scholarly journals O INCIDENTE DE RESOLUÇÃO DE DEMANDAS REPETITIVAS NO CONTEXTO DO SISTEMA DE PRECEDENTES: ANÁLISE CRÍTICA DO FENÔMENO DA "COMMONLAWLIZAÇÃO" DO DIREITO BRASILEIRO

2019 ◽  
Vol 16 (3) ◽  
pp. 200
Author(s):  
Gabriel Joner ◽  
Jesser Rodrigues Borges
Keyword(s):  
Critical Analysis ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Point Of View ◽  
Legal Certainty ◽  
Procedure Code ◽  
Foreign Law ◽  
The Subject ◽  
The Common

RESUMOO presente estudo tem por objetivo, sem a pretensão de esgotar o tema, analisar o Incidente de Resolução de Demandas Repetitivas, incluído pelo Novo Código de Processo Civil de 2015, sob a ótica do denominado sistema de precedentes e, ao final, propor uma análise crítica acerca da possível “commonlawlização” do direito brasileiro. Para tanto, buscou-se breves considerações históricas acerca dos institutos da common law e da civil law, na sequência, analisou-se tais institutos sob a ótica do Código de Processo Civil de 1973 e, ao final, a sua sistematização a partir do Novo Código de Processo Civil. Os mecanismos incorporados pelo Novo Código visam a amenizar a problemática atualmente enfrentada pelo Poder Judiciário, com o objetivo de proporcionar celeridade processual e segurança jurídica. Por fim, analisa-se o Incidente de Resolução de Demandas Repetitivas, propondo uma leitura crítica do fenômeno da “commonlawlização” do direito brasileiro, apontando a necessidade de cautela em relação aos mecanismos importados do direito estrangeiro, em especial, ao Incidente de Resolução de Demandas Repetitivas, a fim de dar-lhes uma leitura conforme a Constituição Federal.Palavras-chave: Novo Código de Processo Civil. Sistema de Precedentes. Common law. Civil law. Incidente de Resolução de Demandas Repetitivas. ABSTRACTThe purpose of this study, without the pretension of exhausting the subject, is to analyze the Incident for Resolution of Repetitive Claims, included in the New Civil Procedure Code of 2015, under the perspective of the denominated precedents system and, at the end, to propose a critical analysis about the possible “communalization” of Brazilian law. ¬¬¬¬Therefore, short historical considerations were sought on the common law and civil law institutes, followed by an analysis of these institutes from the point of view of the Code of Civil Procedure of 1973 and, finally, their systematization based on the New Code of Civil Procedure. The mechanisms incorporated by the New Code aim to alleviate the problems currently faced by the Judiciary, with the objective of providing procedural expediency and legal certainty. At the end, the Repetitive Demand Incident Incident is analyzed, proposing a critical reading of the phenomenon of “commonlization” of Brazilian law, pointing out the need for caution in relation to the mechanisms imported from foreign law, especially to the Incident of Resolution of Demands Repetitive, in order to give them a reading according to the Federal Constitution.Keywords: New Civil Procedure Code. Precedents System. Common law. Civil law. Incident for Resolution of Repetitive Claims.

scholarly journals Realization of res judicata principle in civil proceedings: the experience of foreign countries

2020 ◽  
pp. 220-225
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Legal Certainty ◽  
Res Judicata ◽  
Foreign Countries ◽  
Negative Effect ◽  
The Subject

  The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.  The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved. It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties. In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.

scholarly journals Impact of the Brazilian Accounting Pronouncements Committee’s New Guideline (OCPC 07) on the downsizing of companies’ Notes

2019 ◽  
Vol 30 (79) ◽  
pp. 58-72
Author(s):  
Edilene Santana Santos ◽  
Laura Calixto ◽  
Maira Ferreira Bispo
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Equivalent Number ◽  
Disclosure Overload ◽  
The Subject ◽  
The Common ◽  
Methodological Approaches ◽  
The Impact ◽  
Big Four ◽  
Unique Study

ABSTRACT This article aims to assess the impact of the New Guideline of the Brazilian Accounting Pronouncements Committee (Comitê de Pronunciamentos Contábeis - OCPC 07) on improving formal features (size, readability, and specificity) of Brazilian companies’ Notes. OCPC 07 is one of the world’s first guidelines issued in response to the current demand for the downsizing of companies’ Notes, which according to standard setters and market agents have become too extensive, thus characterizing a disclosure overload. This is a unique study on the subject. The results suggest the effectiveness, although limited, of the new standard in promoting a departure from the habits of secrecy and formalism rooted in centuries of legal-accounting civil law tradition, and indicate that there is still room for complementary improvement initiatives in the form of incentives for firms and increased enforcement. Three complementary methodological approaches are used: (1) an analysis of both the evolution of note size after OCPC 07 and the factors explaining that size and its variation; (2) an examination of indicators of readability, conciseness, and specificity of the note on accounting policies; and (3) a size comparison of the Notes of Brazilian and British companies, a benchmark of the common law tradition. An average reduction of 10% in Note size was found two years after the introduction of Guideline (Orientação) 07 by the (OCPC 07). This downsizing was not generalized, but instead identified only among firms in the Novo Mercado and among those audited by two of the Big Four. Even in firms that reduced their notes by at least 20%, no significant improvements in readability levels could be perceived, nor in habits of copy-pasting the auditors’ templates, which could signal a focus on firms’ real practices in the note on accounting policies. Brazilian Notes remain far from the benchmark and are still 40% longer than British ones, despite an equivalent number of pages being expected.

