scholarly journals The difference between the power of res judicata and the authority of res judicata

2021 ◽  
pp. 8-13
Author(s):  
Ion Caraman ◽  
Keyword(s):  
Court Decision ◽  
Effective Protection ◽  
Res Judicata ◽  
Legitimate Interests ◽  
The Difference

The court’s decision is a final product of the judicial activity, aimed to ensure the protection of the persons contested rights, freedoms or legitimate interests. However, in order to establish an effective protection, it is important that the court decision is final has the authority of res judicata. In specialized literature, configured two concepts regarding res judicata. In this article, are highlighted the criteria that delimit this two concepts and the practical and theoretical necessity of such delimitation.

Applicability of the Excess of Power Doctrine to the ICJ and Arbitral Tribunals

2018 ◽  
Vol 17 (1) ◽  
pp. 251-270
Author(s):  
Dai Tamada
Keyword(s):  
South China Sea ◽  
South China ◽  
Ad Hoc ◽  
Controversial Issues ◽  
Arbitral Tribunal ◽  
International Courts ◽  
Res Judicata ◽  
The Icj ◽  
Treaty Interpretation ◽  
The Difference

Abstract The problem with regard to the excess of power doctrine, one of the most controversial issues in the procedure of international courts and tribunals, was invoked in certain recent cases, such as the Bosnian Genocide case and the South China Sea case. To solve this problem, it is necessary to examine two relevant legal notions: the principle of competence-competence; and the principle of res judicata. First, the principle of competence-competence has been regarded as a relative power of arbitral tribunals in the sense that it is limited by the application of the rules of treaty interpretation. This means that there are possibilities, in the substantive sense, of an excess of power even when the principle of competence-competence is applied. Second, the international jurisprudence has shown that the force of res judicata can be excluded by a post-award agreement of the parties. Thus, it is possible, substantively and procedurally, to examine the possibility of an alleged excess of power having been committed by an arbitral tribunal and this understanding has been accepted by the ICJ in its jurisprudence. On the contrary, the ICJ has denied the possibility of an excess of power by itself, on the basis of the absolute power of competence-competence and the principle of res judicata. Here, several problems remain unsettled with regard to the difference between the possibility of an excess of power by ad hoc arbitral tribunals and the possibility of an excess of power by the ICJ.

scholarly journals Realization of res judicata principle in civil proceedings: the experience of foreign countries

2020 ◽  
pp. 220-225
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Legal Certainty ◽  
Res Judicata ◽  
Foreign Countries ◽  
Negative Effect ◽  
The Subject

  The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.  The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved. It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties. In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.

scholarly journals The relationship between fiduciary ownership as a means of ensuring the fulfilment of the obligation and pledge

2021 ◽  
pp. 110-117
Author(s):  
A. Riabchinska
Keyword(s):  
Functional Relationship ◽  
Civil Law ◽  
Third Party ◽  
Court Decision ◽  
The Difference ◽  
Judicial Procedure ◽  
Relationship Of ◽  
Security Property ◽  
The Relationship

The relationship between fiduciary transfer of ownership for security purposes and pledge as the ways to ensure the fulfilment of the obligation is examined in the article. The usefulness of the distinction of mentioned ways of ensuring the fulfilment of the obligations as two essentially different rights in nature is substantiated. The article endorses the feasibility to qualify a pledge as a proprietary right to another’s property. The article reveals that according to national civil law the pledge is a quasi – ownership right unlike the fiduciary transfer of ownership for security purposes which expressly designated by law as a kind of ownership for the property. It is suggested that the pledge and the fiduciary ownership for security purposes should be related as special and model right accordingly. It is proved that the difference between mentioned proprietary ways of ensuring the fulfilment of the obligation are: functional relationship of primary obligation (pledge is accessory means of ensuring the fulfilment of the obligation which shall be terminated after termination of primary obligation whereas fiduciary ownership is non – accessory thus it is not terminated immediately after termination of primary obligation); degree of autonomy of security estate including bankruptcy proceedings (to a fiduciary ownership object, separated from personal fiduciary’s property, does not apply the moratorium on satisfaction of creditors’ claims, the property secured by fiduciary ownership is not part of the debtor’s liquidation mass, by contrast the pledged object is part of the liquidation mass and falls within the scope of such moratorium); foreclosure procedure (recovery of pledge object as a rule is done on execution by a court decision, as opposed to fiduciary ownership for security purposes which allow fiduciary to recovery the security property without reference to judicial procedure through the sale it to any third party and makes it possible to take ownership of it without restrictions on use and disposal).

scholarly journals Problematic issues of appealing against the decision of the investigating judge, the court on sending a person to a medical institution for a psychiatric assessment

2021 ◽  
pp. 328-334
Author(s):  
O.I. Tyshchenko
Keyword(s):  
Court Decision ◽  
Medical Institution ◽  
Criminal Proceedings ◽  
Psychiatric Assessment ◽  
Procedural Law ◽  
Legitimate Interests ◽  
Forensic Psychiatric ◽  
Constitutional Right ◽  
The Right ◽  
Judicial Protection

