scholarly journals Judges and Lawmaking Authority: The New Brazilian Civil Procedure Code and the Limits of How a Civil Law Judge Could Act As a Common Law Judge

2020 ◽  
Vol 11 (1) ◽  
Author(s):  
Rafael De Oliveira Rodrigues
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Procedure Code

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 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.

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.

Part VI Providing and Obtaining Assistance, B Obtaining Assistance, 21 Judicial Cooperation Including Obtaining Evidence

2017 ◽  
Author(s):  
Peddie Jonathan
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Large Degree ◽  
Civil Procedure ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Evidence Gathering ◽  
Criminal Matters ◽  
Over Time

This chapter argues that there is potential for conflict between common and civil law jurisdictions where the approach to preparation for trial, and through that the taking of evidence, differ to a large degree. In common law jurisdictions, where it is usual for private parties to be proactively involved in the evidence gathering process, it will not seem irregular for evidence to be taken by an agent of a foreign court for the purpose of proceedings on foot in that court. Such an approach may, however, offend the rules of civil law jurisdictions, where the obtaining of evidence, at least in criminal matters, is primarily the role of the judiciary. To address this potential for conflict, a number of pieces of legislation and bilateral and multilateral civil procedure conventions have evolved over time to facilitate official intervention in order to obtain cross-jurisdictional assistance in the gathering of evidence for the purpose of both civil and criminal proceedings. The various ways in which assistance may be sought by or obtained from the English courts are explored in this chapter.

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”.

The Availability in the UAE of Liens to Secure Payment under Construction Contracts

2010 ◽  
Vol 24 (3) ◽  
pp. 309-317 ◽  
Author(s):  
Amy L. Barrette ◽  
Neal R. Brendel ◽  
Wadih El-Riachi
Keyword(s):  
Construction Industry ◽  
Common Law ◽  
Civil Procedure ◽  
Civil Code ◽  
Federal Law ◽  
Construction Contracts ◽  
Procedure Code ◽  
A Priority ◽  
Under Construction ◽  
Code Provisions

AbstractWhile much attention has been devoted to curbing the rise of lawsuits surrounding Dubai’s struggling construction industry, surprisingly little attention has been focused on another option available to contractors who seek payment for failed or troubled projects. Contractors, architects, and engineers may find relief under a seldom-reported UAE federal law that establishes qualified rights for contractors to secure payment for work under non-governmental contracts by filing a priority lien against the project itself. This article discusses the remedy, known in many common-law jurisdictions as ‘mechanic’s liens’ or ‘builders’ liens’, and why it is important for contractors to be familiar with the applicable Civil Code and Civil Procedure Code provisions. Those who first exercise their lien rights and seek to register liens with the Land Department will be treading new ground and will want to be well- prepared and educated on their rights provided under existing law.

scholarly journals Precedentes e jurisdição constitucional no novo Código de Processo Civil

2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Adriano Gonçalves Feitosa ◽  
Bernardo Silva de Seixas ◽  
Jhennifer Cristine Souza Pinto
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Federal Court ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Procedural Law ◽  
The Supreme Court ◽  
Legal Innovation

Precedentes e jurisdição constitucional no Novo Código de Processo CivilPrecedents and constitutional jurisdiction in the new Brazilian Code of Civil Procedure Adriano Gonçalves Feitosa[1]Bernardo Silva de Seixas[2]Jhennifer Cristine Souza Pinto[3] RESUMO: Este trabalho pretende demonstrar a realidade inaugurada pelo NCPC – Novo Código de Processo Civil (CPC/2015) –, apontando-lhe as inovações pertinentes ao exercício jurisdicional, à medida que o novo código, em consonância com o moderno direito processual constitucional, reforça a vinculação de certas decisões e as adequa à teoria dos precedentes judiciais. Paralelamente, é necessário comentar, em linhas gerais e numa perspectiva histórica, a respeito da interação entre os sistemas do Common Law e do Civil Law no sistema brasileiro e sua influência ao longo da trajetória de consolidação da jurisdição constitucional e processual pátria. Afinal, melhor se compreende o NCPC diante das reformas processuais promovidas ainda durante a vigência do CPC/1973. Por fim, evidencia-se o papel do Supremo Tribunal Federal como Corte Constitucional e a motivação que isso representa para a força dos precedentes no CPC/2015. PALAVRAS-CHAVE: Precedentes. Novo Código de Processo Civil. Controle de Constitucionalidade. Supremo Tribunal Federal. ABSTRACT: This paper aims to show the news introduced by the new Brazilian Code of Civil Procedure (CPC/2015), pointing out the relevant innovations in the judicial exercise, so far as the legal innovation, in line with the modern constitutional Procedural Law, reinforces the binding quality of certain judicial decisions based on a theory of legal precedents. At the same time, it had to be commented, very briefly and in a historical perspective, on the interaction between the systems of Common Law and Civil Law in the Brazilian legal system and its influence over the consolidation path of constitutional and procedural jurisdiction. After all, the NCPC can be understood through the procedural reforms promoted during the term of the old procedural law (CPC/1973). Finally, this paper highlights the role of the Supreme Court as a Constitutional Court and what this represent for the precedents in the New Brazilian Code of Civil Procedure. KEYWORDS: Precedents. New Brazilian Code of Civil Procedure. Judicial Review. Brazilian Supreme Federal Court.[1] Graduando em Direito (Universidade Federal do Amazonas – UFAM).[2] Professor da Universidade Federal do Amazonas (UFAM) e do Centro Universitário de Ensino Superior do Amazonas (CIESA). Mestre em Sistema Constitucional de Garantia de Direitos (Instituição Toledo de Ensino – ITE, 2014). Especialista em Direito Processual (Centro Universitário de Ensino Superior do Amazonas – CIESA, 2013). Graduado em Direito (Centro Universitário de Ensino Superior do Amazonas – CIESA, 2011).[3] Graduanda em Direito (Universidade Federal do Amazonas – UFAM).

LIMITACIONES Y PRINCIPALES RETOS DE LA ORALIDAD CIVIL EN EL SISTEMA JUDICIAL PERUANO

SCIENTIARVM ◽  
2015 ◽  
Vol 1 (1) ◽  
pp. 3-6
Author(s):  
GELBER RAMIREZ CUEVA ◽  
◽  
GERALDINE CHAVEZ SALINAS ◽  
Keyword(s):  
Key Words ◽  
Civil Law ◽  
Civil Procedure ◽  
Law Students ◽  
Judicial System ◽  
Procedure Code ◽  
El Sistema

ABSTRACT: The article presented contains an analysis of the main challenges that the implementation of the Civil Oral Litigation model in the Peruvian Judicial System represents, through the identification of recurrent challenges previously identified through the 1993 Civil Procedure Code, as well as the description of some possible limitations of the Peruvian Judicial System; to conclude with recommendations and practical actions to be taken by magistrates, lawyers and law students, as well as politicians, legislators and academics in the area. Key words: Oral litigation, Civil Law, civil reform.

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