ESTOPPEL IN THE CONTEXT OF RUSSIAN CIVIL PROCEDURE: ASPECTS OF THEORY AND PRACTICE

2021 ◽  
Vol 11 (4) ◽  
pp. 229-250
Author(s):  
A.V. YAKHIMOVICH
Keyword(s):  
Due Process ◽  
Civil Procedure ◽  
Theory And Practice ◽  
Access To Justice ◽  
Legal Principle ◽  
Legal Texts ◽  
Substantive Due Process ◽  
The Law ◽  
Procedural Rights ◽  
Formal Requirements

Substantive due process is commonly recognized as fundamental guarantee of a person’s access to justice. One of the main conditions guaranteeing observance of the due process is litigants’ comprehensive sets of procedural rights. Ways in which they can assert their rights should be exhaustively defined as well. The extent of thoroughness of regulation may be different but it may not be absent. In that respect estoppel as a legal principle, which lacks formal requirements in the law, is problematic. The sustainability of judgements which are reasoned by way of employing a broad undefined concept of estoppel is questioned. One of the biggest doubts discussed is the viability of an idea where promissory estoppel is used as a source of a general estoppel concept. It is argued that promissory estoppel being a specific English obligation law instrument cannot be used as a source of limiting procedural rights of litigants. As for estoppel by representation, it can be safely adopted because of its nature as a source of identifying principal issues of fact. It has nothing to do with establishing or banning any personal or procedural rights. But in order to safely implement this type of estoppel it has to be thoroughly considered as to how exactly this instrument of procedure will be married with the current court’s legal duties. It has to decide cases upon all and truly established issues of fact in question. The problem is not a trivial one as even in leading English legal texts it is recognized the contradiction between court’s inquisitorial duties and using of these types of estoppel.

scholarly journals Rights of Due Process in Civil Procedurs of Some Countries in the World an in Vietnam

2020 ◽  
Vol 36 (1) ◽  
Author(s):  
Nguyen Van Quan ◽  
Nguyen Bich Thao
Keyword(s):  
Human Rights ◽  
Due Process ◽  
The United States ◽  
Civil Procedure ◽  
United States Constitution ◽  
Legal Science ◽  
The World ◽  
Fact Finding ◽  
The Right ◽  
Procedural Rights

Currently, civil procedure legal science in the world begins to study the application of fair procedural rights. Meanwhile, Vietnamese civil procedure legal science seems to pay attention to the proceedings instead of the procedural rights. In this context, the paper examines the application of rights of due process around the world and in Vietnam. From there, the author suggests a number of appropriate orientations in this area that Vietnam should apply in the near future in order to match the trend in the world and the reality of Vietnam. Keywords: Civil procedure, due process, rights of due process, human rights. References: [1] Rhonda Wasserman, Procedural Due Process: A Reference Guide to the United States Constitution, Greenwood Publishing Group, 2004.[2] E. Thomas Sullivan and Toni M. Massaro, The Arc of Due Process in American Constitutional Law, Oxford University Press, 2013.[3] Khoa Luật Đại học Quốc gia Hà Nội, Giáo trình Luật tố tụng dân sự Việt Nam, NXB. Đại học Quốc gia Hà Nội.[4] European Court of Human Rights (2013), Guide to Article 6: The Right to a Fair Trial (Civil Limb), http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf.[5] C.H. Van Rhee & Alan Uzelac (eds.), Truth and Efficiency in Civil Litigation: Fundamental Aspects of Fact-Finding and Evidence-Taking in a Comparative Context, Intersentia, 2012, pp. 5-6.    

Formalism and Pragmatism in Criminal Procedure

2018 ◽  
pp. 182-219
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Constitutional Law ◽  
Due Process ◽  
Process Analysis ◽  
Capabilities Approach ◽  
Alternative Approach ◽  
Criminal Charges ◽  
Subjective Utility ◽  
The Law ◽  
Procedural Rights

Many jurisdictions define a special procedural regime for people facing “criminal” charges; hence, whether a case is considered “civil” or “criminal” can have important consequences for access to a wide array of procedural rights. Conventionally, the distinction between “civil” and “criminal” law is drawn by reference to whether the law in question is intended to be punitive. This chapter explores an alternative approach. Drawing upon the capabilities approach literature, this chapter develops an account of the allocation of procedural rights on the basis of whether the law in question has the potential to impair effective access to central capability. The appeal of the capabilities approach is contrasted to Kolber’s proposal to index punishment by reference to subjective utility or preference. Although appeal to capabilities is novel in this context, well-known features of due process analysis in American constitutional law are broadly consistent with a capabilities-based approach to rights allocation.

scholarly journals Relevance Of Magna Carta To Rights Of Victims Of Abuse Of Power

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 48-58
Author(s):  
Besa Arifi
Keyword(s):  
Due Process ◽  
The State ◽  
Point Of View ◽  
Access To Justice ◽  
List Type ◽  
Abuse Of Power ◽  
Comparative Aspect ◽  
Magna Carta ◽  
The Law ◽  
The Right

