Bezpośredniość zamachu oraz współmierność sposobu obrony – granice obrony koniecznej w najnowszym orzecznictwie Sądu Najwyższego i sądów apelacyjnych

2021 ◽  
Vol 27 (1) ◽  
pp. 89-101
Author(s):  
Michał Grudecki

The following article aims at discussing the attributes of the directness of attack and the commensurateness of the means of necessary self-defense, which constitute the most significant, but also the most controversial, prerequisites for the justification of necessary self-defense. The author conducts his study on the basis of selected case law of appeal courts and the Supreme court, dating back four years. In this way, the article allows to delineate the limits of necessary self-defense, as well as present particular cases of exceeding the limits of necessary self-defense.

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.


2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.


2016 ◽  
Author(s):  
Mark Lemley

In Bilski v. Kappos, the Supreme Court declined calls to categoricallyexclude business methods - or any technology - from the patent law. It alsorejected as the sole test of subject matter eligibility the FederalCircuit’s deeply-flawed "machine or transformation" test, under which noprocess is patentable unless it is tied to a particular machine ortransforms an article to another state or thing. Subsequent developmentsthreaten to undo that holding, however. Relying on the Court’s descriptionof the Federal Circuit test as a "useful and important clue', the U.S.Patent and Trademark Office, patent litigants, and district courts have allcontinued to rely on the machine-or-transformation test in the wake ofBilski: no longer as the sole rule, but as a presumptive starting pointthat threatens to effectively become mandatory. In this Article, we suggesta new way to understand the exclusion of abstract ideas from patentablesubject matter. No class of invention is inherently too abstract forpatenting. Rather, the rule against patenting abstract ideas is an effortto prevent inventors from claiming their ideas too broadly. By requiringthat patent claims be limited to a specific set of practical applicationsof an idea, the abstract ideas doctrine both makes the scope of theresulting patent clearer and leaves room for subsequent inventors toimprove upon - and patent new applications of - the same basic principle.Recasting the abstract ideas doctrine as an overclaiming test eliminatesthe constraints of the artificial machine-or-transformation test, as wellas the pointless effort to fit inventions into permissible or impermissiblecategories. It also helps understand some otherwise-inexplicabledistinctions in the case law. Testing for overclaiming allows courts tofocus on what really matters: whether the scope of the patentee's claimsare commensurate with the invention’s practical, real-world contribution.This inquiry, we suggest, is the touchstone of the abstract ideas analysis,and the way out of the post-Bilski confusion.


2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.


2020 ◽  
Author(s):  
Svetoslav Pandilov ◽  

Considering the substantive and procedural consequences related to the filing of a claim, its admissibility is of significant importance to the defense of the claimant's interests. Case law of the last few years raised the question of what are the consequences for the claim procedure when the defendant has died by the date of filing of the claim - irregularity of the claim motion filed or inadmissibility of the claim on the grounds of lack of procedural prerequisite. The exist-ence of controversial case law has been overcome by Interpretative Decision №1/2017 from 09.07.2019 on Interpretative Case № 1/2017 of the General Assembly of the Civil and Com-mercial Divisions of the Supreme Court of Cassation, which states that when the defendant who is indicated in the claim motion has died before the filing of the claim motion the claim proce-dure is inadmissible and should be terminated. The above mentioned interpretative decision is analyzed in this report, as well as some hypotheses when the solution provided by the interpreta-tive decision could cause significant issues to the claimant. The report also aims to provide a solution to these practical issues.


