scholarly journals The principle of balance in civil procedural relation

Legal Ukraine ◽  
2019 ◽  
pp. 17-23
Author(s):  
Oksana Shutenko
Keyword(s):  
System Development ◽  
Civil Litigation ◽  
Judicial Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Deep Significance ◽  
Judicial Procedures ◽  
Simplified Procedures ◽  
Judicial Procedure ◽  
Procedural Rights

The article is devoted to the study of a new principle of civil procedural law – the principle of balance of civil procedural legal relations. The article contains conclusions about the deep significance of the principle of balance for the effective functioning of the justice system. The analysis of the effect of this principle in simplified procedures of civil proceedings is carried out. We distinguish the principle of the balance of civil procedural relations and understand it as achieving the equilibrium of the specified system – a stable balance of elements of the system in a limited period of time (at this stage of existence). Simultaneously with constancy, any system is characterized by instability as a resource for system development and improvement, for entropy prevention and system catastrophe. The principle of the balance of civil procedural relations is manifested primarily in the fact that the amount of legal interest is directly proportional to the amount of procedural rights conferred on the subject of the process. When applying the simplified procedures of civil litigation, the following is observed: the equilibrium in the judicial process at first glance is broken due to the proper simplification of the judicial procedure, the absence of traditional stages, institutions of civil litigation. Meanwhile, the aforementioned is offset by the speed of consideration and resolution of the case. The principle of the balance of civil procedural relations is of particular importance at the stage of modern lawmaking, when there is a change in outlook and the formation of a new understanding of justice in the civil process, namely, the purpose of civil justice is more widely disclosed. Such conclusions are led by the analysis of the novelties of the Civil Procedure Code of Ukraine – simplified (in comparison with the general lawsuit) civil litigation procedures in which there is one way or another no dispute about the law – there is a weakening or absence of dispute. Key words: principles of civil procedural law, efficiency of legal proceedings, simplified judicial procedures, principle of balance, civil procedural legal relations.

scholarly journals The principle of balance in civil procedural relations

2020 ◽  
pp. 153-162
Author(s):  
Oksana Shutenko
Keyword(s):  
System Development ◽  
Civil Litigation ◽  
Judicial Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Deep Significance ◽  
Judicial Procedures ◽  
Simplified Procedures ◽  
Judicial Procedure ◽  
Procedural Rights

The article is devoted to the study of a new principle of civil procedural law – the principle of balance of civil procedural legal relations. The article contains conclusions about the deep significance of the principle of balance for the effective functioning of the justice system. The analysis of the effect of this principle in simplified procedures of civil proceedings is carried out. We distinguish the principle of the balance of civil procedural relations and understand it as achieving the equilibrium of the specified system - a stable balance of elements of the system in a limited period of time (at this stage of existence). Simultaneously with constancy, any system is characterized by instability as a resource for system development and improvement, for entropy prevention and system catastrophe. The principle of the balance of civil procedural relations is manifested primarily in the fact that the amount of legal interest is directly proportional to the amount of procedural rights conferred on the subject of the process. When applying the simplified procedures of civil litigation, the following is observed: the equilibrium in the judicial process at first glance is broken due to the proper simplification of the judicial procedure, the absence of traditional stages, institutions of civil litigation. Meanwhile, the aforementioned is offset by the speed of consideration and resolution of the case. The principle of the balance of civil procedural relations is of particular importance at the stage of modern lawmaking, when there is a change in outlook and the formation of a new understanding of justice in the civil process, namely, the purpose of civil justice is more widely disclosed. Such conclusions are led by the analysis of the novelties of the Civil Procedure Code of Ukraine - simplified (in comparison with the general lawsuit) civil litigation procedures in which there is one way or another no dispute about the law – there is a weakening or absence of dispute. Key words: principles of civil procedural law, efficiency of legal proceedings, simplified judicial procedures, principle of balance, civil procedural legal relations.

