THE STANDARD OF PROOF UNDER LITHUANIAN AND RUSSIAN CIVIL PROCEDURE LAW: A COMPARATIVE ANALYSIS

2021 ◽  
Vol 11 (5) ◽  
pp. 242-259
Author(s):  
V. MIKELENAS
Keyword(s):  
Main Part ◽  
Comparative Method ◽  
Case Law ◽  
Civil Procedure ◽  
Main Field ◽  
Legal Doctrine ◽  
Standard Of Proof ◽  
Civil Proceedings ◽  
Evidence And Proof ◽  
System Operating

The article is dedicated to the memory of Professor M.K. Treushnikov. The professor was the head of the candidate of law thesis of the author of the article, therefore, the beginning of the article is devoted to the author’s memories of M.K. Treushnikov. Since the main field of scientific research of M.K. Treushnikov is related to evidence and proof in civil proceedings, the main part of the article is devoted to the issues of the standard of proof. On the basis of the comparative method the author analyses how the approach to the standard of proof in Lithuania and Russia changed after 1990, both in legal doctrine and case law. It is concluded that there are many similarities in the standard of proof between Lithuanian and Russian civil procedure law, but there are also differences, which are due both to different legal doctrine approaches to this issue and to different case law. In particular, the author points out that there must be common standards for such cognitive, logical activity, which exist regardless of the legal system operating in one state or another, for there is only one logic.

scholarly journals The Admissibility of an Audio Recording in Lithuanian Civil Procedure and Arbitration

Teisė ◽  
2021 ◽  
Vol 120 ◽  
pp. 36-48
Author(s):  
Jurgis Bartkus
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Civil Procedure ◽  
Audio Recording ◽  
Legal Doctrine ◽  
Civil Proceedings ◽  
Audio Recordings ◽  
The Supreme Court ◽  
Per Se ◽  
The Republic

This article analyzes the issues related to the admissibility of audio recordings in Lithuanian civil proceedings and arbitration. The study critically evaluates the statutory law, case law and legal doctrine related to the admissibility of audio recordings. The study reveals that the case law of the Supreme Court of the Republic of Lithuania on the admissibility of audio recordings has to be improved on the application of the criteria of admissibility of audio recordings and on the protection of privacy. Meanwhile in Lithuanian arbitration law, it is suggested to waive the arbitration court’s discretion to decide on the possible approaches to the admissibility of an illegally made audio recording and to follow the view that an illegally made audio recording is per se inadmissible.

scholarly journals Gribas izteikums kā tiesiska darījuma svarīgākais elements

2021 ◽  
Author(s):  
Laura Kadile ◽  
Keyword(s):  
Subjective Assessment ◽  
Case Law ◽  
Civil Procedure ◽  
Legal Norm ◽  
Legal Doctrine ◽  
Legal Norms ◽  
Legal Consequences

To any uninvolved reader, word combinations like “understand the meaning of one’s action” and “ability to control one’s action” can be confusing. Would the legislator have deliberately created such a broad-ranging combination of philosophical concepts in the text of a legal norm that each factual circumstance could be covered under these concepts and render applicable the legal consequences specified in the legal norm, or, after all, does the legal doctrine and case law already envisage a clear model, according to which the respective legal norm is applied? In the absence of a uniform filling of a legal norm with substance, might such an interpretation permit a purely subjective assessment? For a uniform interpretation and application of legal norms to exist in practice, the interpretation must be based on new fundamental principles and a common legal doctrine, abstaining from the case law and understanding of legal norms that existed before the reform of civil procedure capacity.

EVIDENCE AND PROOF IN CIVIL PROCEDURE LAW OF UKRAINE: COMPLIANCE WITH INTERNATIONAL STANDARDS

2018 ◽  
Author(s):  
Anton Busakevych ◽  
◽  
Oleksandr Pryvydentsev ◽  
Keyword(s):  
Human Rights ◽  
National Level ◽  
Legal Framework ◽  
Civil Procedure ◽  
International Standards ◽  
Legal Systems ◽  
Global Trends ◽  
European Court ◽  
Civil Proceedings ◽  
Evidence And Proof

