scholarly journals Zastosowanie doktryny „owoców drzewa zatrutego” na gruncie polskiej procedury cywilnej

Author(s):  
Piotr Soroka ◽  
Magdalena Korkuś-Soroka

Artykuł krótko opisuje, czym jest doktryna „owoców drzewa zatrutego” i w jaki sposób może ona wpływać na przebieg procesu cywilnego. Ukazanie tej problematyki na gruncie orzecznictwa pozwala sformułować istotne wnioski, które powinny uwzględniać sądy, w sytuacjach gdy strony próbują wprowadzić do procesu nielegalnie uzyskany dowód. Brak regulacji w tej materii powoduje, że lukę tę musi wypełnić orzecznictwo i doktryna. Application of the „fruits of the poisonous tree” doctrine in the Polish Civil ProcedurePolish civil procedure lacks a solution for evidence which was acquired by the parties illegally or in a manner which may stand in collision with good customs or with principles of social coexistence. The “fruit of the poisonous tree” doctrine has roots in criminal procedure but, on the other hand, it could be applied also in civil proceedings sadly, in Polish criminal procedure this doctrine is very limited. This article is a short presentation of the current views of Polish courts and jurisprudence on this matter, which are not consistent.

Author(s):  
Joanna Derlatka ◽  

In the light of the Act of 4 July 2019 about the amendment of the Act – Code of Civil Procedure and some other acts, many changes are introduced in the regulations on evidence in civil proceedings. The analysis focuses on presentation and assessment of the effects of changes contained in the Art. 272 1 of the Code of Civil Procedure. This provision provides for the introduction of participation of an expert in the hearing of a witness in civil proceedings. If there is doubt as to the ability to observe or recollect observations of a witness, the court may decide that the witness will testify with the attendance of an expert physician or psychologist, and the witness cannot oppose this. The provision is based on the current regulation of Art. 192 § 2 of the Code of Criminal Procedure. After the amendment enters into force, many problems arise regarding art. 272 1 of the Code of Civil Procedure and the other new procedural solutions, such as omission of evidence or repetition of evidence proceedings.


Author(s):  
Anna Kościółek ◽  

The following paper includes an analysis of the model of a complaint in the polish civil proceedings. This issue is discussed especially in the light of essential legislative changes introduced by the Act of 4 July 2019 amending the Act – the Code of Civil Procedure and some other acts. These changes fundamentally altered the model for reviewing court decisions in incidental matters, which are not conclusive for the entire proceedings. The Act, in particular, significantly limited the catalogue of decisions of courts of first instance which can be appealed againts to the court of second instance, reshaping this particular model of control into an exception to the simultaneously introduced principle of examining a complaint by different judges of the same court. On the other hand, the act expanded the scope of decisions of courts of second instance which are examined by different judges of the same court. A similar solution was introduced also in in the enforcement proceedings. Therefore, in the current legal status, majority of incidental decisions in civil proceedings has been covered by the so called horizontal complaint. In consequence, a complaint lost its devolutive nature and thus ceased to be an appelate messure.


2021 ◽  
Vol 11 (5) ◽  
pp. 22-33
Author(s):  
E.V. KUDRYAVTSEVA

The article is dedicated to the memory of Mikhail Konstantinovich Treushnikov, Doctor of Law, Professor, Honored Scientist, Head of the Department of Civil Procedure of the Law Faculty of the Lomonosov Moscow State University. The article analyzes the methodology of teaching civil procedure, focuses on the methodology of lecturing, seminars, and game processes. Mikhail Konstantinovich paid great attention to the methodology of teaching civil procedure. The author of the article offers a study of the section “Methods of Teaching Law” from the book “Creative Search in the Science of Civil Procedure Law” by M.K. Treushnikov published in 2020. This section presents methodological recommendations on how to prepare and give lectures for newly elected judges at the republican training courses for legal officers on two subjects: “Preparation of civil cases for trial is a mandatory stage of the process”, “Types of evidence in civil proceedings”. The other two articles in this section are devoted to different issues. One is devoted to the methodology of teaching law in non-law universities (on the example of Moscow State University), the other is written on the basis of a speech “Traditions and Innovations in Legal Education” at the conference meeting of the heads of the departments of social sciences of the Lomonosov Moscow State University on 16 February 2007 and shows the role of departments in solving the problems of legal education.