2021 ◽  

The special edition of the national professional scientific and practical legal magazine “The Slovo of the National School of Judges of Ukraine” was published, which contains reports delivered at the online conference "Ensuring the unity of judicial practise: the legal positions of the Grand Chamber of the Supreme Court and standards of the Council of Europe", held on the occasion of the third anniversary of the Grand Chamber of the Supreme Court. time of thematic sessions and webinars for judges of each of the courts of cassation in the Supreme Court, as well as joint sessions for judges of different jurisdictions at the end of 2020. The National School of Judges of Ukraine held these events together with the Supreme Court and in synergy with the Council of Europe projects "Support to Judicial Reform in Ukraine", "Further Support for Ukraine's Implementation in the Context of Article 6 of the European Convention on Human Rights", USAID New Justice Program, OSCE Project Coordinator in Ukraine. These are projects that support various aspects of judicial reform in Ukraine, compliance with Council of Europe standards and recommendations, offering best practices from member states to help make priorities in the national reform process. The conference and training events were attended by more than 550 participants - judges of the Supreme Court, other courts, leading Ukrainian and foreign experts, representatives of the legal community. Trainers and all structural subdivisions of the National School of Judges of Ukraine were involved, the training activities of which were identified by the CCEJ in one of its conclusions as one of the important tools to ensure the unity of judicial practice. Programs of activities included reports on the role of the Grand Chamber of the Supreme Court in ensuring the unity of judicial practice and the impact on the legal system; unity of judicial practice in the context of standards - improving access to justice in Ukraine: removing procedural obstacles and ensuring the right to an impartial court, approaches to identifying cases of minor complexity and cases of significant public interest or exceptional importance for a party in the context of access to court of cassation: practice the supreme courts of the member states of the Council of Europe and the European Court of Human Rights; key positions of the Supreme Court - application of the provisions of the procedural codes on the grounds for transferring the case to the Chamber, the joint chamber or the Supreme Court, the impact of its decisions on legislative activity, ensuring the specialization of courts and judges, the practice of the Supreme Court of the Supreme Court on administrative cases, the practice of considering cases of disciplinary liability of judges, conclusions on the rules of criminal law, review of court decisions in criminal proceedings in exceptional circumstances; the impact of the case law of the European Court of Human Rights on the case law of national courts and the justification of court decisions and the "balance of rights" in civil cases in its practice, the development of the doctrine of human rights protection; ECtHR standards on evidence and the burden of proof, the conclusions of the CCEJ and their reflection in judicial practice; judicial rule-making in the activities of European courts of cassation, etc. The issues raised are analyzed in the Ukrainian and international contexts from report to report, which, we hope, will be appreciated by every lawyer - both practitioners and theorists. As well as the fact that the depth of disclosure of each of the topics through the practice of application serves the development of law and contributes to the formation of the unity of judicial practice of the Supreme Court, the creation of case law is a contribution to rulemaking and lawmaking. The conversion of intellectual discourse into the practice of Ukrainian courts is an important step towards strengthening public confidence in the judiciary. And here the unifying force of the Supreme Court can be especially important, as the Chairman of the Supreme Court Valentyna Danishevska rightly remarked, speaking about the expectations of the society.


2021 ◽  
pp. 413-424
Author(s):  
Krzysztof Świątczak

In the judgment of November 16, 2017, Ref. V. CSK 81/17, the Supreme Court ruled that starting a business in the form of running a go-go club in the commune does not violate its good name, even if some activities in its activity are contrary to the law. In addition, there are no grounds to distinguish the personal interest of a legal person in the form of a credible image. The purpose of this opinion is to evaluate the above resolution of the Supreme Court. The author intends to compare the judgment of the Supreme Court with the views of representatives of the doctrine of Polish judicial law and previous case-law.


2021 ◽  
Vol 3 (5) ◽  
pp. 159-194
Author(s):  
Nadia de Araujo ◽  
Caio Gomes de Freitas

When negotiating a contract, parties usually establish that future and eventual disputes arising out and related to the performance of their obligations shall be resolved by arbitration. Such a choice, a clear expression of the principle of party autonomy, is embedded in a contractual clause, commonly referred to as arbitration agreement. The way by which the agreement is written and, to some extent, how it is construed can, and most commonly will, result in extensive and costly disputes. In the UK, the Supreme Court has recently decided a case related to the construction of an arbitration agreement, specifically to the law applicable to its validity, scope and effectiveness. According to the Court, in the absence of an express choice made by the parties, the system of law chosen to govern the substance of the contract will apply to the validity and scope of the agreement to arbitrate. Where no such choice is expressly or implied made by the parties, it will be the law of the seat of arbitration since it represents the system of law most closely connected to the agreement. This article reviews the case-law and provides some relevant excerpts of the case.