The article is devoted to the consideration of the legal nature of the institution of proof in civil proceedings and the compliance of national norms with international standards. The legislative definition of the concept of evidence, enshrined in the Civil Procedure Code of Ukraine, is analyzed and some features of evidence in foreign countries are considered. The authors note that in order to conduct an effective comparative analysis of the evidentiary procedure in Ukraine and abroad, it is advisable to study the case law of the European Court of Human Rights, as one of the main institutions whose jurisdiction extends to all member states of the Council of Europe and improve national legislation and bring it into line with international standards. It should be noted here that in all legal families the institution of proof is the cornerstone of justice. The development of legal systems was due to the systematic reform of procedural legislation, the creation of new models aimed at meeting the requirements of the time. The European Court of Human Rights, using the traditions and features of common and continental law, has repeatedly stated that the future position of the court in resolving this conflict between the parties and making a reasoned decision depends on the quality and completeness of the evidence presented. The recommendations contained in the court decisions reflect the progressive trends of both legal systems and are aimed at strengthening guarantees of justice at the national level. According to the authors, the foundations have already been laid for the formation of a new perception of the institution of evidence in Ukraine, as its reform took place taking into account European standards of civil proceedings and under the influence of global trends in this area. However, this process is currently incomplete and needs to be intensified with the need to develop clear criteria for assessing evidence at the level of national law, which would apply the court to the case, as is the case in the Anglo-Saxon legal system. The authors draw attention to the fact that today in Ukraine it is appropriate to introduce a "standard of proof" in civil proceedings, i.e. the use of a balance of probability to assess the circumstances of the case. The article also analyzes the gaps in the legislation on the issue raised in the topic of the work, in particular, offers proposals for improving the legal framework of Ukraine to improve the procedure of proof in civil proceedings.

scholarly journals TRZY TRANSFORMACJE W PROCEDURZE CYWILNEJ W POLSCE W XX WIEKU. WZORCE ROZWIĄZAŃ

2016 ◽  
Vol 11 (2) ◽  
pp. 353
Author(s):  
Anna Stawarska-Rippel
Keyword(s):  
World War Ii ◽  
Legal System ◽  
Comparative Method ◽  
Civil Procedure ◽  
Second Republic ◽  
Civil Proceedings ◽  
Rules And Principles ◽  
The Law ◽  
Polish Law ◽  
Polish Code

THREE TRANSFORMATIONS OF CIVIL PROCEEDINGS IN POLAND IN THE 20TH CENTURY. THE LEGAL PATTERNS Summary Poland’s history over the last century was an eventful period of political, state and legal change. There were three transformations of judicial law due to changing political circumstances in twentieth century Poland. The first transformation occurred when independence was gained in 1918. At that point in Poland five different legal system were in force. The decision to temporarily keep the law of the occupying powers until the new Polish legal system was created was taken by the Polish authorities. The work on Polish civil procedure began in November 1919. Using the comparative method all modern legal answers within European civil procedures, which equated with Polish Law, were drafted in the Polish Code of Civil Procedure. The second transformation in Polish judicial law began after  World War II, when Poland found itself under the political influenceof the USSR. Formal maintenance of the law of the Second Republic of Poland was decided on in People’s Poland. The legal system of the interwar Poland, including the Code of Civil Procedure (1930), did not square with the principles of the new state system. Code of Civil Procedure (1930) had been „adapted“ to contemporary governance, plitical and ideological so that it would mirror as much as possible the Soviet model. The new Code of Civil Procedure that was adopted during November 1964 retained its binding force so far. However when the third transformation came about soon after 1989, the existing system of law was revised to eliminate the rules and principles characteristic of the socialist legal system. Amendments of the Code of Civil Procedure (1964) have increased the adversarial aspect of civil proceedings. The possibility of the court to order the investigations  during the civil procedure was eliminated, but the possibility of the court to obtain evidence ex officio was kept which is intended to guarantee the implementation of the principles of truth, in legal sense and not in the ideological sense.

Evidence of the opinion of the scientific institute (article 290 of the code of civil procedure) in the light of judicial case-law – selected issues

2019 ◽  
Vol specjalny (XIX) ◽  
pp. 139-154
Author(s):  
Aleksandra Partyk
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Dominant Position ◽  
Staff Members ◽  
Expert Opinions ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Special Knowledge ◽  
Research Institute

Evidence of the scientific or research institute’s opinion shall be provided in civil proceedings when there is a need to obtain special knowledge of the highest standard. Judicial case-law indicates that it may be useful to instruct the institute to give an opinion if the expert opinions drawn up on the matter are inadequate or contradictory. According to the choice of the jurisprudence cited in the article, the opinion of the institute is issued by at least two staff members of this research institute, and the conclusions expressed in the report should reflect the dominant position of the institute. In this context, particular attention is paid in judicial practice to the need for the scientific institute to justify its opinion in an accessible and comprehensible manner so that it can be assessed by persons who do not have special knowledge. The study also presents the jurisprudence views related to the evidentiary force of the institute’s opinion

ON EVIDENCE AND PROOF IN CIVIL PROCEDURE (IN MEMORY OF PROFESSOR M.K. TREUSHNIKOV)

2021 ◽  
Vol 11 (5) ◽  
pp. 34-48
Author(s):  
T.V. SAKHNOVA
Keyword(s):  
Civil Procedure ◽  
Forensic Evidence ◽  
Basic Principles ◽  
The Core ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
Litmus Test ◽  
Evidence And Proof ◽  
The 19Th Century

