scholarly journals An approach between the institutional capacity of the Courts of Audit and the regimen of precedents and summulas from the Civil Procedure Code

2021 ◽  
Vol 42 (88) ◽  
pp. 1-32
Author(s):  
Caroline Müller Bitencourt ◽  
Carlos Ignacio Aymerich Cano ◽  
Jonas Faveiro Trindade
Keyword(s):  
Decision Making ◽  
Theoretical Work ◽  
Case Law ◽  
Civil Procedure ◽  
Institutional Capacity ◽  
Legal Analysis ◽  
Procedure Code ◽  
Deductive Method ◽  
Interpretive Theory ◽  
The Relationship

The institutional capacity of the courts of audit as makers and applicants of precedents and summulas (restatement of case law) is investigated to answer the following: is it possible a mutually beneficial approach to the decision standards regimen from the Civil Procedure Code-CPC, as well as a productive dialogue with the Law of Introduction to the Brazilian Legal Statutes (Lei de Introdução às normas do Direito Brasileiro-LINDB)?. The objective of the work is to analyze, from the abstract and concrete institutional capacities of the audit courts, the aptitude for the formation and application of decision-making standards. To do so, Ronald Dworkin's interpretive theory was chosen, especially because it is believed that precedents are intertwined in a discursive plot, when every single interpreter commits to analyzing past decisions, in a reflexive way, to decide in the present and, at the same time, anticipating the directions for the future of the decision, which is made in the here and now. The hypothesis is that the audit courts have the potential ability to form and apply precedents and summulas, arising from the exercise of their constitutional powers, but that it is also necessary to develop a concrete capacity to form and apply controlling decision patterns. In this way, it allows for a better understanding of the relationship between the decisions of the audit courts and the judicial ones. It is a theoretical work, of legal analysis of the subject, using the deductive method, starting from a general analysis to reach the institutional capacity of audit courts for the formation and application of decision-making standards.

scholarly journals Problematical Aspects of Current Legal Regulation of Appellate Review and their Solution in Suggested Amendment of Czech Civil Procedure Code

2011 ◽  
Vol 11 (1) ◽  
pp. 33-43
Author(s):  
Klára Hamuľáková ◽  
Jana Křiváčková
Keyword(s):  
Decision Making ◽  
Case Law ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Procedure Code ◽  
Conceptual Problems ◽  
Civil Cases

Abstract Th e aim of this article is to point to insufficiencies of the current legal regulation of the appellate review proceeding in civil cases, when the court competent to deal with the appellate reviews is not able to fulfill its function of a unifier of case law and the defender of lawfullness of decision-making any more. Th e proposed amendment of the Civil procedure code which is being prepared by the Ministry of Justice reacts to many of these insufficiencies. In the article we have only focused on crucial conceptual problems of the proposed legal regulation and we have avoided other deficiencies requiring deeper analysis and the knowledge of Czech legal regulation.

Besondere Typen der Widerklage

2019 ◽  
Author(s):  
Annalena Hanke
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Third Party ◽  
Procedural Law ◽  
Procedure Code ◽  
The Law

This highly significant work in terms of litigation practice critically examines the case law of Germany’s highest courts with regard to third-party counterclaims. In particular, it discusses the recognition of third-party counterclaims as an independent institution of procedural law. This work solves the problems that arise in this respect, above all the question of local jurisdiction, using the existing legally regulated instruments of procedural law. Due to the actual lack of the presupposed loophole in the regulations, it therefore calls into question both the analogous application of § 33 of Germany’s civil procedure code (Zivilprozessordnung) and the judicial development of the law in this area.

Necessity as a Defence to Murder: An Anglo-Canadian Perspective

2014 ◽  
Vol 78 (4) ◽  
pp. 341-362 ◽  
Author(s):  
Birju Kotecha
Keyword(s):  
Decision Making ◽  
Case Law ◽  
Comparative Perspective ◽  
Decision Making Process ◽  
Moral Conflicts ◽  
Canadian Perspective ◽  
English Law ◽  
The Relationship ◽  
Theoretical Foundations

