scholarly journals Court expert status in Poland. Flagging up the selected problems

2021 ◽  
Vol 126 ◽  
pp. 117-135
Author(s):  
Sylwia Skubisz-Ślusarczyk
Keyword(s):  
Legal System ◽  
Public Interest ◽  
Fair Trial ◽  
Point Of View ◽  
Reasonable Time ◽  
Systemic Nature ◽  
Legislative Changes ◽  
Expert Status ◽  
Court Expert

The intent of this written presentation is to analyse the multi-faceted issue of the position and functioning of court experts in the Polish legal system. Particular attention should be paid in this respect to the appointment and verification of the competencies of candidates for experts, as well as to the instruments of control over their work. These selected aspects are extremely important, not only from the point of view of public interest, but in particular from the perspective of the party’s right to a fair trial, and to have the case heard within a reasonable time. The problems identified and briefly discussed have a structural and systemic nature, and result in arrangements which confirm the necessity for legislative changes proposed for many years, relating to court experts as well as to the practice of judicial authorities. The discussion of these issues has an informative purpose, especially for readers unfamiliar with the Polish legal system.

Penerapan Hukum Wakaf Uang di Indonesia Perspektif Legal System Theory

2018 ◽  
Vol 11 (1) ◽  
pp. 79-92 ◽  
Author(s):  
Masdar Masdar
Keyword(s):  
System Theory ◽  
Law Enforcement ◽  
Legal System ◽  
Legal Culture ◽  
Point Of View ◽  
Law Enforcement Agencies ◽  
Muslim Society ◽  
The Law ◽  
The Government

Cash waqf in Indonesia has been long enough implemented based on some rules enacted by government and other rules defined by The Waqf Board of Indonesia (BWI). However, the implementation of cash waqf has not reached the level of success. Therefore, this article studies the application of cash waqf law in Indonesia according to Friedman’s legal system theory. The legal system theory of Friedman firstly looks at the substance of the law, which is the rules or regulations; and secondly it examines the structure of the law, encompassing the law enforcement agencies, such as judge, prosecutor, police and legal counselors. And lastly the theory examines the element of legal culture, which is a response from Muslim society. The first two examinations indicate that there is nothing to be a problem. But from the last examination there is a problem regarding the trust from Muslim society. From the legal culture point of view, the implementation of cash waqf by the government, which is performed by BWI, needs attracting society’s credentials in order to improve and maximize the performance of cash waqf in Indonesia.

The rights of the defendant and public interest in proving insanity under the law of New York

2021 ◽  
Vol 30 (3) ◽  
pp. 108-124
Author(s):  
Aleksey Grin'ko
Keyword(s):  
New York ◽  
Law Enforcement ◽  
Public Interest ◽  
Due Process ◽  
Burden Of Proof ◽  
Public And Private ◽  
Whole Process ◽  
History Of ◽  
The Law ◽  
Legislative Changes

Allocation of the burden of proof is a key issue of criminal procedure that is affected by multiple legal and social factors. Under due process principles, the defendant’s right to a fair and impartial trial is deemed to be the epicenter of the whole structure. However, efficient law enforcement is a prominent public interest that must be considered. This article explores the correlation between public and private interest in proving insanity under the law of New York, which provides great empirical background due to its long history of legal disputes and legislative changes. Considering the nature and structure of the burden of proof, the author concludes that there are several principles for its fair allocation: the due party that bears both the burden and the risk of its nonperformance; the feasibility of the burden; the adequate opportunity for the other party to rebut; the concentration of resources upon needs that are not presumed but in fact exist. All the mentioned principles lay the ground for the harmonization of constitutional guaranties for the defendant as well as the successful enforcement of criminal law. The current New York approach to insanity defense as an affirmative one along with the history of its implementation tends to prove its compliance with such requirements. This finding suggests that bearing the burden shall not be treated as impairment by default, but can protect both the interest of this party and the integrity of the whole process.

