Consideraţii critice referitoare la Decizia nr. 12/2020, pronunţată de Înalta Curte de Casaţie şi Justiţie – Completul pentru soluţionarea recursului în interesul legii

2020 ◽  
Vol 2020 (2020) ◽  
pp. 38-53
Author(s):  
Claudia ROȘU ◽  
◽  
Alin SPERIUSI-VLAD ◽  
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
The Other ◽  
Correct Interpretation ◽  
Bad Faith ◽  
Lower Court ◽  
Civil Action ◽  
The Supreme Court ◽  
The Law

"The authors analyzed the decision of the Supreme Court by an appeal in the interest of the law, regarding the possibility of the party fined according to art. 187 parag. (1) pt. 1 let. a) Code of Civil Procedure, for the introduction, in bad faith, of a civil action, accessory, additional or incidental requests, as well as for the exercise of some appeals, obviously unfounded, by the same decision by which these requests were solved, to submit in the appeal filed to the superior court, criticisms concerning the judicial fine. In the opinion of the authors, the correct interpretation is that these criticisms can be formulated in the appeal filed to the superior court, together with all the other criticisms regarding the solution of the lower court, when the fine was applied by the same decision by which those requests were solved."

scholarly journals La libération de la caution par la faute du créancier

2005 ◽  
Vol 28 (4) ◽  
pp. 939-962
Author(s):  
Louise Poudrier-LeBel
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Bad Faith ◽  
General Duty ◽  
On Demand ◽  
Economic Context ◽  
The Supreme Court ◽  
Standards Of Conduct ◽  
The Law ◽  
Do So

Since the decision of the Supreme Court in Soucisse, a growing number of sureties try to obtain their liberation by invoking a fault of the creditor. This phenomenon occurs in the province of Quebec as in the other provinces of Canada. This paper relates mostly to the Quebec Law. The sureties plead a fault in information about the nature or the consequences of their contract or about the risks and circumstances of the operation. The author writes that such a general duty of information does not exist, except if the creditor has been contractually engaged to do so. Nevertheless, if the creditor gives wrong information with bad faith, he will be held liable. Secondly, the sureties invoke the recall of the loan. Here again, there is no fault on the creditor's part, if the term is arrived or if a reasonable notice has been given when the debt is payable on demand. But if the creditor has promised that he would not recall his loan for a certain period, he must do so. Thirdly, the sureties invoke a fault in the realization of the securities for a low price. The courts will ascertain whether the sale has been held in accordance with prescriptions of the law for this type of security. If the creditor sells privatly, the courts do not hold him liable if the price obtained is justified within the economic context. In case of a fault in the realization of the securities, an action on liability belongs to the principal, the company, and not to the surety, the shareholder, a victim by ricochet, except if the goods are his own. Nevertheless if the surety is sued, he may oppose a fin denon-recevoir. The burden of the proof of the fault will be more or less easy according to the circumstances of the case. Most often, an exoneration clause will deny liability except in the case of bad faith. In the absence of such a clause, the criterium is that of a reasonable man. Sureties must also prove the amount of the prejudice. Recent amendments to the Bank Act and to the Act respecting Bills of lading, Receipts and Transferts of property in stock impose new standards of conduct on the creditor and will offer more protection to sureties.

Scandalizing the judiciary: An analysis of the uneven response of the Supreme Court of India to sexual harassment allegations against judges

2020 ◽  
Vol 18 (2) ◽  
pp. 563-590
Author(s):  
Sanjay Jain ◽  
Saranya Mishra
Keyword(s):  
Sexual Harassment ◽  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Other ◽  
Lower Court ◽  
High Courts ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Systematic Pattern

Abstract The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts by its employees, interns, or lower court judges, the response of the SC has been abysmal to say the least. There is a systematic pattern to suggest foul play and conspiracy in each such allegation, and judges, including even the Chief Justice of India (CJI), have not hesitated to openly indulge in victim-shaming and-blaming. In other words, the court has not been able to uphold its own jurisprudence on sexual harassment, which it expects to be scrupulously adhered to by other organs of the state. It is submitted that in not supporting the cause of victims alleging SH against judges, the other organs of the state are also party to this constitutional decay and serious infraction of fundamental rights. It leads us to ask the question, how can we guard against the guardians?

scholarly journals The Law of Contribution – An Equitable Doctrine or Part of the Law of Unjust Enrichment?

