scholarly journals Institute of the judicial supervision and the provision of methodological assistance to judges in Ukraine

2021 ◽  
pp. 17-28
Author(s):  
Nana Bakaianova ◽  
Andrii Kubaienko
Keyword(s):  
Historical Experience ◽  
Procedural Law ◽  
Constitutional Principle ◽  
Judicial Practice ◽  
The Law ◽  
Local Courts ◽  
Current Concerns ◽  
Court Of Appeal ◽  
Delegation Of Powers

The paper is devoted to analysis of the current concerns of the judicial supervision and significance of the provision of methodological assistance to judges considering the historical experience. It is indicated that provision of the methodological assistance to judges is particularly important under current conditions as it ensures administration of fair and impartial justice. Every person’s right to fair trial based on supremacy of the law is achieved via accomplishing certain powers both procedural nature and out-of-court procedures. Procedural powers of the court are realized during consideration of a case by the corresponding judicial jurisdiction while the out-of-court powers are accomplished when ensuring so-called functions which main objective is to provide for the unified judicial practice. Formation of the unified judicial practice can be achieved provided a similar application of all norms of the law of substance and procedural law only because the law should equally apply to everybody under similar circumstances. The paper states that delegation of powers to the court of appeal, as regards provision of the methodological assistance to local courts in administration of legislation, preconditions certain activity of the court and its chairman aimed at accomplishing this authority and presence of the levers to respond to problems arising in the judicial practice. Practical exercise of powers by the court of appeal, as regards provision of the methodological assistance to local courts, may not be connected with the institute of supervision only because there exist other kinds of such assistance provision. It is emphasized in the paper that the terms “supervisor” and “supervision” may not refer to the activity of courts and judges as regards the meaning, and do not meet the constitutional principle of the independence of judges. The authors indicate that filing a disciplinary complaint against judges in connection with the results of the methodological assistance which the supervising judges provide contains signs of the supervision powers and external influence that doesn’t meet the requirements of the effective legislation of Ukraine concerning judicial machinery and status of judges. The conclusions state a necessity of the legislative regulation of the methodological assistance which the higher judicial courts provide to the lower level courts to improve quality of court judgments and court activity in this sphere. Keywords: methodological assistance, court supervision, powers of judges, forms of the methodological assistance.

Court practice in the mechanism of legal monitoring

2020 ◽  
Author(s):  
Mariya Glazkova
Keyword(s):  
Civil Society ◽  
Complete Information ◽  
Public Authorities ◽  
Procedural Law ◽  
Judicial Practice ◽  
Business Structures ◽  
Normative Foundations ◽  
Local Levels

The manual discusses the role of judicial practice in the implementation of the mechanism of legal monitoring on the Federal, regional and local levels. It justifies significance of judicial practice as an integral part of the legal monitoring, since it is the judiciary, which is constant- Janno being at the turn of sometimes conflicting interests to have the most complete information about the quality of legislation. Describes the theoretical and normative foundations of legal monitoring, its organization and influence on the development of procedural law and the legal system. Special attention given the anti-corruption monitoring. The work is aimed at resolving issues of implementation of legal monitoring in the activities of public authorities, business-structures, public organizations and other civil society institutions in order to make informed proposals on optimization of the Russian legislation. For deputies, employees of state and municipal authorities, representatives of civil society institutions, scientific workers, teachers, postgraduates and students of law universities and faculties.

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

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

THE EFFECT OF ROME II ON NATIONAL PROCEDURAL LAW

2015 ◽  
Vol 74 (1) ◽  
pp. 37-40 ◽  
Author(s):  
Joshua Folkard
Keyword(s):  
Conflict Of Laws ◽  
Applicable Law ◽  
Procedural Law ◽  
Foreign Law ◽  
Procedural Autonomy ◽  
The Law ◽  
Council Regulation ◽  
Contractual Obligations ◽  
Definition Of ◽  
Court Of Appeal