Competitive Jurisdictions of Local Administration Authorities and Notaries for the Certification Purposes in Montenegro

2021 ◽  
Vol 19 (3) ◽  
pp. 439-459
Author(s):  
Velibor Korać
Keyword(s):  
Legal System ◽  
Public Interest ◽  
Local Administration ◽  
Legal Certainty ◽  
Public Authorities ◽  
Political Reason

With the adoption of the new Law on Certification of Signatures, Manuscripts and Transcripts the Montenegrin legislator did not take into account the fact of introducing the notary services into the legal system of Montenegro. Unlike most of the comparative legislations, certification of signatures, transcripts and manuscripts have not been transferred to the exclusive competence of notaries, but a competitive competence of notaries, local administration authorities and the courts in carrying out these assignments has been retained. Further retention of competitive jurisdiction in this matter is not justified any more. The analysis of this decision has shown that it leads to an unequal position, depending on the authority before which the certification is performed, whereas the obligations and professional competences of officials and notaries are different. Notarial certifications contribute to greater legal certainty and besides are more available to the citizens and not more expensive. Parallel jurisdiction is not a standard of notarial services in European continental law which has adopted the Latin model of notary as a independent profession having public authorities. This solution does not lead to building a legal certainty, protection of public interest and relieving the work of courts and administrative authorities, which has been the underlying legal political reason for introducing notariat.

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

scholarly journals Coordinating activity of independent legal entities: issues of law enforcement in conditions of economy digitalization

2019 ◽  
pp. 60-67
Author(s):  
Yu. Yu. Borisova ◽  
I. V. Akimova
Keyword(s):  
Law Enforcement ◽  
Economic Activity ◽  
Legal Regulation ◽  
Point Of View ◽  
Operating Conditions ◽  
Negative Effects ◽  
Judicial Practice ◽  
Stage Of Development ◽  
Legislative Changes ◽  
The Coordinator

In article authors investigate questions of the operating legal regulation of coordination of economic activity of independent economic entities, including questions of its legisla- tive definition and signs. Article contains the detailed analysis of the most interesting examples of judicial practice and practice of antimonopoly authorities on the matter. Authors, analyzing the current legal regulation, also give an assessment to the planned changes in the legislation in this part and state the point of view about dependence of legal assessment of actions of the coordinator and the economic entities coordinated by it on operating conditions of commodity markets on which it is carried out. As a result of a research authors drew a conclusion on need of legislative changes in a part of admis- sibility of the forbidden coordination provided that the advantage for consumers of such coordination exceeds negative effects for the competition.A significant amount of works of the modern scientists and experts investigating a per- spective of institutes of the antitrust law is devoted to questions of legal qualification of coordination of economic activity of independent economic entities in legal scientific literature.The matter was also raised in publications and authors of the "Rossiyskoye Konkurent- noye Pravo I Ekonomika" magazine, at the same time, it should be noted that to consid- eration of questions of coordination of activity smaller attention is paid, than, for ex- ample, to questions of cartels.Thus, degree of scientific readiness of the matter in general is rather high, at the same time to authors the relevance of this subject and need of the analysis and assessment of the operating regulation taking into account economic features of the present stage of development of the markets seems to be of high interest.

scholarly journals Minor offences as a constitutional category

2006 ◽  
Vol 78 (9) ◽  
pp. 139-149
Author(s):  
Alenka Šelih
Keyword(s):  
Legal System ◽  
Point Of View ◽  
Judicial System ◽  
Main Issue ◽  
Administrative System ◽  
European Legislation ◽  
Administrative Justice

Slovenian Constitution, like many constitutions of other countries does not define minor offence as a punishable act or breach of constitutional provisions. Administrative system and system of administrative justice can never guarantee such impartiality as judicial system. Repressive role of the administrative authorities is differently regulated in the contemporary European legislation. From the constitutional point of view, the main issue related to the minor offences is whether it is legally justifiable that administrative authorities have repressive function. The new Slovenian legal system insists on broad competences of the specialized administrative bodies provided that protection before the court is guaranteed.

scholarly journals Exercising the right to a trial in a reasonable time in the Republic of Serbia

2007 ◽  
Vol 79 (9) ◽  
pp. 311-333
Author(s):  
Maja Omeragić-Pantić ◽  
Biljana Vujičić ◽  
Bojan Tubić ◽  
Rodoljub Etinski
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Current Status ◽  
National Strategy ◽  
Reasonable Time ◽  
Legal Remedies ◽  
European Court ◽  
The Republic ◽  
Judicial Procedure ◽  
The Right