Author(s):  
Oleksandra Skok ◽  

The statistics of the Prosecutor General's Office on registered criminal offenses in the form of serious crimes for 2020 and 2021 were reviewed. Based on this, the number of serious crimes registered by the National Police of Ukraine during the reporting periods was determined. The provisions of the current Criminal Code of Ukraine, the Criminal-Executive Code of Ukraine, the Resolution of the Plenum of the Supreme Court No 7 of October 24, 2003 are analyzed, as well as some scientific positions of domestic scientists Knyzhenko O. O are taken into account. and Berezhnyuk V. M In addition, a review of the case law of the Supreme Court of Cassation on sentencing was studied. A thorough criminal-legal analysis of the sanctions of the articles of the Special Part of the Criminal Code of Ukraine in the part of punishments established for the category of serious crimes was carried out. Based on the analysis, it was determined which main and additional punishments are regulated in the sanctions of the articles of the Special Part of the Criminal Code of Ukraine for the investigated category of crimes. The quantitative and qualitative indicator of sanctions for serious crimes has been determined, which include: imprisonment for a definite term; punishments alternative to imprisonment; additional penalties. Legislative and doctrinal provisions on punishments in the form of imprisonment for a definite term, restriction of liberty, fine, correctional labor, arrest are considered. The judicial practice of Ukraine in the part of certain issues related to the execution of a penalty in the form of a fine and the replacement of a penalty in the form of a fine with a penalty in the form of correctional labor is analyzed. It is established that the Criminal Code of Ukraine, in the sanctions of the articles, provides for the application to a person who has committed a serious crime, punishment in the form of imprisonment, restriction of liberty, fine, correctional labor, arrest - as the main punishment. The range of additional punishments is defined, which determine: confiscation of property, deprivation of the right to hold certain positions or engage in certain activities and a fine.


Author(s):  
Anayit Khoperiya ◽  

The article analyses the refusal to recognize and grant permission to enforce awards of international commercial arbitration because of improper notification about the arbitration. The study concerns the new case law of the Supreme Court in cases of recognition and granting permission to enforce the awards of international commercial arbitration in cases where the party against whom the decision is made denies that it has been notified of the arbitration or appointment of an arbitrator. Particular attention was paid to the analysis of the decisions of the Supreme Court in cases No. 824/26/19 of November 28, 2019 and No. 824/69/19 of February 13, 2020 on the application of Jurginsky Mashzavod LLC on the enforcing of the decision of the Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation on debt collection from PJSC Pokrovske Mine Management. These decisions were assessed as a negative case law that does not contribute to the development of arbitration in Ukraine. It was concluded that in cases No. 824/26/19 and No. 824/69/19 the Supreme Court formulated two extremely negative opinions for the development of international commercial arbitration: 1) the need to inform the different jurisdictions parties of the arbitration proceedings, where in these jurisdictions the Hague Convention is binding, in form of provision of international legal assistance, which would harm the pace of arbitration proceedings; 2) the necessity to notify the parties by arbitration via mail with a postal description of the enclosed documents. The provisions of the Hague Convention regarding the requirement of arbitration notifications of the parties on the implementation of arbitration proceedings using the procedure of international legal assistance were analysed. It was established that the provisions of this convention cannot be interpreted as establishing an obligation for arbitration tribunals to notify the parties of the arbitration proceedings, which are situated in states-parties to this convention, through the procedure of international legal assistance only. The practice of the Supreme Court in other cases on the recognition and granting permission to enforce of international commercial arbitration decisions, where the party against which the decision was made denies that it has been notified about the arbitration or appointment of an arbitrator, was positively assessed. This practice is pro-arbitration. It was emphasized the importance of forming pro-arbitration practice of the Supreme Court, which ensures the image of Ukraine as a friendly jurisdiction for arbitration and for investment accordingly.


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