A Study in the Interdependency between Substantive Law and Procedural Law in Civil Procedures

Introduction: the influence of the material branches of law on the content and development of procedural branches has long been substantiated in the legal literature. At the same time, civil law scholars, limited by the scope of the nomenclature of scientific specialties in legal sciences, do not have the opportunity to conduct dissertation research aimed at identifying the influence of procedural branches on the norms of substantive law. With regard to scientific research, the study of such an impact is currently permissible only within the specialty 12.00.15. Reforming the nomenclature of scientific specialties towards its enlargement creates the basis for the development of the scientific theory of intersectoral relations, developed by M.Iu. Chelyshev. An in-depth study of the intersectoral interaction of civil law and civil procedure will contribute not only to the development of scientific knowledge, but also will allow solving practical problems at a different methodological level. Purpose: to analyze the stages of the formation of scientific specialties in the context of the relationship between civil law and procedure, to identify the advantages and disadvantages of uniting and dividing civil law and procedure in scientific research, to analyze dissertations in different periods of development of the science of civil law and the science of civil procedure, to formulate ways to improve directions of research to bridge the gap between the science of civil law and procedure. Methods: empirical methods of description, interpretation; theoretical methods of formal and dialectical logic. The legal-dogmatic private scientific method was used. Results: identified the main views on the ratio of material and procedural branches in legal science; it is illustrated that the intersectoral approach is currently admissible only for dissertations in the specialty 12.00.15, which led to an almost complete absence of scientific research on this topic in civil science; substantiated the need to establish the bilateral nature of the relationship and interaction of material and procedural block. Conclusions: reforming the nomenclature of scientific specialties by right in the direction of their enlargement should have a positive effect on bridging the gap that has developed between works on civil law and civil law procedure in the last years of their separate existence. This is especially true of civil science, which developed its own scientific theories in isolation from the possibilities of their implementation within the framework of procedural law. The methodological basis for solving these problems has already been formed – this is an intersectoral method, the application of which is justified and demonstrated in the works of M.Iu. Chelyshev.

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Arbitration agreement or service contract on dispute resolution

Science & Technology Development Journal - Economics - Law and Management ◽

10.32508/stdjelm.v2i1.502 ◽

2018 ◽

Vol 2 (1) ◽

pp. 58-65

Author(s):

Le Nguyen Gia Thien

Keyword(s):

Dispute Resolution ◽

Vital Role ◽

Service Contract ◽

Procedural Law ◽

Service Contracts ◽

Arbitration Procedure ◽

Arbitral Proceedings ◽

Substantive Law

Arbitration agreement plays a vital role in arbitral proceedings, because the absence of arbitration agreement will lead to the invalidity of arbitral proceedings. Firstly, arbitration agreement figures out the name and type of the arbitration mechanism, then it clarifies parties’ requirements relating to the arbitration procedure including substantive law for the merit, procedural law for the arbitration proceedings, language of arbitration, number of arbitrators in the tribunal, locality of arbitration etc. In its essence, arbitration agreement not only describes the parties’ autonomy but also serves as a service contract (service contract on dispute resolution), accordingly arbitration organ will supply service on dispute resolution for parties. Unlike normal service contracts, autonomies of parties in service contract on dispute resolution, which indicates that arbitration organ is the service supplier, are established in two divergent stages. In the event of specific circumstances, although arbitration agreement has validity, the arbitration organ can refuse to become a service supplier.

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LEGAL UNDERSTANDING OF TRANSACTION COSTS

Humanities & Social Sciences Reviews ◽

10.18510/hssr.2019.76100 ◽

2019 ◽

Vol 7 (6) ◽

pp. 668-672

Author(s):

Raviya F. Stepanenko ◽

Murat R. Kamarov

Keyword(s):

