scholarly journals The Legal Nature of Pre-Trial Settlement of a Dispute, or One More Controversial Issue of The Theory of Civil Procedure

2017 ◽  
Keyword(s):  
Civil Procedure ◽  
Controversial Issue ◽  
Legal Nature

The Law of Treaties

2021 ◽  
pp. 141-158
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
Legal System ◽  
Controversial Issue ◽  
Member States ◽  
Dual Nature ◽  
Legal Nature ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

This chapter applies the dual legal nature to the law of treaties. It begins by describing how international organizations were conceptualized in the debates of the International Law Commission and of International Law Institute on the law of treaties. Afterwards it contends that the capacity of an international organization to conclude a treaty is based both on a norm of general international law and on a norm of the internal institutional legal system. This finding is applied to the controversial issue of the position of member states in the treaty concluded by the organization. The dual nature leads to rethinking the role of members within the organizations based on complementarity. It means that member states have an indirect involvement with the treaty concluded only by the organization. For instance, member states’ obligations arise in order to provide the organization with the means to fulfil the obligations of the organization.

scholarly journals Reikalavimas atlyginti nuostolius dėl piktnaudžiavimo civiliniu procesu

Teisė ◽  
2010 ◽  
Vol 75 ◽  
pp. 126-142
Author(s):  
Aurimas Brazdeikis
Keyword(s):  
Civil Procedure ◽  
Procedure Code ◽  
Legal Nature

Šiame straipsnyje autorius analizuoja reikalavimą atlyginti nuostolius, patirtus dėl piktnaudžiavimo ci­viliniu procesu (Civilinio proceso kodekso 95 str. 1 d.), bei argumentuoja, kad šis reikalavimas visų pirma yra materialinės teisinės prigimties ir pobūdžio. Atsižvelgdamas į šią išvadą, autorius aptaria su šio rei­kalavimo nagrinėjimu teisme susijusius procesinius aspektus. In this article the author analyses a claim for reimbursement of damages inflicted by the abuse of civil procedure (Article 95, paragraph 1 of Civil Procedure Code) and argues that this claim is first of all of substantive (material) legal nature and character. Based on this inference, the author considers procedu­ral aspects of dealing with it.

scholarly journals Settlement and other results of the procedure of judicial conciliation

2020 ◽  
pp. 1-11
Author(s):  
Natal'ya Nikolaevna Makarenko
Keyword(s):  
Civil Law ◽  
Civil Procedure ◽  
The Other ◽  
Comparative Perspective ◽  
Procedural Law ◽  
Legal Nature ◽  
Legal Precedent ◽  
Judicial Procedure

This article is dedicated to the question of the essence of a settlement within the framework of judicial conciliation procedure. The issue is being explored from comparative perspective, where the essence of a settlement within the framework of judicial conciliation procedure is compared to the essence of a similar institution in terms of mediation procedure. The work examines legal precedent and doctrinal opinions of experts on the issues of legal essence of judicial conciliation as ones established by judicial and non-judicial procedure of conciliation. The author highlights the key aspect of the procedure of judicial conciliation in relation to reaching a settlement, including the rights and obligations of the parties to the process from one side, and the court on the other. The conclusion is made that the legal nature of settlement represents a mixture, comprised of elements of material (civil law), as well as procedural (civil procedure) law. A claim is made that within the framework of the judicial conciliation procedure, the legal nature of a settlement contains more procedural law elements than that of mediation procedure, which is explained by the broader authority of the court and correlating reduced authority of the parties than in terms of a mediation procedure.

TYPOLOGY OF ADMINISTRATIVE COURT PROCEDURE AND WAYS OF UNIFICATION OF CIVIL PROCEDURE

2020 ◽  
Vol 10 (5) ◽  
pp. 118-133
Author(s):  
N.V. SAMSONOV
Keyword(s):  
System Analysis ◽  
Civil Law ◽  
Administrative Law ◽  
Civil Procedure ◽  
Theoretical Discussion ◽  
Legal Relationship ◽  
Personal Rights ◽  
Arbitration Process ◽  
Legal Nature ◽  
Research Goal

Within a matter of a theoretical discussion about the legal nature of administrative court procedure, the article investigates the issue of issue of a type of this procedure. In order to reach the research goal the author solves the following problems: defines the essence of the protective legal relationship in the administrative court procedure; finds out whether it is typical for administrative court procedure to deal with dispute about personal right; makes a comparative analysis of the targets of administrative court procedure, its main principles with similar institutions in administrative and civil procedure. The methodological basis of the research is the dialectic approach. The author uses the methods of system analysis, formal logical analysis, formal legal and comparative legal methods. The following conclusions are made: as examining the cases in terms of administrative court procedure, the courts resolve the conflicts about personal right, that is typical for civil procedure; the main aim of administrative court procedure, civil and arbitration process is defense of violated or contested personal rights, freedoms and legal interests, that is not similar to the goal of administrative law and process; administrative court procedure and civil and arbitration process have common principles that differ essentially from the principles of administration law and process. The empirical data that confirm these conclusions are analyzed. The author concludes that administrative court procedure can be estimated as a new protsessual form of civil procedure. The unification of the general provisions of civil law procedural legislation is proposed.