AT common law, in cases where the substantive claim is governed by foreign law, questions of procedure are nonetheless governed by the lex fori. In the context of damages, although the existence of damage is a question for the lex causae, its quantification and assessment is determined according to the law of the forum (Boys v Chaplin [1971] A.C. 356). The distinction between substance and procedure is preserved by Article 1(3) of Council Regulation (EC) No 864/2007 (“Rome II”) which provides, with certain exceptions, that Rome II “shall not apply to evidence and procedure”. That rule is, however, qualified by Article 15, which requires the law applicable under the Regulation (i.e. “the law applicable to non-contractual obligations”) to govern, inter alia, “the existence, the nature and the assessment of damage or the remedy claimed” (Article 15(c)). The decision of the Court of Appeal in Wall v Mutuelle De Poitiers Assurances [2014] EWCA Civ 138; [2014] 3 All E.R. 340 concerns the definition of “procedure” in Article 1(3) and the meaning of “applicable law” in Article 15(c). It raises the important question of how far Rome II has encroached on the traditional view of national procedural autonomy in the conflict of laws.

scholarly journals SOME CONSIDERATIONS REGARDING THE QUALITY OF PARTY IN INDIVIDUAL LABOUR DISPUTES

2013 ◽  
Vol 7 (3) ◽  
Author(s):  
Lavinia Onica Chipea
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Procedure ◽  
Social Dialogue ◽  
Judicial Practice ◽  
Legal Provisions ◽  
The Law ◽  
Labour Disputes

AbstractThe paper proposes, based on the analysis of the Code of Civil Procedure and of laborlegislation, particularly those of the Labor Code and the Law on social dialogue, to nominate,to develop analytically and synthetically the institution of the quality of party in a individuallabour conflict.Along with the cited legal provisions, the examples of judicial practice in BihorCounty point out the specific of labor jurisdiction in the Romanian legal system, jurisdictiongoverned by the Code of Civil Procedure, as common law, which is adapted to the speciallegislation of the spirit of this institution.

scholarly journals Anomalies in the Activities of Camp Courts

Lex Russica ◽  
2021 ◽  
pp. 82-93
Author(s):  
D. N. Shkarevskiy
Keyword(s):  
State Archive ◽  
Procedural Law ◽  
Judicial Practice ◽  
Legal Literature ◽  
Russian State ◽  
The Russian Federation ◽  
Low Performance ◽  
Chelyabinsk Region ◽  
Harsh Conditions

The camp courts have been an important element of the Soviet justice system. The purpose of the paper is to identify the main anomalies in the activities of camp courts. The work is based on unpublished documents stored in the State Archive of the Russian Federation (GARF), the Russian State Archive of Socio-Political History (RGASPI), the Joint State Archive of the Chelyabinsk Region (OGACHO). The Department for Camp Courts (UDLS) of the Ministry of Justice of the USSR did not rate the activities of camp courts highly. The main complaints considered massive violations of the norms of substantive and procedural law, lack of generalization of judicial practice, poor organization of trials.In the early 1950s against the backdrop of increasing formal performance of the camp courts, the UDLS criticism became softer. However, it was not possible to maintain these indicators for a long period. Therefore, UDLS returned to the practice of identifying anomalies in the activities of camp courts and continued to criticize them harshly. The quality of investigative work carried out by the Prosecutor's office and the first departments of places of detention was low. Various conflicts and shifting of responsibility were observed in the camp justice bodies. The courts blamed the Prosecutor's offices and the first departments for the low performance of their work, and the latter reciprocated. As a result, the country's leadership concluded that it was necessary to eliminate camp courts as they failed to cope with the task of prompt consideration of cases.The identified anomalies can be explained by the harsh conditions of the camp courts. Their employees worked in an environment of high secrecy, could not exchange experience in periodicals. Regional and the All-Union meetings of workers of camp courts were quite rare. There was an acute shortage of legal literature.

scholarly journals Legal anomalies within human rights implementation in court: Ukrainian heritage and perspectives

2021 ◽  
Vol 4 (4) ◽  
pp. 90-103
Keyword(s):  
Human Rights ◽  
High Probability ◽  
Procedural Law ◽  
Judicial Practice ◽  
Administration Of Justice ◽  
The Subject ◽  
The Law ◽  
Procedural Rights ◽  
Abuse Of Law ◽  
Relevant Factors

