Consideration of administrative cases on forced alienation of land plots for motive public needs: judicial practice and perspective

2020 ◽  
Vol 4 (4) ◽  
pp. 180-186
Author(s):  
Roman Myronyuk ◽  
Serhiy Shatrava
Keyword(s):  
Public Relations ◽  
Judicial Review ◽  
Case Law ◽  
Social Needs ◽  
Scientific Article ◽  
Legal Basis ◽  
Judicial Practice ◽  
Land Valuation ◽  
Court Proceedings

The article analyzes the legal basis of the courts in considering administrative cases of forced alienation of land for reasons of public necessity. The subject of research within this scientific article is public relations that arise during the judicial review of administrative cases of forced alienation of land for reasons of public necessity. The objectives of the study within its subject are: to clarify the legal basis for the judicial review of administrative cases of forced alienation of land for reasons of public necessity; determination of court proceedings for this category of administrative cases; clarifying the shortcomings of the jurisprudence of this category of cases and making individual proposals for its improvement. As a result of the analysis of case law, the authors conclude that when considering this category of cases the most difficult problems are: lack of effective pre-trial dispute resolution, difficulty of collecting and evaluating evidence in the case, in particular regarding confirmation of land valuation and legality of its intended use. social needs; determination of the terms of court proceedings, execution of a court decision, etc., the solution of which determines the purpose of the study. In the framework of the study, in order to fulfill its tasks, the materials of the practice of consideration of this category of cases by the courts were analyzed. plots for public needs; determining the truth of "public needs of forced alienation of land and objects located on it"; determining the objectivity of the assessment of the alienated property. Some scientifically substantiated directions of improvement of legal bases of activity of courts concerning consideration of administrative cases on compulsory alienation of the ground area for reasons of public necessity are offered.

scholarly journals L'abus des fonctions dans la relation préposé-commettant en droit civil québécois.

2005 ◽  
Vol 19 (3) ◽  
pp. 595-642
Author(s):  
Claude Masse
Keyword(s):  
Public Relations ◽  
Case Law ◽  
Great Difficulty ◽  
Direct Result ◽  
General View ◽  
Simple Fact ◽  
Personal Benefit ◽  
Simple Question ◽  
Broad Interpretation

The following article deals with the problem of « misuse of office » in the principal-agent relationship under Quebec civil law. Despite the abundance of case law, solutions to the problem are not well defined especially in cases involving personality defects of the agent. The law concerning « misuse of office » is generally to be found in article 1054(7) of the Quebec Civil Code concerning the liability of principals. This controverted article not only deals with the liability of masters for servants, but also with the problem of torts committed by agents (art. 1731 C.C.). It also has an effect on workmen's compensation laws. The main issue in « misuse of office » is the determination of what constitutes a carrying out of duties within the scope of employment. The principal can only be held liable for the tort of an agent if three conditions are met : the tort feasor must have been his agent ; he must have committed a wrongful act ; and this act must have been committed in the scope of his employment. After a general view of the fundamental principles involved, the paper defines « misuse of office » as « all torts committed by an agent in the exercice of his duties, even when not authorized to carry out the duties in the manner which he did, but where the activity is designed to benefit his principal ». The only case where the principal escapes liability is where the agent committed a tort which did not involve his work. The agent in that case no longer acts for the benefit of his principal, but is pursuing his personal interest. The principal is then no longer held liable. Determination of the notion of « benefit » therefore becomes essential. Far from being a simple question of monetary profit, it is extended to mean any activity which can serve the principal's enterprise, whether in the improvement of public relations, or of relations with staff or suppliers. The pecuniary gain becomes but one element amongst many others. It is not even necessary for the benefit to ever materialize. The simple fact that the intention was to benefit the principal is sufficient. The review of the case law leads the author to conclude that the modification of the ways in which the duties are carried out has little effect on the liability of the principal. For instance, the agent can change the time, the place and the manner of performance and still engage the liability of the principal. Quebec courts have gone even further. They have held that an agent can go beyond the usual scope of his duties or take up some that he was not authorized to do, without affecting the liability of the principal. In fact, Quebec courts have developed a broad interpretation of the notion of duty. They consider that the agent is called upon to perform tasks more or less accessory to his main duties and thus extend the principal's liability to all of them. As already stated, the notion of «benefit to the principal» is a determining factor. It is not necessary that the agent's work for the principal be exclusive. The agent that derives a personal benefit and simultaneously intends to benefit the principal, will still be considered to have performed an act in the course of his duties. The paper examines a series of problems involving the personality of the agent. Certain tortious acts can be committed in relations with third parties or co-workers, and are the direct result of a personality defect of the agent. Such is the case of a restaurant worker who physically attacks a client as the result of a dispute or of the agent stealing from a client. The paper points out the great difficulty that Quebec courts have experienced in the legal qualification of this situation. After an in-depth study of the Quebec case law, the paper concludes that the trend is to maintain the liability of the principal in these cases. One criterion appears to be well defined : the principal bears the responsibility, when hiring someone, to assure his clients or the persons with whom he does business, that he will respect their property as well as their moral and physical integrity. The necessary tie between the duties of the agent and the relationship with persons coming in contact with him, will engage the liability of the principal. Every time the agent comes in contact with a person in the carrying out of business, the principal will be held responsible for the damage resulting from personality defects of the agent. In all other cases, the relation will be considered personal to the agent and the principal will be relieved of any liability.