Transaction Costs ◽

Institutional Economics ◽

Main Task ◽

New Classification ◽

Procedural Law ◽

Interdisciplinary Approaches ◽

Methodological Approaches ◽

Substantive Law ◽

Legal Understanding

Purposes: This paper is devoted to the legal understanding of transaction costs both as a concept and a method developed within the framework of the institutional economics discipline for analyzing the consequences of various kinds arising from the exchange of goods. This work is relevant due to the need to apply new interdisciplinary methodological approaches to solving the problems that classical jurisprudence faces. The authors gave legalized concepts of transaction and transaction costs. Methods: As the main task within the framework of this paper, the authors proposed a classification of transaction costs, with the help of which it is possible to analyze legal activity in various fields. The study was based on the works of foreign and Russian scientists, economists and lawyers. Results: In the paper, the authors found that the classification of transaction costs used in economics was created only for analyzing relationships within substantive law and using them to analyze other legal relationships seems to be quite problematic. As a result of the study, the authors developed a new classification of transaction costs, which can be used both for the analysis of substantive and procedural law. Also, they focus on certain aspects of various transaction costs. Implications/Applications: In this regard, a problem arises in creating a classification that would take into account the advantages of all these approaches, and would also be suitable for describing both substantive and procedural legal relations. Novelty/Originality: The development of domestic and foreign legal science is impossible without the use of interdisciplinary approaches, including not only the interaction of intersectoral relations, and this article has studied this issue.

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On quality assurance of judicial decisions in cases of environmental administrative offenses

Law. Human. Environment ◽

10.31548/law2020.03.014 ◽

2020 ◽

Vol 11 (3) ◽

Author(s):

Uliutina Olena ◽

◽

Denisyuk Ilona ◽

Keyword(s):

Environmental Safety ◽

Court Decision ◽

Decision Quality ◽

Court Decisions ◽

Procedural Law ◽

Judicial Practice ◽

Principles Of Justice ◽

Correct Application ◽

Substantive Law

The article, based on the study of the requirements for the quality of court decisions in cases of environmental administrative offenses and the analysis of judicial practice, are made proposals to improve the quality of court decisions in this category of cases. Justice is analyzed as the main criterion for the quality of court decisions in cases of environmental administrative offenses, which covers the signs of legality and validity. It is concluded that the criteria for the legality of a court decision in cases of environmental administrative offenses are the correct application of: substantive law and compliance with procedural law, analogy of law or analogy of right in terms of both substantive and procedural rules; compliance of the resolution within her national, constitutional, sectoral principles, basic principles of justice, requirements of the rule of law. In terms of compliance with the requirement of validity of the decision is most pronounced subject – object specifics of offenses – their «environmental», because it is in investigating the circumstances of the case and assessing evidence, the judge must operate it knowledge and rely not only on administrative tort law, but also environmental, natural resources, which sets requirements for the use and protection of natural objects and resources, environmental safety, which have been violated. In order to improve the quality of court decisions in cases of environmental administrative offenses, it is proposed to adopt a document «On court decisions in cases of administrative offenses» in the form of a resolution of the Plenum of the Supreme Court. Keywords: legality of a court decision, validity of a court decision, resolution, justice, court, court decision, quality of court decision

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A Universal Procedural Framework for War Crimes Tribunals

International Community Law Review ◽

10.1163/187197312x633450 ◽

2012 ◽

Vol 14 (2) ◽

pp. 85-116

Author(s):

Elijah Oluwatoyin Okebukola

Keyword(s):

Process Evaluation ◽

Ad Hoc ◽

War Crimes ◽

Model Framework ◽

Procedural Law ◽

Substantive Law ◽

War Crimes Tribunals ◽

The Relationship

Abstract Notwithstanding the uniformity of war crimes substantive law, applicable procedural rules vary from jurisdiction to jurisdiction. In the case of ad hoc tribunals, the applicable rules may not be known until the tribunal is established. Consequently, there is uncertainty and incoherence in war crimes procedural law. Furthermore, the quality of applicable rules is dependent on the varying experience, knowledge and intentions of the framers of the procedural rules of each tribunal. This article makes the case for a universal procedural framework that can serve as an instrument for evaluating and creating war crimes procedural rules. Amongst other things, such a framework will bring about certainty and coherence in war crimes procedural law. In devising the model framework, the article adopts the Benthamite approach to the relationship between substantive law and procedural law and also relies on some aspects of the process evaluation theories of Robert Summers and Michael Bayles.