Proof and evidence reflect the quintessence of civil procedure; this is the “litmus test”, which inevitably and clearly shows the effectiveness (or ineffectiveness) of basic principles, efficiency (or ineffectiveness) of the legislative paradigm of civil procedure, predictive function of science. It is no coincidence that the problems of proof and evidence-including in their traditional hypostasis-have always been the focus of attention of prominent domestic proceduralists, beginning in the 19th century. A pleiad of Russian pre-revolutionary scholars who turned their eyes to forensic evidence – E.V. Vaskovskii, A.Kh. Golmsten, K.I. Malyshev, E.A. Nefediev, B.V. Popov, – which is continued in the 20th century by S.N. Abramov, A.F. Kleinman, S.V. Kurylev, P.P. Gureev, L.P. Smyshliaev, Ia.L. Shtutin, and K.S. Iudelson (we do not aim to name all names) is brilliant. And not coincidentally, we believe, the problems of judicial proof and judicial evidence became the core of scientific research and achievements of Professor M.K. Treushnikov, who continued the best traditions of domestic jurisprudence and formulated the basis of the modern evidential paradigm in civil proceedings, which was legislatively reflected in the 2002 Civil Procedure Code of the Russian Federation.

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.

EVIDENCE AND PROOF IN CIVIL PROCEDURE LAW OF UKRAINE: COMPLIANCE WITH INTERNATIONAL STANDARDS

2018 ◽  
Author(s):  
Anton Busakevych ◽  
◽  
Oleksandr Pryvydentsev ◽  
Keyword(s):  
Human Rights ◽  
Civil Procedure ◽  
International Standards ◽  
European Court ◽  
Foreign Countries ◽  
Civil Proceedings ◽  
Legal Nature ◽  
National Norms ◽  
Definition Of ◽  
Evidence And Proof

The article is devoted to the consideration of the legal nature of the institution of proof in civil proceedings and the compliance of national norms with international standards. The legislative definition of the concept of evidence, enshrined in the Civil Procedure Code of Ukraine, is analyzed and some features of evidence in foreign countries are considered. The authors note that in order to conduct an effective comparative analysis of the evidentiary procedure in Ukraine and abroad, it is advisable to study the case law of the European Court of Human Rights, as one of the main institutions whose jurisdiction extends to all member states of the Council of Europe and improve national legislation and bring it into line with international standards. It should be noted here that in all legal families the institution of proof is the cornerstone of justice. The development of legal systems was due to the systematic reform of procedural legislation, the creation of new models aimed at meeting the requirements of the time. The European Court of Human Rights,

IN NOVUM RESTRICTION IN LITHUANIAN CIVIL PROCEDURE LAW

2021 ◽  
Vol 11 (5) ◽  
pp. 260-275
Author(s):  
V. NEKROŠIUS
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Daily Work ◽  
Civil Proceedings ◽  
Long Time ◽  
The Law ◽  
The Republic ◽  
Grand Duchy Of Lithuania ◽  
The Right ◽  
Court Of First Instance

This article examines a relatively new institute of Lithuanian civil proceedings – legal restrictions on the late submission of evidence in both first instance and appellate courts. These restrictions were first established in the new Civil Procedure Code (CPC) which was adopted by Seimas of the Republic of Lithuania on 28 February 2002 (entered into force on 1 January 2003). Until then such restrictions in Lithuanian civil procedure law were not known from the time of famous Statutes of the Grand Duchy of Lithuania. Therefore, it seems natural that this innovation has paved the way for its real application in the courts for more than a decade. This article provides a consistent analysis of the case law (starting with the rulings of the Supreme Court of Lithuania in which the restrictions established in the law were practically denied, and up to the rulings of the last year, which already recognized the right of the courts in certain cases to refuse to accept evidence which was submitted too late). This article also reveals the aims of the CPC authors which were aimed at establishing the first instance court’s right to refuse to accept evidence which was submitted too late and system of limited appeal which establishes a general prohibition (with certain exceptions) to present evidence that was not examined in the court of first instance. One of the most important aims is the concentration of the proceedings, the prevention of abuse of procedural rights and the establishment of the first instance as the main judicial instance. The appeal procedure in the new CPC is already regarded not as a repetition or continuation of the proceedings at first instance, but as a review of the legality and validity of an existing, albeit unenforced, decision of the court of first instance. The author acknowledges that although it took a long time for the relevant provisions of the law to be actually applied in the case law, today their application is already noticeable in the daily work of courts. This leads to the conclusion that Lithuanian courts have adapted to the new CPC system and its philosophy.

Evidence and Proof in Civil and Administrative Proceedings: Comparative Legal Analysis

2020 ◽  
Vol 4 ◽  
pp. 72-76
Author(s):  
Yu. R. Sirazitdinova ◽  
Keyword(s):  
Russian Federation ◽  
Civil Procedure ◽  
Legal Analysis ◽  
The Russian Federation ◽  
Administrative Proceedings ◽  
Evidence And Proof

By comparing the article, some questions of proof and evidence are examined in the Code of Civil Procedure of the Russian Federation, agribusiness of the Russian Federation, CAS of the Russian Federation. An attempt has been made to develop proposals for amending Articles 62 and 122 of the CAS RF.

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