scholarly journals Submission of prosecutorial decision in a civil procedure

2020 ◽  
pp. 114-123
Author(s):  
Svetlana Gennad'evna Byval'tseva ◽  
Artem Aleksandrovich Kovalev
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Scientific Literature ◽  
Case Law ◽  
The Public ◽  
Judicial Practice ◽  
The Subject ◽  
The Russian Federation ◽  
Civil Cases ◽  
Court Hearing

The object of this research is the public relations arising when the prosecutor is involved in court hearing of civil cases by intervening into a case for delivering an opinion in the appellate, cassation and supervisory bodies, as well as problematic aspects of the application of his powers to deliver an opinion in the aforementioned bodies. The subject of this research is the materials of prosecutorial law enforcement and judicial practice, norms of civil procedural legislation of the Russian Federation that regulation these public relations, as well as positions formulated on the matter. Despite the fact, that the scientific literature paid attention to the separate aspects of submission of prosecutorial decision, the questions of submission of prosecutorial decision in the retrial of civil cases did not receive due coverage. Such situation led to a contradictory approach towards the question on possibility of delivering an opinion by the prosecutor in retrial of civil cases in the theory and case law. Therefore, based on the conducted research, the author makes recommendation with regards to exercising prosecutorial powers in submission of decision in retrial of civil cases by the courts, as well as the changes in current legislation that would bring certainty into these legal relations and contribute to elimination of the emerged contradictions.

scholarly journals ВПЛИВ СУДОВОЇ ПРАКТИКИ ВЕРХОВНОГО СУДУ УКРАЇНИ НА СИСТЕМУ ДЖЕРЕЛ ЦИВІЛЬНОГО ТА ЦИВІЛЬНО-ПРОЦЕСУАЛЬНОГО ПРАВА УКРАЇНИ

2019 ◽  
Vol 12 ◽  
pp. 245-256
Author(s):  
А. І. Дрішлюк
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Scientific Article ◽  
Court Decisions ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Author Position ◽  
Research Author

Наукова стаття присвячена визначенню значення рішень Верховного Суду України, прийнятих за результатами розгляду заяв про перегляд судових рішень з мотивів неод­накового застосування судом (судами) касаційної інстанції одних і тих самих норм ма­теріального права в аналогічних правовідносинах, порядку і її вплив на систему джерел цивільного і цивільно-процесуального права, після законодавчого закріплення обов'язко­вості рішень Верховного Суду України для всіх суб'єктів владних повноважень (суб'єктів правозастосовчої діяльності). На підставі проведеного дослідження сформульована авторська позиція щодо систе­ми джерел цивільного права, судової практики, а також впливу останньої на трансфор­мацію системи джерел цивільного та процесуального права України на сучасному етапі її розвитку.   The scientific article is sanctified to determination of value of decisions of the Supreme court of Ukraine, statements accepted on results consideration about the revision of court decisions on reasons of different application by the court (by courts) of appeal instance of one the same norms of material right in analogical legal relationships, order and her influence on the system of sources civil and civil judicial law of Ukraine, after legislative fixing of obligatoryness of decisions of the Supreme court of Ukraine for all the subjects of imperious plenary powers (subjects of law using activity). On the basis of the conducted research author position is formulated in regard to the system of sources civil law, judicial practice, and also the influence of the last on transformation the system of sources civil and civil judicial law of Ukraine on the modern stage of its development.

10. Judicial review: access to review and remedies

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

scholarly journals Access to the Highest Administrative Courts: between the Right of an Individual to Have a Case Heard and the Right of a Court to Hear Selected Cases

2020 ◽  
Vol 18 (1) ◽  
pp. 1-23
Author(s):  
Wojciech Piątek
Keyword(s):  
High Standard ◽  
Case Law ◽  
Reasonable Time ◽  
Constitutional Principle ◽  
Lower Courts ◽  
Administrative Courts ◽  
Court Proceedings ◽  
The One ◽  
The Right

Hearing a dispute by a court in a reasonable time is one of the crucial conditions for the existence of an effective judicial system as imposed by the European law and national legal orders. That requirement is contrary to the expectations of individuals to question the judgments of lower courts before the courts of the highest instance. The purpose of this article is to explore the question of values that should be taken into consideration by legislatures in a process of determining the access of administrative cases to the highest courts. The analysis is based on the example of Austrian and Polish legal systems. In both countries, there is a separate two-instance administrative judiciary. However, the conditions of the access to the Supreme Administrative Courts differ. In Poland, that access is unlimited, considering the constitutional principle of two-instance court proceedings. In Austria, the right in question is limited to cases deemed significant for broader interest, i.e. not only the one of the parties to the proceeding. An analysis of the normative consequences of each solution leads to the conclusion that procedural limitations concerning the access to the highest courts foster their role in preserving the uniformity of the case law and ensuring a high standard of its interpretation. A system with no limitations does not guarantee the determination of a concrete dispute in a reasonable time and thus cannot be considered effective.