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The shape of Athenian laws

The Classical Quarterly ◽

10.1093/cq/48.1.93 ◽

1998 ◽

Vol 48 (1) ◽

pp. 93-109 ◽

Cited By ~ 10

Author(s):

Christopher Carey

Keyword(s):

The Other ◽

Classical Period ◽

Late Archaic ◽

Procedural Law ◽

Other Hand ◽

Administration Of Justice ◽

Binary Division ◽

Substantive Law

The title is unashamedly plagiarized from Stephen Todd's excellent book, The Shape of Athenian Law. The plagiarism is slightly misleading, however, since my interest is in law as enactment (Gesetz) while Todd's title expresses his interest in law as system (Recht). The issue I wish to address is the formulation of written laws in Athens during the late archaic and classical period, specifically the balance between procedural and substantive law. Substantive law deals with rights, obligations, offences, etc. Its role is to define behaviour which is required, allowed, or prohibited. These are what Hart terms ‘primary rules’. Procedural law, on the other hand, deals, as the name suggests, with the administration of justice, that is with jurisdiction, process, etc. Hart's term for these is ‘secondary rules’. The two cannot be separated quite as neatly as I have suggested, of course. A procedural law can scarcely avoid mentioning the offences or rights whose punishment or protection it regulates, while a substantive law may need to address issues such as jurisdiction. This is therefore an issue of orientation, not a simple binary division. However, as a broad basis for classification it is of value.

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Milczenie organów administracji jako instytucja materialnego i procesowego prawa administracyjnego

Studia Prawa Publicznego ◽

10.14746/spp.2018.2.22.3 ◽

2019 ◽

pp. 49-78

Author(s):

Lucyna Staniszewska

Keyword(s):

Public Interest ◽

The Public ◽

Administrative Procedure ◽

Procedural Law ◽

General Clause ◽

Legal Forms ◽

Substantive Law ◽

Procedural Rights ◽

Legal Consequences ◽

Practical Level

The aim of the article is to examine the institution of “Silent settlement of the matter” regulated in the Code of Administrative Procedure, as well as in the provisions of substantive law. In a number of Polish laws, the inaction of the administration is seen as bound to have certain legal consequences. Such rules cause many doubts both at the theoretical and practical level, and raise questions about the antidote to such unwanted inactivity of administration. The general clause of positive or negative fictitious adjudication in administrative matters is present in many legal systems. However, in the Polish legal system it lacks a legal definition and the silent settlement handling of the case entails problems of its classification as part of the legal forms of administration. The article shows that the mere introduction of procedural regulations will not result in a breakthrough in the institution of silent positive settlement of the matter, if the legislator does not balance the types of cases to which silence can be applied. Undoubtedly, both substantive and procedural law rules for the regulation of silent settlement are necessary and indispensable. As for substantive law, it should be a well thought-out concept in which silence of administrative bodies in handling matters could be applied without affecting the public interest or the interests the applicant, or any other party to the proceedings. On the other hand, procedural regulations are to guarantee the protection of the rights administered against the inactivity or lack of action by administrative bodies, or lengthy and protracting proceedings. Therefore, the legislator should ensure a well-considered qualification of cases to be recognised in a simplified manner, as well as adopt specific provisions that give competence to administrative bodies to settle matters tacitly so that the institution accomplishes the intended objectives of administrative improvement, and at the same time does not violate the procedural rights and guarantees of the parties for whom silence has legal effects.

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Development of National Procedural Law in the Second Half of the XIX – Early XX Centuries

Law and Safety ◽

10.32631/pb.2021.1.22 ◽

2021 ◽

Vol 80 (1) ◽

pp. 156-164

Author(s):

Д. В. Слинько ◽

Л. І. Калєніченко

Keyword(s):

Scientific Literature ◽

Preliminary Investigation ◽

Russian Empire ◽

Judicial Reform ◽

Criminal Proceedings ◽

Procedural Law ◽

Civil Proceedings ◽

The Russian Empire ◽

Administrative Proceedings ◽

Substantive Law

The authors have studied one of the current historical and legal problems concerning the development of procedural law in the Ukrainian lands, which were part of the Russian and Austro-Hungarian Empires in the second half of the XIX – early XX centuries. Based on the analysis of scientific literature and relevant regulatory material, it has been noted that the beginning of the reform of procedural legislation of the Russian Empire can be considered the introduction of the institution of forensic investigators by the imperial decree in June 1860. Thus, the preliminary investigation was separated from the police, and investigators were part of the staff of the judicial department. The next stage was the judicial reform of 1864. As a result of the reform, the judicial system and procedural law were completely changed. Substantive law was also partially amended under that influence; there was the separation of criminal proceedings from the civil one; procedural norms of administrative justice began to be formed in the Ukrainian lands during that period, and a new branch of knowledge within legal science emerged, which was aimed at searching for the essence and nature of procedural law. The development of procedural law in the Ukrainian lands, which were part of the Austrian and, since 1868, the Austro-Hungarian Empires, was characterized by the obsolescence and imperfection of procedural legislation and its focus on the establishment of imperial positions. At the same time, it is possible to state its certain democracy and succession. It has been concluded that national procedural law during that period was characterized by the preservation and strengthening of certain features of the medieval process (secular nature, rationality, phasing), by the separation of procedural law from the substantive, by the formation of procedural branches of law, by the codification of procedural legislation, by the separation of administrative proceedings from criminal and civil proceedings; the functions and competence of the authorities and their officials were differentiated.