AbstractMagna Carta Libertatum is one of the few documents that continuously imply thorough discussions about fundamental principles of the law. In 2011,Lord McNelly, Justice Minister of UK at the time, has emphasized the core and everlasting principles that derived from this document:᠅ that the power of the state is not absolute᠅ that whoever governs the state must obey the law᠅ and that whoever governs the state must take account of the views of those who are governed (McNally, 2011).These are the fundamental principles of any government that strives to be distinguished as democratic, these are the self-evident truths that have been developed in the theory of social contract that established the modern day democracies.It is very common that article 39 of Magna Carta that provides for the right to due process, as well as article 40 that provides for the right to access to justice and justice itself, to be usually analyzed from the point of view of the rights of the person accused of a crime. However, it must be taken into consideration, that failure to guarantee these two very important human rights makes the accused person a victim of abuse of power.This article aims to analyze the relevance of Magna Carta in the rise of the concept of rights of victims of abuse of power. Although it is a concept developed later in history, the clauses of Magna Carta that remain in power can be directly linked to this category of victims.The thirteenth century provides a very important perspective on the position of the victim of crime and can be analyzed in a comparative aspect regarding the Common Law and the Civil Law historical development. The article will briefly explain the evolution of the concept of victims’ rights throughout these eight centuries to the modern times when these rights have become a crucial part of the national legislations of Western Balkan countries.

scholarly journals Abuse of Procedural Rights in Polish and European Civil Procedure Law and the Notion of Private and Public Interest

2019 ◽  
Vol 2 (3) ◽  
pp. 53-85
Keyword(s):  
Public Interest ◽  
Civil Procedure ◽  
European Area ◽  
Stage Of Development ◽  
Civil Proceedings ◽  
Universal Approach ◽  
Private And Public ◽  
The Law ◽  
Polish Law ◽  
Procedural Rights

The article discusses the abuse of procedural rights in Polish and European civil procedure law and the notion of private and public interest. The issue of abuse of procedural rights is a category of applying the law. At the current stage of development there is no simple transposition of the issue of legal interest on the institution of abuse of procedural right; undeniably, the lack of current and real interest, with the assumption of fulfillment of other prerequisites, may be contemplated in categories of abuse of right by the court under ius dicere. In the Polish law it is not sufficient to analyse this phenomenon solely in the sphere of procedural locus standi and there shall be the interest in taking a specific step. There also shall be the awareness of the party taking the step as to its inadmissibility and intention to harm the other party, as e.g. in case of fictitious actions. In the European area it is additionally necessary to create methodology and general approach to abuse of right in European civil proceedings and finding compromising approach towards understanding of the notion of the interest in Roman and Germanic law systems. Because application and development of the law due to lack of procedural fairness and good faith is rather difficult to verify and to define, the advantage of adopting admissibility of a separate international institution of abuse of procedural right would lie in the possibility of applying a universal approach towards abuse of procedural right in all member states. Thiswould mean that each court of the member state would apply the same standard of the test. Finally, the alternative use of exclusively national concepts of abuse of procedural right cannot be continued. It can be assumed that confirmation of the existence of the abuse of European procedural right in a given case would require existence of objective and subjective factors.

scholarly journals THE COOPERATION OF A JUDGE AND THE PARTIES IN THE CIVIL PROCEDURE IN EUROPEAN STATES: GENERAL APPROACHES

2019 ◽  
pp. 19-22
Author(s):  
О. Korol
Keyword(s):  
Positive Impact ◽  
Civil Procedure ◽  
Access To Justice ◽  
Legal Doctrine ◽  
New Approach ◽  
The Rule Of Law ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Tremendous Importance ◽  
Procedural Rights

This paper studies the principles of good faith and the cooperation between judges and parties, which are considered as highly relevant in current civil procedural law. According to many scholars, a new approach to defining their roles allows to overcome the basic urgent problems of modern civil justice – duration, high costs and, to some extent, the complexity of the trial. At the same time, its implementation leads to a positive impact on ensuring the efficiency and access to justice, which are integral parts of the rule of law. The evolution of the idea of directing litigation to peaceful compromise of parties and settling their dispute, has become of tremendous importance since the middle of the last century and today is considered as one of the inherent features of modern litigation. The idea ofgood faith in participating in the process was much developed in the first codes of civil procedure in Europe, in particular, in Austrian Code of Civil Procedure of 1898 and in French Code of Civil Procedure of 1806. The national legal doctrine contains the reflection of F. Klein's research, in particular the loyal cooperation between a judge's and parties' ideas. Later the national legislation of most European states applied the abovementioned during the reforms. Within the ELI-Unidroit Project of European Rules of Civil Procedure the Working Group on Procedural Rights used the idea of court and parties cooperation as the main ground and proposed to joint responsibility introduce with the aim of fair and just trial and avoiding of the traditional problems of two procedure models (A. Uzelac). The provisions of civil procedural law of many states, in particular of Ukraine, have more fully realized the idea of inadmissibility of abusing the procedural rights, which are justly regarded as an element of the principle of cooperation of the court and the parties in civil proceedings.