The article explores the formulation of the criminal defence of necessity in the context of murder cases. The discussion will provide a medium through which to critique necessity's theoretical foundations which are classified either as one of justification or excuse. It is this highly problematic distinction which will be exposed as not only having been overlooked in case law but is futile where necessity is considered as providing a murder defence. Such a theoretical dichotomy does not reflect the competing rights and values present in the case law, and nor does it align with the decision-making process taken by judges in cases where they resolve such moral conflicts. What is present is a contextual form of necessity that frames and recognises the circumstances the actors are placed in. The analysis argues for a recategorisation of necessity into a narrow fact-driven category beyond the abstract duality of justification or excuse. To support the view of a situation-led approach, necessity is exposed as omitting a critical doctrinal element; that of the imminence of harm within a broader recognition that the situation presents an emergency. Adopting a comparative perspective, the article analyses why the emphasis placed on the imminence of harm found in Canadian jurisprudence ought to be reflected in English law. The rationale for this is to fully reflect the agony of the circumstances that underpin the scope of necessity in murder situations and to ensure that actors in such tragic situations have their rights secured as far as possible, before allowing the defence to apply. One of the final implications of the article is a reconsideration of the relationship between necessity and duress of circumstances arguing that a reappraisal of their convergence is required. The article's argument leaves the juridical precept that duress is not available as a defence to murder on an insecure foundation and in need of judicial re-evaluation.

scholarly journals REHABILITATION OF THE DEBTOR BEFORE THE OPENING OF BANKRUPTCY PROCEEDINGS

2021 ◽  
pp. 96-101
Author(s):  
V.V. Dutka ◽  
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Lower Court ◽  
Rehabilitation Plan ◽  
Procedure Code ◽  
Scientific Doctrine

Case Law shows that most bankruptcy cases end in liquidation, and restoring the debtor’s solvency and maintaining it as a business entity is the exception rather than the rule. Such trends clearly do not contribute to the development of the economy, so the development of recovery procedures applicable to the insolvent debtor seems relevant. One such procedure, which has appeared relatively recently in Ukrainian Law, is the pre-trial reorganization procedure. The purpose of the article is to analyze the provisions of current legislation governing the reorganization of the debtor before the opening of bankruptcy proceedings, study current issues that arise in the practice of applying the relevant provisions of the Civil Procedure Code of Ukraine, and set out their views on the effectiveness of pre-trial reorganization. The case law on appealing the approval of the pre-trial rehabilitation plan, namely the appeal of the rehabilitation plan by creditors who did not participate in the voting or who voted against the approval of the pre-trial rehabilitation plan, is analyzed. Bankruptcy cases in the scientific doctrine are divided into two categories: 1) the bankruptcy case itself; 2) related cases, which are considered in the order of claim or declaration proceedings (invalidation of auctions, contracts, etc.). The author argues the possibility of supplementing this division of bankruptcy cases with another, third category — cases of pre-trial reorganization. It is emphasized that the Code of Ukraine on Bankruptcy Procedures provides for two types of reorganization: reorganization prior to the opening of bankruptcy proceedings (pre-trial reorganization) and reorganization as a court procedure applied to an insolvent debtor within a bankruptcy case. Both pre-trial reorganization and "judicial" reorganization pursue a single goal — to restore the debtor’s solvency and preserve it as a business entity. According to the results of the study, the author concludes that pre-trial rehabilitation has a number of advantages, which include: efficiency; profitability for creditors; write-off of a significant portion of tax debt and other mandatory payments: lower court costs in the form of court fees for both the debtor and creditors.

ON THE NATURE OF RELATIONSHIPS FOR RECONCILIATION AND THE DESIRABILITY OF THEIR REGULATION IN CIVIL PROCEDURAL CODES

2021 ◽  
Vol 11 (3) ◽  
pp. 109-131
Author(s):  
S.S. KAZIKHANOVA
Keyword(s):  
Russian Federation ◽  
Civil Procedure ◽  
Federal Law ◽  
Procedural Law ◽  
Procedure Code ◽  
Arbitration Procedure ◽  
The Subject ◽  
The Russian Federation ◽  
Administrative Code ◽  
The Relationship

The article analyzes the changes made to the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and the Administrative Code of the Russian Federation by the Federal Law of 26 July 2019 No. 197-FZ, related to the regulation of conciliation procedures. The question is raised as to whether the civil procedural codes should regulate relations on reconciliation and to what extent. Agreement is expressed with those authors who believe that, by their nature, the relations that develop in conciliation procedures between its participants (including in cases where the conciliation procedure is directed by a judge) are not procedural and are not part of the subject of civil procedural law. The non-procedural nature of the relationship between the judicial conciliator and the court in the procedure of judicial conciliation under the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and the Administrative code of the Russian Federation is substantiated. It is concluded that due to the qualitatively different nature of reconciliation relations from civil procedural relations, as well as their lack of connection with the resolution of a civil case in a certain system of guarantees (civil procedural form), there is no place for articles on individual conciliation procedures among procedural norms. In this regard, it is proposed to either exclude them, or, as an option, transfer them to the appendix to the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Administrative code of the Russian Federation (just as in the Civil Procedure Code of 1964 there was an appendix, in particular, about the arbitration court).