2017 ◽  
Vol 48 (3) ◽  
pp. 471
Author(s):  
Victoria Stace
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Enrichment Analysis ◽  
The Other ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
The Law ◽  
Significant Change

This article looks at the changes made to the equitable doctrine of contribution by the New Zealand Supreme Court in a 2016 decision, Hotchin v New Zealand Guardian Trust Co Ltd. The approach now favoured by the Supreme Court is that to establish a claim for contribution by one defendant against another, there is no need to find any greater degree of coordination between the liabilities other than that the plaintiff could pursue either defendant for its loss and either would be liable for it, in whole or in part. The underlying rationale is that by paying the plaintiff, the defendant who was pursued not only discharges itself but also discharges the other defendant's liability. If mutual discharge is established, the court then determines the amount of contribution based on what is just and reasonable in the circumstances. The Supreme Court's approach to the doctrine of equitable contribution, which is a significant change to previous law, bears similarities to the approach proposed in the leading text on unjust enrichment, raising the issue of whether a future claim for contribution could be approached using an unjust enrichment analysis.

Criteria of Liability for Breach of Contract

1967 ◽  
Vol 2 (1) ◽  
pp. 67-110 ◽  
Author(s):  
Ernst Livneh
Keyword(s):  
Civil Procedure ◽  
The Other ◽  
Bad Faith ◽  
Breach Of Contract ◽  
Direct Damage ◽  
Damage Compensation ◽  
Direct Loss ◽  
The Law

The Israel law on damages for breach of contract is contained in arts. 106–11 (112) of the Ottoman Code of Civil Procedure, 1879 (OCCP), and the law on damages for torts in the Civil Wrongs Ordinance, 1944, (CWO)— enactments from two different worlds, built upon different foundations. The tests of liability are as follows.OCCPart. 109. “If the non-performance of an agreement be not due to bad faith on the part of the person who has undertaken to perform it, the damages awarded against him shall be equivalent only to the direct and determinate loss suffered by the other party owing to such non-performance.”art. 110. “If the non-performance of the agreement be due to fraud or bad faith on the part of the person bound to perform it, he shall be liable to pay damages which shall include both direct loss caused to the other party by such non-performance and also profits of which he may have been deprived owing to such non-performance.”CWOsec. 60, prov. (a), “…where the plaintiff has suffered damage, compensation shall only be awarded in respect of such damage as would naturally arise in the usual course of things and which directly arose from the defendant's civil wrong;…”Among all the criteria of liability for damages (which will hereafter be analysed) one only is common to both laws—“direct” damage. But neither law is original; it will be more interesting, and more instructive for the elucidation of their meaning, to go back to the sources and to compare both sets of provisions with their source, and the sources with each other.

scholarly journals Establishment by virtue of the law of land easement with the content corresponding to transmission easement in the light of the resolution of the Supreme Court of June 5, 2018, in case III CZP 50/17

2019 ◽  
Vol 29 ◽  
pp. 227-236
Author(s):  
Anna Maria Barańska
Keyword(s):  
Property Rights ◽  
Supreme Court ◽  
The Other ◽  
Other Hand ◽  
The Supreme Court ◽  
The Subject ◽  
The Creation ◽  
The Law ◽  
Owned Company