scholarly journals Development of Simplified Procedures in Civilistic Process in the Context of Legislative Reforms

2020 ◽  
pp. 103-115
Author(s):  
Tatyana V. Sakhnova
Keyword(s):  
Law Enforcement ◽  
21St Century ◽  
Public Law ◽  
General Regularity ◽  
Procedural Law ◽  
Codes Of Practice ◽  
Legislative Reforms ◽  
Judicial Procedures ◽  
Simplified Procedures ◽  
Judicial Procedure

The article is devoted to the problems connected with the unification of a number of judicial procedural and non-procedural codes of practice in modern civilistic process of Russia. These problems are reviewed in terms of ontology, taking into account new legislative statutes of 2018-2019. Unification and differentiation of judicial procedures is a twin-track trend of the civilistic process, stemming from globalization of the procedural in the 21st century. At the same time, the general regularity is achieved in different ways depending on the type of process and its national realisation. The judicial procedures, which have a structural specificity in relation to the general, “extended” judicial procedure within the civilistic procedural form, cannot be reduced to simplified procedures and simplification of the process only, but rather these procedures testify to the complication of the civilistic process. This article substantiates the thesis that an increase in the coefficient of applied efficiency of the civilistic process can only be implemented through reaching a balance of private law and public law in judicial procedures. The conclusions regarding the essence of court procedures and the methodology of their application in the procedural law are meaningful as regards lawmaking and law enforcement activities

scholarly journals Ewolucja cywilnych postępowań nakazowych i upominawczych w kierunku respektowania wymogów demokratycznego państwa prawnego

2021 ◽  
Vol 43 (3) ◽  
pp. 301-307
Author(s):  
Łukasz Goździaszek
Keyword(s):  
Necessary Condition ◽  
Judicial Control ◽  
The Public ◽  
Authoritarian State ◽  
Civil Process ◽  
Democratic State ◽  
Civil Proceedings ◽  
Court Proceedings ◽  
Simplified Procedures ◽  
Procedural Rights

Although writ proceedings in the Polish civil proceedings have been in operation since the beginning of the modern Polish civil process, there are still controversies in the aspect of fairly structured court proceedings. The defendant may be convinced that their procedural rights have been violated. It is a consequence of considering the case without prior notification of the defendant about the initiation of the proceedings. In such an approach, the judiciary may be perceived as not respecting the standards of a democratic state ruled by law. At the same time, to be closer to the notions of a totalitarian or authoritarian state, because it is not the procedural rights of an individual that are primary, but the effectiveness of the authorities’ actions. However, the concerns about the order for payment mechanism are unfounded as long as the model in which the order for payment is applied complies with the necessary requirements. First, the public authority deciding the case should have the attribute of impartiality. It is not necessary that payment orders are issued by a court. However, if the case is not heard by the court, the judicial control of such decisions is necessary. Second, the evidence should not be assessed. The presentation of specific evidence may, however, be a necessary condition for issuing an order for payment. The issue of the public body examining cases is related to the issue of evidentiary proceedings. These two elements define the nature of the order for payment by defining a procedure model. Finally, it should be pointed out that the order mechanism in a democratic state ruled by law should only supplement the examination of cases in ordinary proceedings (or separate proceedings distinguished by the party types). If the number of cases examined in separate proceedings is significant, and even more so if this way of dealing with cases prevails, ordinary proceedings may be merely an illusion. If in a significant number of cases simplified procedures leading to issuing an order for payment are applied, procedural guarantees related only to ordinary proceedings are irrelevant in such cases.