scholarly journals Comparative Study of Civil Procedure in Common Law and Civil Law Systems

2016 ◽  
Vol 9 (5) ◽  
pp. 267
Author(s):  
Nader Ghanbari ◽  
Hassan Mohseni ◽  
Dawood Nassiran
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Judicial System ◽  
Specific Method ◽  
Legal Systems ◽  
Separate Branch ◽  
The Common ◽  
The Comparative Study

Comparing the legal systems is a specific method in which due to its important function is considered as a separate branch in law. None of the branches in law can place its knowledge merely on ideas and findings within the national borders. Several basic objections have been given regarding the definition and purpose of comparative study in civil procedure. In addition there are specific problems regarding studying practically the similar systems in a legal system like differences in purpose, definition and concept. In different legal systems like civil law and common law systems in which there is a divergence, even the judicial system`s organs and judges` appointment and judicial formalism are different, which add to the problems of the comparative study. Reviewing these differences could lead to a better understanding of these legal systems and recognizing the common principles in making use of each other`s findings considering these differences and indicate the obstacles of comparative study in this regard.

Access to Information and Evidence

2021 ◽  
pp. 136-173
Author(s):  
European Law
Keyword(s):  
European Union ◽  
Common Law ◽  
Civil Law ◽  
Relevant Information ◽  
Civil Procedure ◽  
Access To Justice ◽  
Access To Information ◽  
The European Union ◽  
The Common ◽  
Law Of Evidence

This chapter explores the provision and testing of evidence, which is central to civil procedure. Effective access to information and evidence are basic tools that ensure access to justice is a real rather than a merely theoretical right. There is a great deal of variety across European jurisdictions in respect of the approach taken to evidence-taking, and particularly to access to relevant information. This is a consequence of a variety of factors: the distinction between the civil law/common law; legal history; and procedural culture, and particularly the distribution of roles between the court, judiciary, and parties. This divergence in approaches to evidence may be the source of difficulties in cross-border litigation. The chapter identifies the common core of the law of evidence and the best, or more convenient, rules, including those related to the management of evidence, in use in European jurisdictions. To do so, it looks at the ALI/UNIDROIT Principles, the IBA Rules of Evidence and of legal instruments addressing the issue of evidence and access to information within the European Union.

Opting out of the common law: recent developments in the legal system of the Sudan

1973 ◽  
Vol 17 (2) ◽  
pp. 133-148
Author(s):  
Zaki Mustafa
Keyword(s):  
Legal System ◽  
Democratic Republic ◽  
Common Law ◽  
Civil Procedure ◽  
Evidence Code ◽  
Opting Out ◽  
Procedure Code ◽  
Recent Developments ◽  
The Common ◽  
To Receive

On October 1st, 1972, the Minister of Justice of the Democratic Republic of the Sudan constituted a committee consisting of 25 leading members of the Sudanese Legal Profession for the purpose of “re-examining fully the Sudan Civil Code, 1971, the Civil Procedure Code, 1972, the Civil Evidence Code, 1972, and the draft Penal and Commercial Codes”. The Committee was requested to recommend to the Minister whether all or any of the aforementioned codes should be abrogated, temporarily suspended (if already in force), kept as it is, or amended. The Committee was asked to submit its findings and recommendations as soon as possible and was authorised “to receive evidence from experts as well as from those directly connected with the application of the law”.

scholarly journals Estudio relativo a los principios de la potestad sancionadora y a la tramitación del nuevo procedimiento sancionador común, a la vista de su regulación en las leyes 39/2015 y 40/2015 y de la jurisprudencia reciente

2018 ◽  
pp. 315-357
Author(s):  
Sonia GAVIEIRO GONZÁLEZ
Keyword(s):  
Public Sector ◽  
Critical Analysis ◽  
Point Of View ◽  
Optimal Time ◽  
Legal Regime ◽  
The Public ◽  
Administrative Procedure ◽  
The Subject ◽  
The Common ◽  
One Year