The law is a regulator of relations based on an orderly, generally accepted system of ideas and norms for the behaviour of subjects in a particular relationship. A large number of regulations, which are an external reflection of the content of law, sets the boundaries of such behaviour, but under the influence of relevant factors that have a subjective and/or objective nature, there are cases of deviation from generally accepted regulations, the so-called legal anomalies that occur in the exercise of a person’s rights in court. This article contains an analysis of current legal anomalies that may arise in the exercise of a person’s procedural rights in the administration of justice, given the reasons that provoke their occurrence. Both legal anomalies related to the subject of realisation of rights in court and anomalies that indirectly affect the possibility and completeness of such realisation were subject to research. The authors assessed the phenomenon of abuse of law, legal nihilism of the participants in the process, inconsistencies of judicial practice, etc., in terms of classifying such phenomena as legal anomalies. The possibility of recognising a legal anomaly at the legislative level (abuse of law) and the transformation of a legal anomaly into a rule of procedural law (written proceedings) is investigated. Variants of vulnerabilities of the modern mechanism of administration of justice are offered, where there is a high probability of emergence of new legal anomalies in the sphere of realisation of the rights of the person at protection by a court of the broken, unrecognised, or disputed rights.

scholarly journals RECHTSVINDING METHOD OF JUDGES IN FILLING LEGAL EMPTY "STUDY OF APPROACHES IN LEGAL DISCOVERY"

2019 ◽  
Vol 11 (2) ◽  
pp. 135-152
Author(s):  
Apipuddin Apipuddin
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Legal Norms ◽  
Legal Rules ◽  
Procedural Law ◽  
The World ◽  
Characteristic Views ◽  
The Law ◽  
Legal Discovery

One of the important stages in the world of justice is the stage of legal discovery by judges to resolve cases that are being disputed. Many new cases emerge and escape from existing legal rules resulting in a legal vacuum, while judges must not refuse to examine, try and decide on cases that come to them on the grounds of lack of law or unclear regulation. Judges are required to find the law in resolving disputes. On the other hand, the implementation of procedural law shows a formalistic, positivistic, and textualist image, and the condition is assumed to be a part that contributes to the method of legal discovery by judges and the quality of decisions produced. In a pluralistic state of law such as in Indonesia, of course, the legal discovery of justice must be based on the perspective and method of studying legal science. The study must not stop let alone rely only on the perspective of positive legal ansicht. It is important for judges to accommodate perspectives, approaches, theories, rules, and other legal norms such as Islamic Law with the Istinbath Al-Ahkam method and Customary Law with their very varied and characteristic views on the law. The comprehensive review is expected to have an impact on the inclusiveness of judges in harmonizing all approaches and legal systems that apply in their decisions and does not consider the position of the text of the legislation to be final and free from penetration of the interpretation of reason that develops in accordance with the behavior of the community, which is very dynamic.

APPEAL PROCEEDINGS: HISTORY, THEORY, PRACTICE

2021 ◽  
Vol 11 (5) ◽  
pp. 107-139
Author(s):  
E.A. BORISOVA
Keyword(s):  
Civil Procedure ◽  
Appellate Court ◽  
Judicial Reform ◽  
Procedural Law ◽  
Judicial Practice ◽  
Procedure Code ◽  
Complex Approach ◽  
The Russian Federation ◽  
Court Of Appeal ◽  
Made In

History, theory, and court practice are the basis of judicial reform. If the Civil Procedure Code of the Russian Federation was created considering this with, but subsequent changes of the procedural law show the opposite. Changes of procedure in the appellate court are not an exception, and that is why for the last 10 years theoretical and practical problems of appeal proceedings have existed. The article aims to draw attention to the reasons of occurrence of these problems; mistakes made in the course of its solution; ways of error correction with due regard for experience of Russian civil procedure, achievements of the civil procedure doctrine, needs of Russian judicial practice; necessity of complex approach in reforming proceedings in the court of appeal instance.

scholarly journals Involvement of an expert and conduction of an expert examination within criminal proceedings in the environmental sphere

2018 ◽  
Vol 71 (4) ◽  
pp. 66-71
Author(s):  
L. Yu. Misiura
Keyword(s):  
Criminal Proceedings ◽  
Procedural Law ◽  
Criminal Offenses ◽  
Procedural Code ◽  
Expert’S Opinion ◽  
The Law ◽  
Definition Of