The subject of this article is the resolution of the enlarged composition of the Supreme Court of June 5, 2018, which resolves the issue of acquiring by land easement with the content corresponding to transmission easement together with the acquisition by a state-owned company of transmission facilities developed on State Treasury properties. As a result of granting property rights to state-owned companies of state property in the early 1990s, the ownership of the transmission infrastructure and the property on which they were situated were separated.In the judicature, divergent concepts emerged regarding the solution of the issue of  further use of this land by transmission companies. According to the first one, the transfer of property rights was accompanied by the creation by law of a land easement with the content corresponding to a transmission easement. On the other hand, according to the second concept, obtaining a legal title for further use of the property was possible only through contractual acquisition or prescription of transmission easement. Powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu w świetle uchwały Sądu Najwyższego z dnia 5 czerwca 2018 roku, sygn. akt III CZP 50/17 Tematem artykułu jest uchwała powiększonego składu Sądu Najwyższego z dnia 5 czerwca 2018 roku, która rozstrzyga kwestię nabycia z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu wraz z nabyciem przez przedsiębiorstwo państwowe własności urządzeń przesyłowych posadowionych na nieruchomościach Skarbu Państwa. W wyniku uwłaszczenia mienia państwowego na początku lat dziewięćdziesiątych ubiegłego wieku doszło do rozdzielenia własności infrastruktury przesyłowej oraz nieruchomości, na której były one posadowione. W judykaturze pojawiły się rozbieżne koncepcje odnośnie do rozwiązania kwestii dalszego korzystania przez przedsiębiorstwa przesyłowe z tych gruntów. Zgodnie z pierwszą z nich przeniesieniu prawa własności towarzyszyło powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu. Na podstawie drugiej — uzyskanie tytułu prawnego do dalszego korzystania z nieruchomości było możliwe wyłącznie w drodze umownego nabycia albo zasiedzenia służebności przesyłu.

scholarly journals Legitimação ativa da defensoria pública no mandado de injunção coletivo

2018 ◽  
Vol 42 (1) ◽  
pp. 80-95
Author(s):  
Olavo Augusto Vianna Alves Ferreira ◽  
Guilherme De Siqueira Castro
Keyword(s):  
Supreme Court ◽  
Point Of View ◽  
The Other ◽  
Public Defender ◽  
The Public ◽  
The Supreme Court ◽  
The Subject ◽  
The Law

O presente artigo tem o objetivo de examinar a legitimidade ativa da Defensoria Pública no mandado de injunção coletivo. Para a consecução desta finalidade, o tema será abordado tanto do ponto de vista constitucional como do ponto de vista processual. Será estudado o vício de constitucionalidade formal da Lei 13.300/2016 no que tange a legitimidade ativa da Defensoria Pública no mandado de injunção coletivo. A necessidade de pertinência temática para a impetração e o tipo de interesse transindividual tutelado são questões que envolvem um profícuo debate constitucional que já foi objeto de exame pelo Supremo Tribunal Federal. Por derradeiro, abordaremos a possibilidade de litisconsórcio ativo no mandado de injunção envolvendo a Defensoria Pública e os demais legitimados extraordinários previsto na lei de regência da ação injuncional.   Abstract This article aims to examine the active legitimacy of the Office of the Public Defender in the collective writ of injunction. To achieve this purpose, the subject will be addressed both from a constitutional point of view and from a procedural point of view. This paper will study the formal constitutional vice of Law 13.300 / 2016 regarding the active legitimacy of the Office of the Public Defender in the collective writ of injunction. The need for thematic relevance to the filing and type of ward transindividual interest are issues involving a fruitful constitutional debate that has been the subject of examination by the Supreme Court. For last, we discuss the possibility of active joinder in the writ of injunction involving the Office of the Public Defender and the other extraordinary legitimated under the law of Regency injuncional action.

scholarly journals On The Issue about The Moment of Incurrence of Right of Cassation Appeal on Civil Cases in Republic of Bulgaria

2017 ◽  
Vol 23 (2) ◽  
pp. 175-180
Author(s):  
Atanas Ivanov
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Law ◽  
Civil Cases ◽  
The Moment ◽  
The Right

Abstract The right of the party concerned to a cassation appeal is result of specific inspection performed by the Supreme Court of Cassation where examined is the presence of conditions, foreseen in art. 280, par. 1 of Civil-Procedure Code. The right of cassation, however, shall incur from the presence of appellate judgment [1], and not from the specific inspection of Supreme Court of Cassation. The cassation appeal is submitted when the resolution is void, impermissible or inaccurate. This is why the right of cassation appeal is presented and guaranteed by the law opportunity of an individual to oblige Supreme Court of Cassation to rule on the first stage of cassation proceeding - the proceeding on allowing the cassation appeal estimating the statutory criteria in art. 280 of Civil-Procedure Code.