Author(s):  
Stuart Sime

This chapter discusses striking-out orders, discontinuance, and stays in civil proceedings. Rule 3.4(2) of the Civil Procedure Rules 1998 (CPR) allows the court to strike out a statement of case if it appears to the court: that the statement of case discloses no reasonable grounds for bringing or defending the claim; that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or that there has been a failure to comply with a rule, practice direction, or court order. A party who realizes their case is doomed is often best advised to discontinue to prevent the accumulation of further costs, but often has to pay the costs of the other parties to date. Stays are temporary halts in proceedings, and can be granted for a range of reasons. A stay is normally lifted once the reason no longer applies.


Author(s):  
Stuart Sime

This chapter discusses striking-out orders, discontinuance, and stays in civil proceedings. Rule 3.4(2) of the Civil Procedure Rules 1998 (CPR) allows the court to strike out a statement of case if it appears to the court: that the statement of case discloses no reasonable grounds for bringing or defending the claim; that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or that there has been a failure to comply with a rule, practice direction, or court order. A party who realizes their case is doomed is often best advised to discontinue to prevent the accumulation of further costs, but often has to pay the costs of the other parties to date. Stays are temporary halts in proceedings, and can be granted for a range of reasons. A stay is normally lifted once the reason no longer applies.


Author(s):  
Stuart Sime

This chapter discusses striking-out orders, discontinuance, and stays in civil proceedings. Rule 3.4(2) of the Civil Procedure Rules 1998 (CPR) allows the court to strike out a statement of case if it appears to the court: that the statement of case discloses no reasonable grounds for bringing or defending the claim; that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or that there has been a failure to comply with a rule, practice direction, or court order. A party who realizes their case is doomed is often best advised to discontinue to prevent the accumulation of further costs, but often has to pay the costs of the other parties to date. Stays are temporary halts in proceedings, and can be granted for a range of reasons. A stay is normally lifted once the reason no longer applies.


2017 ◽  
Vol 1 (3) ◽  
pp. 190-200
Author(s):  
Natalia Kashtanova

The subject of paper deals with the legal nature of measures of criminal procedural compulsionin the form of seizure of property.Methodological basis of the article is based on general scientific dialectical methods of cognitionof objective reality of the legal processes and phenomena that allowed us to conduct anobjective assessment of the state of legislation and law enforcement practice in the proceduralaspects of the cancellation of the seizure of property in criminal proceedings of Russia.The results and scope of it’s application. It is submitted that the cancellation of the seizureof the property (or the individual limit) is allowed only on the grounds and in the mannerprescribed by the criminal procedure law of the Russian Federation. However, the studyfound serious contradictions in the application of the relevant law. In particular, cases inwhich the question of exemption of property from arrest (exclusion from the inventory),imposed in the criminal case was resolved in a civil procedure that, in the opinion of theauthor of the publication, is extremely unacceptable.On the stated issues topics analyzes opinions of scientists who say that the dispute aboutthe release of impounded property may be allowed in civil proceedings, including pendingresolution of the criminal case on the merits. The author strongly disagrees with this positionand supports those experts who argue that the filing of a claim for exemption of propertyfrom arrest (exclusion from the inventory) the reviewed judicial act of imposing of arrestwithout recognition per se invalid. In this regard, the author cites the legal position ofthe constitutional Court of the Russian Federation, from which clearly follows that of theright of everyone to judicial protection does not imply the possibility of choice of the citizenat its discretion, techniques and procedures of judicial protection, since the features of suchjudicial protection is defined in specific Federal laws.The author analyzes and appreciates Kazakhstan's experience of legal regulation of the permissibilityof filing a civil claim for exemption of property from seizure imposed in criminalproceedings. The author notes that the new civil procedural legislation of the Republic ofKazakhstan, which came into force from 01 January 2016, clearly captures that considerationin the civil proceedings are not subject to claims for exemption of property from seizureby the criminal prosecution body.Conclusions. Necessity of amendment to article 422 of the Civil Procedure Code of Russia:this article should not apply to cases of application of measures of criminal procedural compulsionin the form of seizure of property. Among other things, the author proposed additionsto part 9 of article 115 of the Criminal Procedure Code of Russia.