The article reveals the problem of appealing against the decision of the investigating judge, the court on sending a person to a medical institution for a psychiatric assessment, in particular: a) it is stated that sending a person to a medical institution for assessment is a form of restriction of his or her constitutional right to liberty, which is equivalent to detention. It is proposed to amend the Criminal Procedure Code (hereinafter – the CPC), which provides for the right to a separate appeal against a court decision on sending a person to a medical institution for assessment, decided in court before the court decision on the merits. The lack of possibility to appeal against such a court decision creates a potential danger of illegal restriction of a person’s constitutional right to liberty and security during their placement in a medical institution for the inpatient forensic psychiatric assessment (hereinafter – the IFPA), which violates the essence of the right to judicial protection; b) it is proved that the decision of the investigating judge, the court to send a person to a medical institution for the IFPA may limit not only the rights of the suspect, accused, but thus also affect the legitimate interests of others who do not have procedural status in criminal proceedings. It is determined the expediency of granting the right to appeal the said court decision to the victim and other persons whose interests it concerns; c) it is noted that the mechanism of prolongation of the term of the IFPA is not regulated in the domestic criminal procedural law, however judges continue it in the absence of a legislative basis. Therefore, it is expressed the scientific position on the rationality of appealing not only the decision of the investigating judge, but also the court’s decision to extend the term for sending a person to a medical institution for assessment. 

scholarly journals PROTECTION OF WOODEN MATERIALS AGAINST BIOLOGICAL ATTACK BY USING NANOTECHNOLOGY

2015 ◽  
Vol 55 (2) ◽  
pp. 101-108 ◽  
Author(s):  
Michal Havrlik ◽  
Pavla Ryparová
Keyword(s):  
Trichoderma Viride ◽  
Agar Plate ◽  
Model Organism ◽  
Final Concentration ◽  
Natural Material ◽  
Effective Protection ◽  
Rotating Electrode ◽  
Biological Attack ◽  
The Difference ◽  
Biological Corrosion

This article is focused on protection of wooden materials by using nanofibrous textiles with biocidal addition, which continues on the work of a group at the Center for Nanotechnology at the Faculty of Civil Engineering in the CTU. Timber is a natural material which is predisposed for biodegradation and therefore it is essential to study suitable and effective protection against microorganisms. Wood is a material susceptible to biological corrosion and therefore it is necessary to protect it. The study compares biocidal efficiency of polymer solution as a coating and as a layer from nanofiber textiles. We used polyvinyl alcohol (PVA) as a basic polymer which was enriched by substances from commercial Lignofix E – profi, solution of CuSO<sub>4</sub> · 5H<sub>2</sub>O and AgNO<sub>3</sub> and finally colloidal silver as an example of nanoparticles. The final concentration of the biocidal substance was 1 (v/wt)% in fiber. The nanofiber textiles are produced on the device Nanospider NS LAB 500 (Elmarco, CR) on cylinder rotating electrode. The study was divided into two parts, the first being an agar plate test and the second a test on samples from timber. The mixture of mold was used as the model organism. (<em>Alternaria tenuissima, Pochonia bulbiosa, Trichoderma viride </em>and<em> Acremonium sclerotigenum</em>). Comparison of efficiency between the polymer paint and nanofiber textiles showed no difference. The best results were shown by PVA with an addition of substances from the commercial biocidal treatment Lignofix-E Profi on the agar plate. The difference of result was shown on timbre samples, finding that the best results were with treatment by PVA doped by Silver nitrate. The anticipated results were shown by treatment with non-doped PVA, which does not have any fungicidal protective effect.

scholarly journals Recent evolution of jurisdiction in criminal review

2021 ◽  
pp. 46-52
Author(s):  
Tudor Osoianu ◽  
◽  
Ion Chirtoaca ◽  
Keyword(s):  
Court Decision ◽  
Court Decisions ◽  
Res Judicata ◽  
The Subject ◽  
Judicial Errors

A final and irrevocable court decision enjoys the authority of the res judicata. Thus, a settled dispute can no longer, in principle, be the subject of a new trial, with the same object, the same cause and between the same parties. However, judicial errors crept into final court decisions as a result of several omissions may lead to the resumption of the trial in order to find out the truth. Such a mechanism is governed by the extraordinary remedy of review which is a retraction and at the same time a procedural means by which final judgments are challenged and has as its primary purpose the correction of serious errors.

scholarly journals Some issues of consideration by arbitration courts of cases arising from financial legal relations

2020 ◽  
pp. 52-60
Author(s):  
A. A. Solovyov
Keyword(s):  
Moscow Region ◽  
Private Law ◽  
Effective Protection ◽  
Judicial Practice ◽  
Relevant Field ◽  
Legitimate Interests

The article examines the general problems associated with the consideration by arbitration courts of cases in the field of financial law. Using the example of the Moscow Region Arbitration Court, the author identifies the main categories of such disputes, and also dwells on some of the problems and trends that are relevant to them. So, attention is paid to cases arising from tax and budgetary legal relations, the element of “financial publicity” in private-law disputes related to the involvement of state authorities authorized in the relevant field to participate in their consideration is analyzed. In addition, the work outlines the key areas of work in the study of judicial practice in relation to cases considered by arbitration courts arising from financial legal relations, which, along with a thorough study of this branch of law, allows for the effective protection of the rights and legitimate interests of participants in economic disputes in arbitration proceedings.

