scholarly journals The Standards of Proof in Medical Malpractice Cases

2020 ◽  
Vol 13 (2) ◽  
pp. 173-196
Author(s):  
Nina Cek
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Legal System ◽  
Medical Error ◽  
Medical Malpractice ◽  
Civil Proceedings ◽  
Standards Of Proof ◽  
Evaluation Of Evidence ◽  
Procedural Aspect ◽  
The Eu

The article examines the procedural aspect of medical malpractice cases. It focuses on the differences in proof standards by first explaining the characteristics of the Slovenian legal system and then comparing it with German and English legal systems. The author sheds light on the EU court's approach on the question of the responsibility of the manufacturer for the product (vaccine) and suggests the direction to use a broader framework for the evaluation of evidence and presumptions. Given the disclosed problems of proving through a medical expert's help, the article emphasizes the importance of respect for human rights in civil proceedings. Particular emphasis is also placed on no-fault systems. The question is raised of how introducing such a system into the Slovenian legal system would affect the perceived problem of proving a medical error and informed consent omission.

scholarly journals Obligations, consent and contracts in Scots law: re-analysing the basis of medical malpractice liability in light of Montgomery v Lanarkshire Health Board

Legal Studies ◽  
2021 ◽  
pp. 1-21
Author(s):  
Jonathan Brown
Keyword(s):  
Informed Consent ◽  
Legal System ◽  
Medical Malpractice ◽  
Health Board ◽  
Medical Negligence ◽  
University Hospitals ◽  
Malpractice Liability ◽  
Patient Relationships ◽  
Physician Patient ◽  
Medical Regime

Abstract Professors MacQueen and Thomson have defined ‘contract’, within Scots law, as denoting ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’. This definition reflects the fact that Scottish contracts are underpinned by consent, rather than by ‘consideration’. This, naturally, has the potential to be of great significance within the context of physician/patient relationships, particularly since the 2006 case of Dow v Tayside University Hospitals NHS Trust acknowledged that these relationships could be contractual in nature. This observation is of renewed importance since the landmark decision in Montgomery v Lanarkshire Health Board, which found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services. In light of the present medical regime which requires ‘doctor and patient [to] reach agreement on what should happen’, the basis of liability for medical negligence, in Scotland, requires reanalysis: ‘To have a contract only when the patient pays is not consistent with a legal system which has no doctrine of consideration in contract’.

1. The English legal system

2019 ◽  
pp. 1-14
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Legal System ◽  
Essential Information ◽  
System P ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Impact ◽  
Commercial Relationships ◽  
The Eu

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the English legal system. It provides an overview of the courts in the civil and criminal divisions, and their hierarchy. It discusses the source of law, delegated legislation, the impact of membership in the EU and the Human Rights Act 1998, and alternative forms of dispute resolution (ADR). The implications of ADR are increasingly important in civil disputes and essential between businesses where traditional court action can destroy commercial relationships.

10. The Future of the English Legal System

2017 ◽  
Author(s):  
Mark Thomas ◽  
Claire McGourlay
Keyword(s):  
Human Rights ◽  
Legal System ◽  
The Other ◽  
European Convention ◽  
Essential Information ◽  
System P ◽  
The Future ◽  
The Times ◽  
Political Economic ◽  
The Eu

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This concluding chapter assesses the future of the English legal system (ELS). It argues that the ELS will continue to grow and develop in order to move with the times. Each development may individually not have such significant impact on the ELS; however, when coupled with the other development, it is more likely that the development may significantly alter people's understanding of the ELS. Change in the ELS may come from political, economic, legal, social, and international factors. The chapter then considers some of the key debates, events, and activities that may shape the future of the ELS. These issues include the UK's membership in the EU, signatory of the European Convention on Human Rights, and transformation of the justice system.

scholarly journals TRANSLATION OF LEGAL NEOLOGISMS ON THE EXAMPLE OF THE TERM "INSIGNIFICANT CASE"

2021 ◽  
pp. 10-14
Author(s):  
Yu. Baklazhenko
Keyword(s):  
Legal System ◽  
Civil Procedure ◽  
Small Claim ◽  
Legal Translation ◽  
Civil Proceedings ◽  
Small Claims ◽  
Simplified Procedures ◽  
Simplified Procedure ◽  
Surface Similarity ◽  
The Eu

The article deals with the issue on translating legal terms from Ukrainian into English on the basis of a case study of a newly-coined term in Ukrainian legislation – 'maloznachna sprava'. The relevance of the topic of legal translation from English into Ukrainian and vice versa has become especially acute in light of the Ukraine-EU approximation agreement. While the introduction of simplified civil proceedings is itself a step towards the approximation of Ukrainian legislation to the EU, the next stage will inevitably be comparing and contrasting the existing terms within the Ukrainian and EU civil procedures. Ukrainian simplified procedure aims at considering insignificant cases (Ukr. – 'maloznachni spravy') in a speedy manner, while EU accelerated and simplified civil procedure uses the term 'small claims' for cases with a claim value for up to EUR 5,000. Obviously, these notions are not equivalent, but their meaning overlaps, creating pitfalls for translation. Thus, for proper translation, it is important to specify how the concept of small claims fits into Ukraine's national context. The notion of insignificant cases illustrates the relevance of the linguistic study of legal translations, as well as a need for the consolidation of practical achievements in the field of translation of legal discourse and, in particular, legal neologisms. The purpose of legal translation is to create a text that will be interpreted in the same way by legal professionals in the target legal system as it would be in the original legal system. The aim of translation is not to erase linguistic and cultural differences but to accommodate them, fully and unapologetically. The challenge is to convey the legal text as a fragment of a living legal system. When translating, a translator should strive for equivalence, bearing in mind the harmonisation and approximation of terminologies. The linguistic approximation of national Ukrainian legal terms to the EU terminology should be carefully considered to avoid their misinterpretation with the supranatural terms. The author emphasises the necessity to perform concept analysis between the terms in the EU and Ukraine simplified procedures and comes to the conclusion that despite having surface similarity to the EU term 'small claim', the Ukrainian term 'maloznachna sprava' is, in fact, a much wider concept. A range of translations of legal neologisms are described in the article, and the need to use a literal translation of the term is substantiated. As a result of the analysis of possible translation options and the ECtHR translation precedent, it is recommended that the term 'maloznachna sprava' should be translated as 'insignificant case' within the sphere of Ukrainian civil procedure. Keywords: legal translation, Ukrainian-English translation, small claim, insignificant case.