The types of examinations which can be carried out within criminal proceedings in the environmental sphere have been determined. The procedure for involving an expert and conducting an expert examination within criminal proceedings in the environmental sphere has been revealed. The problematic aspects of an investigator, prosecutor’s activity at the specified stage of pre-trial investigation of criminal offenses against the environment have been highlighted. It has been noted that during the determination of the types of examinations to be carried out within criminal proceedings in the environmental sphere, an investigator, prosecutor must take into account the circumstances of the case and the complex of tasks that done by the court examination. The author has researched the problem issues arising at the stage of involving an expert, one of which is the referral to the examination of materials determined by an investigator at his discretion, which are insufficient for the examination. In this regard, the author has offered to extend the content of Part 7 of the Art. 244 of the Criminal Procedural Code of Ukraine, providing the necessity to include besides the questions posed to an expert, the list of materials of criminal proceedings (including expert samples) into the content of the decision on the order of conducting the examination, sent for examination, since in most decisions this question is not reflected by the investigating judges. It has been noted that the absence of a certain subject at the level of criminal procedural law authorized to appoint an audit, inspections within criminal proceedings, sometimes prevents the conduction of an examination. The author has proved the necessity of amending criminal procedural law in order to provide the investigating judge with the authority to appoint audits, inspections within criminal proceedings, as well as the detailed regulation of the procedure for applying to an investigating judge with the request for the appointment of an audit or inspection, requirements for such a request, the procedure and terms of their consideration, procedures for extending the terms of inspection or audit. According to the results of the study, the author has concluded that the activities of a prosecutor at the stage of involving an expert and conducting an examination within criminal proceedings in the environmental sphere should be focused on the control: the correctness of the definition of the type of expert examination by an investigator and the timeliness of the appeal to the investigating judge with the request for the examination, completeness and quality of materials sent to an expert for the examination, adherence to the procedure for carrying out the examination and compliance with the expert’s opinion with the requirements of the law, etc.

scholarly journals The authority of Criminal Cassation Court as part of Supreme Court about sending criminal proceeding from one trial to another

2019 ◽  
pp. 51-61
Author(s):  
N. Syza
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
Procedural Law ◽  
Judicial Practice ◽  
Procedural Code ◽  
Court Of Appeal

One of the guaranties of justice by competitive trial is determined in art. 34 Criminal Procedural Code the procedure of sending criminal proceeding from one trial to another in connection with don`t fall within the jurisdiction or another legal circumstance which make impossible justice in this trial or can influence on judge`s impartiality and equity and for the purpose of providing for promptness and effectiveness in criminal proceeding. The purpose of article is: to reveal the authority of Criminal Cassation Court as a part of Supreme Court based on analysis of criminal procedural law and practice their using about sending criminal proceeding from one trial to another. For the results of research was concluding that the authority of Criminal Cassation Court as a part of Supreme Court about sending criminal proceeding from one trial to another steam from norm in art. 34 Criminal Procedural Code which provide for grounds and procedure for deciding whether to refer criminal proceedings to another court. If in a court of appeal or in a petition of a party or a victim the circumstances, which cannot be grounds for referring criminal proceedings to another court, are stated, or the request is made for resolving issues beyond its powers, stipulated by art. 34 of the Criminal Procedural Code, the Criminal Cassation Court as a part of Supreme Court refuses to grant the application (petition). Generalized the most common in judicial practice in the Criminal Cassation Court as a part of Supreme Court instances of refusal in satisfied submission (petition) about sending criminal proceeding from one trial to another, in particular if: appellant don`t have the authority; it`s matter of bringing criminal proceeding together and determining jurisdiction; substantiates the existence of circumstances that may be grounds for the removal of judges, but not for the transfer of criminal proceedings in accordance with art. 34 of the Criminal Procedural Code. Installed that Criminal Cassation Court as a part of Supreme Court at proceeding application (petition) about sending criminal proceeding from one trial to another refuses to satisfy them even in case where the issue of jurisdiction of criminal proceeding has already been resolved by the cassation court before, on similar grounds, justifying it in accordance with the requirement of p.5 art. 34 of the Criminal Procedural Code, disputes over jurisdiction between the courts are not allowed. Was figuring out the legal positions Criminal Cassation Court as a part of Supreme Court about limit in view to considering in art. 34 Criminal Procedural Code; questions about sending criminal proceeding from one trial to another which has already been submitted to a certain court, having carried out during the court residence. Having proposed for broad consideration of the matter, having entrusted the court to provide the Criminal Procedural Code with special procedures sending of criminal proceeding from one side to the last in the stage of pre-trial consideration and review of court decisions.

Sign in / Sign up

Export Citation Format

Share Document