2019 ◽  
Vol 16 (3) ◽  
pp. 220
Author(s):  
Lisiane Beatriz Fröhlich ◽  
Jonathan Iovane De Lemos

RESUMOO presente estudo tem como objetivo geral compreender em qual dos planos dos atos processuais – existência, validade ou eficácia – reside o defeito que acomete a sentença de mérito prolatada com a preterição do(s) litisconsorte(s) necessário(s) unitário(s). A partir dos resultados obtidos com a pesquisa, constatou-se que, para o alcance de uma conclusão satisfatória a seu respeito, é imprescindível a verificação do momento em que é alegada a preterição do(s) litisconsorte(s) necessário(s) unitário(s). Assim, concluiu-se que, na eventualidade de a alegação ocorrer anteriormente ao trânsito em julgado, o defeito estará situado no plano da validade, tratando-se de uma nulidade absoluta. Por outro lado, após o trânsito em julgado, o que remanesce é o vício no plano da eficácia. Dessa forma, observa-se que a atual legislação processual civil não é incorreta, mas incompleta e carente de precisão. Isso porque, apesar da superlativa importância da definição do momento em que se está analisando o vício, o Código de Processo Civil de 2015 é omisso com relação a esse aspecto, potencializando as dúvidas a respeito do tema. Por fim, verificou-se que, devido à gravidade do defeito que acomete essa sentença – oriunda, sobretudo, da ofensa aos princípios constitucionais –, é possível que qualquer interessado o alegue. Além disso, pelos mesmos motivos, as vias processuais admissíveis para combater esse vício são variadas, podendo ser manejada a ação rescisória, a impugnação ao cumprimento de sentença, a querela nullitatis insanabilis ou, ainda, qualquer outro meio idôneo e compatível com a situação concreta.Palavras-chave: Litisconsórcio necessário unitário. Sentença de mérito. Inexistência. Invalidade. Ineficácia. ABSTRACTThe purpose of the present study is to understand in which of the plans of procedural acts – existence, validity or efficacy – is situated the defect that affects the judgment of merit prolated with the pretermission of the necessary unitary collegitimate. From the results obtained with the research, it was verified that, in order to arrive at a satisfactory conclusion about it, it is essential to verify the moment when is alleged the omission of the necessary unitary collegitimate. Thus, it was concluded that, if the claim occurs before it is formed the res judicata, the defect is situated in the validity plan, being an absolute nullity. On the other hand, after the res judicata is formed, what remains is the inefficacy. Therefore, it was verified that the current civil procedural law is not incorrect, but incomplete and lacking precision. This is because, in spite of the superlative importance of defining which moment the defect is being analyzed, the Brazilian Civil Procedure Code of 2015 do not consider this aspect, potentializing doubts about the issue. Finally, it was discovered that, because of the severity of the defect that affects this veredict – originated, principally, from the offense to the constitutional principles – it is possible that any interested subject of the process can claim it. Besides that, for the same reasons, it is admitted the use of several procedural means to combat this decision, like the rescissory action, the enforcement’s impugnment of the judgment, the querela nullitatis insanabilis or any other suitable procedural means and compatible with the specific situation.Keywords: Necessary unitary joinder of parties. Judgment of merit. Inexistence. Invalidity. Inefficacy.


2021 ◽  
Vol 17 (2) ◽  
pp. 64-69
Author(s):  
A. R. Sharipova

The negative impact of the existing legislative approach to reforming the criminal process on the possibility of its convergence with other procedural branches is considered. The unjustified separation of bills on reforming the CPC within the framework of unified procedural transformations is noted. Separate legislative work on the criminal process, on the one hand, and arbitration, civil and administrative, on the other hand, leads to the emergence of additional unjustified differences in the normative consolidation of universal institutions. Specific examples of undesirable divergence of lawsuits caused by uncoordinated lawmaking are given. The absence of convergence of procedural law among the goals of both sectoral, in particular, criminal procedure policy, and judicial policy is noted. The necessity of developing the concept and directions of judicial procedural policy is substantiated.


2018 ◽  
Vol 17 (1) ◽  
pp. 17-35
Author(s):  
Jacek Janusz Mrozek

This article attempts at analysing the current and drafted legal regulations concerning courtexecutive officers and execution as well as the civil procedure as regards the court executive officers’legal status. Allowance is made for their hybrid position in the system: on the one hand, they performpublic authorities’ functions; on the other hand, they conduct activities in a self-employed capacity,based on full business risk related e.g. to the high personnel and material costs.


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