Much Ado about Nothing: Steele v Serepisos and a Notice Requirement for Contingent Conditions

2008 ◽  
Vol 39 (2) ◽  
pp. 319
Author(s):  
Sarah Leslie
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Much Ado About Nothing ◽  
The Supreme Court ◽  
Contingent Condition ◽  
The Law

In the 2006 case of Steele v Serepisos, the Supreme Court had an opportunity to clarify the law on contingent conditions. The issue was whether a party seeking to cancel a contract for its failure to fulfil a contingent condition first had to give notice to the other party. The purpose of the notice would be to give the other party an opportunity to fulfil the condition. A majority held, correctly in the author's view, that such a notice was not required. However, the majority went to some lengths to distinguish Cooke J's judgment in the 1978 case of Hunt v Wilson. This paper revisits Hunt v Wilson and argues that Cooke J's judgment was wrong. It further argues that the majority's failure to recognise this, coupled with general judicial confusion with respect to contingent conditions, made a simple issue much more difficult than it need have been.

THE DEFENCE OF ILLEGALITY IN TORT LAW: BEYOND JUDICIAL REDEMPTION?

2015 ◽  
Vol 74 (1) ◽  
pp. 13-16
Author(s):  
James Goudkamp ◽  
Mimi Zou
Keyword(s):  
Supreme Court ◽  
Tort Law ◽  
The Other ◽  
Immigration Laws ◽  
The Supreme Court ◽  
The Law ◽  
Satisfactory State ◽  
Law Commission

IN Hounga v Allen [2014] UKSC 47; [2014] 1 W.L.R. 2889, the Supreme Court unanimously upheld a claim in the statutory tort of discrimination by a woman who had been dismissed from her employment. The fact that the woman had been working in breach of immigration laws did not enliven the illegality defence. Hounga is one of several recent cases in which the illegality defence has been examined at the ultimate appellate level, the other decisions being Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339, Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] A.C. 1391, and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] 3 W.L.R. 1257. The fact that the defence has been considered so frequently as of late at the apex level seems to confirm that the Law Commission was wrong in its prediction, made shortly after Gray and Moore Stephens were decided, that the defence would be brought into a satisfactory state if responsibility for reforming it was left to the courts (The Illegality Defence (Law Com 320, 2010), at [3.37]–[3.41]). We are not alone in holding this view. Writing extra-judicially, Lord Mance and Lord Sumption have called for the Law Commission to re-examine the defence (J. Mance, “Ex Turpi Causa – When Latin Avoids Liability” (2014) 18 Edinburgh Law Review 175, 192; J. Sumption, “Reflections on the Law of Illegality” (2012) 20 Restitution Law Review 1, 8–12). We argue here that Hounga perpetuates (and possibly aggravates) the difficulties from which this area of law suffers.

scholarly journals Constitutional Court in Indonesia

2017 ◽  
Vol 26 (5) ◽  
pp. 387
Author(s):  
Satya Arinanto
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Constitutional Court ◽  
State Structure ◽  
The Supreme Court ◽  
The Law

This idea is a reflection of the aspiration of the lndonesian people to build up a democratic and justice society. The problem is where is the position of this institution in our state structure? The author express the alternative outlook that place "Pengadilan Tata Negara" (as the translation of Constitutional Court) under the Supreme Court and paralel with the four courts sub-system; not separate from the Supreme Court which is used the term "Mahkamah Konstitusi" as the other translation of the word Constitutional Court. To make this idea come true, the House of People's Representative (DPR) must use their right to amendment the Law No. 14/1970, especially the article on the structure of Indonesian court.

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