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Court Judgement as a Jural Fact in Civil Law: Doctrinal Discourse and the Problem of Legal Formulations

Вестник Пермского университета Юридические науки ◽

10.17072/1995-4190-2021-52-240-262 ◽

2021 ◽

pp. 240-262

Author(s):

V. G. Golubtsov ◽

Keyword(s):

Civil Rights ◽

Civil Law ◽

Modern Science ◽

Legal Regulation ◽

Public Law ◽

Procedural Law ◽

The One ◽

The Right ◽

Substantive Law ◽

The Relationship

Introduction: the role of the court judgement that determines civil rights and obligations remains not completely perceived in civil law. In the modern science of civil law, no definite theoretical views on this subject have yet been formed, except for those that were formulated in the period when the science was actively discussing the very fact of referring court judgements to jural facts of civil law. In the article, we address this issue through reviewing, analyzing and generalizing the existing scientific views, with inter-disciplinary aspects also involved. The scope of study includes the disputable issues of the legislative definition of the court judgement seen as the basis for the commencement of civil rights and obligations and also the analysis of methodological positions significant for the research. Purpose: while taking the theory of modificatory claims as what is recognized in the modern doctrine of civil procedural law, to investigate the right-establishing force of the court judgement defined by the legislator as a jural fact of civil law. Methods: the methodological framework of the research is based on the general scientific method of scientific cognition, which reflects the relationship between the doctrine and law enforcement, as well as methods of dialectics, analysis, synthesis, analogy, functional, interdisciplinary, and system approaches. Results: the article proposes a system of concepts with the court judgment in its civil law meaning of a jural fact of substantive law lying at the core. Based on this system, we can state that the relationship between such concepts as the ‘court judgement’ and the ‘jural fact of substantive law’ is to a greater extent speculative. It is not sufficient to explain a court judgement as the basis for the commencement of civil law relations only based on the theory of procedural law, which divides all claims into declarative and constitutive ones. We argue that the concept ‘court judgement’ in its substantive meaning has a dual civil law function: (1) in the meaning of its right-restorative function – as a result of the protection of a violated civil right, and (2) as one of the grounds for the establishment of civil rights and obligations resulting from a private person’s initiative and the court authority. The right of the court to deliver right-establishing judgements that become one of the legal regulation elements within civil law, is an exception to the general civil law rule implying the discretionary method of regulation, according to which the parties determine their rights and obligations by mutual agreement. Following the analysis of the doctrinal views on the concept of the court judgement in its substantive meaning, which many authors consider to be the one not corresponding to its broader procedural meaning, we justify the position that there are no obvious grounds for diagnosticating the alleged contradiction between substantive and procedural legislation in terms of the logical scope of the ‘court judgement’ concept. It is more important to see the real legal meaning of this concept in the civil law reality, which involves a combination of the substantive law significance of a court judgement for establishing civil rights and obligations and the public law essence of this act, which is manifested not in private actions of the interested persons themselves but in unilateral actions of the court as a public law subject. We also formulated some methodological positions that could serve as theoretical guidelines for further research into the problem of the court judgement as one of the jural facts of civil law.

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SUBSTANTIVE AND PROCEDURAL CRIMINAL LAW PROTECTION OF TRADE SECRETS

10.36997/lbcs2020.303 ◽

2020 ◽

Author(s):

Elena Andreeva ◽

Keyword(s):

Criminal Law ◽

Trade Secrets ◽

Legal Research ◽

Procedural Law ◽

Substantive Law

The article considers the essence of criminal aspects of the protection of trade secrets. The article comprises the following issues: Protection of trade secrets according to criminal substantive law; Protection of trade secrets according to criminal procedural law; Comparative legal research;

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