The New Civil Procedure Code and the Challenges for the Brazilian Legal Education System

2015 ◽  
Vol 15 (2) ◽  
pp. 116-120 ◽  
Author(s):  
Renê Francisco Hellman ◽  
Mariana Cesto
Keyword(s):  
Decision Making ◽  
Legal System ◽  
Education System ◽  
Legal Education ◽  
Interdisciplinary Approach ◽  
Civil Procedure ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Procedure Code ◽  
New Challenges

AbstractThis article by Renê Francisco Hellman and Mariana Cesto aims to analyse how the New Civil Procedure Code will influence the Brazilian legal education system. The new Code is opposed to ‘surprise decisions’ and emphasizes the need for substantial opportunity to contradict the opponent's submissions. This will constrain judicial decision-making. On that basis, new challenges appear for teaching, and they must be faced and solved in order to make the new prescriptions effective. The proposal is to use an interdisciplinary approach to reformulate the legal education system. This would effectively provide better support to future lawyers regarding their development, making them better qualified to operate within the legal system.

scholarly journals COURT FEES RELATED TO THE COURT ORDER FOR THE COMPETENT AUTHORITIES OF FOREIGN STATES

2020 ◽  
pp. 23-26
Author(s):  
T. Korotenko
Keyword(s):  
Competent Authority ◽  
Case Law ◽  
Civil Procedure ◽  
Official Language ◽  
Court Order ◽  
Interested Party ◽  
Foreign State ◽  
Procedure Code ◽  
Court Orders ◽  
The Right

The article explores the court fees related to the execution of court orders, which are addressed to the competent authorities of foreign states in civil cases with a foreign element. The Civil Procedure Code of Ukraine does not state that the costs associated with the execution of court orders, addressed to the competent authorities of foreign states, are court fees. Therefore, the questions on which of the above fees can be attributed to the courts fees and the procedure for their reimbursement are raised. The importance of clarifying these issues requires the application of the uniform approaches to such cases consideration in Ukrainian courts. It is determined as the main purpose of this article. The case-law shows that in most cases where a court needs to apply to a competent authority of a foreign state, the person concerned must pay for the certified translation of the statement of claim and the attached documents into the official language of the requested state and pay for service of documents. In our conclusions, we propose to divide the court fees associated with the execution of court orders addressed to the competent authorities of foreign states, depending on the procedural actions that are being carried out, and to include the fees associated with the execution of court orders addressed to the competent authorities of foreign states, to the fees associated with the case, namely to the fees associated with other procedural acts necessary to the case consideration or to prepare for its consideration, which will ensure the right of the interested party to reimburse such fees in future.

scholarly journals Criminogenic role of “private patronage” as a corruption-causing factor in the judicial act in light of the activity of modern “mafia” groups

2021 ◽  
pp. 190-217
Author(s):  
Nadezhda Pavlovna Novitskaya
Keyword(s):  
Decision Making ◽  
Case Law ◽  
Legal Regulation ◽  
Judicial System ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation ◽  
The Government ◽  
Definition Of

This article explores the causes for the emergence of “corruption-causing factors” in judicial acts, indicates correlation between “corruption-causing factors” and “private patronage” on the part of mafia institution (modern mafia groups), which is the highest “specific economic enterprise or industry that produces, encourages, and sells private patronage”, including interference in justice through corruption and bribery. The case law on the topic is analyzed. The object of this research is the activity of judges in assessing legally valid circumstances in relation to the responsibility of judges. The subject of this research is the norms of Russian legislation that regulate the activity of judges in assessing legally valid circumstances, as well as the texts of judicial acts on claims under the Article 125 of the Criminal Procedure Code of the Russian Federation, civil and administrative cases of the courts of St. Petersburg, and the responsibility of judges. The author notes the absence of definition of “corruption-causing factor” in the judicial act, its characteristics, responsibility of the judges for decision-making that contain “corruption-causing factor”, effective judicial bodies that “investigate” the disciplinary misconduct of judges. It is underlined that the implementation of the institution of investigative judge was anticipatory. The scientific novelty is substantiated by the fact that this article is first to outline the concept of “corruption-causing factor” in the judicial act as the grounds for bringing the judge to disciplinary responsibility. The conclusion is made that this is a comprehensive issue; thus, the longer it would take to solve the questions of effective legal regulation of the mechanism of judicial responsibility, the more it would augment the risks of proliferation of the “corruption-causing factor” in the judicial system, which destroys confidence in the government authorities and deteriorates the state from within.