10. Judicial review: access to review and remedies

Public Law ◽  
2020 ◽  
pp. 409-444
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

scholarly journals Issues Of Improving The Legal Basis Of The Institute Of Public Control In The Courts

2021 ◽  
Vol 03 (06) ◽  
pp. 122-126
Author(s):  
Murodjon Abdumutal Oglu Shermatov ◽  
Keyword(s):  
Public Participation ◽  
Judicial System ◽  
Scientific Article ◽  
Legal Basis ◽  
National Legislation ◽  
Public Control ◽  
Open Court ◽  
Court Proceedings

The scientific article examines the principles and problems of open and transparent functioning of the courts, ensuring public participation in open court proceedings as one of the ongoing reforms in the judicial system. Suggestions and recommendations have been developed for our national legislation.

4. Parliamentary sovereignty: an overview

Public Law ◽  
2020 ◽  
pp. 114-153
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Parliamentary Sovereignty ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

Beweisverwertungsverbote im arbeitsgerichtlichen Verfahren

2021 ◽  
Author(s):  
Stephanie Simokat
Keyword(s):  
Case Law ◽  
Evidence Based ◽  
Legal Basis ◽  
Court Proceedings

The book is dedicated to the handling of the labour court jurisdiction with a prohibition of the use of evidence based on an employer-side surveillance measure against the background of an examination of the amendments for the assessment of the admissibility of the surveillance measure by the DSGVO. In particular, the level of protection guaranteed by the DSGVO as well as the admissibility of clandestine employer-side surveillance measures are reviewed. On the basis of the substantive legal basis examined, the author analyses how case law deals with a ban on the exploitation of evidence in labour court proceedings - in particular whether the courts sufficiently observe the constitutional requirements. The study concludes with a dogmatic assessment of the existence of a ban on the exploitation of evidence, applying a standard developed by the author for weighing up the facts already decided.

scholarly journals THE ISSUE OF CLOSURE OF CRIMINAL PROCEEDINGS AGAINST THE DECEASED ACCUSED IN JUDICIAL PROCEEDINGS

2021 ◽  
Vol 12 (2) ◽  
pp. 57-63
Author(s):  
Iryna Hloviuk ◽  
Keyword(s):  
Court Decisions ◽  
Criminal Proceedings ◽  
Legal Procedure ◽  
Judicial Practice ◽  
Judicial Proceedings ◽  
The Difference ◽  
Court Proceedings ◽  
Procedural Decisions ◽  
Death Determination

Based on the analysis of judicial practice, the paper examines the problem of criminal proceedings’ closing in case of suspect’s or accused’s death, except in cases where the proceedings are necessary for the rehabilitation of the deceased, in preparatory proceedings, trials, appeals and cassation proceedings. The purpose of the paper is to identify the characteristics of interpretation and application of paragraph 5 of Part 1 of Art. 284 of the CPC of Ukraine in the proceedings of the court of the first instance, appeal and cassation proceedings, to formulate proposals for amendments to the CPC of Ukraine on the closure of the proceedings on this ground. The main results of the research consist of substantiating the need to standardize the appropriate legal procedure for the rehabilitation of the deceased by enshrining it in the CPC of Ukraine; determination of procedural decisions of the court in the preparatory proceedings and the trial in case of person’s death; determination of procedural decisions of the court in appeal proceedings in case of death of a person in respect of whom an acquittal has been passed; determination of procedural court decisions in appeal proceedings in the event of the death of the acquitted. The conclusions and specific proposals of the author are as follows: the application of paragraph 5 of Part 1 of Art. 284 of the CPC of Ukraine is not well-established in judicial practice, which indicates the lack of uniform interpretation of Art. 284, 417, 440 of the CPC of Ukraine, and the need to clarify the provisions of Art. 417, 440 of the CPC of Ukraine. Guided by paragraph 5 of Part 1 of Art. 284 of the CPC of Ukraine in the preparatory proceedings, the court by its decision closes the criminal proceedings unless the proceedings are necessary for the rehabilitation of the deceased; in court proceedings, the court closes the criminal proceedings by its decision, except in cases when the proceedings are necessary for the rehabilitation of the deceased, in case of initiation of rehabilitation, which has not been confirmed - by its decision closes the criminal proceedings. The wording of Art. 417 and 440 of the CPC of Ukraine do not take into account the difference in the grounds for closing the criminal proceedings and are not adapted for such grounds as the death of the accused. Therefore, it is appropriate to remove from these articles the reference to the reversal of the conviction only. However, as in the case of acquittal, the person is rehabilitated, in case of objections of the defence to revoke the acquittal, it cannot be revoked, however, the proceedings should be closed and further review of court decisions is impossible.

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