine. The stages of development of the legal regulation of judicial law-making in Ukraine are revealed, the peculiarities of the legal support for judicial law-making are determined, and the content of the legal regulation of the mechanism of participation of the subjects of the judicial power of Ukraine in the national law-making is characterised. Analysis of the history of the legal regulation of judicial law-making in Ukraine and the current state of its legal provision allowed us to conclude that despite the scale of legislative changes in the legal support for the judicial system of Ukraine today, neither the Supreme Court, nor the Constitutional Court of Ukraine, nor any other court institution is recognised by the legislation of Ukraine as subjects of law-making. The legislation of Ukraine does not contain a clear definition of their status as the subject of law-making with the right to accept generally obligatory acts of this process. It is noted that such uncertainty significantly weakens both the legal support for the courts and their activities. At the same time, it is noted that as a result of the adoption of legislative acts within the judicial reform during 2014-2017, which are still in force today, the legislator has made a significant step towards recognising and consolidating the official status of judicial law-making, namely: 1) a number of legislative powers of the Supreme Court and the Constitutional Court of Ukraine were consolidated; 2) the legislative regulation of the stages of the law-making process by the Supreme Court and the Constitutional Court of Ukraine has been strengthened; 3) the legal consolidation of the status of law-making acts of the Supreme Court and the Constitutional Court of Ukraine has been improved.

Part IV Federalism, A Federalism in Canada, Ch.18 From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism

2017 ◽  
Author(s):  
Gaudreault-DesBiens Jean-François ◽  
Poirier et Johanne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Empirical Reality ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Law ◽  
Cooperative Federalism ◽  
The Impact

This chapter documents the evolution from a dualist—“watertight compartments”—conception of Canadian federalism, to one that must acknowledge an increased number of intergovernmental cooperative ventures. It first examines Canada’s fundamentally dualist federal architecture before looking at the empirical reality of cooperative federalism which frequently challenges this structural dualism. It then considers how the rise of cooperative federalism influenced the evolution of the interpretive doctrines underpinning the law of Canadian federalism. Finally, it analyses the normative strength and scope of cooperative federalism, concluding that the impact of cooperative federalism in Canadian constitutional law remains tamed by the dualist conception of federalism that still underlies the Supreme Court of Canada’s federalism case law.

scholarly journals SENTENCING FOR THE OFFENSE OF FALSE TESTIMONY IN THE LIGHT OF JUDICIAL DECISIONS

Probacja ◽  
2020 ◽  
Vol 2 ◽  
pp. 31-63
Author(s):  
Izabela Urbaniak-Mastalerz
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Current Case ◽  
Judicial Decisions ◽  
Starting Point ◽  
The Supreme Court ◽  
The Law

The study presents the problems of courts, in the case of sentencing for crimes of false testimony in the light of judicial decisions. The article is, therefore, a presentation of issued decisions of common courts and the Supreme Court in the scope of this off ense, indicating the changes made to the law. The author will attempt to resolve the problem of the circumstances in which a false testimony is sentenced for as an off ence, given the current case-law of the Supreme Court and common courts. The conclusions of the discussed principles of sentencing for this crime (based on available statistics), will be the starting point for the assessment.

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