4. Overriding Objective and Human Rights

2021 ◽  
pp. 32-47
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

4. Overriding Objective and Human Rights

2019 ◽  
pp. 32-47
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

4. Overriding Objective and Human Rights

2020 ◽  
pp. 32-47
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

4. Overriding Objective and Human Rights

2018 ◽  
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

4. Overriding objective and human rights

2016 ◽  
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

scholarly journals Prevention of Abuse of Procedural Rights and Stimulation of Parties Good Faith of Conduct

2020 ◽  
pp. 117-127
Author(s):  
Oleksandra KOROL
Keyword(s):  
Good Faith ◽  
Civil Justice ◽  
Procedural Law ◽  
European Court ◽  
Civil Proceedings ◽  
The Supreme Court ◽  
Bona Fide ◽  
Procedural Rights ◽  
First Time ◽  
Stimulation Of

In this article, a comparative legal and empirical study of the principle of good faith in law and the prevention of abuse of procedural rights as one of its element are conducted. These phenomena should be recognized as relevant objects for research, given that in civil procedural Ukraine specific measures were taken to prevent abuse of procedural rights for the first time, during the reform of the legislation in 2017, and unfortunately such actions occur as a habits of legal reality of Ukraine. in court practice quite often. Given the need to ensure effective protection of rights through timely and proportionate consideration of the case by the courts, their proper application is essential for science and practice. The article analyzes the provisions of the civil procedural law of Ukraine, where for the first time this institute was reflected in the legislation in the wording of 2017, as well as other states (Italy, England and Wales, France, Australia). It also analyzed the practice of the Supreme Court of Ukraine, which reveals the concept of bona fide as a principle of law, as well as examines the institute of abuse of procedural rights as one of the manifestations of implementation of this principle, specific manifestations of unfair behavior of participants of the process, taking into account the practice of the European Court of Human Rights. The analyzed provisions of the civil procedural legislation, which stipulates the ways of overcoming the abuse of procedural rights, as well as the doctrines, allowed the conclusions to substantiate more rational approaches to the prevention of abuse of procedural rights in civil proceedings. In particular, ensuring the cooperation of judges and parties and defining their roles not from the standpoint of antagonistic approaches, but based on the ideas of sustainable development, will overcome the major pressing problems of modern civil justice. The introduction of rational measures to prevent abuse of procedural rights and to encourage parties to act in good faith will ensure the efficiency and accessibility of justice. Keywords: civil justice, principle of good faith, the principle of court cooperation with the parties, abuse of procedural rights, reconciliation of the parties.

scholarly journals Legal regulation of the institution of the partiesfrom the standpoint of the principle of balance of civil procedural legal relations

2021 ◽  
pp. 90-102
Author(s):  
Оksana Shutenko
Keyword(s):  
Modern Science ◽  
Legal Regulation ◽  
Legal Anthropology ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Starting Point ◽  
Legislative Regulation ◽  
The Subject ◽  
Procedural Rights

The modern science of civil procedural law is experiencing a new stage of understanding the institution of the parties, which is associated with the study of the principle of balance of civil procedural law. The basis of non-priority participation in the process of the plaintiff and the defendant determines the legislative regulation of the institution of the parties. This rule should be considered as one of the manifestations of a fair trial, as it is a manifestation of the balance of interests of the parties during the proceedings. In the spirit of this principle, it is proposed to improve the procedures for involving accomplices and replacing an improper party in civil proceedings. The principle of the balance of civil procedural legal relations is, first, that the amount of legal interest of the subject of the process is directly proportional to the scope of his procedural rights. Thus, the purpose of civil process - restoration of the broken right is reached. Meanwhile, the legislator does not always manage to comply with the relevant legal regulations. In particular, the rules relating to the institution of procedural complicity and replacement of the improper party. The mistake of the legislative regulation of this mechanism is, in our opinion, a misunderstanding of the principle of equality of arms: the court cannot involve the co-plaintiff, and therefore cannot involve the co-defendant. The different nature of the institutions of the plaintiff and the defendant does not allow the same approach to legal regulation. This inequality is compensated by other principles, rules and institutions of civil procedural law. But the starting point is that at the beginning of the case the plaintiff attacks, initiates the process, and the defendant is involved in the process. Keywords: civil process, parties of civil process, principle of balance, legal anthropology, procedural complicity, replacement of improper party.

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