The overall aim of this chapter is to provide a commentary concerning the relationships and differences between the areas of the ECHR, EU, EC and EC law to assist in the management of the study of these complex areas in relation to English law and in their own right. The detailed study of these areas, for law students, will occur in your English legal system, public law and European law courses. 5.2 LEARNING OUTCOMES By the end of this chapter and the associated reading, readers should: • be able to understand the general consequences and standard format of a Treaty and how it is internally organised and subsequently amended; • be able to explain the context within which European human rights operate and how it affects the English legal system; • be able to place the English HRA 1998 in its appropriate context and explain how it relates to the ECHR; • be able to describe the various types of secondary legislation produced by the EC; • be able to distinguish between primary and secondary EC law; • be able to discuss the similarities and differences between the EC and the EU; • understand the difference between the European Court of Human Rights (ECtHR) and the ECJ; • understand the role of the ECJ; • understand the relationship between the English legal system, the EC and the EU; • appreciate the difference in style and rationale between European legal judgments and legislation and English legal judgments and legislation. 5.3 READING AND UNDERSTANDING TREATIES Many of the difficulties encountered by students of English law approaching its European dimension are the vast number of unfamiliar terms. Often students do not appreciate the international nature of treaties and their normal effect. Therefore when discussing the peculiarities of the English approach to international treaties made by the UK Government confusions creep in. This section of the chapter is therefore designed to give a brief introduction to the general purpose and format of treaties.

2012 ◽  
pp. 128-128
Keyword(s):  
Human Rights ◽  
Legal System ◽  
General Purpose ◽  
International Treaties ◽  
English Law ◽  
The Difference ◽  
The Uk ◽  
Legal Judgments ◽  
Ec Law ◽  
The Eu

The Fundamental Rights Acquis: An ‘Integrative Approach’ to Interpretation—The ‘Aggregate Standards’ Model

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Legal Order ◽  
Fundamental Rights ◽  
Integrative Approach ◽  
Eu Law ◽  
International Obligations ◽  
Integrated Or ◽  
The Eu

This chapter will catalogue the multiple ways in which human rights penetrate the EU legal order and the different functions they play qua (internalised/’Europeanised’) ‘fundamental rights’, both as standards of validity and as means of interpretation of EU acts. The main preoccupation is to identify the sources of fundamental rights obligations, retrace their origin and overall significance within the EU legal system, and determine the rules relevant to their interpretation and application. The ‘integrated’ or ‘cumulative standards’ approach will be developed against this background. According to this method, the precise level of protection that Charter rights afford will be determined by reference to Articles 52 and 53 thereof, taking the ECHR, other ‘international obligations common to the Member States’ (Recital 5 CFR), and any relevant ‘autonomous requirements’ of EU law into account. Drawing on post-Lisbon case law, it will be shown how any other approach fails to ensure compliance with all relevant requirements simultaneously. This technique will inform assessments in chapters of Part II.

Energy in Public Administration - Between Human Rights and Efficient Administration

2015 ◽  
Vol 3 (2) ◽  
pp. 227-241
Author(s):  
Mirko Pecaric
Keyword(s):  
Human Rights ◽  
Public Administration ◽  
Legal System ◽  
Human Dignity ◽  
Human Mind ◽  
Public Affairs ◽  
Reciprocal Relation ◽  
Legal Principles ◽  
Informal Practices

This paper explores recent notions in public administration, which are intertwined and addressed to the administration of public affairs. On this basis it demonstrates that content of legal system is filled through the static legal principles and rules, but they receive their real content through the informal practices and conditions of the human mind. The paper concludes that discussed notions could have only one name, because they all are the synonyms of reciprocal relation between the human dignity and efficient administration.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

Tourism as a Tool for the Fulfilment of the Rights to Rest and Leisure Enshrined in Article No. 24 of the Universal Declaration of Human Rights

2019 ◽  
Vol 76 (3-4) ◽  
pp. 180-188
Author(s):  
Bianca Nicla Romano
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Universal Declaration ◽  
Title V ◽  
Negative Consequences ◽  
Real Right ◽  
Right To Work ◽  
The Individual ◽  
The Right ◽  
Italian Constitution

Art. 24 of the 1948 Declaration of Human Rights recognises and protects the right of the individual to rest and leisure. This right has to be fully exercised without negative consequences on the right to work and the remuneration. Tourism can be considered one of the best ways of rest and leisure because it allows to enrich the personality of the individual. Even after the reform of the Title V this area is no longer covered by the Italian Constitution, the Italian legal system protects and guarantees it as a real right, so as to get to recognize its existence and the consequent compensation of the so-called “ruined holiday damage”. This kind of damage has not a patrimonial nature, but a moral one, and the Tourist-Traveler can claim for it when he has not been able to fully enjoy his holiday - the essential fulcrum of tourism - intended as an opportunity for leisure and/or rest, essential rights of the individual.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

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