scholarly journals Charakter prawny uchwał organów spółek kapitałowych na tle problematyki sporów korporacyjnych

Prawo ◽  
2017 ◽  
Vol 322 ◽  
pp. 17-30
Author(s):  
Justyna Glinka ◽  
Łukasz Chyla
Keyword(s):  
Audit Committee ◽  
Supervisory Board ◽  
Civil Procedure ◽  
Civil Code ◽  
Management Board ◽  
Legal Nature

The legal nature of resolutions of the governing bodies of corporate companies against the background of corporate disputesControversies accompanying corporate disputes are detrimental to the confidence of trade and eco­nomic turnover. The legal nature of resolutions of corporate bodies in companies is an issue of cur­rent relevance which is intrinsically linked to many further aspects of corporate disputes, including appealing against resolutions. The said issue requires comprehensive commentary primarily because sometimes the availability of a particular remedy is governed by the prior determination of legal nature of the contested act of will. Statements presented in doctrine and jurisprudence are not consistent in the presented matter. Taking into account the autonomous procedure of appealing only against the shareholders’ resolu­tions art. 249–254 or art. 422–427 of the Code of Commercial Companies, which is independent of legal nature of contested resolution, the burden of the problem, at first glance, focuses on the resolutions of other bodies the management board, the supervisory board and the audit committee. However, when considering, for instance, the concept of non-existent resolutions, it turns out that the problem relates to resolutions of all corporate bodies. Not to mention the issue of defects of will, regulated in art. 82–88 of the Civil Code. To answer whether a flawed resolution is appealable on the background of the general provisions art. 58 of the Civil Code in connection with art. 189 of the Code of Civil Procedure, firstly, it must be determined whether a specific resolution can be qualified as a legal act.The Authors of the article, beside presentation of dominant concepts on the legal nature of resolution, specify the importance of the said issue to the whole matter of corporate disputes and identify the most convincing solutions.

scholarly journals Problem prejudycjalnego związania sądu polubownego wyrokami sądów powszechnych i polubownych

2017 ◽  
Vol 21 ◽  
pp. 61-78
Author(s):  
Łukasz Chyla
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
Legal Issues ◽  
Controversial Issue ◽  
The Common ◽  
Polish Code

Legal effects of prejudicial awards in arbitral proceedingsThe aim of the article is to present a highly controversial issue whether the legal effects of prejudicial awards of either common court or arbitration court shall be binding for another arbitration tribunal resolving the same dispute between the same parties. This issue is broadly disputable, essentially after the Polish Supreme Court delivered two contrary judgments regarding this matter. Arguably, it remains unclear whether art. 365 of the Polish Code of Civil Procedure is applicable not only to common courts but also to arbitration tribunals. Moreover, because of the preliminary meaning of art. 1184 of the CCP, it is also questionable whether arbitration courts are bound by some provisions of civil procedure, specifically art. 365 of the CCP. The aim of this article is to analyze and address these legal issues as well as to explain why, in my opinion, arbitration tribunals shall eventually be bound by earlier awards — either those delivered by the common courts or arbitration tribunals.

scholarly journals Mutual recognition, choice of forum, and lis pendens A Civil Law Threesome Transposed

2018 ◽  
Author(s):  
Aukje van Hoek
Keyword(s):  
Criminal Law ◽  
Working Group ◽  
International Criminal ◽  
Mutual Recognition ◽  
Civil Law ◽  
Civil Procedure ◽  
Controversial Issue ◽  
International Criminal Law ◽  
Criminal Jurisdiction ◽  
European System

The draft proposals make a bold attempt to address a pressing and controversial issue in international criminal law. The recognition of multiple grounds of jurisdiction—​and the recent expansion thereof with regard to specific crimes—​creates a situation in which more than one country can legitimately claim jurisdiction over a specific crime or set of acts. Unlike the situation in civil procedure, there is currently no European system to coordinate criminal jurisdiction within the area of freedom of justice, and hence the international grounds of jurisdiction are also applied in full to intra-​EU cases. This creates ample possibilities for a positive conflict of jurisdiction in which more than one state may start investigations, prosecution, and/​or criminal adjudication with regard to a similar or identical set of criminal facts. As the Working Group rightly stresses, this may lead to ‘efforts and resources being wasted and potentially to arbitrary outcomes’.

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