LABURPENA: Administrazio Publikoen Administrazio-prozedura Erkidearen 39/2015 eta Sektore Publikoaren Araubide Juridikoaren 40/2015 Legeak duela urte bat baino gehiago indarrean sartu dira. Ondorioz, Administrazio Publikoen lankidegoak bi arau horiek praktikara eramateko aukera izan du eta, horregatik, badirudi momentu egokia heldu dela analisi kritikoa egiteko. Hain zuzen, lan honen helburua zehapen-prozedura da (printzipioak, izapideak, …); baina, bereziki, balizko aldaketak, prozeduraren lege berri horiek indarrean sartu eta gero. Halaber, saiatuko gara ikuspuntu kritikoak eta irteera posibleak ematen, oraindik aplikagarriak diren epai-erabakiak behin aztertuta. RESUMEN: Tras haber transcurrido más de un año desde la entrada en vigor de las Leyes 39/2015 de Procedimiento Administrativo Común de las Administraciones Públicas y 40/2015 de Régimen Jurídico del Sector Público, el personal de las Administraciones Públicas hemos tenido ocasión de poner en aplicación ambas normas y, por ello, parece que ha llegado un momento óptimo para realizar un análisis crítico. En concreto, es objeto de este trabajo el procedimiento sancionador (principios, trámites,…), destacando posibles cambios tras la entrada en vigor de estas nuevas leyes de procedimiento, pero intentando aportar un punto de vista crítico y posibles soluciones a la vista de pronunciamientos jurisprudenciales que siguen resultando aplicables. ABSTRACT: After more than one year after the entry into force of the Laws 39/2015 of the common administrative procedure of the Public Administrations and 40/2015 of legal regime of the public sector, the personnel of the Public Administrations have had opportunity to implement both standards and, therefore, it seems that there has been an optimal time to conduct a critical analysis. In particular, the sanctioning procedure (principles, processes,...) is the subject of this work and, specially, we want to analyze possible changes after the entry into force of these new procedural laws, but trying to provide a critical point of view and possible solutions in sight of jurisprudential pronouncements that continue to be applicable.

scholarly journals Formulasi Pengaturan Tahapan Pra Kontrak dalam Proses Pembentukan Kontrak di Indonesia

2020 ◽  
Vol 22 (02) ◽  
pp. 84-93
Author(s):  
Bebeto Ardyo
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
Legal Certainty ◽  
Law System ◽  
Human Needs ◽  
Contract Formation ◽  
The Common ◽  
The Times ◽  
Civil Law System

The increasement of human needs in society goes hand in hand with the development of technology. To meet these needs, there must be interaction between people which sometimes has the potential to cause disputes. That’s why a contract is needed. The existence of a contract guarantees legal certainty regarding protection of the rights of the parties and also the obligations that they must fulfill. There are several stages of contract formation which consist of pre-contract and agreement between the parties. According to the system in the Book III of Indonesia’s Code of Civil Law, consensus is the base for the formation of contract that means once the agreement has reached between the parties then a contract is formed. Indonesia’s Code of Civil Law doesn’t yet regulate pre-contract stages of contract formation, even though these stages are equally important. The regulation of pre-contract stages are usually set in the common law system, but along with the times, the regulation of pre-contract stages should also be regulated in the civil law system. As a comparison, Het Nieuw Burgerlijke Wetboek (New Civil Code of Netherlands) has already regulated that pre-contract stages, although the Netherlands is a country that implements civil law system. The pre-contract stages are very important to be regulated in Indonesia because there are many potential pre-contractual issues. This paper aims to formulate the outline of what needs to be regulated in the pre-contract regulations. Keywords : Interaction, Contract, Formation, Civil Code  

Inherited legal systems and effective rule of law: Africa and the colonial legacy

2001 ◽  
Vol 39 (4) ◽  
pp. 571-596 ◽  
Author(s):  
Sandra Fullerton Joireman
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Civil Law ◽  
Point Of View ◽  
The Rule Of Law ◽  
Law System ◽  
Colonial Legacy ◽  
The Common ◽  
Common Law System ◽  
The Individual

The question of whether particular types of legal institutions influence the effectiveness of the rule of law has long been answered with conjecture. Common law lawyers and judges tend to believe that the common law system is superior. This opinion is based on the idea that the common law system inherited from the British is more able to protect the rights of the individual than civil law judicial systems. Quite the opposite point of view can be found in lawyers from civil law countries, who may view the common law system as capricious and disorganised. This paper compares the effectiveness of the rule of law in common law and civil law countries in Africa, through a cross-national statistical comparison using Freedom House and Political Risk Services data. The comparison reveals that common law countries in Africa are generally better at providing ‘rule of law’ than are civil law countries.

Considerații cu privire la interpretarea art. 713 alin. (3) din Codul de procedură civilă

2020 ◽  
Vol 2020 (2020) ◽  
pp. 25-37
Author(s):  
Horia-Nicolae Țiț ◽  
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
Legal Provisions ◽  
Procedure Code ◽  
The Common ◽  
New Interpretation

Art. 713 parag. (3) of the Civil Procedure Code establishes the prohibition to invoke, by way of a subsequent enforcement appeal, certain motives that existed at the date when a previous enforcement appeal was filed, at the same time allowing the appellant to complete his request with new motives, provided the deadline for submitting the appeal is met in respect thereof. This article analyses the two theses of the enunciated legal provisions, determining the correlation with the common law provisions and trying to clarify their applicability in concrete cases. The key interpretations stated in the doctrine are highlighted and a new interpretation is hereby proposed, while the conclusions comprise a lege ferenda proposal.

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