Constitution and procedural laws explicitly guarantee right to a trial in a reasonable time. The procedural laws have been changed and some new solutions, which have to enable a trial in a reasonable time, were adopted. The Decision on establishing of national strategy of judicature reform was adopted, in order to make the judicature more efficient. However, the inquiries show that there are still some significant disadvantages which affect the right to a trial in a reasonable time. Despite the new legislative solutions, adopted in order to accelerate the trials, some of these solutions are not completely sufficient or their implementation in practice is not entirely adequate. The Decision on establishing of national strategy of judicature reform sets up the right analysis of the current status, as well as "therapy for the healing" of judicature. However, it seems that current measures are not in accordance with this therapy. Technical modernization of the courts is very slow and personal capacities, on the level of the associates, is declining instead of getting stronger. The biggest disadvantage of the present legal system, regarding the right to a trial in a reasonable time is the absence of the efficient legal remedies with which the party could accelerate the judicial procedure, respectively with which it could give damages caused by the breach of this right. This paper shows how strict are the criteria of the European court of human rights in Strasbourg related to it and that the existing legal remedies in our legal system are not sufficient to meet these demands. The confirmation of this conclusion came from Strasbourg, when this paper was already written, in the judgment V.A.M. v. Serbia of March 13, 2007.

scholarly journals Guilty of using Google: Reconciling the right to a fair trial with the right to freedom of expression and addressing juror misconduct in the age of social media

2021 ◽  
Author(s):  
◽  
Emma Jane Smith
Keyword(s):  
Social Media ◽  
Legal System ◽  
Freedom Of Expression ◽  
Fair Trial ◽  
Communications Technology ◽  
Independent Research ◽  
The Subject ◽  
The Law ◽  
The Right

<p>It is widely accepted that the right to a fair trial is one of the most important guarantees contained within our legal system. That right is undermined when a jury member conducts his or her own research into a case. This type of juror misconduct constitutes contempt of court. In the light of the fact that the law of contempt is currently the subject of review in a number of jurisdictions, this paper considers how the law of contempt could be adapted to better manage the risk of jurors undertaking independent research. After a discussion of the current law and some problems with it, particularly those created by modern communications technology, this paper considers a number of possible reform options. It makes two broad recommendations. First, that the law should focus relatively more on preventing jurors undertaking their own research than on limiting publication. Second, that independent research by jurors should be the subject of statutory criminalisation, and a range of measures should be adopted to increase jurors’ understanding of the importance of not going outside the evidence before them and to minimize any incentives for jurors to conduct their own research.</p>

scholarly journals Społeczna szkodliwość — dziedzictwo komunizmu w polskim prawie karnym?

2021 ◽  
Vol 43 (3) ◽  
pp. 155-179
Author(s):  
Wojciech Zalewski
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Criminal Liability ◽  
Second World War ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Democratic State ◽  
The Social ◽  
Social Harmfulness ◽  
Second World

The introduction of social harmfulness (social danger) to Polish criminal law after the Second World War was politically motivated. For many, this circumstance was sufficient to formulate postulates about the necessity to remove this premise of criminal liability. Social harmfulness still remains controversial today. Before, criminal law was seen as a tool. Currently, it is to be an ultima ratio. It is clear that determining the essence of the crime and its nature, introducing into the law “what belongs to literature”, was necessary in the legal system of a totalitarian state, imposing its views and morals on society. In a legal system of a democratic state, a state ruled by law, a statutory ideological declaration regarding the essence of a crime seems redundant. However, changing the nomenclature is not enough here — there is a possibility of weakening the guaranteeing criminal law function. The social harmfulness premise contributes to the heterogeneity of jurisprudence, even in cases concerning serious crimes. The author is of the opinion that limiting the number of minor cases from the point of view of the state’s right to punish, which paralyzes the judiciary with their sheer number, should take place in a different way than introducing the social harmfulness of an act as a criterion determining the culpability. The currently adopted solution seems irrational and non-functional from the perspective of the legal certainty principle. A more appropriate move seems to be the assessing the advisability of prosecuting an act, i.e. by introducing and implementing the principle of opportunism in criminal proceedings.

A aplicação dos dispute boards nos contratos empresariais no Brasil

2021 ◽  
Vol 3 (5) ◽  
pp. 137-157
Author(s):  
Marianna Reis Porto ◽  
Jonábio Barbosa dos Santos
Keyword(s):  
Legal System ◽  
Point Of View ◽  
Private Business ◽  
Business Transactions ◽  
Legal Uncertainty ◽  
Autonomy Of Will

The present work aims to analyze, from a legal point of view, the application of dispute boards in the Brazilian legal system, focused on private business contracts, so that, initially, the use of these types of business in Brazil was studied, and later, the application of extrajudicial means of conflicts applied to business transactions, with a view to the principles of autonomy of will and cooperation, in view of the slowness and legal uncertainty faced by entrepreneurs when resolving their disputes. Finally, it was possible to examine the execution of dispute boards in the legal system, demonstrating their compatibility with local laws and the advantages that their use can bring, which, however, still suffers an obstacle due to its lack of regulation, which prevents decisions have bound.

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