Ethics of AI in Law

2020 ◽  
pp. 718-736
Author(s):  
Harry Surden
Keyword(s):  
Legal System ◽  
Due Process ◽  
Ethical Issues ◽  
Equal Treatment ◽  
Ethical Challenge ◽  
Access To Justice ◽  
Central Values ◽  
Administrative Efficiency ◽  
Technological Transition ◽  
The Law

This chapter studies some of the most important ethical topics involving the use of artificial intelligence (AI) within the legal system itself and examines how central legal values might unintentionally or intentionally change with increased use of AI in law. Ethical issues surrounding AI use in law often share a common theme. As AI becomes increasingly integrated within the legal system, how can society ensure that core legal values are preserved? Among the most important of these legal values are: equal treatment under the law; legal results arising from law, principle, and facts rather than social status or power; procedural fairness and due process; fairness in design and application of the law; transparency in legal substance and process; adequate access to justice for all; integrity and honesty in creation and application of law; and judicial, legislative, and administrative efficiency. The central ethical challenge is to identify the ways in which the use of AI may be shifting core legal values and to ensure that these crucial values are preserved in the technological transition. A more positive view also identifies the ways in which AI technology can not only preserve central values, but rather, can foster and enhance these values to the betterment of the legal system and society overall.

scholarly journals A Importância do Princípio Constitucional do Devido Processo Legal para o Efetivo Acesso à Justiça no Brasil

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Bernardo Silva de Seixas ◽  
Roberta Kelly Silva Souza
Keyword(s):  
Due Process ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Procedural Law ◽  
Constitutional Principle ◽  
Due Process Of Law ◽  
The Law ◽  
The Government

A IMPORTÂNCIA DO PRINCÍPIO CONSTITUCIONAL DO DEVIDO PROCESSO LEGAL PARA O EFETIVO ACESSO À JUSTIÇA NO BRASIL THE IMPORTANCE OF THE CONSTITUTIONAL PRINCIPLE OF DUE PROCESS OF LAW FOR EFFECTIVE ACCESS TO JUSTICE IN BRAZIL  Bernardo Silva de SeixasRoberta Kelly Silva Souza RESUMO: Os direitos fundamentais do devido processo legal e do acesso à justiça constituem importantes temas de estudo no direito processual, pois visam proteger todos os outros direitos. Preliminarmente abordou-se acerca dos princípios constitucionais e do devido processo legal. Os princípios constitucionais são fontes vitais de interpretação do direito, tanto no momento da elaboração como na aplicação das normas. O devido processo legal assegura aos litigantes um processo igualitário, em que todas as garantias previstas em lei sejam obedecidas pelas partes e, ao final, na prolação de uma sentença por um juiz imparcial. Posteriormente, buscou-se tratar do acesso à justiça e seus obstáculos. O presente estudo teve, portanto, como objetivo geral verificar e analisar se o princípio do devido processo legal é realmente importante para o efetivo acesso à justiça pelos brasileiros. Apesar de o acesso à justiça e o devido processo legal estarem previstos na Constituição, tais direitos ainda necessitam de efetivação por parte do Poder Público, pois é de suma importância que seja observado o princípio do devido processo legal, para que seja alcançado um efetivo acesso à justiça pelos cidadãos. PALAVRAS CHAVES: Princípios Constitucionais; Devido Processo Legal; Acesso à Justiça. ABSTRACT: The fundamental rights of due process of law and of access to justice constitute relevant themes of study in the procedural law, given that they aim to protect all other rights. Preliminarily, it was discussed the constitutional principles and the due process of law. Constitutional principles are vital sources of interpretation of law, either at the time of the development or the application of norms. Due process of law assures to litigants an equalitarian process in which all the guarantees provided for under the law are followed by the parties and, in the end, in the rendering of a judgment by an impartial judge. Subsequently, we sought to address the access to justice and its obstacles. The following study was therefore aimed to verify and analyze if the principle of due process of law is really important for the effective access to justice for Brazilians. Despite the fact that the access to justice and the due process of law are provided for in the Constitution, such rights still require effectuation by the Government, because it is really important that the principle of due process of law is observed, in order to reach an effective access to justice by the citizens.KEYWORDS: Constitutional Principles; Due Process of Law; Access to Justice. SUMÁRIO: Introdução. 1. Os princípios constitucionais. 2. O princípio do devido processo legal. 2.1. Aspecto material. 2.2. Aspecto processual. 3. Acesso à justiça. 3.1. Conceito. 3.2. Obstáculos ao acesso à justiça. 4. A importância do princípio do devido processo legal para o acesso efetivo à justiça. 5. A arguição de preceito fundamental incidental e o princípio do devido processo legal. Análise da ação direta de inconstitucionalidade 2231-8/DF. Considerações finais. Referências.

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