scholarly journals Modern Problems of Building the Russian Model of the Administrative Process: A Review of the All-Russian Scientific-Practical Conference

2021 ◽  
Vol 18 (2) ◽  
pp. 110-127
Author(s):  
Yu. P. Solovey
Keyword(s):  
Current Model ◽  
Administrative Process ◽  
Russian Scientific ◽  
Foreign Countries ◽  
Common Opinion ◽  
Legitimate Interests ◽  
The Difference ◽  
Scientific Practical ◽  
Russian Model ◽  
Practical Conference

The review contains the abstracts of the participants of the All-Russian scientific-practical conference “Modern problems of building the Russian model of the administrative process”, held on June 4, 2021 at the Siberian Law University (Omsk) and being the next stage in the development of the discussion of domestic administrative law scholars about the current model of the Russian administrative process, its concept, types,volume and structure, directions for improving the administrative procedural legislation, based on the standards of a legal state and taking into account the experience of foreign countries. Despite the difference in approaches to understanding the administrative process, the theoretical construction of its model, the conference participants expressed a common opinion about the urgent need to develop and adopt legislative acts that ensure an appropriate level of proceduralization of administrative activities and, accordingly, reliable protection of the rights and legitimate interests of citizens and organizations in the field of their relationship with the public administration. 

Some Statements Concerning the "Right to be Born"

Lex Russica ◽  
2021 ◽  
pp. 52-62
Author(s):  
N. N. Tarusina
Keyword(s):  
Legal Status ◽  
Civil Law ◽  
Biological Origin ◽  
Direct Form ◽  
Legitimate Interests ◽  
The Difference ◽  
Broad Interpretation ◽  
The Individual ◽  
The Right ◽  
Special Rights

The paper is devoted to the topical issues related to the implementation of the right of a proto-human (nasciturus, an unborn child) to be born and to the assumptions about the legitimate interests of general and special types consolidated in the legislation of a number of countries (constitutional law, civil law, criminal law). The Russian law protects such interests, at least to some extent, in indirect and direct forms. In the indirect form such interests are protected through the benefits and allowances for pregnant women provided under medical, labor, social security, and family legislation. Motherhood is encouraged through the instruments of financial, tax, housing law, and it is given special protection by criminal and penal legislation. In the direct form interests under consideration are protected through the establishment of opportunities under civil law for inheritance and compensation for the loss of a breadwinner. The author explains the difference between approaches to the problem of a legal status and legal capacity of the nisciturus under foreign and Russian laws. The paper provides for the reflections concerning the right to natural biological origin discussed in the doctrine and adjustment of its elements. Also, the paper examines special rights that, due to their purpose and content, are opposed to the right to be born, namely: the right to terminate pregnancy, the right to sterilization. The author emphasizes that not only the right to be born is limited by the lawmaker for objective and subjective reasons. Separate from this complex of interactions, although in connection with the act of the birth, the author analyzes the circumstances caused by the problem of the birth of a dead child. The author elucidates unsettled regulatory and enforcement decisions associated with the protection of the interests of the parents of such a child. The author focuses on inadmissibility of formal legal application of relevant legislation, on the need for its broad interpretation in favor of humanitarian, fair, ethically balanced enforcement of the right of the individual to private and family life.

scholarly journals PROTECTION OF THE RIGHTS OF THE JUDGMENT CREDITOR IN ENFORCEMENT PROCEEDINGS: CHALLENGES AND PROSPECTS FOR DEVELOPMENT

2020 ◽  
Vol 6 (4) ◽  
pp. 136-141
Author(s):  
E. N. Gubina ◽  
D. V. Davitavyan
Keyword(s):  
Scientific Literature ◽  
Federal Law ◽  
Legal Literature ◽  
Legal Nature ◽  
Legitimate Interests ◽  
The Difference ◽  
Definition Of ◽  
Single Approach ◽  
Object Of Knowledge ◽  
Legal Meaning

Based on the analysis of scientific literature, the paper defines the concept of protection of rights in enforcement proceedings. The article discusses the provisions of the current executive legislation on the protection of the rights of the claimant in enforcement proceedings. The study of the concept of protection of rights and its legal nature is relevant for enforcement proceedings, however, will allow a comprehensive review of special ways to protect the rights of claimants. In the legal literature, you can find different approaches to determining the legal meaning of the term protection of rights. There is no single approach to the definition of protection of rights. The difference in the interpretation of the concept is due to the multidimensional nature of the term and the variety of methodological attitudes of the authors in the study of the object of knowledge. Particular attention is paid to the issue of the possibility of foreclosure on the debtor's only residential premises in order to establish a balance of interests in the framework of enforcement proceedings. To ensure the rights and legitimate interests of the claimant in enforcement proceedings and eliminate gaps in the current enforcement legislation, the authors propose to make amendments and additions to the current legislation, in particular, to the Federal Law On enforcement proceedings.

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