Part 2 Specific Issues of Arbitration in Brazil, 3 Consolidation of Arbitration by the Brazilian Courts: STF and STJ

2020 ◽  
Author(s):  
Cueva Ministro Ricardo Villas Bôas
Keyword(s):  
Public Policy ◽  
Dispute Resolution ◽  
Case Law ◽  
Legal Framework ◽  
Civil Procedure ◽  
Commercial Arbitration ◽  
Procedure Code ◽  
New Public ◽  
Alternative Means ◽  
Federal Supreme

This chapter traces the evolution of case law regarding arbitration in Brazil. Before the enactment of the Brazilian Arbitration Law (BAL), arbitration was not taken seriously in Brazil because the applicable norms of the Civil Code and of the Civil Procedure Code created mounting obstacles, which prevented commercial arbitration from flourishing. The new statute of 1996 changed this completely and introduced an arbitration friendly legal framework. In 2001, the Federal Supreme Court (STF) upheld the constitutionality of the BAL. From then on, the Superior Tribunal of Justice (STJ), the court of third instance, has played a key role in defining clear and predictable rules about arbitration. The success of arbitration in Brazil has had a significant impact on the reform of the Civil Procedure Code, which was enacted in 2015. The new Code embraced arbitration as central part of a new public policy directed to the promotion of alternative means of dispute resolution and the fostering of a multi-door courtroom system. The increasing relevance of arbitration for the resolution of business disputes in Brazil might also explain the adoption of a system of mandatory pre-trial hearing purported to stimulate the parties to use mediation and/or conciliation to solve their conflict.

scholarly journals Colegialidade, Integridade e Deliberação: os Precedentes e o Contraditório no Novo CPC

2016 ◽  
Vol 11 (1) ◽  
Author(s):  
Rafael Dilly Patrus
Keyword(s):  
Decision Making ◽  
Deliberative Democracy ◽  
Decision Process ◽  
Civil Procedure ◽  
Minas Gerais ◽  
Procedure Code ◽  
De Se ◽  
The Way

COLEGIALIDADE, INTEGRIDADE E DELIBERAÇÃO: OS PRECEDENTES E O CONTRADITÓRIO NO NOVO CPC  COLLEGIALITY, INTEGRITY AND DELIBERATION: JUDICIAL PRECEDENTS AND ADVERSARIAL PRINCIPLE IN THE NEW BRAZILIAN CIVIL PROCEDURE CODE  Rafael Dilly Patrus* RESUMO: Na conjuntura que se arma em torno do novo Código de Processo Civil, a questão relativa à forma como os tribunais decidem é elevada a uma posição de enorme relevância. O presente trabalho consiste em reflexão a respeito da ideia de deliberação para a produção e a prolação de decisões jurisdicionais colegiadas, em vista do sistema de precedentes vinculantes que se pretende implementar no ordenamento brasileiro. Conclui-se que, a despeito da necessidade de se conferir maior unidade aos acórdãos proferidos pelos tribunais, não se pode esvaziar a própria gênese do procedimento de tomada de decisões, o que abrange (ou deve abranger) não só o tipo de resultado e o contexto decisório, mas especialmente a intensidade das preferências daqueles que decidem. A divergência no curso da decisão não significa desatenção ao dever de integridade no decidir. PALAVRAS-CHAVE: Sistema de precedentes vinculantes. Colegialidade jurisdicional. Integridade. Democracia deliberativa. ABSTRACT: In light of the new Brazilian Civil Procedure Code, the question concerning the way courts decide is elevated to a position of enormous importance. This paper consists in a reflection on the idea of the role of deliberation in collegiate jurisdictional decisions, in view of the binding judicial precedents system to be implemented in Brazil. The conclusion is that, despite the need to bring greater unity to courts’ decisions, the essence of the decision-making procedure cannot be emptied, since it includes (or should include) not only a kind of decision and the decision process, but especially the intensity of the preferences expressed by those making the decision. Divergences in the decision process does not mean lack of attention to the duty to decide with integrity. KEYWORDS: System of binding precedents. Jurisdictional collegiality. Deliberative democracy. SUMÁRIO: Introdução. 1 O Sistema de Precedentes no Novo Código de Processo Civil. 2 Os Precedentes e o Perigo da Fuga da Jurisdição. 3 Os Precedentes e o Contraditório. Conclusão. Referências.* Mestre em Direito pela Universidade Federal de Minas Gerais (UFMG). Professor substituto de Direito Constitucional da Faculdade de Direito da Universidade Federal de Minas Gerais (UFMG), entre os anos de 2014 e 2015. Consultor Legislativo na Assembleia Legislativa do Estado de Minas Gerais. Vice-Presidente da Comissão de Estudos Constitucionais da Ordem dos Advogados de Minas Gerais (OAB-MG).

Sign in / Sign up

Export Citation Format

Share Document